From Casetext: Smarter Legal Research

Beattie Padovano, LLC v. Sandon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Oct 7, 2011
DOCKET NO. A-1825-10T2 (App. Div. Oct. 7, 2011)

Opinion

DOCKET NO. A-1825-10T2

10-07-2011

BEATTIE PADOVANO, LLC, Plaintiff-Respondent, v. ZALMAN SANDON and IZU SANDON, Defendants-Appellants.

Richard P. Galler, attorney for appellants. Beattie Padovano, LLC, attorneys for respondent (Roger W. Breslin, Jr., of counsel and on the brief).


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8831-07.

Richard P. Galler, attorney for appellants.

Beattie Padovano, LLC, attorneys for respondent (Roger W. Breslin, Jr., of counsel and on the brief). PER CURIAM

Defendants Zalman Sandon and his father Izu appeal from orders of May 28, 2010 and October 29, 2010, denying their motion to vacate entry of a default judgment and permitting post-judgment discovery, and denying their motion for reconsideration. We affirm.

Izu died in January 2010, and his son is the executor of his estate. For ease of reference in this opinion, we will refer to the parties by their first names, and intend no disrespect.

On October 22, 2007, plaintiff law firm sent defendants, by regular and certified mail, a pre-suit fee arbitration notice pursuant to Rule 1:20A-1, demanding payment of $156,427.84 for outstanding legal fees and costs. Defendants took no action. On December 3, 2007, plaintiff filed suit against defendants, which was served on Zalman on December 11, 2007, and Izu on December 24, 2007, at their residences in New Jersey and Florida, respectively. Final judgment of default was entered against defendants, jointly and severally, in the amount of $158,023.52 on September 17, 2008, and notice of the entry of default was sent to defendants on September 24, 2008, by certified and regular mail.

More than a year later, Zalman filed a request for fee arbitration, which was rejected as untimely by letter of November 4, 2009. On April 6, 2010, plaintiff obtained a post-judgment discovery order against Zalman, and about two weeks later, plaintiff filed a motion to enforce litigant's rights. In response, defendants, through counsel, filed cross-motions to vacate the default judgment and the discovery order based on Rule 4:50-1(a) — excusable neglect — and (c) — fraud, misrepresentation or other misconduct of an adverse party. Defendants relied upon Zalman's certification which claimed, as excusable neglect, that he went to "Victoria Brown, an attorney in Englewood, who advised that she would take care of the matter, and apparently she did not file an answer[,]" he "made every effort to arrange to have this matter answered[,]" and "[d]efault judgment was entered against [him] due to the fact that [he] was distraught over the illness and death of [his] father over the past two years." As to fraud or misrepresentation, Zalman claimed plaintiff represented the corporation, which went out of business, and not him or his father individually. Plaintiff responded with a detailed certification explaining the delinquent legal fees and the basis for individual liability.

By order of May 28, 2010, defendants' motion to vacate the judgment entered eighteen months prior was denied as untimely, with the notation that "[a] motion to vacate a default judgment based on R. 4:50-1 (a),(b), [or] (c) shall be made not more than 1 year after the entry of judgment. R. 1:3-4(c) prohibits the court from enlarging the time provided for in R. 4:50-2." By order of the same date, the court denied defendants' other request and granted plaintiff's motion to enforce litigant's rights. Further action by plaintiff to enforce its judgment against Zalman, however, was temporarily stayed as a result of his filing a Chapter 11 bankruptcy, which was dismissed by order of September 27, 2010.

On or about September 27, 2010, defendants filed a motion for reconsideration with an additional certification by Zalman, and plaintiff filed a reply certification and cross-motion for enforcement of litigant's rights. Defendants conceded they were not entitled to relief under subsection (a), (b), or (c) of Rule 4:50-l based on the one-year time deadline of Rule 4:50-2; instead they sought to fit within the remaining subsections of Rule 4:50-l in which a motion to vacate could be made within a reasonable time under the circumstances. See R. 4:50-2. Defendants thus urged the judgment was void under subsection (d), continued prospective application of the judgment would no longer be equitable under subsection (e), or there were other reasons justifying relief from the operation of the judgment under the "catchall" category of subsection (f). Zalman claimed service on Izu, now deceased, was defective because Izu was not competent and Zalman was his legal guardian and otherwise reiterated his argument about the corporate debt.

Following oral argument on October 29, 2010, Judge Mark Russello denied defendants' motion for reconsideration and granted plaintiff's cross-motion, memorialized in a written opinion and orders of that date. Preliminary, the court found defendants' motion to vacate was not made within a "reasonable time," having been made more than two years after being informed of the default judgment. Moreover, as the court explained in detail, there was no proof in the record to support defendants' assertions so as to render the judgment void. The court also found defendants failed to present the requisite post-judgment changed circumstances that would make it unjust to continue to enforce the judgment under subsection (e), explaining that Izu's death in January 2010 was not a circumstance resulting in extreme hardship or injustice as his estate now stood in his place as a joint debtor. See Hous. Auth. of Morristown v. Little, 135 N.J. 274, 285 (1994).

Judge Russello was satisfied defendants were attempting to obtain "the proverbial second bite of the apple," relying on virtually the same facts as asserted in Zalman's first certification to essentially file a second Rule 4:50-1 motion based on (d), (e), or (f). He explained the standard for granting relief under the catchall category of (f), concluding defendants were not entitled to such relief, stating:

There's no question that this Court has broad discretion to grant relief in exceptional situations under Subsection (f), but such discretion must be exercised in recognition of the importance of finality of judgments. Relief is available only when truly exceptional circumstances are present and only when the Court is presented with a
reason not included among any of the reasons subject to the one year limitation of Rule 4:50-2. [See Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 122-23 (1977).]
The factual basis for defendants' pending motion is the same as advanced several months ago in seeking relief from plaintiff's judgment under Rule 4:50-l, Subsection (a) and Subsection (c).
A comparison of the defendant, Zalman Sandon's certification, dated April 29th, 2010, with his most recent certification, dated September 22nd, 2010, demonstrates that there are no new or different facts proffered to justify relief under Subsection (f).

On December 10, 2010, defendants appealed. By order of January 7, 2011, the court stayed execution of judgment on the condition defendants promptly post a bond or cash deposit in the amount of $175,000, pursuant to Rules 1:13-3(c) and 2:9-5. The bond was posted with the Superior Court Clerk on March 18, 2011.

On appeal, defendants argue: (1) the affidavit of proof showed evidence of a corporate bill and no personal bills; (2) plaintiff failed to serve the complaint pursuant to the Court Rules on either defendant or on their corporation; (3) the trial court should have granted defendants' motion for reconsideration; (4) due to plaintiff's insufficient process of service, Izu's due process rights were violated and plaintiff's default should be vacated and its complaint should be dismissed pursuant to Rule 4:6-2(d); (5) defendants' request to vacate the default should be granted due to the Supreme Court's liberal policy to reach a just result; and (6) the trial court did not consider or rule on the issue of a proper proof or affidavit being presented to the court for entry of default judgment in accordance with Rule 4:43-2.

This point heading is omitted from the Table of Contents but is contained in the body of defendants' brief.
--------

Defendants' arguments on appeal essentially reiterate the same arguments they made to the trial court. Based on our review of the record and applicable law, we are satisfied all of defendants' arguments are without merit and require no further discussion. R. 2:11-3(e)(1)(E). Judge Russello amply addressed and rejected defendants' arguments in support of their motions to vacate the eighteen-month old judgment and for reconsideration. We discern no abuse of discretion or misapplication of law in his rulings and affirm substantially for the reasons he articulated orally and in writing. We decline to address the new issues that appear to be raised by defendants in their final point, the sufficiency of proofs submitted in support of the application for entry of default and the reasonableness of the fee arrangement. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (l973) (holding that an issue not raised in the trial court will not be considered on appeal except where it is jurisdictional in nature or it substantially implicates the public interest).

Affirmed. The stay of execution pending appeal is dissolved.

I hereby certify that the foregoing is a true copy of the original on file in my office.

___________________________

CLERK OF THE APPELLATE DIVISION


Summaries of

Beattie Padovano, LLC v. Sandon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Oct 7, 2011
DOCKET NO. A-1825-10T2 (App. Div. Oct. 7, 2011)
Case details for

Beattie Padovano, LLC v. Sandon

Case Details

Full title:BEATTIE PADOVANO, LLC, Plaintiff-Respondent, v. ZALMAN SANDON and IZU…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Oct 7, 2011

Citations

DOCKET NO. A-1825-10T2 (App. Div. Oct. 7, 2011)