On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-18061-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2011 -
Before Judges Lihotz and St. John.
Defendant William J. Brennan appeals from the order of the Special Civil Part entered October 22, 2010, denying his motion to vacate a July 28, 2010 default judgment. We reverse.
Plaintiff Pediatric Surgical Associates brought an action against defendant and his former wife, Jennie J. Brennan (n/k/a Jennie J. Chandler), for non-payment of doctors' fees incurred for the treatment of Chandler's minor son, J.A.
Trial was held in the Special Civil Part on February 4, 2010. Brennan appeared pro se. Plaintiff's office and billing manager, Vicki Petrucci, was the only witness called by plaintiff. Petrucci testified that services were provided for J.A. on July 23, 2005 and December 21, 2005, and that an outstanding balance of $1920 for services rendered remained unpaid. Petrucci stated the insurance submitted was procured by defendant, with J.A. as a named insured. She confirmed that a physician employed by plaintiff performed services for the son. On cross-examination, Petrucci admitted she did not know who brought J.A. to the emergency room, whether the insurer made payments to Chandler, or whether Chandler and Brennan were married on the date service was provided.
Brennan testified that J.A. was Chandler's son and the offspring of Chandler and Brian Archibald, who at that time was alive. Brennan stated that on the treatment dates, J.A. was living with his mother, not with him. He further testified that when service was provided, he was separated from Chandler and had executed a property settlement agreement (PSA) on September 3, 2005. Their divorce became final in the spring of 2006. Brennan stated that the PSA required he keep health insurance for J.A. until the divorce was finalized, and that Chandler, not he, was responsible for her son's medical expenses. The PSA provided he would be responsible for his own children's medical expenses.
Brennan testified that he never entered into a contract for plaintiff to provide services to J.A. He further stated that he never guaranteed any payments on behalf of either Chandler or J.A. Brennan did not bring a copy of the PSA to court, but believed Chandler received a check from the insurance company, cashed it, and kept the proceeds. As of the trial date, plaintiff had obtained a judgment against Chandler for the services rendered to J.A.
At the conclusion of testimony, the trial judge stated, "I am going to find on behalf of the defendant . . . conditioned upon two things. You [Brennan] sending me a copy of your property distribution with a . . . copy to counsel. And you contact your carrier to see if they ever issued a check." The judge gave defendant a week to satisfy these conditions.
The judge then asked plaintiff's attorney whether there was anything in the file indicating that Brennan assumed responsibility as a guarantor. Counsel responded that Brennan was "the only one that could collect the money for us through the insurance." The judge noted that if Brennan and Chandler's PSA severed any obligation that Brennan had to pay for J.A.'s medical expenses, there would be no liability. When Petrucci asked what the consequences would be if Brennan did not provide the requested documents, the judge responded, "I'll cross that bridge, I guess, when I get to it."
On February 11, 2010, Brennan sent a letter to the court explaining he did not have a copy of his original PSA, but was enclosing an unsigned copy which he received from Chandler's attorney. Additionally, he advised the court that he phoned the insurer and requested the required documents, which would arrive after at least a week.
On June 12, 2010, plaintiff filed a motion requesting that the court
enter a default judgment, asserting that Brennan failed to comply with
the court's deadline of February 18, 2010, to produce the documents in
question. Brennan opposed the motion and filed a certification in
opposition on July 7, 2010. He asserted he was not liable to
plaintiff, and that there was no basis for plaintiff's counsel to
request, or the trial judge to enter a default judgment against him.
On July 28, 2010, the court entered a default judgment*fn1
in the amount of $1970.54 in favor of plaintiff. The judgment
noted that it was unopposed.
Brennan filed a motion for reconsideration of the default judgment, which was denied on October 22, 2010. The court noted it considered Brennan's earlier opposition and may have erroneously indicated the application was unopposed. The judge denied defendant's motion to vacate the judgment, stating Brennan never provided the documents the court requested which would corroborate his position. The judge then determined that there ...