On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-10236-02.
Before Judges Petrella, Lintner and Parker.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs Dynasty Building Corporation (Dynasty) and B. Gordon LaForge appeal the vacation of a default judgment they obtained against defendant Alan Ackerman, a New Jersey attorney, and the dismissal of their complaint on the ground that the six-year statute of limitations respecting fiduciary duty conversion had expired by one day. The complaint alleged that Ackerman improperly disbursed funds from his attorney trust account, despite being informed by plaintiffs and First Equity, the financial institution that had the funds wired into Ackerman's trust account, that the monies belonged to Dynasty.
On appeal, plaintiffs argue that their complaint is not barred by the statute of limitations, the entire controversy doctrine or laches. Ackerman argues that he correctly followed the instructions of his clients and that the complaint was properly dismissed.
On December 4 and 6, 1996, funds totaling $187,980.23 were wired into Ackerman's trust account from Equity One, Inc., through PNC bank. Ackerman claims that the monies belonged to his clients, Angel Pena*fn1 and Galena, Inc., who were in the process of purchasing a flower shop in Ridgewood. On December 19, Dynasty learned that the monies had been wired to Ackerman's account. Dynasty insisted that the monies belonged to it. Its then attorney, Michael J. Mella, since disbarred,*fn2 as well as Equity One's attorney, Samuel Gerstein, advised Ackerman orally and in writing between December 19 and December 31, 1996, that the monies belonged to Dynasty and demanded a return of the funds.
On December 20, 1996, Ackerman wrote to Mella, explaining that he could find no reference in any document to support Mella's claim that the funds belonged to either his client or Equity One; that as trust funds they belonged to the client and not the attorney, and that he was strictly bound to honor his client's wishes regarding those funds. He further indicated that he had performed all necessary due diligence and was satisfied that his client held title to the monies.
On December 27, 1996, Ackerman received a letter from Gerstein on behalf of Equity One, demanding that the wired funds in question be refunded. Again, Ackerman denied the request and invited Equity One to commence an action to establish that the funds belonged to Dynasty. On December 31, Ackerman wrote to Gerstein that he had reviewed the matter with his client, Pena, and had reviewed the wire instructions received with the monies from Equity One and"the monies were dispersed pursuant to the instructions of my client." Thus, it would appear that Gerstein first had knowledge that the monies had been disbursed by Ackerman to Pena by the December 31, 1996 letter, which was presumably received by Gerstein after that date.
Eventually, plaintiffs filed a complaint against Ackerman on December 20, 2002. The complaint was not answered by Ackerman and default was entered on October 22, 2003. A default judgment was entered against him on November 21, 2003. On December 15, Ackerman filed a motion to vacate the default judgment and dismiss the complaint. This motion was granted by order of February 6, 2004. According to the order signed by the motion judge the vacation of the default judgment was pursuant to R. 4:50-1(d) and (f). The judge indicated that the default judgment was void because plaintiffs failed to give notice to Ackerman of the entry of default and relief from the judgment was also justified because the complaint was barred by the six year statute of limitations, which had run by one day.
At oral argument we addressed with counsel certain procedural aspects of the matter that could be gleaned from the meager facts in the record. We are satisfied that the procedural deficiencies in and of themselves warrant reversal of this matter. In addition, there was error with respect to the judge's calculation of the time for the running of the statute of limitations, which we will address hereinafter.
The complaint was initially filed on December 20, 2002, and process was served on Ackerman on May 13, 2003. The records of the Clerk of the Court indicate that a default was entered on October 22, 2003. Under these circumstances notice to Ackerman of the application for entry of default was not required because it was made within six months of the date of service. See R. 4:43-1.
As relied on by the trial judge, we note that the rule, as amended in 1996, and the comments thereto, state that a party obtaining a default shall provide a copy of the default after it is entered to the party against whom the default was entered. The giving of this notice, according to the comment, is considered a matter of fairness. However, neither the rules nor any applicable case law impose a penalty for failure to provide such notice. Here, it appears that little if any prejudice resulted to defendant since the default judgment was entered thirty days after entry of the default and Ackerman obviously knew of that because he filed his motion to vacate the judgment and dismiss the complaint twenty-four days later. Hence, the failure to give notice of the entry of default does not mandate severe consequences under the circumstances. Therefore, relief from the default judgment was improperly granted pursuant to R. 4:50-1(d) on the trial judge's finding that the judgment was void. Nonetheless, we are satisfied that failure to provide the notice required by the last sentence in R. 4:43-1 raises an issue that requires examination by the trial court of whether sufficient excusable neglect was established to permit relief from the judgment under ...