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Cadillac/ Hyundai v. Ernest Townsend

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 18, 2008

COLONIAL CADILLAC/ HYUNDAI, PLAINTIFF-RESPONDENT,
v.
ERNEST TOWNSEND, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, DC-201-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2008

Before Judges Coburn and Grall.

Plaintiff sued defendant when he failed to pay for the repair of his Nissan motor vehicle.

On July 14, 2006, defendant's answer was stricken and a default was entered because defendant failed to provide discovery. On October 3, 2006, the judge denied defendant's request to vacate the default because he had still failed to provide the required discovery. On October 19, 2006, plaintiff asked for a $15,105.57 default judgment pursuant to Rule 6:6-3(a). The final default judgment was entered on or about October 19, 2006.

On December 28, 2006, plaintiff's writ of execution was levied on defendant's bank accounts. Defendant filed an objection to the writ of execution on February 13, 2007. His objection consisted of two sentences: "I would like to appeal this case. I never received a trial or new (sic) that there was a judgment placed against me and never heard or received anything from the court." On March 27, 2007, the judge, treating the objection as a motion to vacate the default judgment, entered an order denying relief.

Defendant filed his notice of appeal on March 28, 2007, seeking review of the default judgment entered on or about October 19, 2006. His notice of appeal did not reference the order of March 27, 2007, and he did not include that order in his appendix.

Defendant's brief fails in all respects to comply with the rules governing appellate practice. His entire statement of facts, which is given without citation to the record, consists of one sentence: "On or about November 2005 Shari Birtenstock forged my signature on a work order." Moreover, his entire legal argument is as follows:

[Plaintiff] did not have the authorization by me . . . to work on my vehicle, it was supposed to be looked at only by the claims adjuster of my insurance company to determine how much damage there was to the vehicle.

Plaintiff, citing the time between the entry of the default judgment and the filing date of the notice of appeal, contends that the appeal must be dismissed as untimely. But plaintiff also concedes that there is no direct appeal from a default judgment. See, e.g., N.J. Div. of Youth and Family Servs. v. T.R., 331 N.J. Super. 360, 363-64 (App. Div. 2000). Plaintiff also concedes that the judge treated defendant's objection to the writ of execution as a motion, however informal, to vacate the default judgment. Accepting that as so, the notice of appeal, which was filed the day after the judge entered the order refusing to vacate the default judgment, was timely as to that order.

For purposes of this opinion, we will treat defendant's appeal as bringing into question the order denying his motion to vacate the default judgment. But defendant has failed completely, both below and here, to explain why the entry of that order erroneous.

Although we have nonetheless carefully considered the record, we can find no basis in law for setting aside the order denying vacation of the default judgment. R. 2:11-3(e)(1)(E).

Affirmed.

20080318

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