Opinion
DOCKET NO. A-3044-14T2
07-12-2016
JOSE AMORIM, Plaintiff-Appellant/Cross-Respondent, v. JOHN MOSCHETTE, d/b/a JDM CONSTRUCTION, Defendant-Respondent/Cross-Appellant.
Paul File argued the cause for appellant/cross-respondent. Luretha M. Stribling argued the cause for respondent/cross-appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2294-10. Paul File argued the cause for appellant/cross-respondent. Luretha M. Stribling argued the cause for respondent/cross-appellant. PER CURIAM
Plaintiff Jose Amorim hired defendant John Moschette, doing business as JDM Construction, to make home improvements. Neither party was satisfied with the other's performance so plaintiff sued and defendant filed a counterclaim. Ultimately, a jury determined that neither party suffered any damages and final judgments were entered. Plaintiff appeals from a June 18, 2014 order vacating a default judgment and from a January 26, 2015 order awarding him $5000 of the more than $57,000 he sought in attorney's fees. Defendant cross-appeals from the attorney's fee award contending that plaintiff was not entitled to any fees. We affirm the order vacating the default judgment, hold that plaintiff was entitled to attorney's fees, and dismiss plaintiff's challenge to the amount of the award because plaintiff failed to present the portion of the record that would allow us to review the fee award.
I.
In June 2009, plaintiff hired defendant, a carpenter, to perform certain improvement work at plaintiff's home. The original proposal called for defendant to install cabinets, window trim, and hardwood floors, and to sand and stain certain floors and windows. In return, plaintiff was to pay defendant $14,000. Defendant alleged that plaintiff also orally agreed that defendant would do additional work for additional payments. Defendant performed some work, but plaintiff was not satisfied with the work and ultimately the contract was not fully performed.
In November 2009, plaintiff filed a complaint against defendant in the Special Civil Part. Thereafter, the complaint was amended and transferred to the Law Division. In his amended complaint, plaintiff asserted claims against defendant for breach of contract and for violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -200 (the Act). Defendant filed a counterclaim asserting that plaintiff had breached their written and oral contracts by failing to pay him $12,000. Initially, plaintiff failed to respond to defendant's counterclaim, and a default judgment was entered against plaintiff. Thereafter, however, the default on the counterclaim was vacated.
In late 2010 and early 2011, the parties filed cross-motions for summary judgment. The trial court granted plaintiff partial summary judgment holding that defendant had violated the Act because he was not a registered contractor. See N.J.S.A. 56:8-138(a). The court also held, however, that there were disputed issues of fact concerning whether plaintiff had suffered any ascertainable loss from the violation of the Act and the court ruled that the damage issue would be determined by a jury at trial. The court also denied defendant's motion for summary judgment on his counterclaim and plaintiff's motion to dismiss defendant's counterclaim.
After an unsuccessful attempt to arbitrate the dispute, the case was scheduled for a jury trial on May 12, 2014. Defense counsel, however, requested and was granted an adjournment to May 19, 2014. Thereafter, defense counsel realized that she had a scheduling conflict with the new May 19, 2014 trial date. Accordingly, she contacted plaintiff's counsel and wrote to the court requesting an adjournment of the May 19, 2014 trial date. Counsel for plaintiff maintains that he did not agree to the adjournment of the May 19, 2014 trial date. Consequently, on May 19, 2014, plaintiff and his counsel appeared, but defendant and his counsel did not appear. A default hearing was then held and default judgment against defendant was entered.
Counsel for defendant promptly filed a motion to vacate the default judgment. After hearing argument, the same judge who entered the default judgment granted defendant's motion to vacate the default judgment. The court memorialized that decision in an order filed on June 18, 2014. In vacating the default judgment, the judge found that defense counsel failed to appear due to a scheduling conflict and miscommunications. The motion judge then explained that she was granting defendant's motion based on Rule 4:50-1(f), finding "that the [d]efendant would be unduly prejudiced and an injustice would be worked by him not having his opportunity in court to refute the allegations of the [p]laintiff."
Thereafter a jury trial was conducted in November 2014. The jury found plaintiff had not proven any ascertainable loss under the Act. The jury also found that plaintiff had breached the parties' contract, but awarded defendant no damage for that breach. Thus, on January 26, 2015, the trial court entered a final judgment of no cause against plaintiff and no damages for defendant.
Plaintiff then filed a motion seeking more than $57,000 in attorney's fees under the Act. The trial judge heard argument and, after reviewing plaintiff's attorney's fee certification, reduced certain hours as "excessive, redundant or otherwise unnecessary" and determined that the reasonable attorney's fees amounted to just over $37,000. The trial judge then reasoned that only $5000 of the fees related to the portion of the litigation on which plaintiff was successful and, thus, the trial judge awarded plaintiff $5000 in attorney's fees.
Plaintiff now appeals and defendant cross-appeals.
II.
On appeal, plaintiff contends that the trial judge erred (1) in vacating the default judgment and (2) in awarding only $5000 in attorney's fees. Defendant cross-appeals and argues that the court erred in awarding any attorney's fees because plaintiff was not a prevailing party under the Act. We first address the default judgment, then consider whether attorney's fees are available, and finally address plaintiff's contention that the trial judge erred in reducing the attorney's fee award to $5000.
It is well-established that a trial 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.'" Reg'l Constr. Corp. v. Ray, 364 N.J. Super. 534, 540-41 (App. Div. 2003) (quoting Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)). Thus, "[a]ll doubts . . . should be resolved in favor of the parties seeking relief." Nowosleska v. Steele, 400 N.J. Super. 297, 303 (App. Div. 2008) (alteration in original) (quoting Mancini, supra, 132 N.J. at 334).
The requisite liberality, however, should be administered in accordance with Rule 4:50-1. That rule is "designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Mancini, supra, 132 N.J. at 334). Under the catchall provision of Rule 4:50-1(f), the scope of relief is "as expansive as the need to achieve equity and justice." Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 98 (App. Div. 2014) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). On appellate review, the trial court's determination "should not be reversed unless it results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94, 105 (App. Div. 2016) (quoting Guillaume, supra, 209 N.J. at 467).
Applying these standards, we discern no abuse of discretion in the trial court's determination to vacate the default judgment. The record establishes that some miscommunication occurred concerning defense counsel's request to adjourn the May 19, 2014 trial date. Defense counsel contacted plaintiff's counsel before the trial date to request a further adjournment and wrote to the court to request a further adjournment. In vacating the default, the trial judge found no fault with plaintiff's counsel and also found that defense counsel had a legitimate scheduling conflict. More importantly, the trial court found that defendant would be prejudiced by not having the opportunity to dispute plaintiff's claims at trial. Given this record, the trial court acted within the discretion accorded it under Rule 4:50-1(f) in vacating the default judgment.
Next, we address defendant's contention that the trial court erred in granting plaintiff any attorney's fee award. In short, defendant contends that because the jury found no ascertainable loss, plaintiff was not entitled to attorney's fees under the Act.
Defendant's position is incorrect as a matter of law. Our Supreme Court has stated that a plaintiff who establishes a violation of the Act and whose ascertainable loss issue survives summary judgment is entitled to attorney's fees, even if the ascertainable loss issue fails when submitted to a jury. Weinberg v. Sprint Corp., 173 N.J. 233, 252-53 (2002). In Weinberg, the Supreme Court explained:
[A] plaintiff with a bona fide claim of ascertainable loss that raises a genuine issue of fact requiring resolution by the factfinder would be entitled to seek also injunctive relief when appropriate, and to receive an award of attorneys' fees, even if the plaintiff ultimately loses on his [or her] damage claim but does prove an unlawful practice under the Act. The Act's remedial purposes are promoted thereby and the Legislature's requirement of ascertainable loss for a private cause of action is respected.
[Id. at 253; see also Perez v. Professionally Green, LLC, 215 N.J. 388, 405-08 (2013).]
Here, the trial court granted plaintiff partial summary judgment, finding a violation of the Act because defendant was not a registered contractor. The court also denied defendant's motion for summary judgment and determined that the question of whether there was an ascertainable loss would need to be determined at trial. Although the jury ultimately determined that there was no ascertainable loss under the Act, plaintiff had presented a bona fide claim of an ascertainable loss requiring resolution by the jury. Consequently, under Weinberg, plaintiff was entitled to an award of attorney's fees under the Act.
Finally, we address plaintiff's contention that the trial court erred in reducing the amount of attorney's fees awarded. Plaintiff originally sought more than $57,000 in attorney's fees. The court evaluated that award, eliminated certain hours, and determined that the reasonable amount of the attorney's fees was just over $37,000. The court then found that only $5000 of that $37,000 related to the successful portion of plaintiff's claim under the Act.
Plaintiff claims that the trial court erred in calculating the attorney's fees. Plaintiff, however, failed to provide us with the record that would allow us to independently evaluate the fee application. Specifically, plaintiff did not provide us with the attorney's fee application or any supporting exhibits or documents. Thus, we dismiss this portion of the appeal. See R. 2:6-1(a)(1)(I) (stating that the appendix "shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues"); Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (affirming our refusal to address an issue when the appellant failed to provide the relevant final order and transcript); State v. Cordero, 438 N.J. Super. 472, 489 (App. Div. 2014) (stating that an appellate court is not "obliged to attempt review of an issue when the relevant portions of the record are not included" (quoting Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div. 2005))), certif. denied, 221 N.J. 287 (2015).
Affirmed and dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION