ROCKAWAY COMMONS, LLC v. MANNINO & SONS CONSTRUCTION CORP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROCKAWAY COMMONS, LLC,

Plaintiff,

v.

MANNINO & SONS CONSTRUCTION

CORP.,

Defendant/Third-Party

Plaintiff,

v.

WALLTEK DESIGN BUILD, INC.,

Third-Party Defendant,

and

NICHOLAS PUGLIANO,

Third-Party Defendant/

Fourth-Party Plaintiff-

Respondent,

v.

ROCKAWAY COMMONS, LLC,

Fourth-Party Defendant-

Appellant.

__________________________________________

June 8, 2016

Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-960-10.

Thomas J. Hornbeck argued the cause for appellant.

Frank Catania, Jr., argued the cause for respondent (Catania & Ehrlich, P.C., attorneys; Christopher Clausi, on the brief).

PER CURIAM

Fourth-party defendant Rockaway Commons, LLC (Rockaway) appeals from the April 10, 2015 Law Division order, which denied its motion to vacate a default judgment and quash a writ of execution. For the following reasons, we affirm.

We derive the following facts from the record. Andrew H. Hallajian, Esq. represented Rockaway on a fourth-party complaint for breach of contract filed by third-party defendant/fourth-party plaintiff Nicholas Pugliano in December 2011. On March 1, 2012, Hallajian filed a stipulation to extend time to answer along with an answer, fourth-party complaint, counterclaim, and a civil case information statement. All of these documents bore Hallajian's post office box address in Morristown, which was the same address listed in the New Jersey Lawyer's Diary (Lawyer's Diary) (the Morristown address). During the course of the litigation, Pugliano's attorney corresponded with Hallajian at the Morristown address, and Hallajian always responded.

The court scheduled trial for October 22, 2012, and sent a trial notice to Hallajian at the Morristown address. Pugliano's attorney appeared, but neither Hallajian nor Rockaway appeared. The court's ACMS database confirmed that all trial notices mentioned in this opinion were sent in advance to Hallajian at the Morristown address.

The court rescheduled trial for January 28, 2013, and sent Hallajian a trial notice. Pugliano's attorney appeared, but again, neither Hallajian nor Rockaway appeared. As a result, on January 28, 2013, the court entered default against Rockaway on the record for failure to appear, and memorialized the default in an order entered on March 12, 2013.

In April 2013, Pugliano filed a motion for entry of default judgment and served it on Hallajian at the Morristown address. Hallajian filed opposition and a cross-motion to vacate default. Hallajian's opposition and cross-motion bore the Morristown address. Although Hallajian certified that he never received any trial notices, he never said he had changed his address, and the Lawyer's Diary did not reflect a change.

In an order entered on May 28, 2013, the court denied Pugliano's motion; in an order entered on June 10, 2013, the court granted Rockaway's cross-motion and vacated default. The June 10 order, submitted by Hallajian, bore the Morristown address.

The court rescheduled trial for September 23, 2013, and sent Hallajian a trial notice. Pugliano's attorney appeared, but neither Hallajian nor Rockaway appeared. Pugliano subsequently filed a motion for entry of default judgment, and served it on Hallajian at the Morristown address. On September 30, 2013, Hallajian filed opposition, which bore the Morristown address. Once again, Hallajian certified that he never received any trial notices, but he never said he had changed his address, and the Lawyer's Diary did not reflect a change.

The record does not reveal the disposition of Pugliano's motion; however, it reveals that the court re-scheduled trial a fourth time to May 12, 2014, and sent Hallajian a trial notice. Pugliano's attorney appeared, but again, neither Hallajian nor Rockaway appeared. On May 12, 2014, the court entered default against Rockaway, and instructed Pugliano's attorney to submit an affidavit of proof and proposed default judgment. The attorney forwarded these documents to the court on May 13, 2014, and also served copies on Hallajian at the Morristown address.

On June 16, 2014, the court entered default judgment against Rockaway in the amount of $161,800; on December 23, 2014, the court issued a writ of execution. When Pugliano attempted to levy Rockaway's bank account, a new attorney representing Rockaway filed a motion on March 19, 2015 to vacate the default judgment and quash the writ of execution, claiming, for the first time, that Rockaway had a meritorious defense to Pugliano's claims. Hallajian filed a certification, again claiming that he never received any trial notices. However, he admitted that on June 30, 2014, he received "the default [judgment] package [Pugliano's attorney] sent [] to the [c]ourt" on May 13, 2014. This "package" was mailed to Hallajian on May 17, 2014 at the Morristown address, but bore a notation from the post office, dated June 20, 2014, to "notify sender of [Hallajian's] new address" in Randolph. Hallajian never advised the court, Pugliano's attorney, or the Lawyer's Diary that he had changed his address.

In an order entered on April 10, 2015, the court denied Rockaway's motion to vacate. The court found that the 2015 Lawyer's Diary still listed the Morristown address for Hallajian. The court also confirmed that four trial notices were sent to Hallajian at the Morristown address, and found that Hallajian never notified the court his address had changed. The court emphasized that despite Hallajian's claim of an address change, he "remarkably enough, every time . . . an application was made for default judgment . . . appeared and interposed opposition. He was always able to . . . receive such applications." The court ultimately determined that although Rockaway "probably" had a meritorious defense, Hallajian's negligence or inadvertence in failing to appear for trial four times did not constitute excusable neglect. This appeal followed.

We review the trial court's decision on a motion to vacate a default judgment for abuse of discretion. Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 98 (App. Div. 2012). "The trial court's determination under [Rule 4:50-1] warrants substantial deference, and the abuse of discretion must be clear to warrant reversal." Ibid. (alteration in original) (citations omitted). "[An] abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J.6, 20 (2008) (quoting State v. Torres, 183 N.J.554, 572 (2005)), and occurs when the trial judge's "decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super.184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J.561, 571 (2002)).

A default judgment will not be disturbed unless the failure to appear or otherwise defend was excusable under the circumstances and unless the defendant has a meritorious defense to both the cause of action and damages. U.S. Bank Nat'l Ass'n v. Guillaume 209 N.J. 449, 468-69 (2012). Attorney carelessness or lack of proper diligence does not constitute excusable neglect unless "attributable to [an] honest mistake" that is compatible with due diligence or reasonable prudence. Baumann v. Marinaro, 95 N.J. 380, 394 (1984); see also Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971) (holding that excusable neglect under Rule 4:50-1(a) does not include an attorney's tardiness on the day a motion he was opposing was listed and consequently argued and disposed of in his absence).

Even assuming that Rockaway had a meritorious defense, there was no excusable neglect attributable to an honest mistake that was compatible with due diligence or reasonable prudence. Hallajian received four trial notices and inexcusably failed to appear each time. His claim that he did not receive any of the four trial notices simply defies belief and the record. Even if that claim was true, Hallajian exercised no due diligence or reasonable prudence whatsoever to assure he had proper notice of the trial date, even after the court vacated the default and twice declined to enter default judgment based on the failure to appear at trial. Under the facts of this case, we discern no abuse of discretion in the denial of Rockaway's motion to vacate the default judgment.

Affirmed.