MARTHA CUERVO v. ALBERTO ROJAS, CARLOS ROJAS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4221-05T14221-05T1

MARTHA CUERVO,

Plaintiff-Respondent,

v.

ALBERTO ROJAS, CARLOS ROJAS

and OLGA BAEZ,

Defendants-Appellants.

_______________________________

 

Submitted February 6, 2007 - Decided April 19, 2007

Before Judges Weissbard and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-852-00.

Paul Fernandez & Associates, attorneys for appellants (Paul Fernandez, on the brief).

Sanchez & Bhattacharya, attorneys for respondent (Rodrigo H. Sanchez, Jr., of counsel; Supti Bhattacharya, of counsel and on the brief).

PER CURIAM

Defendants appeal from two Law Division orders dated February 22, 2006. The first, denied defendants' request to vacate a default previously entered on September 27, 2005, and, the second, entered final judgment in favor of plaintiff, fixing the amount of damages against each defendant. After a detailed analysis of the record, we conclude that there is no basis, as a result of defendants' argument, on which to reverse the judgment. Accordingly, we affirm.

To properly understand the arguments presented, the procedural history of this matter must be set forth. Plaintiff's complaint was filed on January 3, 2000. Defendants filed an answer on August 25, 2000. Trial was initially scheduled for October 15, 2001. At that time, a trial was not held because the parties believed they had reached a settlement of their differences. However, a dispute arose regarding the terms of settlement. Plaintiff filed an application to enforce the settlement, which was denied, and the case was re-listed for trial on March 7, 2005. On that date, neither defendants nor their counsel appeared, and the court entered default. Defendants' application to set aside the default was granted based on counsel's assertion that he did not receive the notice of trial.

The case was again re-listed for trial on September 26, 2005, then changed to September 27, 2005, because defense counsel had a conflicting court appearance in another county. Again, on September 27, 2005, neither defendants nor their attorney appeared. The court ordered the entry of default, as set forth in its order dated October 12, 2005. A proof hearing was scheduled for January 9, 2006, which was adjourned at plaintiff's request to February 22, 2006. On February 21, 2006, defendants filed a motion to vacate the default, presumably returnable the next day, however counsel's supporting certification, made mention for the first time, that he would "be out of the country" on a pre-paid vacation and could not appear on February 22, 2006.

The court addressed defendants' motion before proceeding with the disposition of plaintiff's cause. After acknowledging receipt of the motion papers, Judge Bernstein stated:

For the record, [defense counsel] never contacted my office, nor requested permission to file the motion on short notice. This motion, by the way, was received yesterday, a day before the proof hearing scheduled for today. I also note, in reviewing the certification submitted by [defense counsel], while he attempts to give reasons for excusable neglect why this matter was defaulted, there is no allegation . . . to show a meritorious defense. He has alleged no facts or circumstances dealing with any meritorious defense to the claim.

Plaintiff's counsel told the court that he sent correspondence to his adversary and each defendant, dated February 1, 2006, advising of the date of the proof hearing, and that defense counsel replied by telephone on February 10, 2006, seeking to renew settlement discussions.

Judge Bernstein stated his findings and conclusion, as follows:

THE COURT: I'm satisfied -- based on the history that [plaintiff's counsel] provided in your correspondence, that this was a matter that was settled, and then reneged on, and then [defense counsel] failed to appear on two separate occasions, twice default was entered against [defendants] -- that this is a total neglect on the part of the defendant[s], and apparently an attempt to stall as far as possible with this case, which has an 00 docket number, 2000 docket number.

I am not satisfied that we should in any way grant the motion to vacate the default, which I will deny, and I will also proceed with the proof hearing at this time.

[Defense counsel] had since February lst to contact my office and ask for an adjournment. In fact, he had enough time to even file the motion on regular notice from February 1st, and have it returnable on February 17th, before this proof hearing, but failed to do so. I am not satisfied that there is any meritorious defense, which has not been alleged in his papers, and I believe that his stall tactics have gone about as far as they should. I will proceed with the proof hearing at this time.

The Final Judgment was entered following the proof hearing.

Defendants did not file a motion with the Law Division to set aside the default judgment; instead they appealed, advancing the argument that because they did not receive the Civil Division, Automated Case Management System (ACMS) notice setting forth the dates for trial and the proof hearing, that the default and default judgment should be set aside.

We first comment on the confusing procedural course followed by defendants in presenting the matter to us. In New Jersey, there is no direct appeal from a judgment by default. N.J. Div. of Youth and Family Servs. v. T.R., 331 N.J. Super. 360, 363-64 (App. Div. 2000); Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992). The proper course would be to apply to the trial court for relief from the default judgment, R. 4:50-1. Nevertheless, even viewing defendants' choice to appeal with indulgence and "great liberality," Marder v. Realty Construction Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964), our review discloses defendants' arguments fail to demonstrate excusable neglect or a meritorious defense. Ibid.

In appealing the February 28, 2006 order denying their motion, defendants alternatively seek to vacate the default pursuant to Rule 4:43-1. The default was entered after defendants, for the second time, failed to appear at trial.
Defendants suggest that the lack of ACMS notice equated to "defective service of process" and the subsequent failure to appear was "excusable under the circumstances." See R. 4:50-1(a). We consider these arguments unavailing.

A trial judge's decision on whether to open a judgment is left undisturbed unless it represents a clear abuse of discretion. Mancini v. EDS ex rel. N.J. Auto. Full Ins., Underwriting Ass'n, 132 N.J. 330, 334 (1993). Judge Bernstein's denial of the defendants' motion was soundly based on his review of the circumstances surrounding the defendants' failure to appear for trial.

There is no excusable neglect. The record is replete with opportunities extended to defendants to correct the ACMS notice issue. More importantly, actual notice of the February 22, 2006, hearing was afforded to defendants who, nevertheless, failed to appear, reflecting a failure to exercise due diligence. We find no misapplication of discretion.

Affirmed.

 
 

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A-4221-05T1

 

April 19, 2007