BROTHERS LANDSCAPING INC v. LAKME KOTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4093-09T3

BROTHERS LANDSCAPING, INC.,

Plaintiff-Respondent,

v.

LAKME KOTA,

Defendant-Appellant.

___________________________________________

March 8, 2011

Submitted January 31, 2011 - Decided

Before Judges Kestin and Newman.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, Docket No. DC-0970-08.

Lakme Kota, appellant pro se.

Manning, Caliendo & Thomson, P.A., attorneys for respondent (Daniel J. Eastmond, on the brief).

PER CURIAM

Defendant Lakme Kota appeals from a March 29, 2010, order denying a motion for reconsideration of an earlier order entered on January 11, 2010, which denied defendant's motion to vacate default judgment. We affirm.

The relevant history of this matter may be summarized as follows. Plaintiff, Brothers Landscaping, Inc., agreed to do certain landscaping work for defendant in the spring of 2005. According to the proposal, it involved removal of the front porch, the entire front and side wall, installation of drains around the house, installation of circuit drains across front of driveway, and excavation of the area. The proposal called for eight days of labor at $900 per day for $7,200, and $1,500 for material, for a total price of $8,700. Plaintiff certifies that the work was performed, but not paid by defendant. Attempts were made to collect on the debt, without success, and the matter was referred to attorneys for collection.

In a letter from plaintiff's attorney dated January 31, 2007 to defendant, counsel advised defendant that plaintiff would accept payment and would even make "any necessary payment arrangements to accommodate you in that regard." However, if there was a failure to contact the attorney's office, it would be considered a refusal to pay and suit would be filed in the Superior Court. No payment was forthcoming.

Plaintiff's complaint was filed on January 22, 2008, alleging non-payment on a book account. Defendant filed her answer on February 28, 2008, along with a counterclaim. Plaintiff filed an answer to the counterclaim on March 11, 2008. On March 14, 2008, plaintiff propounded a first set of interrogatories and notice to produce on defendant, which was received by defendant on March 20, 2008.

Plaintiff advised defendant on April 15, 2008 that defendant's answers to interrogatories still had not been received. Notwithstanding, defendant still did not respond with answers to the interrogatories.

On April 29, 2008, plaintiff filed a motion to strike/dismiss defendant's answer and counterclaim for failure to answer interrogatories. On May 15, 2008, defendant failed to appear before the court in opposition to plaintiff's motion. The court granted the motion and entered default against defendant.

On June 2, 2008, defendant filed a motion to vacate dismissal and reinstate the counterclaim. That motion was denied on June 23, 2008.

On December 16, 2009, plaintiff's motion to enter a final judgment by default was granted, and a judgment in the amount of $8,700 was entered. On December 24, 2009, defendant filed a motion to vacate the default judgment, which was denied on January 11, 2010. In denying relief, the court stated:

The second request to vacate default is denied. The answer and counterclaim was stricken for failure to provide discovery, and defendant has not fulfilled the requirements of the [R]ules to reinstate the pleadings. Judgment has been entered after the default was entered with prejudice.

Defendant filed a motion to reconsider the January 11, 2010 ruling, which was filed on March 10, 2010, more than twenty days from the date of service of the January 11, 2010 order. According to plaintiff, the order was received by defendant on January 19, 2010, and, consequently, defendant's motion should have been filed no later than February 8, 2010.

In denying the motion for reconsideration on March 29, 2010, the trial court had this to say in its order:

[T]he motion for reconsideration is denied for the third time now. The attempt to provide answers to discovery is two years too late, and there is no exception just because defendant is a self-represented litigant. Further, the [c]ourt reviewed all of defendant's submissions with the last motion filed, as well as this motion, and the purported evidence is not persuasive in any event.

On appeal, defendant argues that she never authorized the work performed by plaintiff. She claims that the debris from the removed porch was left on her property and she had to make arrangements to have it removed. Defendant contends that her patio was damaged and led to various flooding problems in her house, all of which caused her additional expense and hardship to her and her family.

Defendant also asserts that she was unaware that she had to reply in writing to the interrogatories, believing that she could just appear before the court and make her response like she had done in prior civil matters in the Special Civil Part. Defendant also contends for the first time that the agreement for the home improvement work did not comply with the statutory regulations, citing N.J.A.C. 13:45A-16. Defendant's plea for relief is grounded on her status as a pro se litigant who lacks the familiarity with the Rules of Court, and that she was not financially in a position to retain an attorney, which she made an effort to do.

In plaintiff's answering brief, it is argued, first, that the appeal is time-barred under Rule 2:4-1(a), and, secondly, that the appeal should be dismissed because the only relief could be by Rule 4:50-1, a motion to vacate a final judgment which was not pursued.

Thirdly, plaintiff contends that the appeal should be denied on the merits. In so arguing, plaintiff argues that there is no basis to find that Judge McManimon, who handled this matter throughout, abused his discretion in denying the motion for reconsideration.

While there is merit to the appeal being time-barred, we elect to decide this case on the merits. Our review of the record satisfies us that there is no basis whatsoever to find that Judge McManimon abused his discretion in denying defendant's motion for reconsideration, see Davis v. Devereux, 414 N.J. Super. 1, 17 (App. Div. 2010), of the January 11, 2010 order, which denied the motion to vacate the default judgment and reinstate defendant's answer and counterclaim. We can only repeat what Judge McManimon said "that the attempt to provide answers to discovery was two years too late, and there is no exception just because defendant is a self-represented litigant."

A