Opinion
DOCKET NO. A-3435-14T3
08-16-2016
DAVID CASALE, Plaintiff-Respondent, v. MARK D. WEIR, Defendant-Appellant.
Mark Weir, appellant pro se. David Casale, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Ocean County, Docket No. SC-2415-14. Mark Weir, appellant pro se. David Casale, respondent pro se. PER CURIAM
Defendant Mark Weir appeals the January 7, 2015 order denying his motion to vacate a default judgment, and the February 11, 2015 order denying reconsideration. We reverse the order denying reconsideration, vacate the order denying the motion to vacate, and remand for a hearing.
I.
In his complaint, plaintiff David Casale alleged as follows. Plaintiff owned a residence on Dupont Avenue in Seaside Heights. Defendant owned the adjacent house, which he regularly rented out to teenagers for prom and similar party-type events that involved drug use and underage drinking. Defendant hired security guards "to oversee the pandemonium," and the police frequently made arrests at the house. Three times in summer 2014, plaintiff awoke during these parties after loud thuds against the side of his house, and discovered extensive damage to his siding, gutter leader, and fence.
Plaintiff filed a complaint, dated on August 21, 2014, in the Special Civil Part. The complaint gave an address on Grant Avenue in Seaside Heights as defendant's address. Bearing that same address, a summons was issued on August 27, 2014, to inform defendant that he must appear in court on October 1, 2014.
Plaintiff issued an information subpoena dated November 5, 2014, which recited that a default judgment for $2522 and interest was entered on October 28, 2014. On December 8, 2014, defendant filed a records request form reciting that same information. The form gave a Staten Island address as defendant's address. Apparently also on December 8, 2014, plaintiff filed a motion to compel an answer to the information subpoena.
In his appellate brief, defendant states that he had "discover[ed] the Judgment in old mail."
A copy of that motion, or the default judgment, has not been supplied to us.
The Special Civil Part mailed a card, postage-metered on December 11, 2014, to defendant at the Staten Island address. The card informed defendant that the "motion" filed December 8, 2014 would be decided on January 7, 2015, and that he should not come to the courthouse because no oral argument had been requested.
On December 30, 2014, defendant, again using the Staten Island address, filed a motion to vacate default judgment. Defendant requested oral argument. The Special Civil Part mailed a card, postage-metered on January 2, 2015, to defendant at the Staten Island address. The card stated that a motion hearing was scheduled for January 7, 2015, and that defendant should report to the judge's courtroom.
On January 7, 2015, defendant did not appear. Plaintiff appeared and told the trial judge that defendant's official address on file with the Borough of Seaside Heights was the Grant Street address, and that defendant was served there by regular and certified mail, "neither of which came back unreturned."
The trial court denied defendant's motion to vacate because defendant failed to appear: "The matter has been called twice. There was no Answer by the defendant. So I'm going to deny his motion." The judge granted plaintiff's motion regarding the information subpoena, issuing a warrant of arrest.
On January 26, 2015, defendant filed a motion seeking reconsideration of the court's January 7, 2015 order denying his motion to vacate. The judge denied reconsideration by order dated February 11, 2015.
Defendant requested oral argument on reconsideration as well. The parties have not supplied us with a transcript from February 11, 2015. The judge later stayed the judgment pending appeal.
II.
We initially address the denial of defendant's timely motion for reconsideration. Rule 4:49-2 requires a party seeking reconsideration to "state with specificity the basis on which [the motion] is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred[.]" Ibid. "[T]he decision to grant or deny a motion for reconsideration rests within the sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "Reconsideration should be used only where '1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Ibid. (citation omitted). "[A] trial court's reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion." Ibid. (citing Hous. Auth. Of Morristown v. Little, 135 N.J. 274, 283 (1994)). We must hew to this standard of review.
Defendant requested oral argument on his motion to vacate default judgment. In seeking reconsideration of the denial of his motion to vacate, defendant complained he had not received the notice of oral argument until the day after the oral argument had occurred.
"In the Special Civil Part, '[o]ral argument is required to be granted as of right on timely request, the date and time to be set by the court, which will then advise the parties.'" State v. Two Thousand Two Hundred Ninety-Three Dollars ($2,293) in U.S. Currency [hereinafter "$2,293"], 436 N.J. Super. 497, 505 (App. Div. 2014) (quoting Pressler & Verniero, Current N.J. Court Rules, comment on R. 6:3-3 (2014)); see R. 6:3-3(b)(1). The opposing party must notify the clerk "in writing within ten days after the date of service of the motion that the responding party objects." R. 6:3-3(c)(2). "[U]pon receipt of an objection and a request for oral argument, . . . the clerk shall set the motion down for hearing and shall notify the parties or their attorneys by mail of the time and place thereof." R. 6:3-3(b)(1); see also R. 6:3-3(c)(3) (the parties "will be notified of the time, date, and place" of "oral argument").
Here, defendant's certification on reconsideration asserted that he did not receive the clerk's mailed notice of the January 7, 2015 oral argument until January 8, 2015. Defendant's certification was attested as provided in Rule 1:4-4(b). Further, defendant's certification pointed out facts which supported his assertion of delayed delivery. The United States Postal Service states that first-class mail takes one to three business days. The clerk's notice bore a postage meter date of Friday, January 2, 2015, only three business days before Wednesday, January 7. Moreover, the notice was mailed right after the busy holiday mail period and had to travel interstate.
In addition, defendant certified that the only court notice he possessed on January 7 was the clerk's notice postage-metered December 11, 2014, telling him not to come to court on January 7. Defendant's certification noted that while the December 11 notice had provided almost four weeks of notice, the January 2 notice had scheduled the hearing for only eight days after he filed his motion to vacate default. This eight-day period was shorter than the ten-day response period provided in Rule 6:3-3(c)(2).
Thus, the trial court had before it a certification that defendant had not received notice of oral argument until after oral argument had occurred. It does not appear that there was any contrary evidence before the court on reconsideration, or that the court issued a written or oral opinion on its denial of reconsideration. Thus, we know of no reason why the court rejected this uncontradicted certification that defendant lacked notice of the hearing on his motion to vacate.
Rule 1:7-4(a) requires that "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right," which includes a motion for reconsideration under Rule 4:49-2. See Gnall v. Gnall, 222 N.J. 414, 428 (2015).
Under Rule 6:3-3, the Special Civil Part "was required at a minimum to provide adequate notice of the proceeding and accord [defendant] . . . an opportunity to appear." $2,293, supra, 436 N.J. Super. at 505-06. In $2,293, we reversed where the movant did not get notice of a hearing because the clerk's notice was returned to sender. Id. at 502. Here, the clerk's notice was equally ineffective because it was sent so close in time to the hearing that defendant did not receive it until after the hearing.
Thus, defendant made a sufficient showing that the Special Civil Part failed to provide him adequate notice of the hearing on his motion as required by the Rules. Similarly, the "minimum procedural requirements" of due process require that a party receive "notice plus an opportunity to be heard and participate in the litigation." Simmermon v. Dryvit Sys., Inc., 196 N.J. 316, 330 (2008) (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12, 105 S. Ct. 2965, 2974, 86 L. Ed. 2d 628, 641-42 (1985)).
Accordingly, the trial court's denial of defendant's motion to vacate was on a palpably incorrect basis. The court denied that motion solely on the ground that defendant had failed to appear at the hearing. Based on defendant's certification, defendant had no opportunity to appear. That invalidates the only reason the court gave for denying the motion to vacate, leaving us "no basis on which to conduct any meaningful review" of that denial. Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003).
Moreover, defendant's certification to his motion to vacate attempted to allege "excusable neglect" and a meritorious defense in apparent reliance on Rule 4:50-1(a); see US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 469 (2012). A "defendant seeking to reopen a default judgment [under that subsection] must show that the neglect to answer is excusable under the circumstances and that [he] has a meritorious defense." U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94, 112 (App. Div. 2016) (quoting Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 335 (1993)).
To show excusable neglect, defendant certified that the house in Seaside Heights was only his summer home, that after Labor Day weekend he resided full time at his primary residence in Staten Island, and that plaintiff "mailed a certified letter/notice" to defendant's summer home after Labor Day, not to his primary address. Defendant denied that he received notice of the complaint or any subsequent court notices by certified mail or personal service.
To show a meritorious defense, defendant's certification denied the accusations that his tenants misbehaved; noted that plaintiff had never reported any problem to defendant's security guard; asserted that juvenile trespassers broke into a nearby property and threw debris toward plaintiff's house on several occasions during the summer; and claimed there was no fence.
Plaintiff's appellate brief attempts to counter defendant's arguments by attaching a June 10, 2015 certification that on August 7, 2014, he called the Borough clerk and was told that the Grant Avenue address was defendant's legal mailing address. Plaintiff also attaches other documents, including defendant's electric and water bills from the Borough for the Dupont Avenue house which were addressed to defendant at the Grant Avenue address; photographs showing damaged siding; and a printout showing police calls for defendant's Dupont Avenue property.
Defendant's appellate reply brief attaches tax notices and an electric and water bill from the Borough for the Dupont Avenue property, and his New York driver's license and driving record, all using defendant's Staten Island address.
It is unclear to us whether all these documents were submitted to the trial court when it considered defendant's motion to vacate on January 7, 2015. Plaintiff's June 10, 2015 certification was not prepared until this case was on appeal.
Moreover, the transcript of the January 7, 2015 hearing shows that the court only denied the motion to vacate based on defendant's failure to appear for the hearing. The court did not determine if the clerk properly served the complaint on defendant under Rule 6:2-3. The court did not decide whether defendant's failure to respond was excusable neglect, "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Guillaume, supra, 209 N.J. at 468 (quoting Mancini, supra, 132 N.J. at 335). The court did not decide whether defendant's certification showed "the presence of a meritorious defense worthy of judicial determination." O'Connor v. Altus, 67 N.J. 106, 129 (1975). As these disputed issues involve disputed issues of fact and credibility, they are best resolved by the trial court in the first instance in a new hearing on the motion to vacate.
The trial court's statement, "I guess we properly served them. They haven't showed; is that correct?" did not constitute such a ruling.
"If defective service renders the judgment void, a meritorious defense is not required to vacate the judgment under R. 4:50-1(d)." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004). --------
Moreover, "[t]he decision whether to grant such a motion is left to the sound discretion of the trial court[.]" Mancini, supra, 132 N.J. at 334. "The trial court's determination . . . warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." Guillaume, supra, 209 N.J. at 467. We decline to usurp that discretionary decision from the trial court.
Accordingly, we reverse the February 11, 2015 order denying reconsideration, vacate the January 7, 2015 orders denying defendant's motion to vacate and granting plaintiff's motion for an arrest warrant, and remand to the Special Civil Part to conduct a hearing on those motions after appropriate notice. We do not retain jurisdiction.
Reversed in part, vacated in part, and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION