On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DC-9785-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Baxter.
Plaintiff, Robert J. Triffin, appeals from the June 27, 2008 order of the Special Civil Part denying his motion to reinstate his complaint, and the August 8, 2008 order denying his motion for reconsideration. Plaintiff's complaint was dismissed because he failed to appear at trial. Plaintiff contends he never received notice of the trial, as a result of which the complaint should not have been dismissed and his motion to reinstate it should have been granted. We reject plaintiff's argument and affirm.
Plaintiff initiated this action on July 11, 2005 against the issuer of a check, Eagle Systems, Inc. (Eagle) and the payee, Marcello A. Barbosa (Barbosa). Eagle had issued the check to Barbosa in the amount of $1924.74. For reasons not important to the appeal, Eagle issued a new check to Barbosa on February 22, 2005 in the amount of $1724.74, and it stopped payment on the previously issued check which the new one replaced. Barbosa cashed the original check with Express Check Cashing, Inc. on March 1, 2005. Upon presentment of the check, it was dishonored on that date as a "Payment Stopped" item. On June 24, 2005, Express Check Cashing, Inc. executed an assignment of the dishonored check to plaintiff, who then initiated this action pursuant to N.J.S.A. 12A:3-414 and -415 of the Uniform Commercial Code.
On September 22, 2005, Eagle filed an answer. However, on October 5, 2005, the clerk of the Middlesex County Special Civil Part rejected the answer for some technical deficiency. Eagle apparently corrected the deficiency but, according to plaintiff, failed to serve him with the corrected answer that was filed with the court.
Plaintiff subsequently filed a request to enter default judgment, supported by his certification, and on December 6, 2005, the court entered judgment by default against Eagle in the amount of $2058.86. On April 23, 2008, the court ordered that the entry of judgment against Eagle be vacated based upon the court's determination that the judgment had been improvidently granted because defendant failed to appear for trial, which had been scheduled on November 14, 2005.
On May 5, 2008, plaintiff filed a motion to reinstate the complaint. In his moving papers, plaintiff certified that "a review of plaintiff's file shows that this court failed to send plaintiff notice of the trial call for this matter." Eagle's opposition was supported by a certification of a vice-president of the company that it had received postcard notification of the trial date on October 17, 2005, scheduling the trial for November 28, 2005 at 9:00 a.m., and that "[w]e were prepared and ready to defend this claim at that time." At the hearing on the motion on June 27, 2008, two attorneys appeared on behalf of Eagle. One of them advised the court that "Eagle Systems showed up [and] I was one of them" who was present, but "the plaintiff never showed up." Co-counsel then commented that as a result the complaint was dismissed.
At the hearing, referring to the court file, the judge said:
Well, Mr. Triffin, quite frankly, the -- the Court records show that notice was sent to all parties for the trial and there is no -- and they have your -- they have your address on file. You've been in this courtroom many times. And there is no basis for this Court to find that there was excusable neglect for failure to appear at the trial and therefore, the motion is denied.
The judge accordingly entered the order of June 27, 2008 denying plaintiff's motion to reinstate the complaint.
Plaintiff moved for a reconsideration. In his supporting certification, he expanded somewhat on his assertion that he had not received trial notice, stating that "[a] search of plaintiff's file for this archived case shows that plaintiff did not receive a trial notice for any of the defendants in this case." In an opposing certification, the same vice-president of Eagle reiterated that Eagle had received the postcard notification and "[w]e were prepared and ready to defend this claim at the given trial date." After hearing oral argument on August 8, 2008, the judge was satisfied that nothing new had been presented and he accordingly entered an order on that date denying plaintiff's reconsideration motion. This appeal followed.
Upon appellate review, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). However, factual findings by the trial court are considered binding "when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Discretionary decisions are reviewed under an "abuse of discretion" standard, which questions whether a decision was "made without a rational explanation, inexplicably departed from establish policies, or rested on an impermissible basis," and whether the decision was "arbitrary, capricious, whimsical, or manifestly unreasonable." Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002). To this end, an abuse of discretion is shown "if the discretionary act ...