Opinion
DOCKET NO. A-0150-13T3
02-12-2015
MARK SOLOMON and LEAH SOLOMON, Plaintiffs-Respondents, v. SCOTT RIDINGS, MASTER CRAFTSMAN, TRIPLE T CONSTRUCTION, LLC, Defendants-Appellants, and DEAN J. MARLETTA, Defendant.
Robert L. Moshman, attorney for appellants. Ira A. Cohen, attorney for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-752-11 Robert L. Moshman, attorney for appellants. Ira A. Cohen, attorney for respondents. The opinion of the court was delivered by ESPINOSA, J.A.D.
Defendants Scott Ridings and Triple T Construction, LLC (Triple T), appeal from the denial of their motion to vacate a default judgment entered against them, an award of $525 in counsel fees to plaintiffs, the denial of their motions for reconsideration, and for the judge's recusal. We affirm.
We use "defendant" to refer to Ridings or, where appropriate, to refer to the defendants collectively.
Plaintiffs Mark and Leah Solomon entered into contracts with defendant in May and October 2008 that covered general renovations to a residence and business location. They filed a complaint in March 2011, asserting claims of breach of contract and violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195, and the New Jersey Contractors Registration Act, N.J.S.A. 56:8-136 to - 152. Neither defendant filed an answer or otherwise responded to the complaint.
In June 2011, plaintiffs requested the entry of default and default was entered against both defendants. R. 4:43-1. On May 4, 2012, the trial court conducted a proof hearing pursuant to Rule 4:43-2 and entered final judgment, dated June 14, 2012, against defendant in the amount of $1,084,705.32, including treble damages, and counsel fees of $5,254. The judgment was amended by order dated September 13, 2013, changing the amount of the judgment to $813,528.99 and making no change in counsel fees of $5,254.
In April 2013, approximately ten months after the entry of final judgment, defendant filed a motion to vacate default judgment and permit the filing of an answer and counterclaim. Ridings submitted a certification in support of the motion. He stated it was his understanding that his attorneys, "Richard P. Saunders, individually and in conjunction with the offices of Larry I. Wiener, continued to represent [him] with regard to a wide variety of legal matters including those relating to the Plaintiffs." He acknowledged that plaintiff "began sending court documents to [him]" and said he forwarded all of these documents to "attorney Richard P. Saunders who was representing [him]."
Ridings certified that he learned of the judgment against him "from [his] attorneys" in late 2012 and that he sent a letter to Saunders dated December 1, 2012, asking him to "take care of this in a timely manner and keep [him] informed." He stated further that he had discussed the matter with both Saunders and Wiener, who had reassured him that they were handling the matter, but did not provide a timeframe for those assurances.
Ridings stated that, in early 2013, Wiener advised him that he was not representing him in this matter. Wiener successfully moved to be relieved as counsel for Ridings in a foreclosure matter pending in Passaic County, returned defendant's files in his possession, and told Ridings he had no files regarding this matter.
Ridings asserted a lack of personal knowledge regarding this lawsuit:
17. I was never aware of a Complaint or Summons in this matter, do not possess any copy of such documents, nor have attorneys Saunders and Wiener shown me or provided me with copies of such documents or other correspondence in this matter.Finally, Ridings stated that he "completed work for Plaintiffs and should be paid in full but [he] was betrayed by [his] previous attorneys and did not have a fair opportunity to be heard."
18. I was unaware that a Judgment was obtained in this matter until long after it had been granted, yet both attorneys Saunders and Wiener assured me that the Judgment would be vacated.
19. The only papers in my possession regarding the current case with Plaintiffs consist of discovery materials sent by [plaintiff's counsel] in January and February of 2013.
One of the documents attached to Ridings's certification was a copy of one page of an invoice from Wiener's law office, dated May 9, 2011, and marked "Past Due Please Remit." The invoice included billing for services rendered in the "Solomon" matter from August to October 2009, nearly two years before the complaint was filed. The activities described pertain to an exchange of correspondence with plaintiffs' counsel and a telephone call with client.
Defendant also included a certification prepared by his current attorney in support of his motion. However, the attorney's statements regarding the events prior to his retention are not based upon personal knowledge. See R. 1:6-6.
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In opposition to defendant's motion, plaintiffs submitted certifications from plaintiff Mark Solomon and from Ira A. Cohen, plaintiffs' counsel from the filing of the lawsuit through supplementary proceedings for enforcement of litigants' rights. Plaintiffs vigorously disputed defendant's claimed lack of knowledge about the litigation.
Plaintiffs provided affidavits of service prepared by a Special Deputy Sheriff of Passaic County, which state that the service upon both Ridings and Triple T was effected on March 25, 2011, by serving the complaint upon Ridings, personally, at the business address, 280 Marshall Hill Road, West Milford, New Jersey. They submitted copies of correspondence sent to defendant that included: a letter dated June 21, 2011, advising defendant of plaintiffs' request to enter default; correspondence regarding the proof hearing pursuant to Rule 4:43-2(b); a letter sent by regular and certified mail dated June 21, 2012, which contained the Final Judgment; a letter sent by regular and certified mail dated November 23, 2012, which contained an information subpoena; a notice of motion for failure to make discovery dated February 8, 2013, sent by regular and certified mail; and a letter sent by regular and certified mail dated March 14, 2013, containing the order entered by the court compelling Ridings to appear and furnish answers to the information subpoena.
Cohen included copies of nine envelopes addressed to defendant, sent by certified mail, return receipt requested, at 280 Marshall Hill Road, West Milford, during the period from February 18, 2012, to April 2013. Each of the envelopes is marked, "Return to Sender, Unclaimed, Unable to Forward." Cohen certified,
Service upon the Defendants typically was by certified mail, return receipt requested as well as regular mail. At no time during these proceedings was the regular mail ever returned to the office of the undersigned. Though the certified mail typically remained unclaimed, that is not what occurred with regard to the regular mail. It can be presumed that the Defendants received all documents by regular mail since they never were returned.
It also appears that the address used for defendant remained active well after judgment was entered. Wiener submitted a certification in support of his motion to be relieved as counsel for defendant in the Passaic County foreclosure action, which defendant included in the documentation to support his motion here. The certification, dated February 25, 2013, identifies the property in question as "a commercial piece of property located at 280 Marshall Hill Road, West Milford, New Jersey . . . owned by Triple T Construction, LLC and the loan is guaranteed by its principal, Scott Ridings." It therefore appears that defendant maintained an interest in the Marshall Hill Road address where Ridings was personally served with the complaint at least as late as the end of February 2013.
Cohen also asserted that defendant was never represented by counsel in this matter and that all documentation had been served directly upon Ridings. Solomon similarly certified that there had been no negotiations with either of the lawyers Ridings claimed represented him.
The motion judge, who had presided over the proof hearing, observed that the motion was governed by Rule 4:50-1(a), which reads in pertinent part, "the court may relieve a party or the party's legal representative from a final judgment or order for . . . (a) mistake, inadvertence, surprise, or excusable neglect." The judge rejected defendant's assertion that he was unaware the complaint had been filed, observing that the affidavits of service showed he had been personally served. He also found defendant had been served with numerous documents during the litigation that provided him with notice about the case, the default, and the default judgment that was entered. Citing DEG, LLC v. Township of Fairfield, 198 N.J. 242, 263 (2009), the judge described the nature of the mistake that would justify relief under the Rule as "one which the parties could not have protected themselves from during the litigation." The judge also referred to the definition of excusable neglect as "excusable carelessness attributable to an honest mistake that is compatible with due diligence or reasonable prudence." He noted further that Ridings's claim that he reasonably believed he was being actively represented by Saunders in this matter was unsupported by the evidence. Finding that Ridings's conduct here failed to satisfy either of these definitions, the judge denied the motion to vacate default judgment. The judge also granted plaintiffs' cross-motion for counsel fees, awarding the amount of $525 to plaintiffs.
Defendant filed subsequent motions, seeking to vacate the orders that denied the motion to vacate default judgment and required defendant to provide discovery in supplementary proceedings, and seeking recusal of the judge. These motions were denied.
In this appeal, defendant argues a number of grounds existed for vacating the default judgment here: Rules 4:43-3 and 4:50-1(a) (excusable neglect); Rule 4:50-1(b) (newly discovered information); Rule 4:50-1(c) (fraud upon the court); and Rule 4:50-1(f) ("any other reason justifying relief from the operation of the judgment or order"). Defendant's motion before the trial court was based on arguments of excusable neglect, R. 4:50-1(a), and, if we view the arguments indulgently, the catchall category, R. 4:50-1(f). Because the arguments regarding newly discovered information and fraud upon the court were not presented to the trial court, we will not entertain them for the first time on appeal. US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 483 (2012). Defendant also argues that the court erred in granting plaintiffs' cross-motion for counsel fees because the "flawed judgment" was obtained with unclean hands. Finally, defendant argues that there was an appearance of bias that warranted the trial judge's recusal. We are not persuaded by any of these arguments.
The trial court's decision on a motion to vacate default judgment pursuant to R. 4:50-1 is entitled to "substantial deference, and should not be reversed unless it results in a clear abuse of discretion." Guillaume, supra, 209 N.J. at 467; accord DEG, supra, 198 N.J. at 261; Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). A decision constitutes an abuse of discretion when it 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, 123-24 (2007) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
The basic premise of defendant's motion to vacate default judgment was his claim he had no knowledge of the litigation here until after judgment was entered. However, the affidavits of service prepared by the Special Deputy Sheriff constitute evidence that Ridings was personally served with the complaint. These statements are entitled to a presumption they are true, Garley v. Waddington, 177 N.J. Super. 173, 180 (App. Div. 1981), which is not rebutted by Ridings's uncorroborated denial. Indeed, in his certification, he admitted receiving and forwarding "court documents" in this matter. There is, then, no legitimate issue as to the validity of the service. As a result, our review is guided by the following principles.
"[T]he opening of default judgments 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, a motion to set aside a default judgment will not be granted unless the movant shows the failure to appear or defend was excusable and that there is a meritorious defense. Id. at 318.
Defendant was, therefore, required to satisfy two requirements for the default judgment to be vacated. First, he had to show an excusable failure to appear or defend. And, second, he was required to show a meritorious defense.
We agree with the motion judge's assessment that defendant's conduct here failed to satisfy either the standards for mistake or excusable neglect that would warrant relief under R. 4:50-1(a). In the motion before the trial court, defendant did not articulate a meritorious defense but merely relied upon conclusory statements that Ridings "completed work for Plaintiffs and should be paid in full." In our view, defendant satisfied neither of the requirements for relief under R. 4:50-1(a).
Defendant fares no better when the motion is considered under R. 4:50-1(f), which permits courts to vacate judgments for "any other reason justifying relief from the operation of the judgment or order." "Because of the importance that we attach to the finality of judgments, relief under Rule 4:50-1(f) is available only when 'truly exceptional circumstances are present.'" Little, supra, 135 N.J. at 286 (quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984); see also Guillaume, supra, 209 N.J. at 484. The rule is limited to "situations in which, were it not applied, a grave injustice would occur." Little, supra, 135 N.J. at 289. Defendant's inexcusable negligence in failing to respond to a complaint that was personally served upon Ridings at his place of business does not qualify as exceptional circumstances warranting relief under this subsection.
The motion to vacate default judgment was, thus, properly denied. We further find that defendant failed to demonstrate that the trial court erred in denying their motion for reconsideration.
Defendant next argues that the court erred in granting plaintiffs' cross-motion, specifically challenging the award of $525 in counsel fees. Among the relief sought in the cross-motion was the enforcement of litigant's rights as to defendant's failure to comply with prior orders of the court to provide discovery and to compel defendant to provide such discovery. The court was therefore authorized to award counsel fees pursuant to Rule 4:42-9(a)(7). The record reflects that the application was supported by an affidavit of service, R. 4:42-9(b), which was reviewed by the court in making its determination. A trial court's determination regarding the award of counsel fees "will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We discern no abuse of discretion here.
Finally, defendant argues that the trial court erred in denying the motion for recusal that was filed after the motion to vacate default judgment was denied. In support of this motion, Ridings submitted a certification in which he stated that, upon attending oral argument on the motion, he recognized the judge as the judge who had presided over his divorce. He contended that the judge's rulings in that matter "were so negative that [he felt] he cannot be fair towards [him.]" In ruling on the motion, the judge observed that the one page of the judgment of divorce submitted to the court reflected that the action was resolved by a settlement. He stated further that he had no recollection of defendant's divorce action, which was one of hundreds, if not thousands, he handled while assigned to the Family Court.
Defendant's motion suggests that recusal was required pursuant to R. 1:12-1(g), which calls for a judge's disqualification when a reason exists "which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." Defendant identified nothing that occurred in the hearings in this matter that demonstrated any bias by the judge against him. Ridings has only described rulings in his divorce action that he claims gave rise to his own feelings that the judge was hostile and unfair to him and remained hostile and unfair. The judge's involvement in a prior proceeding, even if unsatisfactory to defendant, does not provide an appropriate basis for recusal. See Div. Of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 438-39 (App. Div. 2002); Panitch v. Panitch, 339 N.J. Super. 63 (App. Div. 2001). We discern no grounds for the judge's recusal here.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION