PATRIOT FLOORING SUPPLY INC v. EVO FLOORING LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PATRIOT FLOORING SUPPLY INC.,

Plaintiff-Respondent,

v.

EVO FLOORING LLC and GINA

POPPE a/k/a GINA MAKOUJY,

Defendants,

and

SALVATORE GIGANTE,

Defendant-Appellant.

______________________________

December 23, 2014

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-13617-12.

Philip Gigante, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this Special Civil Part matter, defendant Salvatore Gigante appeals from the September 27, 2013 order, which denied his motion pursuant to Rule 4:50-1(d) to vacate a default judgment based on defective service of the summons and complaint. We reverse and remand for further proceedings.

Defendant was a principal of defendant Evo Flooring LLC (Evo). Plaintiff filed a complaint against Evo for $5,924.50 for goods sold and delivered to Evo, and against defendant as a guarantor of that debt. Plaintiff allegedly served the summons and complaint on defendant at Evo's business address. Following defendant's failure to answer or otherwise move as to the complaint, plaintiff obtained a default judgment against him.1

On August 2, 2013, defendant discovered the judgment on his credit report, and on August 27, 2013, he filed a motion to vacate. In a supporting certification, he admitted he was a principal of Evo, but claimed he had disassociated himself from Evo, was not served with the summons and complaint, request to enter default, or default judgment, he never had an office at Evo's business address, and plaintiff knew his personal address. He also asserted a defense to plaintiff's claims against him.

In opposition, plaintiff provided proof of mailing, which defendant alleges shows that service to Evo's address was returned with the notations "attempted-not known," "refused," and "not owne." Without any explanation provided to us in the appellate record, the trial judge denied defendant's motion. This was error requiring reversal.

Judges must make findings of fact and conclusions of law on motions decided by written order appealable as of right. R. 1:7-4. This requires judges to articulate, either in a written or oral opinion, "specific findings of fact and conclusions of law[.]" Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2015); see also Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003). Where the trial judge failed to issue adequate findings and conclusions, we have remanded the case for findings to assist appellate review. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005).

Because there appear to have been no findings and conclusions made in this case as to whether service was effective, we reverse the September 27, 2013 order and remand for an evidentiary hearing and findings of fact and conclusions of law.

Reversed and remanded. We do not retain jurisdiction.

1 The record does not reveal when the default judgment was entered.