FARAZ H. WASTI v. ATP FLIGHT SCHOOL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FARAZ H. WASTI,

Plaintiff-Appellant,

v.

ATP FLIGHT SCHOOL,

Defendant-Respondent.

_______________________________

May 17, 2016

Submitted November 16, 2015 Decided

Before Judges Simonelli and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. SC-409-12.

Faraz H. Wasti, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Faraz H. Wasti appeals pro se from the Special Civil Part's July 31, 2014 denial of his request to re-open his case after the court rejected his request on October 12, 2012 for entry of default judgment against defendant ATP Flight School. For the reasons that follow, we affirm.

According to his unopposed brief on appeal, plaintiff filed a small claims complaint asserting that he was owed the refund of a $995 deposit paid to defendant for flight training. He claimed that he rescheduled his training session with defendant due to a work-related conflict.1 Plaintiff asserted that the new training date was very "time-sensitive in nature." Yet, contrary to their agreement, plaintiff could not begin his training on the rescheduled date because of defendant's faulty equipment. According to plaintiff, they agreed to postpone the training for another date. Plaintiff alleged that when he called defendant to reschedule, defendant required him to submit another deposit. Apparently, plaintiff did not make an additional deposit. He contended that defendant returned most of the money paid for the training, except $995, which defendant claimed was a non-refundable deposit.

After defendant did not file an answer, a default was entered against it. Thereafter, plaintiff sought entry of a default judgment. A court document dated July 10, 2012, which is not in the form of an order or decision but has the judge's signature affixed, provided that plaintiff's motion to enter a default judgment was denied because plaintiff failed to prove that a breach of contract occurred. Additionally, the document stated it was unclear whether plaintiff properly served defendant. Defendant had a corporate address in Florida, but was "served" at a Trenton address without any proof that it was a proper address for legal service of process.

It further appears from the record that a few months later plaintiff renewed his attempt to obtain a default judgment against defendant. At the hearing on October 12, 2012, both plaintiff and defendant failed to appear. While plaintiff's counsel2 was present, the judge dismissed the case without prejudice explaining that the question of whether to grant default judgment was not "going to be decided on a motion," and plaintiff needed to be present to provide testimony, as this was a "fact-sensitive" case. The court further indicated plaintiff could re-open the case by notifying the court and thereafter, the court would schedule a hearing date with notice to the parties.

Almost two years later, plaintiff apparently sent a letter to the court to re-open the case. On July 31, 2014, the court issued an order denying plaintiff's request to re-open the case stating, "[t]he [c]ourt's review of the matter two years ago shows plaintiff was unable to sustain his burden of proof to justify the refund sought." The record on appeal is devoid of the letter, a motion, and the court transcript pertaining to the request to re-open the case and enter default judgment. This appeal followed.

Before us, plaintiff contends his request to re-open the case and obtain default judgment should have been granted because he effectuated service of process and established a prima facie case of breach of contract. We disagree.

In accordance with Rule 4:43-2(b), a plaintiff may be granted a judgment by default upon application to the court where a default has been properly entered against a defendant. The rule gives the court authority to "determine the amount of damages" through a proof hearing "as it deems appropriate." Ibid. A plaintiff is also required "to furnish proof [as to] liability." Johnson v. Johnson, 92 N.J. Super. 457, 464 (App. Div. 1966); accord Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 183 (App. Div. 1993). "[T]he question of what proofs are necessary is inherently within the judge's discretion." Chakravarti v. Pegasus Consulting Grp., Inc., 393 N.J. Super. 203, 210 (App. Div. 2007). The trial court is obliged to view a plaintiff's proofs indulgently, and the general practice is "to require only a prima facie case." Heimbach v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988); see also Pressler & Verniero, Current N.J. Court Rules, comment 2.2.2 on R. 4:43-2 (2016). Notice of the proof hearing must be provided to the defaulting party by registered or certified mail, or by personal service. R. 4:43-2(b); R. 1:5-1 to -2; R. 4:4-4.

Based upon the record provided on this appeal, we do not conclude the judge abused his discretion. Initially, we must point out that there is no proof defendant was properly served with the complaint. Thus, we see no reason to disturb the judge's finding that default should not have been entered against defendant. As for the merits of plaintiff's default judgment request, he has not set forth a prima facie case of defendant's liability for breach of contract.

Although plaintiff did not expressly argue before the Special Civil Part that under Rule 4:50-1 he was entitled to vacate the court's order denying his request for default judgment, he did so implicitly by contending the denial of his request to re-open his case was error. Pursuant to Rule 4:50-1(a)-(e) a court is authorized to relieve a party from a final judgment or order for reasons such as: mistake or inadvertence; certain newly discovered evidence; fraud; the judgment or order is void; or the judgment or order has been satisfied. Subsection (f) of Rule 4:50-1 provides a catch-all provision that authorizes a court to relieve a party from a judgment or order for "any other reason justifying relief from the operation of the judgment or order." The essence of subsection (f) is to achieve equity and justice in exceptional situations that cannot be easily categorized. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (citing Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)).

Rule 4:50-2 requires that a motion for relief under Rule 4:50-1 be filed within a "reasonable time." However, where the relief sought is based on reasons set forth in Rule 4:50-1(a) ("mistake, inadvertence, surprise, or excusable neglect"), (b) ("newly discovered evidence") or (c) ("fraud"), the motion must be filed within one year of entry of the judgment. Ibid.

We review a court's determination of a Rule 4:50-1 motion under an abuse of discretion standard. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). There is "an abuse of discretion when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

Applying these principles, we conclude there was no basis to grant plaintiff's relief under Rule 4:50-1. First, his request was almost two years after the court's order, and he has provided no reasonable basis for such delay. Second, none of his arguments warrant vacation of the order under the rule.

Affirmed.

1 Plaintiff has not provided an appendix including his complaint in violation of Rule 2:6-1(a)(1).

2 Based upon the transcript, it appears that counsel did not file the small claims complaint but only appeared to represent plaintiff at the proof hearing, and did not make any further appearances.