On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. DC-21449-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2010
Before Judges Sabatino and Alvarez.
Plaintiffs, JRM Landscaping ("JRM") and John Makris d/b/a JRM Landscaping ("Makris"), appeal from the Special Civil Part's order dated October 2, 2009. The order denied plaintiffs' application to set aside the default judgment in the sum of $4,544.70, plus costs, that was entered, sua sponte, against plaintiffs on the counterclaim of defendant, Carol Stroumtsos.
The order also denied plaintiffs' request to reinstate their own complaint for damages against defendant. For the reasons stated in this opinion, we affirm the trial court's denial of plaintiffs' motion to restore their complaint and to vacate the entry of default as to the counterclaim. However, we remand the case for a proof hearing to re-examine the quantum of defendant's damages and the claim of a consumer fraud violation.
Both plaintiffs' complaint and defendant's counterclaim arise out of their disputes over certain landscaping and leaf removal services that plaintiffs agreed to provide at defendant's residence in 2007. The limited record indicates that in the early part of that year, plaintiffs and defendant entered into a written agreement ("the first agreement") under which plaintiffs would perform certain lawn services on defendant's property on a monthly basis from March 2007 through December 2007. The agreement specified the particular services to be provided each month, depending on the season, which included monthly lawn maintenance, application of fertilizer and weed killer, spot treatment for insects and fungus, leaf removal, and spring and fall "clean-up" measures. The agreement itemized the charges for the services and provided that payment by defendant would be made by the fifteenth of each month. The agreement was signed only by Makris, although it appears that defendant*fn1 assented to its terms by allowing plaintiffs' workers on her property and by making various payments for the work.
On June 20, 2007, the parties entered into a second written agreement*fn2 ("the second agreement") for additional services, which were apparently described in one or more "addendums" to that agreement. Although the addendums were not furnished to us on appeal, the parties' submissions indicate that the second agreement obligated plaintiffs to prepare the grounds of defendant's property for an outdoor bridal shower in August 2007 and a wedding in September 2007. Fifty percent of the total payment due under this second agreement was to be paid at the start of work, with the balance due upon completion. The second agreement specifically provides that plaintiffs "must complete [the] work in a timely fashion," as "[t]imed to [the] dates of [defendant's] events," and that "no oral changes to the contract" were allowed.
Although the record is not completely developed, it appears that over a period of several months plaintiffs delivered and spread mulch at defendant's residence and performed other landscaping work, both prior to the August 2007 bridal shower and again prior to the September 2007 wedding. However, defendant was dissatisfied with the work for numerous reasons.
In particular, defendant asserted that plaintiffs failed to supply certain flowers and plants that allegedly were to be supplied before the shower. Defendant further asserted that the mulch, which was delivered only a short time before the shower, had an offensive odor that was unpleasant for defendant's guests. Defendant also contended that plaintiffs did not remove leaves from the property as part of the agreed-upon fall cleanup in December 2007, despite defendant's repeated requests. According to defendant, she had to purchase her own flowers in order to decorate the grounds in time for the bridal shower, and she had to hire another company to remove the leaves from her property, at a cost of $2,214.90. In addition, defendant claimed that plaintiffs had not given her appropriate credit for payment that she had made for the mulch.
In December 2007, plaintiffs filed a complaint against defendant in the Special Civil Part, seeking payment on a book account allegedly due in the amount of $3,685.45. Defendant filed an answer, denying that she owed any payments to plaintiffs, and filed a counterclaim, seeking reimbursement for the expenditures she made to cure plaintiffs' alleged contractual breaches and for treble damages under the Consumer Fraud Act, ("CFA"), N.J.S.A. 56:8-1 to -20. With her answer and counterclaim, defendant served various discovery requests upon plaintiffs.
At a hearing on April 14, 2008,*fn3 the Special Civil Part judge considered various motions by defendant. That proceeding resulted in three separate orders bearing that same date: (1) an order directing plaintiffs to "file an answer to [the] counterclaim within 10 days of receipt of the within order, failing which the [c]court will enter a default [judgment] against [p]laintiff[s]; (2) dismissing plaintiffs' complaint without prejudice because of plaintiffs' failure to respond to defendant's requests for admissions; and (3) denying defendant's motion for summary judgment without prejudice. All three orders indicate that the court's reasons were placed on the record that day, April 14, 2008, "in [the] presence of [the] [p]arties."
Makris admits in a certification dated July 28, 2009 that he was indeed present in court on April 14, 2008 when the judge required him to file an answer to the counterclaim. However, for reasons that are unclear, the Special Civil Part did not provide the parties with copies of the three orders until six months later, in October 2008, when the ...