On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-7704-00.
Before Judges A. A. Rodríguez, Lefelt and
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2004
On September 21, 1998, Rosalie Holmes failed to stop at a stop sign and broadsided a 1994 Isuzu Rodeo occupied by Joseph Scrozzo, the driver, and Paul J. Newman, the front-seat passenger, causing the vehicle to turn over onto its roof. As a result of the accident, Newman suffered a fracture of his seventh thoracic vertebra, and is paralyzed from the level of the nipples on his chest, downward.
Prior to the accident, Rosalie Holmes had been baby-sitting for her granddaughter, Kimiesha, at the request of the child's custodial mother, Kim Murphy Holmes, who at the time lived apart from Rosalie Holmes and from Kimiesha's father, Daniel Dean. The baby-sitting took place at the home of Joe and Annette Warren, for whom Rosalie Holmes occasionally provided baby-sitting services. When the accident occurred, Rosalie Holmes was driving Kimiesha to Dean's residence, at his request. Dean had intended to pick up his daughter but had encountered mechanical problems with his car. In addition to the Dean child, Holmes also had as a passenger the six-year-old child of Joe and Annette Warren. The car that Rosalie Holmes was driving was insured with Prudential Property and Casualty Insurance Company under a policy with a per person limit of $50,000.
Following the accident, Newman filed suit seeking damages as the result of his injuries from, among others, Isuzu, Rosalie Holmes, Joseph and Maddalena Scrozzo, Kim Murphy Holmes, Daniel Dean, and Joe and Annette Warren. Newman premised liability on the part of Dean and the other parents on a theory of agency. A settlement was reached between Newman and Isuzu and between Newman and the Warrens for undisclosed amounts, and Newman's action against them was dismissed. Additionally Newman settled with Rosalie Holmes and Kim Murphy Holmes (the Holmes defendants) for the $50,000 policy limit of Rosalie Holmes' insurance. A proof hearing was held to determine the extent of the liability of Dean, who had defaulted.
The transcript of the proof hearing has not been provided as part of the record on appeal, contrary to Rule 2:5-3(b), and as a result, we are unable to determine what proofs were presented on behalf of Newman or what legal arguments were made. However, the transcribed decision of the trial judge discloses, without discussion as to rationale (but see Rule 1:6-2(f)), an award of ten million dollars allocated as follows: 95% jointly to Isuzu and Rosalie Holmes; 4% to Scrozzo; and 1% to Dean. As a consequence, a final judgment against Dean in the amount of $100,000 was entered.
Plaintiff moved for reconsideration on grounds that are not fully disclosed in the record, which, contrary to Rules 2:6-1(a) and 2:5-3(b), fails to contain either the motion papers or a transcript of the hearing on the motion, if one took place. In a written decision dated October 31, 2002, the court granted plaintiff's motion, but allegedly in a sua sponte fashion, it vacated the default judgment against Dean, entering instead a judgment in his favor based upon the court's finding that the release entered between Newman and the Holmes defendants extinguished any liability on the part of Dean, the principal, as the result of his agency relationship with Rosalie Holmes. An order embodying these rulings was simultaneously entered.
Newman has appealed from the court's orders. On appeal, he argues that (1) the release of the Holmes defendants did not operate to extinguish the liability of Dean; (2) the court erred in attributing different percentages of liability to Dean as principal and Rosalie Holmes as agent; and (3) the court erred in assessing a percentage of fault against defendant Isuzu in the absence of any evidence of its liability. We reverse.
At the outset, we express some doubt as to whether the theory of liability employed by Newman in seeking damages against Dean has been or should be recognized in the context presented. We assume that Newman sought to proceed on a theory of gratuitous agency and to hold Dean liable on a theory of respondeat superior, since there is no evidence in the record before us to support a claim that Dean had compensated or planned to compensate Rosalie Holmes for any of her services, and there is no evidence of independent negligence on Dean's part. However, we are unable to discern whether any legal support for the utilization of those theories in this case was proffered at the time that the default judgment was obtained or at any other time. Certainly, nothing in the meager record that has been supplied to us on appeal suggests that any consideration was given to the issue of liability, although the existence of an undefined agency relationship was recognized without further comment by the court.
Given the seemingly novel nature of Newman's theory of recovery, we find that it would constitute an abuse of discretion for the court not to require Newman to demonstrate legal grounds supporting his claim of a right to relief against Dean. Douglas v. Harris, 35 N.J. 270, 276-81 (1961) (discussing power of court to require proof of liability); Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 183 (App. Div. 1993) (a successful plaintiff seeking a default judgment can be required to furnish some proof on the merits to show entitlement to the relief demanded); Edelstein v. Toyota Motors Distributors, 176 N.J. Super. 57, 63-64 (App. Div. 1980) (vacating default judgment when plaintiff, seeking to revoke his acceptance of a car, had presented no proof that he had contracted with the manufacturer or that the distributor was an agent of the manufacturer); Williams v. Page, 160 N.J. Super. 354, 369 (App. Div. 1978) (trial judge had discretion to require proof of liability); Metric Investment, Inc. v. Patterson, 98 N.J. Super. 130, 133 (Law Div. 1967) (the entry of default does not necessarily obviate the obligation of plaintiff to furnish proof on the issue of liability), aff'd 101 N.J. Super. 301 (App. Div. 1968). Cf. also Prickett v. Allard, 126 N.J. Super. 438, 440 (App. Div.) (denying default judgment to foreclose a tax sale certificate on grounds of failure to state a claim when plaintiff's complaint on its face demonstrated that the action was barred by the statute of limitations), aff'd o.b., 66 N.J. 6 (1974); In re Estate of Sharp, 151 N.J. Super. 579, 582 (Ch. Div. 1977), mod. 163 N.J. Super. 148 (App. Div. 1978) (holding that the court may, sua sponte, refuse to enter judgment for plaintiff if the complaint on its face fails to state a cause of action as to which relief can be granted).
We do not rule at this time that Newman's theory of vicarious liability premised upon the existence of a gratuitous agency is legally non-cognizable. The issue was not raised before us, and we decline to determine it dispositively without the benefit ...