CRIMILDA VILLEGAS v. NEW JERSEY NATURAL GAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0407-07T30407-07T3

CRIMILDA VILLEGAS and

GRACIANO TORRES,

Plaintiffs-Appellants,

v.

NEW JERSEY NATURAL GAS,

CONSECO BANK, INC., and

ROPOL, INC.,

Defendants,

and

AMERICAN GENERAL FINANCIAL

SERVICES, INC.,

Defendant-Respondent.

______________________________________________________________

 

Argued September 16, 2008 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Docket No.

L-6100-02.

Dwight P. Ransom argued the cause for appellants.

Melissa A. Geist argued the cause for respondent

(Reed Smith LLP, attorneys; Ms. Geist, of counsel

and on the brief).

PER CURIAM

Plaintiffs Crimilda Villegas and Graciano Torres appeal from an order dated July 23, 2007, denying their motion to reinstate their complaint. The complaint was dismissed on April 4, 2003, without prejudice, based upon plaintiffs' failure to comply with an earlier order that required them to file a more definite statement of their claims. On appeal, plaintiffs contend: (1) the court failed to state any findings of fact or conclusions of law, as required by Rules 1:6-2(f) and 1:7-4(a); and (2) the court abused its discretion when it denied their motion to restore their complaint. After considering these claims in light of the record, the applicable law, and the arguments of counsel, we reverse the part of the order that denied reinstatement and remand for further proceedings.

Because of the narrow issue before us, it is unnecessary to fully set forth the nature of the underlying disputes between the parties. Plaintiffs state that after they entered into a home repair contract with defendant Ropol, Inc., they financed the repairs with a mortgage loan from Conseco Bank, Inc., and the mortgage was subsequently assigned to defendant American General Financial Services, Inc. (AGF). In their complaint, plaintiffs allege the home repairs were "completely unnecessary," the work "was not performed in a good and workmanlike manner," and the work "was not completed." Thus, plaintiffs claim they were victimized by an irresponsible home improvement contractor, and they allege that the financing companies, Conseco and AGF, participated "in a scheme" to defraud them.

The procedural history of the case, which is somewhat unusual, includes the following: (1) on March 7, 2003, the court granted AGF's motion for a more definite statement and, within ten days of the entry of the order, plaintiffs were required to file and serve "a more definite statement of [their] claims, including identification of the causes of action stated against each [d]efendant, identification of the facts underlying each cause of action, and, where applicable, the particular portions of any statute upon which each cause of action is based, in accordance with R. 1:4-2"; (2) on April 4, 2003, Conseco's motion for a stay and for arbitration was granted, however, the case was not stayed as to the other parties; (3) on April 4, 2003, plaintiffs' claims against AGF were dismissed without prejudice based on plaintiffs' failure to provide a more definite statement of their claims; (4) pursuant to an order dated November 26, 2003, plaintiffs' complaint against Ropol was dismissed without prejudice, and the parties agreed to submit plaintiffs' claims to arbitration; (5) on August 15, 2006, plaintiffs filed a motion to restore their complaint and to discharge the mortgage on their property, however, the motion was withdrawn because plaintiffs elected to file a separate complaint in the Chancery Division; (6) on January 5, 2007, plaintiffs' Chancery Division complaint was dismissed with prejudice, and the court noted on the order that if plaintiffs "wish to pursue their claim" they should comply with the order dated March 7, 2003; (7) on June 5, 2007, plaintiffs filed a more definite statement of their claims with the court; and (8) on July 23, 2007, plaintiffs' motion to reinstate their complaint was denied. The order denying plaintiffs' motion was entered without oral argument and without any findings of fact or statement of reasons.

Notwithstanding the trial court's failure to provide an explanation for its decision, AGF contends there was no need for the court "to enunciate findings when the record as a whole made the basis for the court's decision clear." Additionally, AGF argues that we should affirm the court's decision because plaintiffs' actions were "inexcusable." On the other hand, plaintiffs' attorney offers the following explanation for plaintiffs' failure to promptly comply with the order dated March 7, 2003, requiring them to provide a more definite statement of their claims:

Because the matter was proceeding to arbitration with defendants Ropol and Conseco, plaintiffs did not comply with the Order for More Definite Statement.

Subsequently, the parties proceeded with discovery pending the arbitration. The plaintiffs appeared for depositions at the request of defendants on October 8, 2003. Depositions were conducted by Ropol and Conseco of the plaintiffs. However, subsequent thereto, Ropol went out of business on advice of their attorney and was insolvent. Conseco went into bankruptcy.

Defendant Ropol, Inc. defaulted on the litigation and on the Arbitration. . . . My office has attempted to contact the defendant Ropol, Inc. directly, considering [its] attorney['s] withdrawal from the matter. My office had no success in contacting the defendant Ropol, Inc. It is our information the company has gone bankrupt.

On August 15, 2006 I filed a motion to restore plaintiff[s'] complaint and to discharge the mortgage of record. The motion was opposed by [the] attorney for American General Financial Group.

The motion was withdrawn inasmuch as plaintiffs elected to go to [the] Chancery Division simply to discharge the mortgage.

On October 25, 2006, plaintiffs filed a Verified Complaint with Order to Show Cause in [the] Chancery Division which was returnable on December 1, 2006. The matter was heard on January 5, 2007 and Judge Alexander Lehrer ruled plaintiffs must proceed in [the] Law Division under the original case and comply with the March 7, 2003 Order in order to pursue their claim.

Simultaneously with the filing of the motion, plaintiffs provided the more definite statement in compliance with the March 7, 2003 Order.

Our ability to review this matter has been somewhat inhibited by the absence of findings by the court. See Chambon v. Chambon, 238 N.J. Super. 225, 232 (App. Div. 1990). Nevertheless, based on the record before us, we are convinced the court misapplied its discretion when it denied plaintiffs' motion to reinstate their complaint. Plaintiffs have prosecuted their claims with reasonable diligence and, in the absence of prejudice to defendants, which has not been demonstrated, a dismissal on procedural grounds is normally subject to correction and reinstatement. See Rivera v. Atl. Coast Rehab. Center, 321 N.J. Super. 340, 346 (App. Div. 1999) ("[R]einstatement is ordinarily routinely and freely granted when plaintiff has cured the problem that led to the dismissal."); see also Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982) ("[T]he real business of the courts . . . is to dispense substantial justice on the merits.").

 
Accordingly, we reverse that portion of the order entered on July 23, 2007, which denied plaintiffs' motion to reinstate their complaint, and the case is remanded to the trial court for further proceedings.

Reversed and remanded.

Improperly pleaded as American General Financial Group.

(continued)

(continued)

6

A-0407-07T3

RECORD IMPOUNDED

December 31, 2008