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West Essex Building Supply v. Kmg Stucco Co.

April 7, 2011

WEST ESSEX BUILDING SUPPLY, PLAINTIFF-RESPONDENT,
v.
KMG STUCCO CO., INC., KEITH GABLE, DENNIS GABLE, DEFENDANTS,
AND KENNETH GABLE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-8418-92.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 15, 2011

Before Judges Carchman and Waugh.

Defendant Kenneth Gable appeals the Law Division's order denying his motion to vacate a default judgment entered against him in September 1993. We affirm.

Plaintiff West Essex Building Supply (West Essex) sold exterior molding to co-defendant KMG Stucco Co., Inc. (KMG) in or about 1992. KMG, which is now defunct, was formed in 1990, with co-defendant Keith Gable as its president. Kenneth and Keith Gable are brothers.*fn1 Kenneth asserts that he was merely an employee of KMG, which was owned by Keith, who is now deceased. However, the record contains a credit report concerning Kenneth that lists him as KMG's operations manager.

In 1992, West Essex filed a collection action against KMG, Keith, Kenneth, and another brother. According to West Essex's attorney, Kenneth was served with the summons and complaint in 1992 at his home. Default judgment against all defendants was entered on September 9, 1993. It has not been satisfied.

In February 2010, West Essex served an information subpoena on Kenneth's attorney. See R. 4:59-1(e) and R. 6:7-2. When Kenneth did not respond to the subpoena, West Essex filed a motion to enforce litigant's rights. See R. 1:10-3. Kenneth filed a cross-motion, seeking to set aside the default judgment pursuant to R. 4:50-1.

In the certification in support of his cross-motion, Kenneth stated that he was advised of the outstanding judgment by a title company in October 2009 when he attempted to refinance his house. He related that he was an employee, rather than an owner or officer, of KMG. However, Kenneth did not deny having been served with the summons and complaint in 1992, nor did he specifically assert that he had not known about the judgment until he attempted to refinance his house in 2009.

West Essex filed certifications by its attorney and George Dirk, its general manager, in opposition to the cross-motion. The attorney's certification attached the credit report listing Kenneth as KMG's general manager and stated that his office routinely sent collection letters to Kenneth after the judgment was entered, but received no response. Dirk asserted that all three Gable brothers were involved in managing the business of KMG.

Kenneth filed a responding certification, which attached the certificate of incorporation and corporate reports to the State, all of which name Keith and his wife as corporate officers and directors. He did not, however, deny that he was served with the complaint or that he had received collection letters over the years.

The motion was decided on the papers. In an order dated June 3, 2010, the motion judge denied the motion. In his brief written explanation, the judge noted that Kenneth's submissions only addressed the merits of the claim against him. He continued: "What is conspicuously absent is any denial he was served." This appeal followed.

On appeal, Kenneth relies on Rule 4:50-1(f), which provides: "On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons . . . (f) any other reason justifying relief from the operation of the judgment or order." He argues that the motion judge erred in failing to vacate the judgment because he was not legally responsible for KMG's business debts.

"A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). "[T]he 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). Further, any doubts should be decided ...


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