KIRK EJDYS v. ESTATE OF JOHN HERRSCHE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KIRK EJDYS,

Plaintiff-Respondent,

v.

ESTATE OF JOHN HERRSCHE,

Defendant-Appellant.

_____________________________

Argued February 26, 2013 Decided

Before Judges Lihotz and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. SC-1336-11.

Allen Hantman argued the cause for appellant (Morris & Hantman, attorneys; Mr. Hantman, on the brief).

Kirk Ejdys, respondent, argued the cause pro se.

PER CURIAM

Defendant appeals from the denial by the Special Civil Part of its motion to vacate default judgment. We agree and reverse the February 8, 2012 order.

On November 27, 2011, plaintiff filed a complaint against defendant, the estate of John Herrsche, asserting that defendant "unlawfully withheld" $1295 of plaintiff's $1600 security deposit at the conclusion of a residential lease. The complaint was served upon Jennie Mathesius, the administrator of the defendant estate, and the trial date set forth in the summons was December 22, 2011.

On December 21, Mathesius wrote to the court for an adjournment, stating that her husband had recently died, and she had contracted the flu. She added that she had counsel, and "proof" that plaintiff had damaged the apartment and had received back the balance of his security deposit, after the damages were subtracted from the sum otherwise due. The adjournment was granted.

Apparently, the Special Civil Part set a new trial date for January 5, 2012, and mailed notice to the parties.1 On that date, no one appeared on behalf of defendant. Consequently, the trial court entered default judgment against defendant for twice the amount "wrongfully withheld" and costs for a total of $2612.2 The judgment recites, in part, that, "[s]ufficient proofs [were] submitted under oath by plaintiff. [He] testified that defendant's spouse [was] not in military service."

On January 18, defendant, represented by counsel, filed a motion to vacate the default judgment. The motion was supported by a certification from Mathesius, stating she was never informed "either by telephone or in writing" of the new trial date, and that trial was apparently held on January 5 "without notice" to her. She also stated in her certification that she had a "valid defense" and had returned the security deposit to plaintiff, after subtracting money for the "damages [he] caused" to the apartment.

On February 8, the court denied the motion. On the order, the motion judge wrote "this motion was opposed" and

[t]he records of the court clerk confirm mailed notice of the trial date to defendant on December 21, 2011. This case had received prior adjournments at the request of defendant, as well. No showing of excusable neglect and meritorious defenses.[3]

Defendant's motion for reconsideration was also denied by the court and this appeal followed.

Defendant argues that the court erred in denying the motion to vacate the default because it received no notice of the rescheduled trial date. Plaintiff argues that he received notice of the new date and "there is no viable reason why [defendant] did not similarly receive notice." He adds that he "does not believe there is any valid defense to the [c]omplaint and the damages sought."

Our review of the trial court's ruling is guided by well-established principles. The decision to grant or deny 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). See also U.S. Bank N.A. v. Guillaume, 209 N.J. 449, 467 (2012) (stating decision on motion to vacate default judgment "should not be reversed unless it results in a clear abuse of discretion"). However, where the trial court gives insufficient deference to the principles governing the motion, an appellate court must reverse. Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 100-01 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999).

"The rule is designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 120 (1977). See also Hodgson v. Applegate, 31 N.J. 29, 43 (1959) (interest in finality must be balanced with the goal of doing justice in the case); Nowosleska v. Steele, 400 N.J. Super. 297, 303 (App. Div. 2008) (stating that courts have liberally exercised power to vacate default judgment "in order that cases may be decided on the merits").

We place a high value on deciding cases on the merits. "A court should view 'the opening of default judgments . . . with great liberality,' and should tolerate 'every reasonable ground for indulgence . . . to the end that a just result is reached.'" Mancini, supra, 132 N.J. at 334 (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)). Although the movant bears the burden of demonstrating that its failure to answer should be excused and default judgment vacated, Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425-26 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004), close issues should be resolved in the movant's favor. Mancini, supra, 132 N.J. at 334. In the end, the decision whether to grant or deny a motion to vacate a default judgment must be guided by equitable considerations. Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App. Div. 2009) (stating that "Rule 4:50 is instinct with equitable considerations.").

Considering the well-established mandate that we liberally view and indulge such motions, it is clear that the motion judge abused his discretion in denying defendant's timely motion to vacate the default judgment. Defendant's bona fide efforts to address plaintiff's complaint are amply demonstrated by her timely, initial request for an adjournment of the trial date, and by her prompt retention of counsel who then timely filed the motion to vacate. The record provides no basis to challenge Mathesius's certification that she did not receive notice of the new trial date.

Reversed and remanded for trial on the merits.

1 Neither party has provided to us a copy of such notice or proof of mailing. See R. 2:6-1(a)(1)(I).

2 See N.J.S.A. 46:8-21.1. Upon termination of a lease, the landlord is obligated by the statute to return the security deposit or notify the tenant in writing, by registered or certified mail as to the reason for retaining any funds. Smith v. Stark, 153 N.J. Super. 48, 50-51 (App. Div. 1977). Breach of this duty warrants imposition of double damages.

3 The record before us does not include any opposition to the motion from plaintiff, nor the "records of the court clerk" referenced by the motion judge. Further, although the order recites that defendant had sought "prior adjournments," both parties concede that defendant only sought one prior adjournment.