RUSTEN TURNBULL v. EFFAT EMAMIAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2511-07T22511-07T2

RUSTEN TURNBULL,

Plaintiff-Respondent,

v.

EFFAT EMAMIAN,

Defendant-Appellant.

_______________________________________________

 

Submitted January 27, 2009 - Decided

Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, SC-4576-07.

Effat Emamian, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Effat Emamian appeals from a judgment entered against her in a small claims case, contending that she did not receive timely notice of the trial and did not have an opportunity to show that she was owed money by plaintiff. We reverse because the trial court failed to give the requisite five days notice of the trial date and did not provide defendant with an opportunity to assert a counterclaim.

This lawsuit arises out of a home improvement contract in which plaintiff Rusten Turnbull agreed to perform work on defendant's home for the sum of $20,900. The written contract lists sixteen items of work he was to perform. During the course of the contract, disputes arose between the parties, and defendant took plaintiff off the job. Plaintiff commenced this small claims case in the Bergen County Special Civil Part for recovery of the balance he maintained he was owed for the portion of the work that he had completed. Defendant contended that she had to hire others to complete the job and sought to assert a counterclaim to recover from plaintiff the difference between the contract price and her actual costs for completion of the job.

Defendant received a summons from the court dated December 11, 2007, scheduling the trial for December 14, 2007. When the case came before the trial judge on December 14, 2007, defendant told him that she had been given only a few days notice of the trial date. She sought to assert a counterclaim, maintaining that under the circumstances, plaintiff owed her money, and she wanted time to obtain an attorney. The trial judge refused to entertain the application, taking the position that the case was assigned to him for trial only. While he indicated that another judge had the responsibility of handling such requests, he did not direct the litigants to that judge to hear the application but rather proceeded with the trial. He then took testimony from both plaintiff and defendant and entered a judgment in the sum of $1,425, against defendant.

Defendant appeals, requesting a new trial because she was given only a few days notice of the trial and did not have sufficient time to seek an attorney's advice and collect materials for her defense and because plaintiff owes her money.

In keeping with the summary nature of small claims proceedings, the court rules governing small claims cases provide that the summons, which is a defendant's first court notice of the case, set forth the trial date. R. 6:2-1. That date must fall within five to thirty days of service of the summons. Ibid. This rule was not followed here. In violation of this rule, the Bergen County Special Civil Part sent out a notice dated December 11, 2007, for a trial to take place on December 14, 2007, thereby providing defendant with less than the required five days notice.

The denial of defendant's right to assert a counterclaim also was a mistaken exercise of discretion. Due to the summary nature of the small claims cases, the court rules do not expressly provide for answers or counterclaims to be filed. See R. 6:2-1. A defendant merely receives the summons to come to court and may present a defense at that time. Ibid. However, the rules do contemplate that counterclaims may be asserted in small claims cases. R. 6:11. If the amount in controversy in the counterclaim exceeds the jurisdictional limit of the Small Claims Section, then the action must be transferred to the Special Civil Part proper. Ibid.

Due to the court's failure to provide defendant with a timely notice of the trial date and its failure to allow her to assert a counterclaim, the judgment is reversed and the case is remanded for further proceedings.

 

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A-2511-07T2

February 20, 2009