                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4888-15T1


MLC REMODELING,

        Plaintiff-Respondent,

v.

LOADED BURGERS & BBQ,

     Defendant-Appellant.
_______________________________

              Submitted June 8, 2017 – Decided July 14, 2017

              Before Judges Lihotz and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No.
              DC-437-16.

              DiRienzo, DiRienzo & Dulinski, P.A., attorneys
              for appellant (Joseph DiRienzo, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Defendant Loaded NJ, LLC, improperly designated as Burgers &

BBQ, appeals from a June 16, 2016 Special Civil Part order denying

its motion to vacate a default judgment, entered in favor of
plaintiff MLC Remodeling.1          Judgment for plaintiff was entered on

March   4,    2016,   after   defendant      failed    to   timely   respond    to

plaintiff's complaint seeking payment alleging breach of contract.

Through   counsel,     defendant     offered   to     settle   the   differences

between the parties, but took no steps to extend the time to file

an answer or file an appearance to contest the action.

     On   appeal,     defendant     argues    the   trial    judge   abused    his

discretion when denying its motion to vacate the default judgment,

see R. 4:50-1, and seeks an order allowing the parties to litigate

the controversy.      We are unpersuaded and affirm.

     On March 1, 2015, plaintiff executed an agreement to furnish

remodeling       services     for     defendant's       Garwood      restaurant.

Primarily, plaintiff agreed to remove and replace floor and ceiling

tiles, hang doors, install floor molding, and provide sheet rock

repair.      Defendant refused to provide payment, asserting the work

was substandard, improperly performed, and defective.

     Plaintiff filed notice of intent to record a construction

lien, followed, thereafter, by its complaint seeking payment of

the outstanding contract balance of $11,085.                Defendant received

the complaint, which included the standard summons listing the

date to file an answer as February 29, 2016.                Defendant employed


1
     The body of the order is dated June 16, 2016, but the document
is file-stamped May 12, 2016, which we presume was an error.

                                        2                                A-4888-15T1
counsel, who sent correspondence offering to resolve all claims

for $1000.       The letter stated defendant's offer was good for seven

days and expired on March 4, 2016, at which time defendant would

file an answer and counterclaim.

     Counsel asserts neither plaintiff nor its representative

responded to defendant's proposal.              Nevertheless, defendant took

no steps to submit responsive pleadings.                 Plaintiff's counsel

states she sent a facsimile transmission on behalf of plaintiff

rejecting the proposal on March 2, 2016.

     Because the deadline to respond to plaintiff's complaint

passed, the court entered default and plaintiff apparently sought

entry of default judgment.           Final judgment was filed on March 4,

2016.2      On     April    28,    2016,   defendant    received     plaintiff's

information subpoena and defendant moved to vacate the default

judgment.        Following    argument     on   the   motion   and   plaintiff's

opposition, the judge denied defendant's motion on June 16, 2016.

     The     trial         judge     rejected     defendant's        claims     of

miscommunication with his client as justification to vacate the

judgment.        He determined the facts did not meet the excusable


2
     Defendant has chosen not to provide us with copies of
plaintiff's application for default judgment, with any attached
proofs. The documents are available in the Special Part File, and
should have been included in appellant's appendix. R. 2:6-1(a)(1).
Siwiec v. Fin. Res., Inc., 375 N.J. Super. 212, 217 (App. Div.
2005).

                                           3                             A-4888-15T1
neglect standard required by Rule 4:50-1.               Further, concluding

defendant was legally incorrect, the judge rejected defendant's

procedural challenge, which suggested default judgment may not be

entered unless preceded by service of a filed notice of request

to enter default.      Rather, relying on Rule 6:6-3, the judge noted

Special Civil Part procedures allow the court to automatically

enter default when a timely answer is not submitted, as stated in

the   court   issued    summons.         Thereafter,       plaintiff      properly

requested entry of final judgment.

      On   appeal,   defendant    argues    the    trial    judge      abused   his

discretion      by     refusing     to      recognize        "a        series     of

miscommunications"      between    client    and    counsel       as    sufficient

grounds to vacate a default judgment, which must be granted

liberally.    Further, defendant contends the judge misapplied Rule

4:50-1, by not considering defendant's meritorious defenses and

counterclaim.

      Rule 4:50-1 "governs an applicant's motion for relief from

default when the case has proceeded to judgment."                   US Bank Nat.

Ass'n v. Guillaume, 209 N.J. 449, 466 (2012).               Once the court has

entered a default judgment, relief from the judge must satisfy one

of the following reasons:

            (a) mistake, inadvertence, surprise, or
            excusable neglect; (b) newly discovered
            evidence which would probably alter the

                                     4                                     A-4888-15T1
              judgment or order and for 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.

              [R. 4:50-1.]

      The Court has instructed the 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." Guillaume,

supra, 209 N.J. at 467 (quoting Mancini v. EDS, 132 N.J. 330, 334

(1993)).

      We defer to a trial court's decision, which will not be

reversed unless it results in a clear abuse of discretion.                   See

DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009).              An abuse

of discretion results "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)   (quoting   Flagg    v.   Essex   Cty.

Prosecutor, 171 N.J. 561, 571 (2002)).

                                       5                               A-4888-15T1
     Entry of judgment in a Special Civil Part matter is governed

by Rule 6:6-3(a), which provides, in pertinent part:

           If the plaintiff's claim against a defendant
           is for a sum certain or for a sum that can by
           computation be made certain, the clerk on
           request of the plaintiff and on affidavit
           setting forth a particular statement of the
           items of the claim, the amounts and dates, the
           calculated amount of interest, the payments
           or credits, if any, the net amount due, and
           the name of the original creditor if the claim
           was acquired by assignment, shall enter
           judgment for the net amount and costs against
           the defendant . . . .

     "Unlike the rules governing default judgments in other civil

cases, R. 4:43-2, the rules governing default judgments in the

Special Civil Part, R. 6:6-3(c), do not specifically require that

a defendant receive notice of a proof hearing."             Siwiec, supra,

375 N.J. Super. at 218.3      Accordingly, we reject defendant's claim

of procedural error.

     We   turn   to   the   question   of   whether   the   judge   properly

exercised discretion in denying defendant's motion to vacate the

default judgment, which requires a defendant seeking to reopen a

default judgment to show excusable neglect; that is, "the neglect

to answer was excusable under the circumstances and . . . a



3
     "The rule provides that, other than notice to the guardians
of minors and incapacitated persons, which is mandated, notice to
the defendant of an application for default judgment is only
required if the judge so directs." Ibid. (citing R. 6:6-3(c)).

                                       6                             A-4888-15T1
meritorious defense."         Morales v. Santiago, 217 N.J. Super. 496,

501 (App. Div. 1987) (quoting Marder v. Realty Const. Co., 84 N.J.

Super. 313, 318 (App. Div. 1964), aff'd, 43 N.J. 508 (1964)).

     Trial courts are instructed to "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[,]'" Mancini, supra, 132 N.J. at 334 (quoting

Marder, supra, 84 N.J. Super. at 319).                 However, it is well-

established a defendant seeking relief under R. 4:50-1, must show

the court something more than mere good cause.                  Id. at 334-35.

Excusable    neglect    is    carelessness    "attributable      to    an     honest

mistake   that   is    compatible     with   due    diligence    or    reasonable

prudence."    Id. at 335.      We find both lacking here.

     The notion postulated on behalf of defendant suggests counsel

expected to hear from his adversary before he needed to act.

Defense counsel asserts "mistake, inadvertence, surprise, and

excusable    neglect    are    read   together     under   [Rule]     4:50-1,      as

encompassing situations where a party, through no fault of its

own, engages in erroneous conduct on a material point in the

litigation."     The statement is factually unsupported and legally

erroneous.

     Here,   plaintiff       sought   payment      beginning    in    March    2015.

Correspondence between counsel and the parties shows neither was

                                        7                                   A-4888-15T1
interested in walking away from their respective claims.              Even the

letter sent offering to resolve all disputes for $1000, clearly

advised the offer was extended for one week, after which the matter

would be contested.         We find no support for the claim plaintiff

acted to mislead defendant or suggest defendant need not respond

to the complaint because plaintiff was considering the offer.

     Counsel's      utter    failure   to   advance    his   client's     cause

resulted in entry of a final judgment.         Counsel did not secure an

extension to file an answer, despite the streamlined procedures

employed by the Special Civil Part.              Rather, he allowed the

deadline to respond to plaintiff's complaint to come and go without

even a phone call to his adversary to protect defendant's rights

to challenge the demands by plaintiff.              In viewing the record

liberally, we discern the absence of even an arguably valid excuse

for missing the date to respond to plaintiff's complaint.                    See

Ballurio v. Campanaro, 30 N.J. Super. 548, 551 (App. Div. 1954)

("[A] default judgment will not be reopened on the mere ground of

neglect or inadvertence.          To justify the vacation of a default

judgment,   there    must    be   factual   proof     that   the   neglect     or

inadvertence is actually excusable.").

     We remain mindful "[w]here either the defendant's application

to re-open the judgment or the plaintiff['s] proofs presented at

the proof hearing raise sufficient question as to the merits of

                                       8                                A-4888-15T1
plaintiffs' case, courts may grant the application even where

defendant's proof of excusable neglect is weak."         Siwiec, supra,

375 N.J. Super. at 220.   Yet, these facts at hand do not support

evidence suggesting default judgment be vacated pursuant to Rule

4:50-1 (a) through (e).   Turning to the final reason, stated in

Rule 4:50-1(f), which allows consideration, in the interests of

justice, of "any other reason justifying relief from the operation

of the judgment or order[,]" we also conclude defendant's position

is not supported.

     Essentially, defendant challenges the amount due; there is

no dispute plaintiff was hired to provide designated services.           On

this issue, counsel failed to provide this court with all evidence

considered by the trial judge.      Without plaintiff's proofs filed

to secure the judgment, we are unable to review their sufficiency

to support a finding of the amount due.         R. 2:6-1(a)(1).     Also,

defendant's   certification   and       the   accompanying   unexplained

photographs, filed to vacate the default judgment, do not allow

us to weigh defendant's claim of a colorable defense.

     Balancing "the broad parameters of a court's discretion to

grant relief . . . under subsection (f)" with "the importance of

the finality of judgments," we cannot conclude defendant has

presented the required "truly exceptional circumstances" to allow

the final judgment be set aside, despite the absence of excusable

                                    9                             A-4888-15T1
neglect.    Baumann v. Marinaro, 95 N.J. 380, 395 (1984).                   We

conclude   the   judge   did   not   abuse   his   discretion   in   denying

defendant's motion.

    Affirmed.




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