Opinion
DOCKET NO. A-1092-12T1
06-04-2014
KEITH HARBERT, Plaintiff-Respondent, v. NICHOLAS FONROSE, Defendant-Appellant, and ABC SNOW REMOVAL, Defendant.
CLA Law International, PC, attorneys for appellant (Chioma L. Anopueme, on the brief). Law Office of Stanley Marcus, attorneys for respondent (Robert J. McKenna, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1353-10.
CLA Law International, PC, attorneys for appellant (Chioma L. Anopueme, on the brief).
Law Office of Stanley Marcus, attorneys for respondent (Robert J. McKenna, on the brief). PER CURIAM
Defendant Nicholas Fonrose appeals from an order entered on June 15, 2012, denying his motion to vacate a default judgment entered against him on March 20, 2012. Defendant also appeals from denial of his motion for reconsideration entered on September 14, 2012. Defendant argues that the Law Division abused its discretion "by requesting oral argument when there was no opposition to the motion," thereby indicating bias on the part of the judge. He also argues that the Law Division abused its discretion in addressing only "excusable neglect," and in failing to consider other grounds for relief. Finally, defendant contends that the Law Division erred in finding defendant was personally served. Having considered these arguments in light of the record and applicable law, we affirm.
We discern the following from the record provided by the parties on appeal. This case arises out of a slip and fall which occurred on December 22, 2008, on defendant's property at Brookside Avenue in Irvington, where plaintiff was residing at the time. Plaintiff fell on snow and ice that had accumulated on the stairs and sustained injuries, including a broken wrist.
On April 29, 2009, plaintiff's attorney sent a letter to defendant at Brookside Avenue notifying him of his intention to file a claim. The letter was received by defendant and forwarded to Homesite Insurance Company, defendant's homeowner's insurance carrier. After an investigation, Homesite concluded that the property was not covered by the policy because it was purely a rental property and defendant did not live on the premises.
The investigative report is somewhat equivocal on this issue. Defendant, in his statement to the investigator, said he lived both at the Brookside Avenue property, a multi-family home, and at a home on Cottage Place in East Orange. His later statement that he lived only at the East Orange property is thus unclear.
On February 5, 2010, plaintiff filed a complaint against defendant for the injuries plaintiff sustained. On March 17, 2010, a copy of the summons and complaint were served at the Brookside Avenue property on an individual identifying himself as defendant. On March 2, 2010, Homesite filed a complaint seeking declaratory judgment that it did not have a duty to defend or indemnify defendant against plaintiff's claims. On March 28, 2010, the summons and complaint in that action were served at Cottage Place in East Orange, defendant's other address, on an individual who identified himself as defendant. The descriptions of defendant in both affidavits of service were quite similar.
Defendant failed to file responsive pleadings to either complaint. Eventually, the court entered default against defendant on the Homesite complaint, and later granted Homesite's unopposed motion for summary judgment. On August 31, 2010, plaintiff requested default be entered against defendant, and notice of the request for default was sent to both Brookside Avenue and Cottage Place. Defendant did not respond to the notice.
On March 20, 2012, defendant appeared in court, without counsel, after receiving notice of proof hearing on plaintiff's complaint. Default judgment was entered against him for $17,459.95. On May 30, 2012, defendant's counsel moved to vacate the default judgment. The motion judge, after hearing argument, denied the motion on June 15, 2012. Defendant then filed a motion for reconsideration on July 3, 2012. The judge denied reconsideration on September 14, 2012, stating that defendant failed to establish excusable neglect under Rule 4:50-1(a).
We first address defendant's contention that the Law Division's request for oral argument demonstrated bias. This assertion is meritless. A court always has discretion to require oral argument, even when not requested. Rule 1:6-2(d); Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:6-2 (2014) ("With respect to oral argument . . . the court always has the discretion to call for oral argument even if no party has sought it"). Other than defendant's bald assertion, there is simply nothing to indicate the judge was biased by requesting argument.
We next address defendant's claim that the motion court abused its discretion in not vacating the default judgment. When the Law Division enters default judgment pursuant to Rule 4:43-2, a party seeking to vacate the default judgment must comply with the standard of Rule 4:50-1. Rule 4:50-1 provides in relevant part that:
[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; . . . or (f) any other reason justifying relief from the operation of the judgment or order.A motion to vacate judgment under Rule 4:50-1(a) "should be granted sparingly and is addressed to the sound discretion of the trial court[.]" Fineberg v. Fineberg, 309 N.J. Super. 205, 215 (App. Div. 1998). A trial court's determination "warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of discretion occurs "when a decision is 'made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
[R. 4:50-1.]
A party seeking relief under Rule 4:50-1(a) must show both excusable neglect and a meritorious defense. Mancini v. EDS, 132 N.J. 330, 334 (1993) (quoting Morales v. Santiago, 217 N.J. Super. 496, 501 (App. Div. 1987)). Excusable Neglect can be found if "the default was '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).
Defendant fails to establish excusable neglect here. He contends he never filed responsive papers because he was never served, and therefore had no knowledge of the suit. To support his argument, defendant cites to the insignificant disparities in physical description contained in the process servers' affidavits. The judge properly rejected this argument.
Defendant admitted to the judge that he resided at Brookside Avenue at the time of service, and the receipt there of the letter from plaintiff's attorney in April 2009 indicates both that defendant received mail at Brookside Avenue, and that he at least had knowledge a lawsuit was threatened against him. An individual exercising due diligence or reasonable prudence does not, after receiving such a notice, fail to follow up or inquire for almost three years. This default was not "attributable to a honest mistake[.]" Guillaume, supra, 209 N.J. at 468.
Defendant claims two additional bases for vacating the default judgment: Rule 4:50-1(b), newly discovered evidence, and Rule 4:50-1(f), any other reason justifying relief. Relief was not warranted under either Rule 4:50-1(b), as there was no newly discovered evidence, or under Rule 4:50-1(f), as defendant's situation is not one of the "exceptional situations" contemplated by Rule 4:50-1(f). See Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) ("relief under Rule 4:50-1(f) is available only when truly exceptional circumstances are present." (citations omitted)); Badalamenti v. Simpkiss, 422 N.J. Super. 86, 103 (App. Div.) (when requesting relief under Rule 4:50-1(f), the party "must show that enforcement of the judgment would be unjust, oppressive, or inequitable"), certif. denied, 208 N.J. 600 (2011). No further discussion is necessary.
Defendant also claims that the motion judge abused his discretion in denying his motion for reconsideration. The contention lacks merit. We review the Law Division's denial of a motion for reconsideration under an abuse of discretion standard. Davis v. Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010), aff'd in part, rev'd in part on other grounds, 209 N.J. 269 (2012). Reconsideration is a matter within the sound discretion of the trial court. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). A motion for reconsideration is only granted under certain narrow circumstances, "in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). Neither circumstance was present here, and, accordingly, there was no abuse of discretion and the Law Division properly denied the motion for reconsideration.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION