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Dan Stan and Elena Stan v. Dorothy A. Smith and Herbert E. Smith

October 2, 2012

DAN STAN AND ELENA STAN, PLAINTIFFS-RESPONDENTS,
v.
DOROTHY A. SMITH AND HERBERT E. SMITH, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Sussex County, Docket No. DC-1609-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2012 -

Before Judges Fisher and Waugh.

Defendants Dorothy A. and Herbert E. Smith appeal the orders of the Special Civil Part denying their motion to dismiss for lack of personal jurisdiction, entering judgment by default against them, and denying their motion to vacate the judgment. We affirm the denial of their motion related to jurisdiction, vacate the judgment, and remand for a trial on the merits.

I.

We discern the following facts and procedural history from the record on appeal.

In autumn 2009, plaintiffs Dan and Elena Stan purchased the Smiths' home in Hopatcong. In September 2009, the Smiths moved to Florida. They did not visit or maintain contacts in New Jersey after relocating to Florida.

The Stans moved into the house in October 2009. The ground level of the two-story ranch house included the living room, a bedroom, a bathroom, a boiler room, and a two-car garage. In March 2010, following "the first heavy rain" of the spring, the ground floor flooded and became temporarily uninhabitable.

The Stans cleaned the ground floor of the home but postponed re-finishing it. The attorney who had represented them in purchasing the home informed them that the rain had been exceptionally heavy, to a degree "that never occurred in the last 100 years."

The home suffered no additional flooding for about a year. In spring 2011, however, the ground floor flooded again after another heavy rain. "The level of the water was about 2 inches everywhere" on the ground floor. The Stans engaged a contractor to remediate the problems, incurring expenses in the approximate amount of $7000.

In April 2011, the Stans filed a complaint against the Smiths. The Smiths filed an answer in May 2011. They also requested the court to dismiss the complaint due to lack of personal jurisdiction, but did not file a formal motion to dismiss prior to trial.

The trial was scheduled for June 20. The Smiths state that a court employee told them prior to that date that they could participate by telephone. The Stans appeared for trial, but the Smiths did not. The trial judge entered default against the Smiths, and proceeded to hold a proof hearing. He determined that the court had personal jurisdiction over the Smiths and entered judgment against them for $7000, plus costs.

In June, the Smiths moved to vacate the default judgment, and to dismiss for lack of personal jurisdiction. The judge ...


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