AIMEE DICKSON v. PRIME VAN LINES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0813-09T3

AIMEE DICKSON,

Plaintiff-Respondent,

v.

PRIME VAN LINES,

Defendant-Appellant.

___________________________

November 3, 2010

Submitted October 18, 2010 - Decided

Before Judges Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. SC-2345-09.

Joseph H. Neiman, attorney for appellant.

Aimee Dickson, respondent pro se.

PER CURIAM

On June 24, 2009, plaintiff filed a complaint against defendant in the Special Civil Part seeking $3000 for damage caused to her furniture while in storage at defendant's facility. In her pleadings, plaintiff listed defendant's address as 10 Park Avenue, East Orange. The summons and complaint were served by mail at that address on July 6, 2009.

On the trial date, July 14, 2009, a representative of defendant appeared in court to seek an adjournment in order to retain an attorney. We have not been provided with a transcript of the proceedings on July 14, 2009.1 However, it is clear that the court denied defendant's request, as evidenced by the entry of default judgment on that date in the amount of $3,164.55.

On or about August 24, 2009, defendant filed a motion to vacate the default judgment and restore the matter to the trial calendar. Amir Ben David, defendant's president, certified that on December 25, 2008, the business had relocated to 297 Getty Avenue in Paterson, due to a fire at the Park Avenue location and that "[b]y the time the summons and complaint w[ere] forwarded to [him] at th[e] new address, there was not enough time to resolve th[e] matter with plaintiff or appear in court on July 14." It appears that the summons and complaint were forwarded to defendant's current address on July 12, 2009. Ben David further asserted that pursuant to defendant's contract with plaintiff, its liability was limited to sixty cents "per pound per article."

On September 11, 2009, the court entered an order denying defendant's motion, for the following reasons:

The [c]ourt records reflect that defendant was served with the summons and complaint on July 6, 2009. This provided an eight (8) day advance notice of the scheduled [July 14, 2009] trial date. This provided Prime Van Lines with ample opportunity to either seek an adjournment of the trial date, retain an attorney or appear on the trial date and contest the case[,] none of which was done. There is no excusable neglect.

Defendant thereafter filed an order to show cause seeking reconsideration of the September 11 order. On September 30, 2009, the court denied that application finding "no basis to grant any of the relief sought by defendant," and relying upon the reasons set forth in the September 11 order.

Defendant filed its brief with this court on March 12, 2010. As noted, however, defendant did not file or serve a transcript of the July 14, 2009 proceedings.

Plaintiff thereupon moved to dismiss defendant's appeal for failure to provide that transcript. On May 7, 2010, we denied the motion but provided that "[p]laintiff may order the transcript if she believes it to be required and . . . seek reimbursement after the appeal is decided." Plaintiff filed her brief in opposition to the appeal on June 10, 2010; she did not, however, order the transcript.

On appeal, defendant argues that the court erred in denying its motion to vacate the default judgment. We have long noted that "the opening of default judgments should be viewed with great liberality, and every reasonable ground for indulgence is 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). "Even where a defendant admits liability, a reopening of the judgment for purposes of assessing damages is proper where the defendant provides a reasonable assertion to the effect that it is not liable for the amount of damages claimed by the plaintiff." Ibid.

The decision whether to grant a motion to vacate a default judgment "is left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion." Mancini v. EDS, 132 N.J. 330, 334 (1993). "All doubts, however, should be resolved in favor of the parties seeking relief." Ibid.

Plaintiff opposes this appeal on the grounds that (1) defendant should have obtained counsel in a timely manner, and (2) "[i]f a transcript of the proceedings . . . were provided, the [c]ourt would learn that the representatives were asked by the [j]udge to call the defendant and have him2 come to [c]ourt." We find no merit in plaintiff's latter contention, as our May 7, 2010 order expressly afforded her the right to obtain the transcript and seek reimbursement from defendant. She has failed to do so and, therefore, cannot rely upon that transcript as support for her position.

Moreover, we are satisfied that under the circumstances defendant did not have an adequate opportunity to obtain counsel and prepare a defense in advance of the July 14, 2009 trial date. It is undisputed that in July 2009 defendant was no longer located at its East Orange address and, therefore, plaintiff's pleadings had to be forwarded to its current address, and this did not occur until July 12, 2009. Therefore, we conclude that defendant has demonstrated "'excusable neglect'" sufficient to warrant relief. Mancini, supra, 132 N.J. at 334 (internal citations omitted).

Further, defendant has asserted a "'meritorious defense,'" ibid., namely that its contract with plaintiff significantly limits its liability. As noted, even where defendant does not appear to contest liability, it is nonetheless entitled to be heard on the quantum of damages. Marder, supra, 84 N.J. Super. at 319.

Thus, resolving "[a]ll doubts" in defendant's favor, Mancini, supra, 132 N.J. at 334, we are satisfied that defendant is entitled to have the July 14, 2009 default judgment vacated; the matter shall be restored to the trial calendar and defendant shall be permitted to file a responsive pleading.

Reversed and remanded for proceedings in conformity with this opinion.

1 See Rule 2:5-3(b), requiring the appellant to order a transcript of "the entire proceedings in the court . . . from which the appeal is taken"; Rule 2:6-12(d), requiring the appellant to file three copies of the transcript with this court; and Rule 2:6-12(a), requiring the appellant to serve one copy of the transcript on respondent.

2 As defendant is identified throughout the proceedings as "Prime Van Lines," we assume plaintiff's reference to "him" means Amir Ben David, defendant's president.