On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-11876-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Lihotz.
We review the parties' appeals from an order determining the amount of a default judgment entered in favor of plaintiff. After review, we: (1) affirm the credit provided against the judgment for the value of the returned "antique chair"; (2) reverse and remand for determination of the appropriate credit representing the value of defendant's vehicle seized by and sold to plaintiff at Sheriff's sale; (3) modify the judgment to grant further credit for the sums of $878.90 and $490 based on defendant's performance; and (4) remand for factual determination on issues omitted by the trial court in its determination.
Plaintiff David Romeo entered into an oral agreement with defendant Kristy Klezckowski to provide decorating services. Klezckowski is the president and sole shareholder of defendant KNK Interiors, Inc. (KNK).*fn2 Plaintiff paid defendant $10,639.90 for materials and services. When defendant failed to satisfactorily perform the services, plaintiff filed a complaint alleging breach of contract and consumer fraud.
In separate counts, plaintiff itemized the nature of the damages or relief sought, as follows: $878.90 to reupholster and refinish an "antique chair," along with the return of the chair; $1,859 for fabric to reupholster another chair and its matching ottoman, along with the return of the furniture; $480 for fabric and labor to make a master bedroom duster; $2,250 to construct a kitchen backsplash; $2,181 to make kitchen and laundry room curtains, including fabric and trim; $1,741 for a dust ruffle, coverlet, and shams for a child's bed; $100 to replace unmatching kitchen knobs; $650 to correct work performed on outside railings; $500 to correct carpeting irregularities; and return of the master bath vanity stool, which was to be caned. Plaintiff also sought pre-judgment interest on the monies paid and return of the antique chair or payment of its replacement value stated as "over $20,000."
Defendant did not file an answer. Plaintiff requested entry of default, which was granted by the court on October 26, 2004. Plaintiff's certification of proof of the amount due sought $30,639.90, stating:
No part of the foregoing has been paid or satisfied by the Defendants, and there is due thereon the sum of $10,639.90, the sum of at least $20,000.00 as value of the antique chair, the second chair, the ottoman, the fabric for the second chair and ottoman, and master bath vanity stool.
On November 12, 2004, without a hearing, a default judgment against defendant was entered "in the sum of $30,639.90, interest,* the return of the following: the antique chair, the second chair, the ottoman, the fabric for the second chair and ottoman, and the master bath vanity stool; attorney's fees and costs. *or $10,639.90 and return of [the] listed items within 10 days of today's date[.]" On December 8, 2004, when the items were not returned, plaintiff requested a writ of execution, which was issued in the amount of $32,145.60, inclusive of costs, interest and fees.
On November 2, 2005, as instructed in the writ, the Morris County Sheriff levied upon defendant's Sovereign Bank accounts, securing the amount of $8,951.65. These monies were turned over to plaintiff. In December 2006, the Sheriff seized defendant's 2001 Lexus RX300 and sold it to plaintiff.*fn3
Prior to the Sheriff's sale, defendant filed a motion to vacate the default judgment. In support of that request, defendant generally challenged service of the complaint and presented her claimed meritorious defenses. Defendant argued she had no individual liability because the contract was with the corporation. Also, she returned the antique chair after reupholstering it; completed the duster, kitchen and laundry room curtains, dust ruffle, coverlet and shams; was not contracted to match the kitchen knobs; and satisfactorily completed the work on the railings and carpeting. Additionally, defendant maintained she is entitled to receive credit for the fair market value of the seized Lexus of $12,665.00.
Alternatively, if default was not vacated, defendant requested the judgment be deemed satisfied. Defendant stated she assumed she satisfied the judgment after accounting for the return of the chair and the seizure of her bank accounts. At that point, she believed the parties "were basically even and that the lawsuit would not be pursued." She asked that her Lexus be returned to her in exchange for a payment of $1,688.75.
Plaintiff disputed that the chair was returned. He also argued he was entitled to the full judgment amount because any return occurred beyond ...