SUZANNE BIRD v. UNITED AIRLINES, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2408-05T52408-05T5

SUZANNE BIRD,

Plaintiff-Respondent,

v.

UNITED AIRLINES, INC.,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 12, 2006 - Decided November 2, 2006

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Special Civil Part,

Essex County, Docket No. SC-3990-05.

Bonner, Kiernan, Trebach & Crociata,

attorneys for appellant (Scott H. Goldstein,

on the brief).

Respondent, Suzanne Bird, submitted no

brief.

PER CURIAM

Plaintiff Suzanne Bird sued defendant United Airlines in the Special Civil Part for failure to honor companion passes provided under the airline's employee discount program. The Part scheduled a hearing to resolve the dispute on October 27, 2005. On October 11, 2005, United sought an adjournment of the hearing so that a "proper United Representative" could appear. Without notifying United, the court denied the adjournment. United failed to appear at the hearing and default was entered, followed on November 2, 2005 by a $3,309 judgment in favor of plaintiff and against United. In this appeal, United argues that the trial court should have granted its November 8, 2005 motion, made pursuant to Rule 4:50-1, to vacate the judgment.

Applications to vacate default judgments should be "viewed with great liberality, and every reasonable ground for indulgence . . . tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). "All doubts . . . should be resolved in favor of the part[y] seeking relief." Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Assoc., 132 N.J. 330, 334 (1993). Nevertheless, a default judgment should not be vacated unless defendant has a meritorious defense and a reasonable excuse for failing to appear. Marder, supra, 84 N.J. Super. at 318.

Rule 6:4-7(a), which establishes the adjournment procedure for the Special Civil Part, does not require the court to notify litigants when an adjournment request is denied. Pressler, Current N.J. Court Rules, comment on R. 6:4-7(a) (2007). Notification is required under the rule only when adjournments are granted. Ibid. Therefore, litigants, such as United, may not assume upon making an adjournment request that no news is good news. Instead, if no response is received, the litigant must assume that the court has denied the request. That was not done here.

Therefore, we cannot condone United's failure to appear. However, this is not a case where no or little attention was paid to the matter. United promptly sought an adjournment well in advance of the scheduled hearing date, and as soon as United discovered its error in assuming that its adjournment request had been granted, it acted promptly to attempt remediation. Within one week of the entry of the default judgment against it, United had moved to vacate the judgment. We equate these circumstances with "an honest mistake that is compatible with due diligence," if not reasonable prudence. See Mancini, supra, 132 N.J. at 335.

Furthermore, United has set forth legitimate defenses to plaintiff's claim. United contends that the companion passes, which were given or sold to plaintiff by a United employee, were invalidated either by the sale itself or, the termination of the employee. In addition, United contends that as it had no contract with plaintiff, it cannot be sued for any breach, and that plaintiff's loss was in fact caused by the terminated employee. Finally, United argues that plaintiff failed to properly support her damages. Although the record does not reflect precisely when the employee in question was terminated, we believe that United is entitled to be heard on the merits of its arguments.

Therefore, and especially considering our preference to dispose of cases on the merits rather than by procedural snafu, Olds v. Donnelly, 150 N.J. 424, 469 (1997) (Stein, J., dissenting), we reverse the denial of United's motion and remand for further proceedings. We suggest that, on remand, the trial court may wish to consider whether to assess an appropriate sanction against United to compensate plaintiff for the costs incurred as a consequence of United's non-appearance. See Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 102 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999).

Reversed and remanded.

 

(continued)

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A-2408-05T5

November 2, 2006