On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-8018-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Chambers.
In this appeal, defendants, Pair A Dice, LLC, Roger L. Malone and Sherry L. Malone, sought to overturn a judgment summarily entered against them in favor of plaintiff, Nova Leasing Co. of New Jersey, LLC, in the sum of $47,246.10. The dispute arises out of a lease agreement whereby the defendants rented certain gambling equipment from plaintiff. When defendants defaulted on the payments, plaintiff commenced this lawsuit by way of order to show cause under R. 4:67-2, seeking the return of the equipment and monetary damages. Defendants, who reside out of state, were not served until November 28, 2006, and filed a pro se answer dated November 30, 2006. They did not appear on December 11, 2006, the return date of the order to show cause. At that time, the court not only ordered the return of the equipment, but also entered a judgment in favor of plaintiff and against all defendants in the sum of $47,246.10. Defendants do not dispute the right of the plaintiff to take back the equipment, but have appealed the monetary judgment.
The entry of the monetary judgment on the return date of the order to show cause was improper. Plaintiff's reliance on R. 4:67-1 was misplaced. Subpart (a) of that rule allows a case to proceed summarily where a rule or statute permits the matter to proceed in a summary matter. R. 4:67-1(a). No rule or statute allows a breach of contract case such as this to proceed summarily. Part (b) of the rule permits a party to make a motion "on notice to the other parties not in default" for an order to proceed summarily. R. 4:67-1(b). As the comments to the rule note, "[t]he design of the rule is accordingly to provide a technique for converting a plenary action in which a summons has issued into a summary action by motion on notice." Pressler, Current N.J. Court Rules, comment 1 on R. 4:67-1 (2007). This procedure was not followed here. Further, even summary actions commenced by order to show cause are assigned to Track I and have 150 days of discovery. R. 4:5A-1, Appendix XII-B. In short, the procedure in entering a monetary judgment on the return date of the order to show cause was contrary to the rules.
At oral argument, the defendants acknowledged that they had breached the lease, and only disputed damages. Plaintiff acknowledged that defendants are entitled to a hearing on damages. Both sides agreed that the case can be remanded for a determination on the issue of damages. Accordingly, liability having been conceded, the judgment is set aside on the issue of damages only. The case is remanded for litigation on damages, which includes disputes on mitigation of damages and attorney fees.
Remanded. We do not retain jurisdiction.
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