KOSSON ARCHITECTURAL ALUMINUM AND GLASS, INC. v. T2, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5814-04T15814-04T1

KOSSON ARCHITECTURAL ALUMINUM AND

GLASS, INC.,

Plaintiff-Respondent,

v.

T2 STRUCTURAL STEEL, INC., and

T2, INC.,

Defendant-Appellant.

__________________________________

 

Submitted February 6, 2006 - Decided February 17, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County,

L-4313-04.

Levy, Ehrlich & Petriello, attorneys for appellant (John J. Petriello and Anne P. Ward, on the brief).

McCarter & English, attorneys for respondent (Richard C. Cooper, of counsel; Francis A. Kirk, on the brief).

PER CURIAM

Defendant, T2, Inc., appeals from two Law Division orders. The first amended a default judgment previously entered on behalf of plaintiff, Kosson Architectural Aluminum and Glass Inc., and the second denied defendant's motion for reconsideration. We affirm both orders.

Because they are intertwined, we combine the substantially undisputed facts and procedural history. On October 8, 2004, plaintiff, a seller and installer of fabricated metal and glass products, filed a complaint in the Law Division on an open book account for goods sold and services rendered. The complaint named "T2 Structural Steel, Inc." as defendant. Defendant's purchase order for the materials and labor, containing the following logo, was attached to the complaint as an exhibit.

 

On October 29, 2004, defendant's president, Kathy Chatterton, was served with the complaint. No answer was filed and default judgment was entered in the amount of $84,880.07 on December 20, 2004. After plaintiff commenced supplementary discovery to enforce the judgment, defendant's counsel sent a letter dated May 9, 2005, to plaintiff's counsel advising, "[t]here is no corporation or other entity known as 'T2 Structural Steel, Inc.'" Defense counsel further advised that the correct name of the company was "T2, Inc." and "[i]f [plaintiff] intends to sue T2, Inc.," he is authorized "to respond, and litigate the merits of this matter." Counsel closed the letter stating:

This will of course require that the Default Judgment be vacated. Please advise.

Please be further advised that any attempt to levy or execute on any asset of T2, Inc. is wrongful, and will be the subject of an action for damages.

On May 24, 2005, plaintiff moved to amend the judgment to include the name T2, Inc. as the judgment debtor. Defendant responded, objecting to the amendment and asserting that defendant was not properly named and should be permitted to defend the matter. The response included an affidavit from Chatterton asserting, (1) she was the president of T2, Inc., (2) the plaintiff did not provide the materials ordered in an acceptable and workmanlike manner, and (3) the general contractor on the job had obtained an arbitration award in part for the damages resulting from plaintiff's failure to perform.

At oral argument on the motion, defendant initially argued that plaintiff sued the wrong entity. The motion judge, however, pointed out that the corporate logo was such that plaintiff could reasonably assume it had the correct corporate name. Determining that the identification of defendant in the complaint was a misnomer rather than the wrong entity, the judge noted that the President of T2, Inc. was served and was fully aware what the lawsuit was about. After determining that the amendment sought by plaintiff did not substitute a "separate and distinct party" but simply corrected the corporate name, the judge essentially treated defendant's opposition as a motion to vacate the judgment under R. 4:50-1(a). Concluding that there was nothing to establish excusable neglect, the judge granted plaintiff's motion to amend. Defendant filed a motion for reconsideration or alternatively to stay all proceedings pending appeal, based upon its contention that plaintiff named the wrong party thus preventing it from raising its meritorious defense.

On appeal, defendant again asserts that the judge erred, arguing that it is impermissible to substitute a separate and distinct entity for that named in the complaint and judgment. Conspicuously absent from defendant's argument on appeal is any assertion that its failure to answer arose from excusable neglect. We reject defendant's contention under the circumstances and resolve the issue on due process grounds and by application of R. 4:50-1.

Defendant relies on the case of Coventry v. Barrington, 117 N.J.L. 217 (E. & A. 1936), in which plaintiff's process and pleadings named "Lightning Service Co., a corporation" as a defendant. Lightning Service was a partnership consisting of two principals, Benjamin Nadelberg and Albert Richman. Plaintiff's initial complaint was served on Nadelberg. After the statute of limitations ran, plaintiff sought to amend the complaint to name Nadelberg and Richman trading as Lightning Service Company. The trial court denied the motion. On appeal, the Court of Errors and Appeals affirmed, holding that the service was a nullity because the corporation did not exist and the amendment was substantial, not one merely of form. Id. at 218-19.

Fast forwarding twenty-seven years, an appellate panel tackled essentially the same issue in Mears v. Economy Brake Service Inc., 78 N.J. Super. 218 (App. Div.), certif. denied, 40 N.J. 216 (1963). In Mears, the plaintiff, who was injured in an automobile accident, filed a complaint naming "Economy Brake Service, Inc." as defendant, alleging that it negligently inspected and repaired the vehicle he was driving. The corporation, however, had been dissolved prior to the filing of the complaint and replaced by a partnership. The return of service showed that it had been served on "Economy Brake Service Incorporated" by serving "Meyer Bromberg, partner." Although the corporation had been dissolved for almost three years, an answer was filed in the name of Economy Brake Service, Inc. The stipulation extending time to answer, executed by counsel, described defendant as Economy Brake Service. Following a pretrial conference, the plaintiff sought to amend the complaint to change defendant's name to the partnership. The trial judge ultimately denied the motion, relying on Coventry, and dismissed the complaint. On appeal, the appellate panel concluded that the proposed amendment was to correct a misnomer and held that there was "not the slightest doubt that plaintiff intended to assert his claim against the operator of the business at the site in question," that the real party in interest was operating the business under the name Economy Brake Service, and that a partner had been legally served. Id. at 231. In his concurring opinion, Judge Sullivan noted that at the time Coventry was decided, a partnership could only be sued by naming the individual partners, a law which had since been changed to permit suits in the name of the partnership entity. Id. at 232.

More recently in Bussell v. DeWalt Products Corp., 259 N.J. Super. 499 (App. Div. 1992), certif. denied, 133 N.J. 431 (1993), a similar question was raised. The plaintiff in Bussell filed a products liability case against DeWalt for injuries sustained while using a radial arm saw, and obtained a $600,000 jury award. After the Supreme Court reversed the Appellate Division and reinstated the judgment entered against DeWalt, plaintiff moved to amend the judgment to name Black & Decker, DeWalt's successor. The trial judge granted plaintiff's motion, finding that Black & Decker was the real party in interest and had indeed defended the suit through its insurance carrier. Black & Decker, however, was permitted to be heard on the issue of successor liability. Ultimately, we affirmed the amendment to the judgment on due process grounds, holding that, although Black & Decker had not been named in the complaint, it was the real party in interest because it had notice of the suit and its insurance carrier had hired defense counsel who defended the suit. Id. at 509-10. In reaching its decision, we noted, "[e]ven if an individual is not named as a party of record, he may be liable for the judgment if he participated in the suit or had an opportunity to be heard." Id. at 510-11.

"The critical components of due process are adequate notice, opportunity for a fair hearing and availability of appropriate review." Schneider v. City of E. Orange, 196 N.J. Super. 587, 595 (App. Div. 1984), aff'd, 103 N.J. 115 (1986), quoted in Bussell, supra, 229 N.J. Super. at 509. Accordingly, R. 4:5-2 requires pleadings to contain a statement of facts on which a claim is based. Here, plaintiff's complaint, which included a copy of the T2, Inc. purchase order, asserted the specific facts regarding defendant's purchase and failure to pay, fully apprising defendant of the cause of action asserted. Moreover, it was served upon defendant's president, thus affording defendant sufficient notice of plaintiff's cause of action.

Although defendant never formally moved to vacate the judgment, the motion judge acknowledged defendant's asserted position that it had a meritorious defense and treated defendant's objection under R. 4:50-1(a) requiring both a meritorious defense and excusable neglect. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994); Mancini v. EDS, 132 N.J. 330, 334 (1993); Court Inv. Co. v. Perillo, 48 N.J. 334 (1966); Texas Co. v. DiGaetano, 39 N.J. 120, 122-23 (1963); Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005); Fineberg v. Fineberg, 309 N.J. Super. 205 (App. Div. 1998); Woodrick v. Jack J. Burke Real Estate, Inc., 306 N.J. Super. 61, 77-78 (App. Div. 1997), appeal dismissed, 157 N.J. 537 (1998); Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 340 (App. Div.), certif. denied, 134 N.J. 480 (1993); Harrison Park Owners, Inc. v. Dixon, 254 N.J. Super. 605, 610 (App. Div. 1992); Arrow Mfg. Co., Inc. v. Levinson, 231 N.J. Super. 527, 532 (App. Div. 1989); Local 478 v. Baron Holding Corp., 224 N.J. Super. 485, 489 (App. Div. 1988); Olympic Indus. Park v. P.L., Inc., 208 N.J. Super. 577, 581 (App. Div.), certif. denied, 104 N.J. 453 (1986).

 
We agree with the motion judge's conclusion that defendant's corporate logo supported at least three different corporate names: T2, Inc., T2, Inc. Structural Steel, and T2 Structural Steel, Inc. Defendant's contention that plaintiff named either the wrong or a non-existent corporation misses the mark. Plaintiff did not sue another entity, instead the name it used in its pleadings was a mere misnomer. Indeed, the confusion as to defendant's name, upon which it now seeks to vacate the default judgment, was caused by defendant's own logo. More importantly, defendant was afforded due process by being given the opportunity to be heard and argue that the default judgment should be vacated under R. 4:50-1(a) because it was entered under mistake, inadvertence, surprise, or excusable neglect. The judge correctly determined that defendant offered nothing establishing excusable neglect in either its objection to plaintiff's motion to amend or defendant's motion for reconsideration to justify vacation of the judgment. We see no reason to intervene.

Affirmed.

(continued)

(continued)

9

A-5814-04T1

February 17, 2006