Opinion
DOCKET NO. A-2717-12T3
03-03-2014
HAMMAD RAZA, Plaintiff-Respondent, v. YASIN MUHAMMAD and MOON FREIGHT LINE SERVICE CORP., Defendants-Appellants.
Stephen Steinberg, attorney for appellants. Hammad Raza, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE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, Middlesex County, Docket No. L-8603-10.
Stephen Steinberg, attorney for appellants.
Hammad Raza, respondent pro se. PER CURIAM
Defendants appeal from an order entered on December 7, 2012, denying their motion to vacate judgment entered against them on February 23, 2012, and denying consolidation with another action. Defendants also appeal from a denial of their motion for reconsideration on January 25, 2013. Defendants argue that the Law Division "failed to set forth its reasons" for denying defendants' motion to vacate judgment, and that such failure warrants reversal. They also argue that the Law Division "erred in its denial of the motion to vacate[.]" Having considered these arguments in light of the record and the applicable law, we affirm.
We discern the following from the records provided by the parties on appeal. In November 2010, plaintiff Hammad Raza filed a complaint in the Law Division, Middlesex County, against defendants Yasin Muhammad (Yasin) and Moon Freight Line Service Corp. (Moon Freight). In an amended complaint filed on December 2, 2010, plaintiff asserted he entered into a contract with defendants to purchase a truck from them for $25,000, and that he paid $15,000 down at the time of contract and agreed to pay the remaining $10,000 over time. Plaintiff alleged that defendants delayed delivering the truck to him, and thereafter refused to pay him for hauling jobs he had undertaken for them. He further alleged that he discovered that the engine in the truck was from 2001, despite the fact that the truck was sold as a 2006 model, and that the truck needed extensive repairs.
After agreeing to pay for various repairs on the truck, defendants reneged on that agreement and subsequently sold the truck to a third party. Plaintiff asserted claims against defendants for breach of contract, fraud, and unpaid wages.
Defendant Yasin filed a pro se answer in January 2011 denying the allegations of the complaint, and Moon Freight was served with process on April 25, 2011. Moon Freight never answered the complaint and default was entered against it on July 5, 2011. On November 30, 2011, the court set the matter down for trial on February 21, 2012.
At some point prior to the trial date, defendants hired Richard Vapnar, Esq., to represent them, and he prepared and filed a complaint on January 31, 2012, in the Chancery Division on behalf of Moon Freight against Raza and another individual named Kashif Chaudry respecting the same transaction. Further, Vapnar appeared at the trial call on February 21. Yasin was not present at the time, and the trial judge told the parties to return on February 23 for trial. Neither Yasin nor Vapnar appeared for trial, although Vapnar called the trial judge that morning to report he was "nauseous" and would not appear. The judge advised counsel that he was proceeding with trial under the circumstances.
The certification pursuant to Rule 4:5-1 appended to the Chancery Division complaint acknowledged that Raza's suit against defendants was pending.
Thereafter, the judge heard the testimony of plaintiff and received into evidence various documents. He then put detailed findings of fact and conclusions of law on the record and entered judgment that day for plaintiff against defendants for $20,100, plus costs, on the breach of contract claim.
What happened thereafter is somewhat unclear. It appears that Vapnar left the law firm in August 2012 and another attorney from the firm assumed responsibility for the file. At an August 28 conference on the Chancery Division complaint, which Raza had answered, counsel for Moon Freight and Yasin conceded he knew of the earlier complaint, and the judge explained that the entire controversy bar under Rule 4:30A might warrant dismissal of the Chancery Division action. The judge thereafter transferred the Chancery action to the Law Division, where a new docket number, L-6119-12, was assigned.
On November 13, 2012, defendants' counsel filed a motion to vacate the "default judgment" entered against them on February 23, 2012, and to consolidate the two cases. In the brief submitted with the motion, defendants' counsel stated "this office learned about" the judgment in September 2012, and thus there was no delay in bringing the motion.
The motion was denied on December 7, 2012, and the motion judge wrote on the order "cases too far apart in age." Defendants thereafter moved for reconsideration, and that motion was denied by order filed on January 25, 2013.
We understand that the second action has also been dismissed on entire controversy and res judicata grounds.
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As noted earlier, defendants argue that the order denying their motion to vacate the "default judgment" must be reversed because the motion judge did not articulate reasons for denying the relief, and because the motion judge "erred" in denying that relief. We disagree.
Initially, except for the portion of the judgment that pertains to Moon Freight, the judgment at issue does not appear to be a default judgment. See Rule 1:2-4(a); cf. N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 506 (App. Div. 2009), rev'd on other grounds, 205 N.J. 17 (2011). Here, neither defendants nor their counsel appeared for trial despite their knowledge of the trial date and counsel's appearance at the trial call. Nonetheless, we shall address defendants' arguments as if the entirety of the judgment were entered after default.
We focus primarily on defendants' contention regarding his appeal from the order denying the vacation of the default judgment. Defendants moved to vacate the default judgment under Rule 4:43-3, which provides that a default judgment may be set aside under Rule 4:50-1. Rule 4:50-1, in turn, provides:
On 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; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
When a trial court considers a timely-filed and appropriately-supported motion to vacate a default judgment, the motion must be "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). However, a motion to vacate a judgment under Rule 4:50-1(a) "should be granted sparingly, and is addressed to the sound discretion of the trial court, whose determination will be left undisturbed unless it results from a clear abuse of discretion." Fineberg v. Fineberg, 309 N.J. Super. 205, 215 (App. Div. 1998) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994)). 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) (internal quotation marks and citation omitted). We review a failure to state any reasons for the denial of a motion to vacate default judgment under the same standard. See Cardell, Inc. v. Piscatelli, 277 N.J. Super. 149, 155 (App. Div. 1994).
When a trial court decides a motion under Rule 4:50-1, and thereby "reconcile[s] 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," U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (internal quotation marks and citation omitted), the court's "determination . . . warrants substantial deference[.]" Ibid. We conclude that the defendants failed to demonstrate that they were entitled to relief under Rule 4:50-1. As such, the judge did not abuse his discretion.
Rule 4:50-1(a), requires defendant to show excusable neglect and a meritorious defense. See Guillaume, supra, 209 N.J. at 469. "Excusable neglect" may be found when the default was "'attributable to an honest mistake that is compatible with due diligence or reasonable prudence.'" Id. at 468 (quoting Mancini v. EDS, 132 N.J. 330, 335 (1993)).
Defendants here have not shown excusable neglect. Defendant Yasin had been properly served with the complaint, filed an answer, was on notice of the litigation, and engaged counsel, but failed to appear at trial. Defendant Moon Freight was also properly served, had a default properly filed against it, engaged counsel, but never moved to vacate the default. Their actions were inconsistent with due diligence or reasonable excuse. Counsel has provided no legally competent evidence that Vapnar was actually ill on the day set for trial, why another attorney from the firm did not appear for defendants at that time, or why a motion to vacate was not filed shortly after the trial judge rendered judgment. Moreover, the implication in their appellate brief that defense counsel's office was unaware of this litigation until late August 2012 is expressly contradicted by the transcript of February 23, 2012. As a result, defendants are not entitled to relief pursuant to Rule 4:50-1(a).
To the extent that defendants challenge the subsequent denial of their reconsideration motion, we similarly find such contention lacking in merit. We review the Law Division denial of a motion for reconsideration under an abuse of discretion standard. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). Reconsideration is "'a matter within the sound discretion of the Court, to be exercised in the interest of justice[.]'" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 2 42 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is appropriate if "'1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria, supra, 242 N.J. Super. at 401); see also Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). Reconsideration is not appropriate as a vehicle to bring to the court's attention evidence that was not presented, but was available, in connection with initial argument. Id. at 463.
In the present case, defense counsel submitted a letter brief and certification in support of the reconsideration motion. Having reviewed these materials, it is apparent that no additional facts are set forth which would have warranted relief.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION