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Beverly Ong v. Babak Pasdar

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 12, 2011

BEVERLY ONG, PLAINTIFF-APPELLANT,
v.
BABAK PASDAR, DEFENDANT-RESPONDENT.
JOHANNA ONG, APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1588-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 30, 2011

Before Judges Fisher and Fasciale.

Beverly Ong commenced this action in the Chancery Division, alleging her neighbor, defendant Babak Pasdar, erected a fence that partially trespassed on her property. Pasdar filed a counterclaim, seeking damages based on what he claimed was the harassing conduct of Beverly and Johanna Ong. When the parties agreed to mediate the fence dispute, which has since apparently been resolved, the Chancery judge transferred Pasdar's damage claims to the Law Division.

Once in the Law Division, Pasdar successfully moved to strike the Ongs' answer to his counterclaim. The court's order striking the answer was entered on December 4, 2009; it contained no provision regarding the time within which the Ongs might provide a proper answer. Pasdar thereafter requested the entry of default on his counterclaim, which was entered on January 8, 2010. Pasdar's appeal brief states that the Ongs unsuccessfully moved to vacate that default, but the parties' appendices contain neither the motion papers that may have been filed at that time nor the order that disposed of that motion.

Pasdar then requested the scheduling of a proof hearing on his counterclaim. The matter was scheduled for May 19, 2010, and Pasdar sent notice of the hearing to the Ongs by way of regular and certified mail. Pasdar argues that the certified mail was not claimed and the regular mail not returned. The proof hearing took place in the Ongs' absence and at its conclusion, the judge awarded Pasdar $31,000 in damages; the rationale for her determination is contained in an order entered on May 25, 2010.

The Ongs have appealed the May 25, 2010 order.*fn1 From what we may discern from their pro se appeal brief, we assume the Ongs contend they were not properly served with notice of the proof hearing. They also appear to argue the trial judge was biased and prejudiced against them. The record does not disclose, however, that these issues were ever raised in the trial court or considered by the trial judge. It is for this reason that the appeal is premature and must be dismissed. A direct appeal will not lie from a default judgment. McDermott v. Paterson, 122 N.J.L. 81, 84 (E. & A. 1939); N.J. Div. of Youth & Family Servs. v. T.R., 331 N.J. Super. 360, 363-64 (App. Div. 2000); Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992). An aggrieved party must first seek relief from a default judgment pursuant to Rule 4:50. Haber, supra, 253 N.J. Super. at 416-17.

Accordingly, the Ongs' appeal is dismissed without prejudice so they may move for relief in the trial court pursuant to Rule 4:50. We take no position as to whether such a motion would be timely or whether, if timely, any relief from the judgment should be granted. Haber, supra, 253 N.J. Super. at 417-18.

Appeal dismissed.


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