Boguslaw Rupinski v. Christopher Escudero

• Court: New Jersey Superior Court Appellate Division
• Decided: July 9, 2024
• Docket: A-2724-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2724-22

BOGUSLAW RUPINSKI and DIVISION REALTY LLC,

Plaintiffs-Respondents,

v.

CHRISTOPHER ESCUDERO,

Defendant-Appellant. ___________________________

Argued April 29, 2024 – Decided July 9, 2024

Before Judges Gilson and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1492-22.

Graham F. Fleetwood argued the cause for appellant (Fleetwood Legal, PC, attorneys; Graham F. Fleetwood, on the briefs).

David M. Welt argued the cause for respondents (Welt & Kuzemczak, LLC, attorneys; David M. Welt, of counsel and on the brief).

PER CURIAM Defendant Chrisopher Escudero appeals from the March 31, 2023 order

of the Law Division denying his motion to vacate the February 6, 2023 default

judgment entered against him. We vacate the March 31, 2023 order and remand.

I.

Plaintiff Boguslaw Rupinski is the managing member of plaintiff Division

Realty, LLC (Division Realty), which owns real property in Jersey City.

Pursuant to a lease, defendant operated a restaurant at the property.

On May 5, 2022, plaintiffs filed a complaint in the Law Division against

defendant. They alleged defendant: (1) was in arrears on rent; (2) failed to cure

deficiencies at the property that he caused; (3) failed to undertake repairs that

were his obligation under the lease; (4) suddenly vacated the premises without

notice; (5) left the premises in disrepair from intentional and negligent acts; (6)

caused plaintiffs to suffer financial harm from a dishonored check; and (7)

otherwise failed to abide by the terms of the lease. Plaintiffs asserted six causes

of action: breach of contract, breach of the covenant of good faith and fair

dealing, negligent misrepresentation, fraud, unjust enrichment, and negligence.

On May 17, 2022, plaintiffs filed an affidavit of service. The affidavit

stated that a copy of the complaint and summons were left at defendant's home

address on May 12, 2022, "with a competent household member of over

A-2724-22 2 [fourteen] years of age residing therein." The affidavit identifies the person with

whom the complaint and summons were left only as "Antonio" and provides a

physical description of him. The affidavit describes the place at which service

was made only by street address, without identification of an apartment number.

Defendant did not file an answer or otherwise respond to the complaint.

On June 20, 2022, the court entered default against defendant.

On December 20, 2022, plaintiffs moved for entry of default judgment

against defendant in the amount of $50,677.20. A copy of the motion was served

on defendant by mail at his home address.

On January 20, 2023, defendant, acting without counsel, filed a

certification in opposition to the motion. The certification stated that defendant

fulfilled his obligations under the lease, even though the property was overrun

by rats caused by plaintiffs' construction activities on an adjoining property, had

inadequate plumbing, and a leaky roof. Defendant also denied having

responsibility for repairing the property and alleged that any damage to the

property at the time he left was the result of ordinary wear and tear. The

certification did not state that defendant was not served with the complaint.

On January 23, 2023, the court granted plaintiffs' motion and entered a

final judgment on February 6, 2023. The parties have not provided this court

A-2724-22 3 with a copy of the final judgment. Nor has either party stated whether the trial

court held a proof hearing to determine the amount of damages awarded to

plaintiffs. See R. 4:43-2(b).

On February 27, 2023, after retaining counsel, defendant attempted to file

an answer, denying liability and asserting several defenses. It appears the trial

court declined to file the answer, presumably because final judgment had been

entered against defendant.

On March 9, 2023, defendant moved pursuant to Rule 4:50-1 to vacate the

February 6, 2023 default judgment. Defendant argued that his failure to respond

to the complaint was due to excusable neglect because he never received a copy

of the complaint or of the notice of default. Defendant alleged that the first

notice he received of the complaint was a copy of plaintiffs' motion for entry of

a final judgment. He noted that he lives in a multi-unit building and that the

affidavit of service does not contain his apartment number.1

1 Defendant's appellate brief states that no member of his household is named Antonio. The brief cites as support for that assertion defendant's certification in support of his motion to vacate the final judgment. Defendant's certification, however, states only that his apartment number is not listed on the affidavit of service and does not state that no one named Antonio was a member of his household at the time the complaint was purportedly served. In his reply brief, defendant appears to concede that service may have been proper: "[t]he argument of [defendant] is not that service was necessarily improper as per the letter of the law but that regardless he did not receive it." A-2724-22 4 Defendant certified that in response to the motion for entry of a final

judgment, it was his intention to file an answer to the complaint, and not

opposition to the motion, and that he used a form he found on the court's website.

He also noted that less than a month had passed between entry of the final

judgment and the filing of his motion to vacate.

Defendant argued that he has a meritorious defense to the claims asserted

in the complaint. According to defendant, plaintiffs are seeking to have him pay

for a complete renovation to the premises and for repairs that are not his

responsibility under the lease. In addition, he argued that plaintiffs forced him

to vacate the property by their breach of the implied warranty of quiet

enjoyment. Finally, defendant argued that if he is responsible for any damages,

the amount he owes is far below the amount awarded in the final judgment.

On March 31, 2023, the trial court entered an order denying defendant's

motion. The entirety of the court's opinion is: "[t]he [c]ourt records show that

service of the [c]omplaint on [d]efendant Escudero was proper. Service was

made at the same and only listed address for [d]efendant. Furthermore, by

failing to plead improper service in their initial pleading, [d]efendant has

admitted to being served at that address."

A-2724-22 5 This appeal followed. Defendant argues that the trial court erred because

it did not engage in an analysis of whether his failure to respond to the complaint

was due to excusable neglect or whether he had a meritorious defense to the

claims raised in the complaint.

II.

Rule 4:50-1 "is designed to reconcile the strong interests in finality of

judgments and judicial efficiency with the equitable notion that courts should

have authority to avoid an unjust result in any given case." Manning Eng'g, Inc.

v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 120 (1977). To balance these goals,

"[a] court should view 'the opening of default judgments . . . with great

liberality,' and should tolerate 'every reasonable ground for indulgence . . . to

the end that a just result is reached.'" Mancini v. EDS ex rel N.J. Auto. Full Ins.

Underwriting Ass'n, 132 N.J. 330, 334 (1993) (alterations in original) (quoting

Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J.

508 (1964)).

The movant bears the burden of demonstrating a right to relief. Jameson

v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425-26 (App. Div. 2003). All

doubts, however, shall be resolved in favor of the party seeking relief. Mancini,

132 N.J. at 334. Equitable principles should influence a court's decision to

A-2724-22 6 vacate a default judgment. Hous. Auth. v. Little, 135 N.J. 274, 283 (1994); Pro.

Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App.

Div. 2009).

We review a trial court's decision to deny a motion to vacate a default

judgment under Rule 4:50-1 for abuse of discretion. Deutsche Bank Nat'l Tr.

Co. v. Russo, 429 N.J. Super. 91, 98 (App. Div. 2012). We will not reverse the

trial court's decision unless it is "made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting

Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). Indeed, "[t]he trial

court's determination under [Rule 4:50-1] warrants substantial deference," and

the abuse of discretion must be "clear" to warrant reversal. Ibid.

Rule 4:50-1 provides, in relevant part:

[o]n 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: (a) mistake, inadvertence, surprise, or excusable neglect . . . .

Under subsection (a) of the Rule, a "defendant seeking to set aside a

default judgment must establish that his failure to answer was due to excusable

neglect and that he has a meritorious defense." Deutsche Bank, 429 N.J. Super.

A-2724-22 7 at 98 (quoting Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 391 (App. Div.

2007)). Excusable neglect refers to a default that is "attributable to an honest

mistake that is compatible with due diligence or reasonable prudence." Ibid.

(quoting Guillame, 209 N.J. at 468). The type of mistake warranting relief under

the Rule is one that the party could not have protected themselves against. DEG,

LLC v. Twp. of Fairfield, 198 N.J. 242, 263 (2009).

Because the trial court did not make sufficient findings of fact and

conclusions of law explaining its denial of defendant's motion, we are unable to

determine whether denial of the motion was an abuse of the trial court's

discretion. Rule 1:7-4(a) states that a trial court "shall, by an opinion or

memorandum decision, either written or oral, find the facts and state its

conclusions of law thereon in all actions tried without a jury . . . ." "The rule

requires specific findings of fact and conclusions of law . . . ." Pressler &

Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2024).

The trial court failed to make findings of fact or conclusions of law with

respect to both factors of the established test to determine if relief from the

February 6, 2023 final judgment is warranted: whether defendant demonstrated

excusable neglect for not answering the complaint and whether he has a

meritorious defense to the claims alleged against him by plaintiffs.

A-2724-22 8 The trial court denied defendant's motion based on its finding that service

of the complaint was proper and that defendant did not assert a defense of

ineffective service in his answer. With respect to whether defendant was served

with the complaint, the court did not address defendant's argument that the

affidavit of service lists only his street address, but not the apartment number in

the multi-unit building in which he lives. Nor did the court make any findings

of fact with respect to whether anyone named Antonio, or who fits the physical

description set forth in the affidavit of service, was a competent member of

defendant's household at the time plaintiffs contend the complaint was served.

In light of defendant's uncontested assertion that he resides in a multi-unit

building and the bare information in the affidavit of service regarding Antonio

– no surname, no apartment number, no indication of his relationship to

defendant – it was necessary for the trial court to make an explicit finding of

fact that a copy of the complaint was left with a person who satisfied the

requirements to accept service on behalf of defendant.

In addition, the court did not address whether, if service was effectuated

on defendant, he can establish excusable neglect for not answering the

complaint. In his reply brief, defendant suggests that service on Antonio may

have been proper, but he was never given a copy of the complaint.

A-2724-22 9 "[C]arelessness may be excusable when attributable to an honest mistake that is

compatible with due diligence or reasonable prudence." Romero v. Gold Star

Distribution, LLC, 468 N.J. Super. 274, 294 (App. Div. 2021) (quoting Mancini,

132 N.J. at 335). If, in fact, Antonio was an appropriate person with whom to

leave the complaint, the trial court must make findings of fact with respect to

what transpired after he was given a copy of the complaint and whether, in light

of those findings, defendant has established excusable neglect.

With respect to the trial court's conclusion that defendant did not assert a

defense of ineffective service in his answer, the record before us suggests the

trial court rejected defendant's attempt to file an answer his counsel submitted

after entry of the final judgment. We recognize that defendant did not, in

opposition to plaintiffs' motion for entry of final judgment, argue that he was

not served with the complaint. That submission, however, was made without

the benefit of counsel. While defendant's failure to raise the issue of service

cannot be discounted entirely, the trial court did not make detailed findings of

fact and conclusions of law with respect to whether defendant's failure to raise

that argument in opposition to the motion can be considered excusable neglect. 2

2 We note that the trial court did not address the fact that defendant moved to vacate the February 6, 2023 judgment approximately one month after its entry. Defendant's promptness may militate toward granting his motion. A-2724-22 10 In addition, the trial court made no findings of fact or conclusions of law

with respect to whether defendant has a meritorious defense to the claims alleged

against him in the complaint. Defendant raised several defenses to plaintiffs'

allegations in his motion papers, none of which were addressed by the trial court.

Finally, there is nothing in the record showing that the trial court

conducted a proof hearing on plaintiffs' alleged damages. Even if default

judgment was properly entered, the trial court was required to conduct a proof

hearing and defendant was entitled to appear and oppose the alleged damages.

See R. 4:43-2(b)("If, to enable the court to enter judgment . . . it is necessary

. . . to determine the amount of damages or to establish the truth of any allegation

by evidence . . . , the court, on its own motion or at the request of a party on

notice to the defaulting defendant . . . , may conduct such proof hearings . . . .").

A proof hearing should be held when, as is the case here, it is necessary to

determine the quantum of damage and entitlement to relief. EnviroFinance

Group, LLC v. Env't Barrier Co, LLC, 440 N.J. Super. 325, 343 (App. Div.

2015). In addition, "[e]ven though a defendant who had defaulted has

relinquished the right to present affirmative proofs in the matter, the right to

challenge a plaintiff's showings in a proof hearing by way of cross -examination

and argument should not ordinarily be precluded." Chakravarti v. Pegasus

A-2724-22 11 Consulting Grp., Inc., 393 N.J. Super. 203, 210-11 (App Div. 2007). Thus, at a

minimum, if no proof hearing was conducted, on remand the trial court must

conduct a proof hearing.

In light of our conclusions, we vacate the March 31, 2023 order, and

remand this matter for findings of fact and conclusions of law with respect to

defendant's motion to vacate the February 6, 2023 final judgment. We leave to

the trial court to determine whether additional submissions or an evidentiary

hearing is necessary to decide defendant's motion. We also direct that if the

judgment is not vacated, and no proof hearing was held, a proof hearing must be

conducted, and defendant will have a right to appear at that hearing and oppose

the alleged damages. Moreover, if no proof hearing was held, the February 6,

2023 final judgment must be vacated and a new final judgment must be entered

based on the outcome of the proof hearing.

The March 31, 2023 order is vacated and the matter is remanded for

further proceedings consistent with this opinion. We do not retain jurisdiction.

A-2724-22 12