Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the JUERGEN HERMANNS v. PASTORIUS HOME ASSOCIATION, INC and BERNICE HICKS individually, and MEMBERS OF

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1062-16T1

JUERGEN HERMANNS,

        Plaintiff-Respondent,

v.

PASTORIUS HOME ASSOCIATION, INC.,

        Defendant-Appellant,

and

BERNICE HICKS individually, and
MEMBERS OF THE PASTORIOUS BOARD
OF DIRECTORS,

     Defendants.
__________________________________

              Submitted November 28, 2017 – Decided December 19, 2017

              Before Judges Reisner and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              2160-15.

              Dugan, Brinkmann, Maginnis & Pace, attorneys
              for appellant (Stephen M. Winning, on the
              brief).

              Gareth David        De    Santiago,     attorney     for
              respondent.
PER CURIAM

     Defendant Pastorius Home Association, Inc. (Association or

defendant) appeals from a September 30, 2016 order denying its

motion to vacate an August 3, 2016 order entering default based

on defendant's failure to appear for trial.   Defendant also seeks

relief from an August 23, 2016 judgment, entered after a proof

hearing, awarding approximately $100,000 in favor of plaintiff

Juergen Hermanns.    Because defense counsel did not receive timely

notice of the scheduled trial, and because defendant appears to

have a meritorious defense, we conclude that the trial court

misapplied its discretion in denying the motion.     Therefore, we

reverse the September 30, 2016 order, vacate the August 3, 2016

order and the August 23, 2016 default judgment, and remand for

further proceedings consistent with this opinion.1

     On April 14, 2015, plaintiff filed a complaint asserting that

defendant and its board of directors (defendants) breached a

contract with him.    In support of that claim, plaintiff alleged

that defendants induced him to join the Association's board of

directors and "take care of matters for their building in Germany,"

which required him to make three trips to Germany.       Plaintiff



1
   Plaintiff's motion (M-0187-17), asking this court to require
defendant to post a bond as a condition of pursuing this appeal,
is denied.

                                  2                         A-1062-16T1
claimed   that   defendants    caused   him   "great   financial   and

psychological and emotional suffering" by refusing to reimburse

him for his "thousands of dollars of trip expenses."

      In a second count, plaintiff alleged, without asserting any

additional relevant facts, that defendants violated the Consumer

Fraud Act by engaging in unspecified "unconscionable, deceptive,

false commercial practices."    In a third count, and again without

asserting any additional facts, plaintiff asserted a claim for

emotional distress due to the breach of contract.      A fourth count

asserted that defendants wrongfully removed him from the board of

directors without notice, and wrongfully referred to him as "a

thief," causing him emotional distress.       Count six2 asserted in

general terms that defendants "gave Plaintiff negligently false

information" causing him "astronomical monetary damages."

      The Association filed an answer on July 13, 2015, admitting

that it operated a bed and breakfast facility in Germany, that

plaintiff was a board member, and that he traveled to Germany "in

connection with the Association."       The answer denied all other

allegations in the complaint.

      On July 25, 2016, the court entered an order suppressing

defenses due to defendant's failure to appear on the scheduled



2
    There was no count five in the complaint.

                                  3                           A-1062-16T1
trial date.   The court issued a further order on August 3, 2016,

entering default and directing that a date be set for a proof

hearing on notice to the Association.         That order also noted that

the individual defendants were previously dismissed from the case

for lack of prosecution.

     Plaintiff's counsel sent the Civil Assignment Office a letter

dated August 16, 2016, confirming an August 23, 2016 proof hearing.

Defense   counsel   was   copied   on   the    letter.    There   is     no

documentation as to when the letter was mailed.             Plaintiff's

appellate brief inexplicably asserts that defendant had "10 days

notice" of the proof hearing, when that is clearly not the case.

     Defendant's counsel did not appear for the proof hearing, and

the trial court entered a judgment on August 23, 2016, awarding

$100,000 in unliquidated damages for intentional infliction of

emotional distress and $1989.53 for plaintiff's travel expenses.

Neither party provided us with the transcript of the August 23,

2016 hearing or the judge's oral statement of reasons for the

default judgment.

     Defendant filed a motion to vacate the default, supported by

a certification of its attorney, Stephen M. Winning.3             In his


3
   The motion, which sought to vacate the July 25, 2016 order
entering default, was apparently filed before defense counsel
received the August 23, 2016 default judgment. Defense counsel's


                                   4                              A-1062-16T1
certification, Winning attested that neither side had taken any

discovery in the case, and he had not received any written notice

of the scheduled July 25, 2016 trial.     Instead, on July 21, 2016

– while he was "on a prepaid family vacation" – Winning received

a phone call from the court telling him that the trial would

commence on July 25.     He "immediately requested a continuance of

the trial due to the fact that he was on [a] prepaid family

vacation," and called his adversary for consent.      The adversary

never responded to the call, and the court denied the adjournment

request as "untimely."      Winning asserted that defendant had a

meritorious defense, in that plaintiff was not legally entitled

to emotional distress damages due to unreimbursed travel expenses.

     Although defendant requested oral argument, the motion was

decided on the papers.    In the September 30, 2016 order, the court

handwrote "lack of excusable neglect" as its reason for denying

the motion.

     We review the trial court's decision of a motion under Rule

4:50-1 for abuse of discretion.    Mancini v. EDS ex rel. N.J. Auto.

Full Ins. Underwriting Ass'n, 
132 N.J. 330, 334 (1993).    However,

the trial court is bound to view such a motion "with great

liberality" and to resolve all doubts "in favor of the parties


certification of service attested that the motion was served on
plaintiff's counsel on August 16, 2016.

                                  5                          A-1062-16T1
seeking relief."     Ibid. (citations omitted).       A defendant seeking

relief from a default judgment due to excusable neglect must also

show that it has a meritorious defense.           Ibid.

     On this appeal, defendant contends that the trial court

misapplied its discretion in denying his motion, because defense

counsel did not receive notice of the scheduled July 25, 2016

trial date until July 21, 2016. At that point, he could not attend

the trial because he was away on a prepaid family vacation.                   We

agree that the attorney's reason for failing to attend the trial

constituted excusable neglect, due to lack of timely notice of the

trial.   Moreover, it appears that defendant may have a meritorious

defense,   because   emotional      distress   damages     are   not   usually

available in a breach of contract action.            See Noye v. Hoffman-

LaRoche Inc., 
238 N.J. Super. 430, 433 (App. Div. 1990).

     Accordingly, we reverse the September 30, 2016 order, vacate

the August 23, 3016 default judgment, and remand this case to the

trial court for further proceedings consistent with this opinion.

     Reversed,     vacated,   and     remanded.       We    do   not    retain

jurisdiction.




                                      6                                A-1062-16T1