                                NOT FOR PUBLICATION WITHOUT THE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-5578-17T3

JOSEPH STUHLTRAGER and
LINDSEY STUHLTRAGER,

          Plaintiffs-Respondents,

v.

A1 PLUMBING HEATING &
AIR CONDITIONING, INC.,
and WARREN ANDREWS,

     Defendants-Appellants.
______________________________

                    Submitted September 18, 2019 – Decided September 26, 2019

                    Before Judges Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Docket No. DC-000398-18.

                    Kim Michelle Kline, attorney for appellants.

                    Joseph Stuhltrager                   and        Lindsey          Stuhltrager,
                    respondents pro se.

PER CURIAM
      Defendants Warren Andrews and A1 Plumbing and Heating, Inc. (A1)

appeal from a June 22, 2018 order denying their motion to vacate a default

judgment entered on behalf of plaintiffs Joseph and Lindsey Stuhltrager. We

affirm.

      We take the following facts from the record. Plaintiffs contracted with

A1 to install an HVAC system in their home. According to plaintiffs, A1 and

its owner Andrews represented the system would be sufficient to maintain the

second floor of their residence at seventy-to-seventy-two degrees Fahrenheit

when temperatures outside exceeded ninety degrees. However, the system failed

to maintain an adequate temperature and broke down. When defendants failed

to remedy plaintiffs' concerns or respond to their demands for a refund, plaintiffs

filed a complaint for breach of contract, fraud, and violation of the Consumer

Fraud Act.

      Defendant filed a motion to dismiss for failure to state a claim, which was

denied. Having failed to answer plaintiffs' complaint, the court entered default

against defendants. Plaintiffs filed a motion to enter default judgment, which

defendants failed to answer.      The court entered default judgment against

Andrews on May 20, 2018, for $13,581 plus costs.




                                                                           A-5578-17T3
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      Defendants moved to vacate the default judgment three days later. The

judge denied the motion. He noted defendants did not oppose the motion to

enter default judgment, although Andrews and his attorney were served with it.

He found the motion to vacate default judgment

            was not accompanied by either an answer to the
            complaint or by a dispositive motion, as required by
            R[ule] 4:43-3. In addition, the certification of [c]ounsel
            which did accompany the motion failed to establish
            both excusable neglect for failing to file an answer and
            a meritorious defense to the complaint.

      "[A] default judgment will not be disturbed unless the failure to answer or

otherwise appear and defend was excusable under the circumstances and unless

the defendant has a meritorious defense[.]" Haber v. Haber, 253 N.J. Super.

413, 417 (App. Div. 1992) (quoting Pressler & Verniero, Current N.J. Court

Rules, cmt. 1 on R. 4:50-1 (1992)). We review such determinations for an abuse

of discretion. Mancini v. Eds ex rel. N.J. Auto. Full Ins. Underwriting Ass'n,

132 N.J. 330, 334 (1993).

      On appeal, defendants' counsel argues "[t]he trial court erred in granting

a default judgment to the plaintiffs without the factual answers and admissions

being submitted because this was an error of excusable neglect by the defendants

(sic) attorney . . . who was under a physicians (sic) care and injured at the time

that the admissions were to be sent to the court[.]" This argument was not raised

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                                        3
before the motion judge and thus is not a basis for reversal. See Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973) (discussing the limited circumstances

in which an appellate court will consider an argument first raised on appeal).

      Defendants' motion did not raise counsel's medical condition, but instead

stated "[m]otion was entered prematurally (sic) as [d]efendants' (sic) were in the

process of answering [p]laintiffs' [i]nterrogatories.   Judgement was entered

before [d]efendants' responses were received for consideration." As the motion

judge noted, defendants' task was to file either an answer with the motion to

vacate default judgment or a dispositive motion.        R. 4:43-3.    Answering

discovery was not a valid grounds to vacate the default judgment. Nor woul d

answering discovery explain the excusable neglect of failing to answer the

motion to enter default judgment.

      Affirmed.




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