June 5, 2007
WALI SEKOU HAMANI, PLAINTIFF-APPELLANT, AND DEBORAH L. HAMANI, PLAINTIFF,
CHAPMAN FORD SALES, INC. DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, Docket No. DC-907-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2007
Before Judges Parker and Messano.
Plaintiff Wali Sekou Hamani appeals from an August 3, 2006, order denying his motion to vacate a default judgment entered against him on September 7, 2004 and reinstate his complaint.
We have carefully considered the arguments he raises in light of the record and appropriate legal standards. We affirm.
In January 2004, plaintiff and his wife, Deborah L. Hamani, filed suit in the Special Civil Part against defendant Chapman Ford Sales, Inc. (Chapman) alleging violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 through -20.*fn1 Thereafter, because he was incarcerated, plaintiff moved to have the matter heard "on the papers," but this request was denied by order dated April 13, 2004.
Plaintiff then requested that the court produce him from the county jail for the scheduled court appearance. He further advised the court that he would continue to provide any future address changes occasioned by his custodial status. On May 4, 2004, the motion judge advised plaintiff by letter that he would not issue a "writ for [his] appearance," but urged him to provide the particulars of any "institution in which [he was] housed" so that appropriate arrangements could be made to have plaintiff appear by videoconference. If that was not possible, the judge advised plaintiff to "provide proof . . . that the appropriate requests and payment have been made to the institution for your transportation to the court proceeding." The judge also told plaintiff the case was now scheduled for trial on July 15, 2004.
In June, plaintiff was transferred to the Camden County Jail, and the trial was rescheduled for July 22. Plaintiff was notified of this trial date by mail. The record does not disclose precisely when plaintiff was again transferred, this time to federal custody in Philadelphia. In an undated letter, plaintiff advised the Court Clerk in Atlantic County of his change of address.
On September 7, 2004, an order was entered dismissing plaintiffs' complaint, awarding judgment to defendant in the amount of $4753, providing that defendant could sell plaintiffs' vehicle to satisfy the debt, and providing that any excess from the sale was to be returned to plaintiffs. It is apparent from the order itself that Debra L. Hamani and defendant's representative appeared on the day of the trial, August 26, 2004, and the judge "heard the testimony," "reviewed the evidence," and placed the reasons for his decision on the record.*fn2
In his brief, plaintiff argues that he first heard of the dismissal of his complaint and the entry of the judgment against him from his wife, but he does not indicate when. Plaintiff, at some undisclosed time thereafter, moved for relief pursuant to Rule 4:50-1(f).
On August 3, 2006, the motion judge entered the order which is the subject of this appeal. Noting plaintiff's failure to appear on August 26, 2004 in person or by videoconference, and the nearly two year delay in bringing the motion, the judge found that plaintiff "has not set forth any justifiable reason . . . to vacate the judgment entered against him."
A decision to vacate a judgment lies within the sound discretion of the motion judge. Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994). A request to vacate a default judgment should 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, even a default judgment will not be disturbed unless the failure to appear is excusable and the party has a meritorious defense to the claim. Pressler, Current N.J. Court Rules, comment 4.1 on R. 4:50-1 (2007).
Rule 4:50-1(f) allows the court to grant "relief from the operation of a judgment or order" for "any other reason justifying" such relief. The rule has been used to "achieve equity and justice," Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966), in "truly exceptional circumstances," "in which, were it not applied, a grave injustice would occur." Housing Auth. of Town of Morristown, supra, 135 N.J. at 286 (1994).
In this case, plaintiff contends that because he "was transferred," "through no fault of his own," he was denied his "due process rights" to be heard. He urges us to vacate the default judgment entered against him and reinstate his dismissed complaint.
Although plaintiff contends he provided notice of his transfer to federal custody in Pennsylvania, the record fails to disclose when he did so. Therefore, we cannot discern whether he provided this notification before the actual trial date. More importantly, plaintiff does not claim that he never received notice of the August 26, 2004 trial date. Indeed, his wife was present, appeared and testified. Additionally, plaintiff contends the result of the trial would have been different if he had been present to testify, but he fails to allege how that is so and what meritorious defense he would have raised to defendant's successful counterclaim. Lastly, we find no excuse in the record as to why plaintiff waited nearly two years to file a motion to set aside the dismissal and vacate the judgment. Pursuant to Rule 4:50-2, plaintiff needed to make his application within a "reasonable time" and we have been provided with no explanation for the unreasonable delay.
In short, we find no basis to overturn the motion judge's exercise of his discretion in denying plaintiff's motion.