January 27, 2011
1982 SPRINGFIELD AVENUE, LLC, PLAINTIFF-RESPONDENT,
JOE OYEKUNLE AND REALTEX PROFESSIONAL GROUP, INC., DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-13035-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 4, 2011 - Decided Before Judges Graves and Messano.
Defendants Joe Oyekunle and Realtex Professional Group, Inc. (defendants) appeal from orders of the Law Division, Special Civil Part, denying 1) their motion to vacate a default judgment against them; and 2) their subsequent motion for reconsideration. We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand.
Plaintiff, 1982 Springfield Avenue, L.L.C., entered into a commercial lease with defendants in 2005 and subsequently secured a judgment for possession for non-payment of rent in February 2009. Plaintiff then commenced this action in the Special Civil Part seeking to recoup monies defendants allegedly owed from the breach of the lease agreement. Defendants initially answered pro se, and plaintiff successfully moved to strike the answer because it was not filed by an attorney.
Defendants, now represented by counsel, moved to reinstate their pleading. That motion was unopposed and was granted. Defendants then filed an amended answer and counterclaim in which they alleged that plaintiff had breached the lease and had refused to return their security deposit. The parties dispute whether plaintiff filed an answer to the counterclaim, but resolution of that dispute is not relevant to our decision. The matter was originally listed for trial on January 19, 2010. Both sides appeared but the court adjourned the matter and set a new trial date of March 9.*fn1
On March 4, defense counsel requested an adjournment in a letter sent by express mail to the trial judge. Defense counsel noted he was presently on trial in a criminal matter in Passaic County and expected the case to continue through the following week. Defense counsel advised us at oral argument that he did not contact the clerk or the judge thereafter because he believed his request would be granted pursuant to the Rules of Court since he was on trial elsewhere.
On March 9, plaintiff appeared and was ready to proceed to trial despite the fact that discovery requests had apparently gone unanswered. Neither defendants nor defense counsel appeared, and the judge entered default. We are advised by plaintiff's counsel that an 1affidavit of proof was submitted shortly thereafter and default judgment was entered. See R. 6:6-3(a) (permitting entry of default judgment by the clerk upon request of plaintiff if the claim is for a sum certain).
Defendants moved to vacate the default judgment on April 17.*fn2 Defendant Oyekunle certified that he became aware of the judgment while in the courthouse on another matter, believed that the case had been adjourned based upon defense counsel's request, and that he had a meritorious defense to plaintiff's claims. Defense counsel certified that he believed the case had been adjourned based upon his March 4 correspondence with the judge. Defendants sought oral argument of their motion. Plaintiff opposed the request.
No oral argument was granted, however, and on May 14, the trial judge entered an order denying the motion to vacate the default judgment. The only reason stated in the order was that the "Court denied [the] adjournment request."
On June 2, defendants moved for reconsideration of the May 14 order
and again sought oral argument. It suffices to say that the supporting
certifications of Oyekunle and defense counsel reiterated the claims
made in support of the original motion. Plaintiff opposed the motion
claiming there was no showing of "excusable neglect," and defendants
failed to demonstrate any meritorious defense. Once again, without
oral argument, the judge denied the motion for reconsideration by
order dated June 25, noting it was "the third motion made . . . to set
aside default; none have shown excusable neglect." *fn3
This appeal ensued.
Rule 4:50 applies to final judgments obtained in the Special Civil Part. See R. 6:6-1. Rule 4:50-1(a) provides relief from a final judgment because of "mistake, inadvertence, . . . or excusable neglect." Subsection (f) of that Rule permits a final judgment to be vacated for "any other reason justifying relief." In particular, "[a]n application to vacate a default judgment is 'viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.'" Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 4:50-1 (2011) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd 43 N.J. 508 (1964)).
In this case, plaintiff's default judgment flowed solely from defendants' non-appearance on the trial date. We presume in this regard that the judge relied upon the discretionary powers afforded him by Rule 1:2-4(a), which provides in relevant part:
If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party . . . on the day of trial, or if an application is made for an adjournment, the court may order any one or more of the following: (a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, to the Clerk of the Court made payable to "Treasurer, State of New Jersey," or to the adverse party; (b) the payment by the delinquent attorney or party or the party applying for the adjournment of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint, cross-claim, counterclaim or motion, or the striking of the answer and the entry of judgment by default, or the granting of the motion; or
(d) such other action as it deems appropriate. [Ibid.]
"The dismissal sanction based on an attorney's failure to appear must be a recourse of last resort not to be invoked unless no lesser penalty is adequate in view of the nature of the default and its attendant prejudice to other parties." Pressler & Verniero, supra, comment 1 on R. 1:2-4; and see e.g., Bayne v. Johnson, 403 N.J. Super. 125, 145 (App. Div. 2008) (approving award of counsel fees and travel costs as sanction for non-appearance), certif. denied, 198 N.J. 312 (2009).
We digress briefly to acknowledge defense counsel's utter failure to comply with Rule 6:4-7(a) governing adjournments in the Special Civil Part. That Rule requires that counsel notify "the clerk's office as soon as the need is known, but absent good cause for the delay not less than 5 days before the scheduled [trial]." At oral argument before us, defense counsel stressed the magnitude of the criminal case he was trying, and we question why his need to adjourn the trial date in this case was not obvious to him sooner than March 4, when he mailed his request to the trial judge. Additionally, Rule 6:4-7(a) requires counsel to notify his adversary of his request, and thereafter he "shall then notify the clerk of the adversary's response." That was never done in this case since defense counsel indicated at oral argument he made no phone calls, to his adversary or the clerk, regarding his request.
Further, Rule 6:4-7(a) requires that "[t]he Court shall then decide the issue, and if granted, assign a new trial date." Defense counsel is hard-pressed to contend he was unaware of the judge's decision to deny his adjournment request in light of his failure to follow the procedure outlined in the Rule. Lastly, pursuant to the Rule, "[t]he requesting party shall notify the adversary of the court's response." Needless to say, the Rule is designed to avoid exactly what occurred here, i.e., the unnecessary appearance of opposing counsel on the date of trial.
We further acknowledge that trial calls in the Special Civil Part may be hectic affairs, with numerous cases listed and many counsel and pro se litigants attending. When faced with defendants' and defense counsel's non-appearance on March 9, and given the failure on counsel's part to contact the clerk or the judge to monitor the outcome of his adjournment request, we do not necessarily find fault with the judge's decision to enter default.
However, defendants moved swiftly to vacate that default and subsequent default judgment. When the motion was made, the judge, therefore, was in a position to exercise his discretion and reconsider the severity of the sanction imposed in light of lesser sanctions that could have effectively addressed defendants' and defense counsel's delinquent behaviors. See e.g., Bayne, supra, 403 N.J. Super. at 145.
We are convinced that counsel's inattention should not be visited upon defendants so as to deny them the opportunity to present a defense and counterclaim. See, e.g., Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 391-92 (App. Div. 2007) (finding "excusable neglect" for litigant's non-appearance in the litigation based upon faulty advice of his attorney); Reg'l Constr. Corp. v. Ray, 364 N.J. Super. 534, 541 (App. Div. 2003) (finding excusable neglect when client reasonably believed "his counsel in . . . other actions was addressing th[e] action" particularly "when examined against the very short time period between the entry of default judgment and the motion to vacate").
Additionally, although plaintiff takes issue with the actual merit of defendants' claims, we accord great liberality in reviewing those assertions made in support of a motion to vacate a default judgment. Goldhaber, supra, 395 N.J. Super. at 392. Here, defendants assert that they were required to make necessary repairs to the leased premises and that, at a minimum, they are entitled to an offset of plaintiff's monetary claims. See Marder, supra, 84 N.J. Super. at 319 (recognizing the assertion of a meritorious defense may be based upon a challenge to the quantum of damages plaintiff seeks).
We further note that Rule 4:50-1 permits the vacation of a default judgment "upon such terms as are just." We have recognized that "such terms" might include "reimbursement of plaintiff's counsel fees and costs." Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 103 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999). Such a sanction was, of course, available to the trial judge on the date of trial. See R. 1:2-4(a).
We therefore reverse the orders under review and remand the matter for further proceedings. We leave to the trial judge's sound discretion whether an appropriate sanction, short of dismissal of defendants' answer and counterclaim, is necessary to address defendants' and defense counsel's transgressions regarding the adjournment request. See e.g., Reg'l Constr. Corp., supra, 364 N.J. Super. at 545 (noting "just" terms are "those which restore plaintiff to the status quo ante, namely the reimbursement of the fees and costs expended in seeking the default judgment and in opposing the motion to vacate").
Reversed and remanded. We do not retain jurisdiction.