SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 3502
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SCOTT C. FREEMAN, d/b/a FREEMAN RENOVATION SERVICES, Plaintiff

- Respondent,

v. ST. CLAIR KITCHEN & HOME, L.L.C. and DANIEL WOLTAG,
Defendants
- Appellants,
and HENRY WOLTAG,
Defendant.

____________________________

Submitted March 9, 2017

– Decided May 15, 2017 Before Judges O'Connor and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. DC
- 419
- 15. Skolnick Legal Group, P.C., attorneys for app ellants (Martin P. Skolnick , of counsel; Mr. Skolnick and John E. Icklan, on the briefs). Arthur G. Nevins, Jr., attorney for respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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
- 3.2 A - 3502
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PER CURIAM Defendants , St. Clair Kitchen & Home, L . L . C . (St. Clair) and Daniel Woltag, 1 appeal from the February 19 , and April 1, 2016 orders denying their motion to vacate default judgment s against
them and denying reconsideration of the motion . 2 For the reasons that follow, we reverse. Plaintiff Scott C. Freeman filed a complaint against
defendant s in January 2015 , asserting they violated an agreement for renovation services . After retain ing counsel, plainti ff filed an amended complaint in April 2015. The amended complaint alleged
defendant St. Clair owed plaintiff $9305 for labor and services pursuant to their agreement , and claimed Mr. Woltag , who owned the building being renovated , was unjustly enriched and was liable for this amount as well. Defendant s filed an answer and counterclaim on July 6, 2015. At a September 9, 2015 hearing, the judge set a trial date
of Oc tober 19, 2015. Only defendant s ' counsel , not defendants,

1 In its brief, plaintiff indicates Daniel Woltag is not a party to this appeal; however, his name appears on the Notice of Appeal, and defendants ' brief includes Mr. Woltag as an appellant. Therefore, we have included Mr. Woltag in this opinion.

2 Plaintiff initially included Henry Woltag as a defendant; however, the case was dismissed as to Henry Woltag, as he is deceased.3 A - 3502
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was present at that hearing . On September 18, 2015, a second judge issued a n order disqualifying defendant s ' counsel. 3 Defendant s ' counsel informed Ms. J. Antoinette Hughes Frasier, principal for St. Clair , of the October 19, 2015 trial date and informed her defendant would need a new attorney. Counsel also advised Mr. Woltag about his disqualification and the new trial date via email on October 1, 2015. In the email, counsel
noted , "I have not received any official notification as to a new date. I have attached the case detail from the court's website and it indicates the case has been 'disposed.' I don't know why it says this." Ms. Frasier went to the courthouse on October 14, 2015, to confirm the trial date. A court representative told Ms. Frasier there was no information about the case, and the order to withdraw
counsel had not been entered. Mr. Woltag called the courthouse on October 16, 2015, and a representative told him there was no trial date scheduled. The representative suggested calling the judge's chambers, but disqualified counsel told defendants not to
do so. Neither Ms. Frasier nor Mr. Woltag appeared on October 19,
2015 .

3 Plaintiff moved for counsel's disqualification based on Rule 3.7 of the Rules of Professional Conduct, as he had helped negotiate the agreement and may have been needed as a witness.4 A - 3502
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Plaintiff's counsel appeared on Octobe r 19, 2015 , before the first judge who previously conducted the September 9 hearing . Plaintiff's counsel told the court,

The defendants have never appeared by notice . . . of appearance by new counsel, and in spite of the number of contacts from my office as a reminder and in spite of the order signed . . . on September 18th , disqualifying [def endant s ' attorney] as counsel . . . . S o he definitely knew it was on. However, defendant s submitted certifications attesting plaintiff only attempted to c ontact them one time about the hearing by leaving a phone message remind ing defendant s to find new counsel. Plaintiff moved for entry of default against defendants and dismissal of defendants' counterclaims. The matter appeared on the judge's schedule but not on the court's schedule. Before entering default against defendants, the judge stated the following: I will point out to you, though, that in our

computer system the case is not listed for trial for today. And I think it could be because of the motions that were pending. So my concern is that at some point there's going to be a motion filed to vacate whatever judgment gets entered today on the basis that for all we know they contacted the court a nd somebody at the court said, [n] o, we don't have anything scheduled for this. So just be aware of that possibility.5 A - 3502
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The judge gra nted default based on defendant s ' failure to appear and held the proof hearing on plaintiff's damages. The judge then entered jud gment for plaintiffs for $14,527 and dismi s sed defendants' counterclaims. On October 21, 2015, the judge who issued the September 18,
2015 order entered a consent order , disqualifying defendant s ' original counsel and requiring defendants to retain new counsel by October 19, 2015, which had alre ady passed.
O n October 29, 2015, Ms. Frasier wrote to the judge who entered the judgment against defendants requesting the default be vacated. On November 10, 2015, Ms. Frasier filed a motion to vacate the judgment , which the court denied on December 4, 2015, due to Ms. Frasier's lack of standing. Defendants finally retained

new counsel, and moved to vacate the default judgment, pursuant

to R. 4:50
- 1. Plaintiff opposed the motion. On February 19, 2016, the second judge denied the motion to vacate without oral argument and without any written findings. After receiving the transcript from the October 19, 2015, hearing, defendants moved for reconsideration on February 25,
2015. The second judge denied the motion on April 1, 2016, without oral argument or any written findings. This appeal followed. We revi ew denial of a motion to vacate a judgment under Rule
4:50
- 1 using an abuse of discretion standard . Hous. Auth. of6 A - 3502
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Morristown v. Little , 135 N.J. 274, 283 (199 4) . 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." Iliadis v. Wal

- Mart Stores,
Inc. 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cty.
Prosecutor , 171 N .J. 561, 571 (2002)) . First, we note defendants ' appeal is properly before this

court. D efendants' motion to vacate the judgment pursuant to Rule
4:50
- 1 was timely filed within one year from the entry of judgment,
per Rule 4:50
- 2. Further, the motion for reconsideration was filed within twenty days of the denial of the motion to vacate, and thus, was also timely . See R. 4:49
- 2. Plaintiff's arguments to the contrary lack sufficient merit to warrant discussion . See

R. 2:1 1
- 3(e)(1 )(E). Next, defendants argue the trial court abused its discretion by denying their motion to vacate the default judgment. We agree
and reverse.
Under Rule 4:50
- 1(a), a judgment may be vacated due to

" mistake, inadvertence, surprise, or excusabl e neglect ." Defendants seeking to vacate default judgments under Rule 4:50
- 1(a) have to demonstrate their failure to answer the claim amounted to excusable neglect, and the defendant must show he or she has a meritorious defense. U .S. Bank Nat 'l Ass'n v. Guillaume , 209 N.J.7 A - 3502
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449, 468 (2012) (finding no excusable neglect where defendants were fully informed of ongoing court proceedings but failed to appear for over a year); Marder v. Realty Constr. Co. , 84 N.J . Super. 313, 318 (App. Div. ) (accepting the corporate defendant's belief that an insurance company would handle a lawsuit as excusable neglect) , aff ' d , 53 N.J. 508 (1964) . " Carelessness may be excusable when attributable to an honest mistake that is compatible with due diligence or reasonable prude nce ." Mancini
v. Eds ex re l . N.J. Auto. Full Ins. Underwriting Ass'n , 132 N.J. 330, 333 (1993) (citing Baumann v. Marinaro , 95 N.J. 380, 394 (1984)). Here, the trial court abused its discretion by omitting defendants' reasons for failing to appear from c onsideration . Defendants presented compelling evidence of excusable neglect.
The first judge specifically noted the trial was not on the court calendar; the judge also noted it was likely defendants called the
courthouse and a representative told them there was n othing scheduled for that date, which is precisely what defendants assert happened. Additionally, based on advice of their previous counsel, defendants did not call the judge's chambers to inquire about the trial date. Notwithstandi ng plaintiff's counsel leaving defendants' former counsel a message , and though the date was scheduled with8 A - 3502
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all counsel present, it is reasonable defendants, without counsel , would not appear after being told by court representatives the
matter was not on the court schedule and had been marked "disposed . " Defendants spoke with court representatives and made an effort to determine whether they needed to be present on October 19, 2015 . Such an error satisfies the standard of excusable neglect , and the trial court abused its discretion by not considering this issue. Because we find the trial court abused its discretion under
Rule 4:50
- 1(a), we need not address the catch
- all provision of
Rule 4:50
- 1(f). We reverse and vacate the entry of default judgment and order for reconsideration consistent with this opinion . We do not retain jurisdiction.