DAVID CHU VS. PHYSIQUES UNLIMITED, INC. AUGIE DASILVA VS. PHYSIQUES UNLIMITED, INC. (L-7727-13 AND L-7728-13, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4594-16T2
A-4595-16T2
DAVID CHU,
Plaintiff-Respondent,
v.
PHYSIQUES UNLIMITED, INC.,
Defendant-Appellant,
and
SIGNATURE FITNESS, LLC, 492
CORTLANDT STREET REALTY,
LLC,
Defendants,
and
ALEXANDER SICIGNANO, individually
and derivatively on behalf of
PHYSIQUES UNLIMITED II, INC.,
Defendants/Third-Party
Plaintiffs,
v.
AUGIE DASILVA and PHYSIQUES
UNLIMITED II, INC.,
Third-Party Defendants.
_________________________________________
AUGIE DASILVA,
Plaintiff-Respondent,
v.
PHYSIQUES UNLIMITED, INC.,
Defendant-Appellant,
and
SIGNATURE FITNESS, LLC, 492
CORTLANDT STREET REALTY,
LLC,
Defendants,
and
ALEXANDER SICIGNANO, individually
and derivatively on behalf of
PHYSIQUES UNLIMITED II, INC.,
Defendants/Third-Party
Plaintiffs,
v.
DAVID CHU and PHYSIQUES
A-4594-16T2
2
UNLIMITED II, INC.,
Third-Party Defendants.
__________________________________
Submitted October 3, 2018 – Decided October 19, 2018
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket Nos. L-7727-13 and L-
7728-13.
Rachel Schulman, PLLC, attorneys for appellant
Physiques Unlimited, Inc., (Rachel Schulman, of
counsel and on the briefs).
Respondents have not filed a brief.
PER CURIAM
This opinion addresses two related appeals, both filed by defendant
Physiques Unlimited, Inc. In A-4594-16, defendant appeals from a March 31,
2017 order, denying its motion to vacate an April 29, 2016 order granting
judgment in favor of plaintiff David Chu. In A-4595-16, defendant appeals from
a March 31, 2017 order, denying its motion to vacate a January 15, 2015 order
granting judgment in favor of plaintiff Augie Dasilva. Judge Christine A.
Farrington entered the underlying judgments from which defendant sought
relief. Judge Annette Scoca entered the March 31, 2017 orders on appeal. At
the bottom of each order, Judge Scoca wrote a statement of her reasons for
A-4594-16T2
3
denying the motion. . In essence, defendant claimed that the two judgments were
obtained by fraud and without notice to its rightful corporate owner. Judge
Scoca concluded that a responsive certification, filed in each motion by the
attorney who represented the plaintiffs in those lawsuits, refuted the claims of
fraud and lack of notice.
We dismiss both appeals as improperly perfected. In both appeals counsel
failed to provide us with the complete trial court record, so that we could conduct
a meaningful appellate review of Judge Scoca's decisions. See R. 2:6-1(a)(1)(I)
(appellant's appendix must include those portions of the record that "are
essential to the proper consideration of the issues"). In particular, counsel failed
to provide us with the responses to defendant's motions to vacate, thus
presenting a one-sided record. The missing documents include the certification
that was critical to Judge Scoca's decisions in both of these cases. In addition,
appellant's appendix improperly includes documents that were not filed with the
trial court. See R. 2:5-4(a).
Moreover, although the appeals concern the denial of motions to vacate
summary judgment orders, counsel did not provide us with any of the summary
judgment motion evidence or argument transcripts. Without those documents,
we cannot meaningfully review whether the orders should have been vacated.
A-4594-16T2
4
Accordingly, we dismiss the appeal. See Noren v. Heartland Payment Sys., Inc.,
448 N.J. Super. 486, 500 (App. Div. 2017).
Finally, even if we considered the merits of this appeal, absent a proper
record on which to evaluate Judge Scoca's decision, we would be constrained to
treat her factual findings as binding for purposes of this appeal. In fact we note
that, in a letter filed in support of a motion for reconsideration of both March
31, 2017 orders, defendant's counsel essentially conceded the accuracy of the
certification on which Judge Scoca relied. 1 In light of the judge's factual
findings, we perceive no abuse of discretion in her decisions, and if we
considered the merits, we would affirm the orders on appeal. See U.S. Bank
Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).
Dismissed.
1
Defendant did not appeal from Judge Scoca's June 9, 2017 orders denying
reconsideration.
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