                                NOT FOR PUBLICATION WITHOUT THE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-3442-18T2

CARBONATOR RENTAL
SERVICES INC.,

          Plaintiff-Respondent,

v.

DANDY RESTAURANT LLC,
d/b/a O'DONNELL'S RESTAURANT,

          Defendant/Third-Party
          Plaintiff-Appellant,

v.

LOUIS HAYS,

     Third-Party Defendant-
     Respondent.
_________________________________

                    Submitted January 23, 2020 – Decided February 18, 2020

                    Before Judges Fuentes, Mayer and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. DC-009190-18.
            Law Offices of Igor Sturm, attorneys for appellant
            (William C. MacMillan, on the briefs).

            Law Offices of Frederic I. Weinberg & Associates, PC,
            attorneys for respondents (Joel M. Flink, on the brief).

PER CURIAM

      Defendant Dandy Restaurant LLC, d/b/a O'Donnell's Restaurant (Dandy)

appeals from a January 22, 2019 order denying defendant's motion to vacate a

default judgment, a March 7, 2019 order denying a motion to vacate default

judgment by consent, and an April 2, 2019 order denying defendant's motion for

reconsideration of the March 7, 2019 order. We reverse and remand for further

proceedings.

      Plaintiff Carbonator Rental Services, Inc. contracted to supply Dandy with

carbonated beverage equipment.      Defendant alleged that after the parties'

contract was executed, plaintiff and its representative, third-party defendant

Louis Hays, fraudulently altered the contract by increasing the lease payment

for plaintiff's equipment from nine dollars to twenty-nine dollars per week.

Defendant refused to pay the higher amount and plaintiff instituted suit against

defendant, alleging breach of contract.     Plaintiff sought damages totaling

$3929.59. Defendant answered, counterclaimed against plaintiff, and filed a

third-party complaint against Hays in September 2018.


                                                                        A-3442-18T2
                                       2
        On September 23, 2018 defendant filed a motion to transfer the matter to

the Law Division, claiming a recovery on the counterclaim and third-party

complaint would exceed the jurisdiction of the Special Civil Part.1 While that

motion was pending, the Special Civil Part clerk scheduled trial for November

13, 2018. Defendant requested and received an adjournment of the trial date to

accommodate the pending motion to transfer. A second trial notice was

generated, providing for a new trial date of December 11, 2019.

        The Law Division judge denied defendant's transfer motion without

prejudice on November 30, 2018 due to a purported failure to provide the trial

court with a courtesy paper copy of the motion to transfer. Defendant's attorney

claims he previously provided the Law Division judge with a courtesy copy of

the motion and when he contacted the judge's chambers to explain this, he was

told to refile the motion. Although he refiled the motion on December 21, 2018,

defendant's attorney asserts that while the initial motion to transfer was pending,

his secretary mistakenly "thought [the December 11, 2018 trial notice] was the

first trial date that had been adjourned." Accordingly, the second trial date was

not placed on the attorney's calendar.




1
    The monetary limit for damages in the Special Civil Part is $15,000. R. 6:1-2.
                                                                           A-3442-18T2
                                         3
      On December 11, 2018, the Special Civil Part judge called this matter.

Counsel for plaintiff and his client appeared, but neither defendant nor its

counsel appeared, so the trial court entered default against defendant. On

January 2, 2019, plaintiff submitted its request to enter default judgment against

defendant. Several days later, the trial court entered default judgment against

defendant in the amount of $4387.97 and deemed the judgment effective as of

January 2, 2019.

      Defendant's attorney argues he first learned of the entry of default when

he spoke with plaintiff's attorney on January 3, 2019. He immediately filed a

motion to "vacate default and/or default judgment" on January 4, 2019. In his

supporting certification, defense counsel explained his lack of appearance on the

adjourned trial date, stating:

             Based upon my office's prior communications with the
             [c]lerk's office, wherein the previous . . . trial date was
             postponed due to the pending motion to transfer the
             matter to the Law Division, it was mistakenly
             understood that the December 11, 2018 trial date had
             been adjourned due to the still pending motion to
             transfer to the Law Division.

             [(Emphasis added).]

      The trial judge heard brief oral argument on defendant's motion to vacate

on January 22, 2019. By this time a default judgment had been rendered in


                                                                           A-3442-18T2
                                         4
plaintiff's favor. During argument, the judge stated he was "not inclined to

vacate the default here." Alluding to the calendar error in his office, defense

counsel maintained, "[i]t was a mistake." The judge responded, "[w]ell, I don't

think it's excusable neglect," and without further explanation, he denied

defendant's motion.

         On February 22, 2019 defendant filed another motion to vacate default

judgment, this time with plaintiff's consent. The trial court denied the second

motion to vacate on March 7, 2019, on the papers, noting defendant's motion

was "unopposed."       This order reflects the word, "DENIED," written over

defendant's proposed relief, with the added notation, "SEE ORDER OF

JANUARY 22, 2019." No further statement of reasons was included with this

order.

         Defendant filed a motion for reconsideration on March 13, 2019, which

was heard on April 2, 2019. The following colloquy ensued between defense

counsel and the trial court:

              Judge, I mean, if the parties are in agreement that
              default judgment should be vacated, where is the
              countervailing interest?

                    ....

              THE COURT: . . . Both parties come up and they go,
              we both agree to adjourn the trial date . . . . Or we both

                                                                           A-3442-18T2
                                          5
            agree to do this and do that. No. No, no, no. The [c]ourt
            makes these decisions, not the parties. And the
            countervailing reasoning is that the [c]ourt made a
            decision.

                   ....

            [DEFENSE COUNSEL]: - - the initial decision, they
            opposed the motion. They opposed it. And that was
            the basis for Your Honor's decision . . . .

            So then I -- we conferred. And based on our agreement,
            we agreed that the default judgment should be vacated.
            So, Your Honor, the considerations for the second
            application are different because they’re no longer
            opposed to vacating the default judgment. And I think
            the [c]ourt should give proper weight to that
            consideration.

            THE COURT: The consideration is that once-- the one
            time they oppose and then they change their mind and
            don’t oppose?

            [DEFENSE COUNSEL]: The -- yes, Your Honor.

            THE COURT: No. Okay. All right. I hear you, but no.
            No. So the motion for reconsideration is denied. I’m
            sorry, but no.

      On appeal, defendant argues the denial of its initial motion to vacate

default was error because defendant filed its motion before the trial court entered

judgment in plaintiff's favor, and it demonstrated "good cause" consistent with

Rule 4:43-3 to vacate default; alternatively, defendant argues it established

"excusable neglect" and a "meritorious defense" under Rule 4:50-1 for vacating

                                                                           A-3442-18T2
                                        6
the default judgment. 2 See U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,

468 (2012). Defendant further argues that the trial court mistakenly failed to

draw any distinction between the initial motion which had been opposed by

plaintiff, and its second motion for vacatur, to which plaintiff consented.

Defendant adds the March 7, 2019 order denying its unopposed motion was

"bereft of any stated reasons or basis."

      Our standard of review warrants substantial deference to a trial court's

determination on a motion to vacate a default or a default judgment, which

"should not be reversed unless it results in a clear abuse of discretion."

Guillaume, 209 N.J. at 467; see Hous. Auth. of Morristown v. Little, 135 N.J.

274, 283 (1994); see also Mancini v. EDS, 132 N.J. 330 (1993). An abuse of

discretion occurs "when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'" Guillaume, 209 N.J. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc.,

191 N.J. 88, 123 (2007)).

      A motion to vacate default judgment implicates two competing goals: the

desire to resolve disputes on the merits, and the need to efficiently resolve cases



2
  These rules are applicable to matters in the Special Civil Part, pursuant to Rule
6:6-1.
                                                                           A-3442-18T2
                                           7
and provide finality and stability to judgments.    In balancing these two goals,

we favor the party seeking relief, because of the high value we place on deciding

cases on their merits. See Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 100-

01 (App. Div. 1998) (stating that doubts should be resolved in favor of the

applicant in order to secure a trial upon 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, 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)).

      Here, we need not decide whether defendant's vacatur motions should

have been held to the more stringent standard set forth in Rule 4:50-1(a), or the

relaxed standard outlined in Rule 4:43-3. We are satisfied defense counsel's

honest mistake, and his office's failure to diary the second trial date of December

11, 2018 while his motion to transfer was pending, satisfied both the "excusable

neglect" and "good cause" thresholds respectively required under Rules 4:50-

1(a) and 4:43-3. Indeed, we have observed that "[e]xcusable neglect" may be

found when the default was "attributable to an honest mistake that is compatible

with due diligence or reasonable prudence." Guillaume, 209 N.J. at 468 (quoting


                                                                           A-3442-18T2
                                         8
Mancini, 132 N.J. at 335). Moreover, we remain troubled by the trial court's

failure to explain, in any meaningful fashion, its conclusions to the contrary with

respect to its orders of January 22, March 7 and April 2, 2019.

      Rule 1:7-4(a) requires that the court "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." The Supreme Court has expounded on this essential obligation:

            Failure to perform that duty constitutes a disservice to
            the litigants, the attorneys and the appellate court.
            Naked conclusions do not satisfy the purpose of [Rule]
            1:7-4. Rather, the trial court must state clearly its
            factual findings and correlate them with the relevant
            legal conclusions.

            [Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)
            (citation omitted).]

      Here, we are hampered in our task because the judge did not comply with

Rule 1:7-4(a). Further, we are satisfied the judge abused his discretion by

denying defendant's vacatur motions. We therefore reverse and remand for

further proceedings. We do not retain jurisdiction.

      Reversed and remanded.




                                                                           A-3442-18T2
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