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T & M Associates v. Joanne Faber

April 10, 2012

T & M ASSOCIATES, PLAINTIFF-RESPONDENT,
v.
JOANNE FABER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. DC-11368-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 6, 2011

Before Judges Alvarez and Nugent.

Defendant Joanne Faber appeals from two May 18, 2010 orders: one that denied her motion to vacate a default judgment, and one that granted plaintiff T & M Associates' motion to enforce litigant's rights by requiring defendant to complete an information subpoena. We affirm.

The motion record establishes the following factual and procedural history. In March 2007, while embroiled in a boundary dispute with a neighbor, defendant sought professional assistance from plaintiff, a business that provided engineering and consulting services. Plaintiff provided defendant with an initial written proposal and during the ensuing eighteen months, as defendant requested additional services, plaintiff submitted two additional proposals.

Although plaintiff provided services to defendant and billed her for the work, defendant refused to pay plaintiff after a dispute developed between the parties, defendant claiming that plaintiff had failed to provide some of the services it had contracted to perform, and had inadequately performed services it did provide. In June 2009 plaintiff commenced a breach-of-contract action against defendant in an attempt to collect its money.

According to the Special Civil Part records, the plaintiff's complaint was mailed to defendant on June 22, 2009. Because defendant did not timely file an answer, a default was entered on July 30, 2009. On December 10, 2009, the court entered a final judgment by default in the amount of $11,979.88, which plaintiff served on defendant eight days later, on December 18, 2009, along with an information subpoena. Five days later, on December 23, 2009, the Special Civil Part clerk received from defendant a November 30, 2009 "letter [in] Lieu of a Formal Answer." The clerk returned the letter because "[t]he party was placed in default on 7-30-09." Defendant filed nothing further with the court until plaintiff served her with a motion to enforce litigant's rights, seeking to compel her to answer the information subpoena.

On March 30, 2010, the return date of plaintiff's motion to enforce litigant's rights, defendant appeared, requested oral argument, attempted to have the court mark some papers as exhibits, and informed the court that she had filed a separate motion to vacate the default judgment. The court adjourned plaintiff's enforcement motion pending disposition of defendant's motion to vacate the default judgment.

Defendant based her motion to vacate the default judgment "on Rule[] 4.2, Rule 5.2.3 and Rule 6.7.2."*fn1 She explained in a certification that "[t]his case[, plaintiff's breach-of-contract action, DC-11368-09,] is related to C237-06," a reference to the Chancery Division action concerning the boundary dispute. She also explained:

I received a copy of the filed Complaint in June 2009, by the plaintiff and immediately advised them by telephone voicemail that due to the current pending litigation the engineering information was considered privileged, as I was advised by counsel, this is pursuant to Rule 5.2.3, and I could not discuss the matter.

Defendant averred that she had hired plaintiff "to perform a survey for a boundary line dispute litigation case and [she] was led to believe by [plaintiff] that they provided [her] with a survey until professionals reviewed the document and informed [her] that the document is not a survey pursuant to engineering guidelines." Finally, defendant asserted that she "advised [plaintiff's counsel] that a survey was never completed on [her] property, according to [her] professionals, and that pursuit of a collection is frivolous and that [plaintiff's counsel] is acting as a debt collector and therefore is responsible as a party to the action."

Defendant included with her motion a March 29, 2010 letter from a professional engineer and licensed surveyor, which provided in part:

Per your request I have carefully reviewed the documents provided me by you for both lots 16 & 16.01 and lots 4 & 4.01 in the Township of Toms River (formerly Dover Township). Some of the former documents were prepared by Morgan Engineering LLC dated 2/15/02 and some of the ...


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