July 8, 2010
TASWIYAH RAOOF, PLAINTIFF-RESPONDENT,
MWANSA CHIPEPO AND CURTIS RICHARDSON, DEFENDANTS, AND VINETTE CHIPEPO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5472-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2010
Before Judges Fisher and Reisner.
Plaintiff commenced this suit on May 20, 2004, seeking damages against defendant Vinnette Chipepo (defendant) and others. When defendant failed to file a responsive pleading, plaintiff obtained a default judgment, on September 28, 2007, which consisted of an award against defendant and Mwansa Chipepo, jointly and severally, for compensatory damages in the amount of $372,200; the judgment also included a punitive damage award against defendant in the amount of $125,000.
Defendant, through counsel, moved for an order vacating the default judgment, claiming she did not have notice of the proceedings. That motion was granted by Judge Verna G. Leath. At the hearing on the motion that took place on February 28, 2008, defendant stated to the judge that she would thereafter be appearing pro se, as the following colloquy reveals:
MS. CHIPEPO: Your Honor, I just wanted to make it clear for the record that I'm releasing Mr. Gibbons as my attorney from this point on. Judge, I just want to make that clear for the record.
THE COURT: And you're advising the court that, as you stand before me, you're appearing pro se?
MS. CHIPEPO: Yes ma'am.
THE COURT: Okay. Thank you....
Defendant's attorney reinforced what defendant had said and the judge thereafter ruled on the motion, granting defendant relief from the default judgment. At the conclusion of her decision, Judge Leath denied the application to stay the trial pending defendant's appeal of her criminal conviction,*fn1 and advised defendant she would "have 30 days from today's date to retain counsel." The record on appeal also includes a letter, dated March 31, 2008, apparently sent by defendant to the clerk's office that reiterated she had dismissed her attorney during the earlier proceedings referred to above, and that she would be acting pro se in the matter; in that letter, defendant provided her mailing address.
After plaintiff's motion for summary judgment was denied by Judge John C. Kennedy on September 12, 2008, the clerk's office issued a notice that scheduled trial for November 3, 2008. Because the notice was not sent to defendant, she did not appear on the scheduled trial date and, once again, default judgment was entered against her.
Defendant rapidly moved to vacate the default judgment of November 25, 2008, certifying she did not receive the trial notice and did not otherwise know of the trial date. A different judge than those previously involved (hereafter "the motion judge") denied the motion on April 17, 2009, because he had assumed Judge Leath directed defendant to file a substitution of attorney when she granted relief from the first default judgment.
Defendant obtained a transcript of the proceedings before Judge Leath and moved for reconsideration, demonstrating to the motion judge that Judge Leath did not direct defendant to file a substitution of attorney, but instead only indicated that defendant had thirty days to retain new counsel. Obviously, defendant was not required to retain counsel, so the only direction given by Judge Leath regarding defendant's appearance had no application to her. As a result, because defendant chose to proceed pro se, she would have had no reason to believe she was required to submit anything further.
Notwithstanding what the record revealed, the motion judge denied defendant's motion for reconsideration on May 14, 2009. The judge concluded that even though Judge Leath only told defendant she had thirty days to retain counsel and had not directed defendant to file a substitution of attorney indicating she was proceeding pro se, "really doesn't make a difference," and that defendant should have sent something to the court to indicate her intention to proceed pro se.*fn2 He, thus, found that defendant had not demonstrated the judgment resulted from excusable neglect. Moreover, the judge denied the motion because, in his view, "what I've got here is somebody playing the system and that doesn't -- playing the system is not excusable neglect."
We reverse. It is well-established that "the opening of default judgments should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). Although there is no doubt that the clerk did not send a trial notice to defendant -- a circumstance that led to her failure to appear for trial and the subsequent entry of a default judgment -- the motion judge denied relief because he found defendant should have taken a step of which she was not informed after advising Judge Leath in open court she would thereafter represent herself. The motion judge also denied relief because he believed defendant was acting in bad faith even though there was nothing in the record to suggest that defendant failed to appear for trial in order to "play the system" or obstruct plaintiff's attempt to secure relief in this case. The relief made available by Rule 4:50-1 is to be liberally granted in order that, whenever appropriate, cases may be decided on their merits. The motion judge's ruling did not adhere to these principles and constituted a mistaken exercise of discretion.*fn3
Reversed and remanded.