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Jacqueline Nguyen v. Barbara Einhorn

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 24, 2011

JACQUELINE NGUYEN, PLAINTIFF-APPELLANT,
v.
BARBARA EINHORN, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. DC-9160-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 4, 2011

Before Judges Fisher and Nugent.

Plaintiff appeals from an order entered on December 10, 2010, that: vacated a default judgment entered in her favor; permitted the filing of defendant's responsive pleading; and consolidated this action with at least one other.*fn1 The record presented lacks many of the pleadings that might improve our understanding of this case and, in light of the nature of the order under review, we suspect that finality has not yet been achieved in the trial court and this appeal may be interlocutory. Nevertheless, we affirm not only because we can find no error in the order in question but also because plaintiff has failed to coherently present her arguments.

The complaint in this matter is mostly handwritten and appears to claim that defendant, an attorney, received a $2000 retainer from plaintiff and then failed to take the legal action for which she was retained. We will assume for present purposes that the complaint states a claim sounding in professional negligence. When defendant did not timely respond to the complaint, plaintiff sought a default judgment. A hearing occurred on February 24, 2010, at which time a judge heard testimony and entered default judgment against defendant in this action.

Defendant later moved to vacate the default judgment, explaining that she failed to respond in a timely fashion because she was "actually physically afraid" of plaintiff and was too "terrified" to engage in litigation with her. In granting defendant's motion, the judge commented in the body of his December 10, 2010 order that "default judgment was improvidently granted because plaintiff never supplied an affidavit of merit in this professional malpractice case."

Plaintiff filed a notice of appeal, seeking review of the December 10, 2010 order. In her brief, plaintiff provides a rambling and largely incoherent argument under the following --equally confusing -- point heading:

CLAIMANT'S LEAVING LOWER COURT FOR PURSUING MY RELIEFS, LIVES, VALUABLE DAMAGES BECAUSE OF FACTORS RELATED AS SUCH FATAL IMPACT ON PERSON IN CIRCUMSTANCES, ATTRIBUTABLE TO THE CRUEL UNUSUAL PUNISHMENT ON VICTIM(S), CONTRIBUTING TO A GOOD CAUSE, AND, THEREFORE, SHE SHOULD NOT HAVE BEEN DISQUALIFIED FROM THE RELIEFS.

The arguments contained under this point heading are not any clearer.

There are, as noted above, three parts to the order in question. The judge vacated the default judgment, permitted the filing of an answer, and consolidated this action with others commenced by plaintiff against defendant Einhorn. We assume that plaintiff's arguments are directed only to the first of these aspects of the order.

Our courts are obligated to treat applications to vacate default judgments "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); see also Professional Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App. Div. 2009). The matter rested in the trial judge's sound discretion, and we have been provided with no reason to question the manner in which the judge exercised that discretion.

It may be that plaintiff also claims to be aggrieved of that part of the order in which the judge expressed that default judgment should be vacated because plaintiff had not submitted an affidavit of merit, no doubt implicitly referring to N.J.S.A. 2A:53A-26 to -29. Because of the inadequate record on appeal, we are in no position to determine whether plaintiff's action was dependent upon the submission of an affidavit of merit. In any event, we would observe that the absence of such an affidavit did not bring about a dismissal of the action but merely the vacating of the default judgment. Although plaintiff filed a notice of appeal and asserted therein that all issues as to all parties have been disposed of, the record on appeal does not bear that out and, in fact, suggests the contrary. Whether the lack of an affidavit of merit has been or will be the cause of dismissal of the action is not known. We, thus, need not consider at this time whether the judge erred in suggesting that plaintiff's action is of the type that implicates the affidavit of merit statute.

Beyond what we have said, we will make no attempt to decipher plaintiff's arguments. Despite our doubts about the finality of the trial court proceedings, we have entertained the appeal of the clearly interlocutory order of December 10, 2010, and we conclude that the judge was well within his discretion to enter it. To the extent plaintiff has other arguments, we have been unable to discern or understand them from her confusing brief or the record itself and are, therefore, constrained to conclude that any other such arguments are without sufficient merit to warrant further discussion. See, e.g., Society Hill Condominium Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002).

Affirmed.


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