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Professional stone, Stucco & Siding Applicators, Inc. v. Carter

August 6, 2009

PROFESSIONAL STONE, STUCCO & SIDING APPLICATORS, INC., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
JIM CARTER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2877-07.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted July 14, 2009

Before Judges Fisher, Grall and Gilroy.

In this appeal, we consider whether the trial judge erred in denying defendant's motion to vacate a default judgment. Because the judge implicitly -- and mistakenly -- concluded that a second, more thorough, motion for relief was barred by his denial of an earlier insufficient motion for relief, we reverse.

The facts are relatively simple. Plaintiff filed a complaint on July 10, 2007, alleging it had performed work on defendant's home for which it had not been paid. Defendant was served with process a few months later. When defendant failed to timely file a responsive pleading, plaintiff obtained a default judgment on March 4, 2008, in the amount of $26,315.38, and thereafter began to execute on the judgment.

Defendant first moved for relief, pursuant to Rule 4:50, on May 19, 2008, slightly more than two months after entry of judgment. Apparently due to the exigency created by plaintiff's efforts at execution, defendant's motion papers were inadequate. The motions papers did not include a certification from defendant to either explain the failure to file a responsive pleading in a timely fashion or provide detail regarding a defense to the action. By way of handwritten notations in his order of June 6, 2008, which memorialized the motion's denial, the judge stated:

This application is denied. Movant failed to submit a brief with its [sic] original motion. More importantly applicant while [alleging] a vague meritorious defense and stating they [sic] wish[ed] to file a counterclaim under the [Consumer Fraud Act], never mentions excusable neglect nor provides any other basis under [Rule] 4:50-1 that would warrant the court granting the relief defendant seeks.*fn1

Defendant quickly filed another motion, which provided a more detailed explanation. Defendant's certification indicated he had, prior to the entry of default, secured the assistance of counsel, who requested and obtained a thirty-day extension of time to file an answer. As explained by defendant, that attorney could not remain with the case; defendant thereafter recounted his extensive efforts to retain other counsel to represent him. Defendant also certified that in this same time frame he spoke with a representative of plaintiff in an attempt to resolve their differences. These new motion papers also contained a detailed description of defendant's contention that the work done on his home by plaintiff was not workmanlike.

The trial judge denied this second motion. In his July 21, 2008 order, the judge provided the following handwritten reason for denying relief:

Application is denied. This motion asks for the same relief as an earlier identical motion made [and] denied.

Defendant then filed a timely motion for reconsideration of the July 21, 2008 order, which the judge denied with the following notation in his August 15, 2008 order:

The court denied an earlier motion for reconsideration on 7/18/08 [sic]. At that point movant had 45 days to file a notice of appeal with the Appellate Division. This court does not have ...


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