NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3502-15T4
SCOTT C. FREEMAN, d/b/a FREEMAN RENOVATION SERVICES,
Plaintiff-Respondent,
v.
ST. CLAIR KITCHEN & HOME, L.L.C. and DANIEL WOLTAG,
Defendants-Appellants,
and
HENRY WOLTAG,
Defendant. ____________________________
Submitted March 9, 2017 – Decided May 15, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-419- 15.
Skolnick Legal Group, P.C., attorneys for appellants (Martin P. Skolnick, of counsel; Mr. Skolnick and John E. Icklan, on the briefs).
Arthur G. Nevins, Jr., attorney for respondent. PER CURIAM
Defendants, St. Clair Kitchen & Home, L.L.C. (St. Clair) and
Daniel Woltag,1 appeal from the February 19, and April 1, 2016
orders denying their motion to vacate default judgments against
them and denying reconsideration of the motion.2 For the reasons
that follow, we reverse.
Plaintiff Scott C. Freeman filed a complaint against
defendants in January 2015, asserting they violated an agreement
for renovation services. After retaining counsel, plaintiff filed
an amended complaint in April 2015. The amended complaint alleged
defendant St. Clair owed plaintiff $9305 for labor and services
pursuant to their agreement, and claimed Mr. Woltag, who owned the
building being renovated, was unjustly enriched and was liable for
this amount as well. Defendants filed an answer and counterclaim
on July 6, 2015.
At a September 9, 2015 hearing, the judge set a trial date
of October 19, 2015. Only defendants' counsel, not defendants,
1 In its brief, plaintiff indicates Daniel Woltag is not a party to this appeal; however, his name appears on the Notice of Appeal, and defendants' brief includes Mr. Woltag as an appellant. Therefore, we have included Mr. Woltag in this opinion.
2 Plaintiff initially included Henry Woltag as a defendant; however, the case was dismissed as to Henry Woltag, as he is deceased.
2 A-3502-15T4 was present at that hearing. On September 18, 2015, a second
judge issued an order disqualifying defendants' counsel.3
Defendants' counsel informed Ms. J. Antoinette Hughes
Frasier, principal for St. Clair, of the October 19, 2015 trial
date and informed her defendant would need a new attorney. Counsel
also advised Mr. Woltag about his disqualification and the new
trial date via email on October 1, 2015. In the email, counsel
noted, "I have not received any official notification as to a new
date. I have attached the case detail from the court's website
and it indicates the case has been 'disposed.' I don't know why
it says this."
Ms. Frasier went to the courthouse on October 14, 2015, to
confirm the trial date. A court representative told Ms. Frasier
there was no information about the case, and the order to withdraw
counsel had not been entered. Mr. Woltag called the courthouse
on October 16, 2015, and a representative told him there was no
trial date scheduled. The representative suggested calling the
judge's chambers, but disqualified counsel told defendants not to
do so. Neither Ms. Frasier nor Mr. Woltag appeared on October 19,
2015.
3 Plaintiff moved for counsel's disqualification based on Rule 3.7 of the Rules of Professional Conduct, as he had helped negotiate the agreement and may have been needed as a witness.
3 A-3502-15T4 Plaintiff's counsel appeared on October 19, 2015, before the
first judge who previously conducted the September 9 hearing.
Plaintiff's counsel told the court,
The defendants have never appeared by notice . . . of appearance by new counsel, and in spite of the number of contacts from my office as a reminder and in spite of the order signed . . . on September 18th, disqualifying [defendants' attorney] as counsel . . . . So he definitely knew it was on.
However, defendants submitted certifications attesting plaintiff
only attempted to contact them one time about the hearing by
leaving a phone message reminding defendants to find new counsel.
Plaintiff moved for entry of default against defendants and
dismissal of defendants' counterclaims. The matter appeared on
the judge's schedule but not on the court's schedule. Before
entering default against defendants, the judge stated the
following:
I will point out to you, though, that in our computer system the case is not listed for trial for today. And I think it could be because of the motions that were pending. So my concern is that at some point there's going to be a motion filed to vacate whatever judgment gets entered today on the basis that for all we know they contacted the court and somebody at the court said, [n]o, we don't have anything scheduled for this. So just be aware of that possibility.
4 A-3502-15T4 The judge granted default based on defendants' failure to
appear and held the proof hearing on plaintiff's damages. The
judge then entered judgment for plaintiffs for $14,527 and
dismissed defendants' counterclaims.
On October 21, 2015, the judge who issued the September 18,
2015 order entered a consent order, disqualifying defendants'
original counsel and requiring defendants to retain new counsel
by October 19, 2015, which had already passed.
On October 29, 2015, Ms. Frasier wrote to the judge who
entered the judgment against defendants requesting the default be
vacated. On November 10, 2015, Ms. Frasier filed a motion to
vacate the judgment, which the court denied on December 4, 2015,
due to Ms. Frasier's lack of standing. Defendants finally retained
new counsel, and moved to vacate the default judgment, pursuant
to R. 4:50-1. Plaintiff opposed the motion. On February 19,
2016, the second judge denied the motion to vacate without oral
argument and without any written findings.
After receiving the transcript from the October 19, 2015,
hearing, defendants moved for reconsideration on February 25,
2015. The second judge denied the motion on April 1, 2016, without
oral argument or any written findings. This appeal followed.
We review denial of a motion to vacate a judgment under Rule
4:50-1 using an abuse of discretion standard. Hous. Auth. of
5 A-3502-15T4 Morristown v. Little, 135 N.J. 274, 283 (1994). An abuse of
discretion occurs when a decision is "made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis." Iliadis v. Wal-Mart Stores,
Inc. 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)).
First, we note defendants' appeal is properly before this
court. Defendants' motion to vacate the judgment pursuant to Rule
4:50-1 was timely filed within one year from the entry of judgment,
per Rule 4:50-2. Further, the motion for reconsideration was
filed within twenty days of the denial of the motion to vacate,
and thus, was also timely. See R. 4:49-2. Plaintiff's arguments
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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-3502-15T4
SCOTT C. FREEMAN, d/b/a FREEMAN RENOVATION SERVICES,
Plaintiff-Respondent,
v.
ST. CLAIR KITCHEN & HOME, L.L.C. and DANIEL WOLTAG,
Defendants-Appellants,
and
HENRY WOLTAG,
Defendant. ____________________________
Submitted March 9, 2017 – Decided May 15, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-419- 15.
Skolnick Legal Group, P.C., attorneys for appellants (Martin P. Skolnick, of counsel; Mr. Skolnick and John E. Icklan, on the briefs).
Arthur G. Nevins, Jr., attorney for respondent. PER CURIAM
Defendants, St. Clair Kitchen & Home, L.L.C. (St. Clair) and
Daniel Woltag,1 appeal from the February 19, and April 1, 2016
orders denying their motion to vacate default judgments against
them and denying reconsideration of the motion.2 For the reasons
that follow, we reverse.
Plaintiff Scott C. Freeman filed a complaint against
defendants in January 2015, asserting they violated an agreement
for renovation services. After retaining counsel, plaintiff filed
an amended complaint in April 2015. The amended complaint alleged
defendant St. Clair owed plaintiff $9305 for labor and services
pursuant to their agreement, and claimed Mr. Woltag, who owned the
building being renovated, was unjustly enriched and was liable for
this amount as well. Defendants filed an answer and counterclaim
on July 6, 2015.
At a September 9, 2015 hearing, the judge set a trial date
of October 19, 2015. Only defendants' counsel, not defendants,
1 In its brief, plaintiff indicates Daniel Woltag is not a party to this appeal; however, his name appears on the Notice of Appeal, and defendants' brief includes Mr. Woltag as an appellant. Therefore, we have included Mr. Woltag in this opinion.
2 Plaintiff initially included Henry Woltag as a defendant; however, the case was dismissed as to Henry Woltag, as he is deceased.
2 A-3502-15T4 was present at that hearing. On September 18, 2015, a second
judge issued an order disqualifying defendants' counsel.3
Defendants' counsel informed Ms. J. Antoinette Hughes
Frasier, principal for St. Clair, of the October 19, 2015 trial
date and informed her defendant would need a new attorney. Counsel
also advised Mr. Woltag about his disqualification and the new
trial date via email on October 1, 2015. In the email, counsel
noted, "I have not received any official notification as to a new
date. I have attached the case detail from the court's website
and it indicates the case has been 'disposed.' I don't know why
it says this."
Ms. Frasier went to the courthouse on October 14, 2015, to
confirm the trial date. A court representative told Ms. Frasier
there was no information about the case, and the order to withdraw
counsel had not been entered. Mr. Woltag called the courthouse
on October 16, 2015, and a representative told him there was no
trial date scheduled. The representative suggested calling the
judge's chambers, but disqualified counsel told defendants not to
do so. Neither Ms. Frasier nor Mr. Woltag appeared on October 19,
2015.
3 Plaintiff moved for counsel's disqualification based on Rule 3.7 of the Rules of Professional Conduct, as he had helped negotiate the agreement and may have been needed as a witness.
3 A-3502-15T4 Plaintiff's counsel appeared on October 19, 2015, before the
first judge who previously conducted the September 9 hearing.
Plaintiff's counsel told the court,
The defendants have never appeared by notice . . . of appearance by new counsel, and in spite of the number of contacts from my office as a reminder and in spite of the order signed . . . on September 18th, disqualifying [defendants' attorney] as counsel . . . . So he definitely knew it was on.
However, defendants submitted certifications attesting plaintiff
only attempted to contact them one time about the hearing by
leaving a phone message reminding defendants to find new counsel.
Plaintiff moved for entry of default against defendants and
dismissal of defendants' counterclaims. The matter appeared on
the judge's schedule but not on the court's schedule. Before
entering default against defendants, the judge stated the
following:
I will point out to you, though, that in our computer system the case is not listed for trial for today. And I think it could be because of the motions that were pending. So my concern is that at some point there's going to be a motion filed to vacate whatever judgment gets entered today on the basis that for all we know they contacted the court and somebody at the court said, [n]o, we don't have anything scheduled for this. So just be aware of that possibility.
4 A-3502-15T4 The judge granted default based on defendants' failure to
appear and held the proof hearing on plaintiff's damages. The
judge then entered judgment for plaintiffs for $14,527 and
dismissed defendants' counterclaims.
On October 21, 2015, the judge who issued the September 18,
2015 order entered a consent order, disqualifying defendants'
original counsel and requiring defendants to retain new counsel
by October 19, 2015, which had already passed.
On October 29, 2015, Ms. Frasier wrote to the judge who
entered the judgment against defendants requesting the default be
vacated. On November 10, 2015, Ms. Frasier filed a motion to
vacate the judgment, which the court denied on December 4, 2015,
due to Ms. Frasier's lack of standing. Defendants finally retained
new counsel, and moved to vacate the default judgment, pursuant
to R. 4:50-1. Plaintiff opposed the motion. On February 19,
2016, the second judge denied the motion to vacate without oral
argument and without any written findings.
After receiving the transcript from the October 19, 2015,
hearing, defendants moved for reconsideration on February 25,
2015. The second judge denied the motion on April 1, 2016, without
oral argument or any written findings. This appeal followed.
We review denial of a motion to vacate a judgment under Rule
4:50-1 using an abuse of discretion standard. Hous. Auth. of
5 A-3502-15T4 Morristown v. Little, 135 N.J. 274, 283 (1994). An abuse of
discretion occurs when a decision is "made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis." Iliadis v. Wal-Mart Stores,
Inc. 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)).
First, we note defendants' appeal is properly before this
court. Defendants' motion to vacate the judgment pursuant to Rule
4:50-1 was timely filed within one year from the entry of judgment,
per Rule 4:50-2. Further, the motion for reconsideration was
filed within twenty days of the denial of the motion to vacate,
and thus, was also timely. See R. 4:49-2. Plaintiff's arguments
to the contrary lack sufficient merit to warrant discussion. See
R. 2:11-3(e)(1)(E).
Next, defendants argue the trial court abused its discretion
by denying their motion to vacate the default judgment. We agree
and reverse.
Under Rule 4:50-1(a), a judgment may be vacated due to
"mistake, inadvertence, surprise, or excusable neglect."
Defendants seeking to vacate default judgments under Rule 4:50-
1(a) have to demonstrate their failure to answer the claim amounted
to excusable neglect, and the defendant must show he or she has a
meritorious defense. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J.
6 A-3502-15T4 449, 468 (2012) (finding no excusable neglect where defendants
were fully informed of ongoing court proceedings but failed to
appear for over a year); Marder v. Realty Constr. Co., 84 N.J.
Super. 313, 318 (App. Div.) (accepting the corporate defendant's
belief that an insurance company would handle a lawsuit as
excusable neglect), aff'd, 53 N.J. 508 (1964). "Carelessness may
be excusable when attributable to an honest mistake that is
compatible with due diligence or reasonable prudence." Mancini
v. Eds ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J.
330, 333 (1993) (citing Baumann v. Marinaro, 95 N.J. 380, 394
(1984)).
Here, the trial court abused its discretion by omitting
defendants' reasons for failing to appear from consideration.
Defendants presented compelling evidence of excusable neglect.
The first judge specifically noted the trial was not on the court
calendar; the judge also noted it was likely defendants called the
courthouse and a representative told them there was nothing
scheduled for that date, which is precisely what defendants assert
happened. Additionally, based on advice of their previous counsel,
defendants did not call the judge's chambers to inquire about the
trial date.
Notwithstanding plaintiff's counsel leaving defendants'
former counsel a message, and though the date was scheduled with
7 A-3502-15T4 all counsel present, it is reasonable defendants, without counsel,
would not appear after being told by court representatives the
matter was not on the court schedule and had been marked
"disposed." Defendants spoke with court representatives and made
an effort to determine whether they needed to be present on October
19, 2015. Such an error satisfies the standard of excusable
neglect, and the trial court abused its discretion by not
considering this issue.
Because we find the trial court abused its discretion under
Rule 4:50-1(a), we need not address the catch-all provision of
Rule 4:50-1(f).
We reverse and vacate the entry of default judgment and order
for reconsideration consistent with this opinion. We do not retain
jurisdiction.
8 A-3502-15T4