Kelly Whalen v. One Day Floors, LLC

• Court: New Jersey Superior Court Appellate Division
• Decided: December 19, 2025
• Docket: A-1025-24
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1025-24

KELLY WHALEN,

Plaintiff-Respondent,

v.

ONE DAY FLOORS, LLC, BOGDAN POP,

Defendants-Appellants. _________________________

Submitted November 13, 2025 – Decided December 19, 2025

Before Judges Smith and Jablonski.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. SC- 000789-24.

Pender & Strickland, LLC, attorneys for appellants (Teddy C. Strickland, Jr., on the brief).

Kelly Whalen, self-represented respondent.

PER CURIAM Defendants One Day Floors and Bogdan Pop appeal a trial court order

denying their motion to vacate the default entered against them. Having

reviewed the record and the applicable legal principles, we reverse and remand

this matter for trial.

I.

In May 2024, plaintiff hired defendants to restore and to coat her

outdoor patio for a contract price of $3,593.44. She paid a deposit of $1,700.

Work on the patio commenced in July 2024. Upon beginning the job,

defendants issued an invoice to the plaintiff for the outstanding balance of

$1,719.76. The work was completed in August of that year. Plaintiff

contacted the defendants after the project was finished to express concern

regarding the quality of the work. Defendants inspected the job, concluded the

work was completed satisfactorily, and notified plaintiff that nothing more was

required under the contract. In September, plaintiff sued defendants and

sought to recover $5,000 in damages alleging the patio required demolition

and reconstruction because of defendants' substandard performance.

Trial was scheduled for November 6, 2024. Defendants' counsel

requested an adjournment because of a prior travel obligation of the individual

defendant. The court granted the request and rescheduled the matter for

A-1025-24 2 November 20, 2024. On November 13, 2024, defense counsel requested a

second adjournment because of a previously scheduled business trip.

Counsel's office attempted over the following days to contact the court to

confirm whether the second adjournment request had been considered. Then,

in the late afternoon on November 19, 2024, the court denied the second

adjournment and maintained the trial date for the following day. Counsel,

learning of the denial shortly before boarding his flight, could not arrange for

substitute counsel, and, rather, sought permission to appear remotely at the

trial. He received no response from the court. After defense counsel and

defendants failed to appear for trial, the court entered default against

defendants.

On November 26, 2024, defendants moved to vacate the default. At oral

argument on the motion, defense counsel argued his office had attempted to

contact court staff several times during the week preceding the November 20

trial date and supported those contentions with an affidavit from a staff

member.

The court noted counsel had "presumptively assumed that [the trial] was

going to [be] adjourned [for a second time]," and explained, "he had [one]

A-1025-24 3 adjournment, . . . asked for another adjournment, [and] didn't get any feedback,

. . . [b]ut that mean[t] at the minimum he kn[ew] that [he had] a trial."

The trial judge denied the motion and concluded:

"I really don't see good cause [to vacate default]. At the minimum if you [request] an adjournment . . . and you didn't hear anything . . . [t]hat's not to say that it was granted, that's to say that you didn't hear anything. So, then . . . you would call the court, and say what's the status, [be]cause I [have] a trial, and I [have] a trip, you know what I mean."

Defendants appealed. On January 22, 2025, the trial court denied

defendants' request to reconsider its December 11, 2024 order. The clerk

entered a default judgment in the amount of $5,000 against defendants on

February 7, 2025.

The December 11, 2024 order from which this appeal is taken reads that

the trial court denied defendants' motion to vacate the default judgment.

However, at the time of the motion, judgment had not yet been entered. We

limit our analysis, therefore, to the propriety of the decision to deny the

request to vacate the default only

II.

Our standard of review of an order denying a motion to vacate an entry

of default is deferential. See U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J.

A-1025-24 4 449, 467 (2012). Under Rule 4:43-3, a court may vacate the entry of default

upon a showing of "good cause." This is a notably more lenient standard than

that applied to motions to vacate a default judgment. "[T]he requirements for

setting aside a default under Rule 4:43-3 are less stringent than for those

setting aside the entry of a default judgment under Rule 4:50-1." N.J. Mfrs.

Ins. v. Prestige Health Grp., 406 N.J. Super. 354, 360 (App. Div. 2009) (citing

Bernhardt v. Alden Cafe, 374 N.J. Super. 271, 277 (App. Div. 2005)).

Finding good cause requires the court to exercise "sound discretion in

light of the facts and circumstances of the particular case considered in the

context of the purposes of the [] [r]ule being applied." Estate of Semprevivo

by Semprevivo v. Lahham, 468 N.J. Super. 1, 14 (App. Div. 2021) (quoting

Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007)).

In considering whether good cause exists, a trial court should generally

consider the movant's "absence of any contumacious conduct" and "the

presence of a meritorious defense." O'Connor v. Altus, 67 N.J. 106, 129

(1975). The showing of a meritorious defense is a traditional element

necessary for setting aside both a default and a default judgment. Ibid. As

with a motion to vacate a default judgment, there is no point in setting aside

the entry of a default if the defendant has no meritorious defense.

A-1025-24 5 We are mindful of our long-standing public policy that "whenever

possible, litigation should be resolved on the merits rather than on procedural

violations." Tr. Co. of N.J. v. Sliwinski, 350 N.J. Super. 187, 192 (App. Div.

2002).

In light of these principles, we are persuaded the trial court should have

exercised its discretion differently and granted defendant's motion to vacate

the default. We first make clear that counsel bears responsibility to persist in

communicating with the court, and should not presume an adjournment has

been granted. Counsel must exhaust all available avenues to obtain a timely

answer to any adjournment request. That said, we recognize the practical

difficulties that can arise in such situations.

Here, when defense counsel learned the adjournment request had been

denied just as he was about to board a plane for a pre-planned business trip, he

was confronted with an unexpected and challenging predicament. At that

moment, it would have been extremely difficult, if not outright impossible, to

secure substitute counsel who was sufficiently familiar with the case or

available to appear on such short notice. The trial court should have

considered the time constraints and logistical hurdles of the moment, along

with the ethical duties counsel owed to the court and to his client.

A-1025-24 6 From a substantive standpoint, upholding the trial court's decision to

refuse to vacate the default would have unjust consequences for the

defendants. It would deprive them of the opportunity to fully present their

defense, specifically their claims the contracted work was fully and adequately

performed in accordance with the contract terms. Fundamental fairness and

the interests of justice require that all litigants be afforded a fair opportunity to

contest the claims brought against them, particularly where there is a bona fide

dispute regarding the performance of contractual obligations. Denying the

motion to vacate under the circumstances presented in this case would not only

result in a forfeiture of potentially meritorious defenses but would also

undermine confidence in the adjudicative process.

Since we find good cause existed under Rule 4:43-3 to vacate the

default, we reverse the trial court's order denying defendant's motion to vacate

default. We also vacate the order for judgment in favor of plaintiff, and

remand for trial on the merits.

We do not retain jurisdiction.

A-1025-24 7