GENOVA BURNS, LLC VS. JUNE JONES (L-4101-15, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5054-18
GENOVA BURNS, LLC,
Plaintiff-Respondent,
v.
JUNE JONES,
Defendant,
and
MORRIS CANAL
REDEVELOPMENT AREA
COMMUNITY DEVELOPMENT
CORP.,
Defendant-Appellant.
____________________________
Submitted January 26, 2021 – Decided April 28, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-4101-15.
Vincent J. D'Elia, attorney for appellant.
Genova Burns, LLC, attorneys for respondent (Joseph
A. Bottitta, of counsel and on the brief).
PER CURIAM
Defendant Morris Canal Redevelopment Area Community Development
Corporation (Morris Canal) appeals from an order1 denying its cross-motion to
vacate a judgment and an order confirming an arbitration award that resulted in
the judgment. Because we see no abuse of discretion by the trial court, we
affirm.
I.
On June 10, 2015, plaintiff Genova Burns LLC filed a complaint, asserting
Morris Canal and its executive director June Jones owed plaintiff an outstanding
balance of $73,335.65 for legal services. Plaintiff alleged that on October 2,
2014, it had sent by regular and certified mail notice to defendants of the
outstanding balance and of defendants' right to pursue fee arbitration pursuant
to Rule 1:20A-6. According to plaintiff, defendants requested fee arbitration
before the Essex County Fee Arbitration Committee and were advised Essex
1
Morris Canal listed additional orders in its amended notice of appeal but did
not address them in its brief. "An issue not briefed is deemed waived." W.H.
Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App. Div.
2008). Accordingly, we limit our consideration of the appeal to the June 5, 2019
order denying Morris Canal's cross-motion.
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2
County was not the proper venue, but never filed their fee arbitration request
with the correct committee, the Hudson County Fee Arbitration Committee.
On July 21, 2017, the court granted defendants' motion for leave to file an
amended answer, to re-open and extend the discovery period by 120 days, and
to dismiss Jones from the case. The court executed a form of order submitted
by Vincent J. D'Elia, Esq., on behalf of defendants.
The parties were required to participate in arbitration pursuant to Rule
4:21A-1. The arbitration originally was scheduled for September 28, 2016.
After thirteen adjournments, the arbitration ultimately was scheduled to take
place on June 27, 2018. The court sent notice of that arbitration date to D'Elia,
as Morris Canal's counsel of record. Neither Morris Canal nor its counsel
appeared at the arbitration. The arbitrator, finding "[a]ll proofs in order,"
awarded plaintiff $73,335.65. According to plaintiff's counsel, plaintiff served
a copy of the award on Morris Canal on June 28, 2018.
On July 27, 2018, D'Elia on behalf of Morris Canal filed a "notice of
demand for trial de novo" pursuant to Rule 4:21A-6(b)(1) and -6(c). In a letter
dated August 7, 2018, plaintiff objected to Morris Canal's demand, citing Rule
4:21A-4(f), which provides, "[i]f a party defending against a claim of damages
does not appear, that party's pleading shall be stricken, the arbitration shall
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3
proceed and the non-appearing party shall be deemed to have waived the right
to demand a trial de novo." In an order dated August 22, 2018, the court
concluded the demand for trial de novo was "non[-]conforming," noting that
Morris Canal had not appeared at the arbitration. 2 The court posted notice of
that denial on e-courts and emailed it to D'Elia.
On July 27, 2018, Benjamin Morton, Esq., purportedly on behalf of Morris
Canal, filed a motion "to vacate fee arbitration default judgment." In the notice
of motion, Morton stated the motion was "primarily based" on the fact that he
had submitted a letter to the court requesting an adjournment of the arbitr ation
because he was involved in a trial, he understood the arbitration had been
adjourned, and he had not received notice that it had not been adjourned.
Morton, however, was not counsel of record for Morris Canal at the time of the
arbitration or when he filed the motion to vacate. The court deemed the motion
deficient for several reasons: it did not include an attorney certification,
proposed form of order, or certification of service; it was filed under a Hudson
County Special Civil Part caption instead of an Essex County Law Division
2
Contrary to those findings, the form of order indicated that the arbitration
award was vacated. On August 23, 2018, the court issued a notice clarifying
that the order vacated the trial de novo, not the arbitration award.
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caption; and the attorney listed was incorrect. The deficiencies were not cured,
and the motion was subsequently withdrawn.
On July 31, 2018, Morton filed a motion to substitute counsel, relieving
D'Elia and substituting himself in as counsel for Morris Canal. The motion
included a "Withdrawal/Substitution of Counsel," which was dated April 10,
2018, and was executed by Morton, D'Elia, and Jones, who indicated they
consented to the substitution "as of February 26, 2018." Morris Canal did not
explain why the motion was filed several months after that document was
executed. The court granted the motion on August 31, 2018.
On October 9, 2018, plaintiff filed a motion to confirm the arbitration
award. On November 9, 2018, the court granted the motion, confirmed the
arbitration award, and ordered that judgment in the amount of $73,335.65 be
entered against Morris Canal. In its order, the court acknowledged receiving
from Morton a letter that appeared to be untimely opposition to the motion and
a request to be relieved as counsel.3 The court considered the letter but found it
had "no effect on this court's decision because the opposition acknowledges that
3
Morton also submitted his certification in which he complained that although
he had requested an adjournment of the arbitration, he had not received notice
of the arbitration. Because Morton was not counsel of record at the time of the
arbitration, the court had no reason to send him notices.
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this [c]ourt denied [Morris Canal's] request for a Trial De Novo. Morton took
no further action after the denial until [p]laintiff filed the within motion to
confirm the arbitration award." The court denied the request to be relieved as
counsel as "procedurally improper" because "a formal motion must be filed."
The court also acknowledged receiving a letter that day from D'Elia. The court
stated it would not consider the letter because D'Elia previously had been
relieved as counsel.
On November 27, 2018, plaintiff submitted to the court a form of final
judgment. On December 14, 2018, the court executed final judgment in the
amount of $73,335.65, stating the application for final judgment was unopposed.
The judgment was subsequently docketed. Notice was posted on e-courts and
sent by email to Morton and D'Elia. A writ of execution was filed on January
8, 2019.
Plaintiff filed an order to show cause, seeking an order compelling an
accounting, setting aside any fraudulent transfers, preventing additional
monetary transfers, and appointing a receiver. The court issued the order to
show cause on March 4, 2019. On March 12, 2019, D'Elia, on behalf of Morris
Canal, filed a cross-motion to vacate, pursuant to Rule 4:50-1(a), (e), and (f),
A-5054-18
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the December 14, 2018 judgment and the November 9, 2018 order. 4 In support
of its cross-motion, Morris Canal submitted a certification of Jones, in which
she complained about plaintiff's legal services and invoices, and a certification
of D'Elia, in which he confirmed that the substitution of counsel was filed after
the arbitration and asserted that after Jones had told him in February 2018 that
"Mr. Morton was her new attorney," he understood "[n]o work was supposed to
be performed by me."
On June 5, 2019, the court denied plaintiff's application for a preliminary
injunction, finding plaintiff had not met the required elements of Crowe v. De
Gioia, 90 N.J. 126, 132-34 (1982), and denied Morris Canal's cross-motion,
finding it had not met the requirements of Rule 4:50-1. Specifically, the court
held Morris Canal had failed to demonstrate excusable neglect, inadvertence,
surprise, or that the judgment was void or based on fraud. 5
Morris Canal appeals the June 5, 2019 order denying its cross-motion to
vacate the judgment pursuant to Rule 4:50-1. It argues the court abused its
4
D'Elia also apparently filed on the same day a "motion to vacate default
judgment and restore." Morris Canal did not include copies of those motion
papers in its appendix or reference the motion in its brief.
5
The court issued two orders, one denying Morris Canal's cross-motion and one
denying its motion to vacate default. Both orders reference a motion for
reconsideration, which appears to be an error.
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discretion by "failing to apply the correct standard of Rule 4:50-1 particularly
subdivision (f), based upon negligence of the attorney for Morris Canal . . . while
Morris Canal was itself blameless, and demonstrated a meritorious defense to
[plaintiff's] claims for legal fees." It asserts it established excusable neglect,
citing the failures of its attorney. It contends that under Rule 4:21-4(f), it had
to show only "a reasonable excuse" for its failure to appear at the arbitration and
a meritorious defense.
II.
We review decisions on motions to vacate judgments under an abuse-of-
discretion standard. "The trial court's determination under [Rule 4:50-1]
warrants substantial deference, and should not be reversed unless it results in a
clear abuse of discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467
(2012); see also U.S. Bank Nat'l Ass’n v. Curcio, 444 N.J. Super. 94, 105 (App.
Div. 2016). An abuse of discretion occurs when a trial judge's decision "was
not premised upon consideration of all relevant facts, was based upon
consideration of irrelevant or inappropriate factors, or amounts to a clear error
in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005);
see also State v. R.Y., 242 N.J. 48, 65 (2020).
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Morris Canal cross-moved to vacate the December 14, 2018 judgment and
November 9, 2018 order pursuant to Rule 4:50-1, specifically referencing in its
notice of motion subparts (a), (e), and (f). Those subparts allow a court to vacate
a final judgment or order for "(a) mistake, inadvertence, surprise, or excusable
neglect"; because "(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 for "(f) any other reason j ustifying
relief from the operation of the judgment or order." R. 4:50-1(a), (e), and (f). 6
Morris Canal faults the court for not applying the "good cause" standard
of Rule 4:21A-4(f). "Relief from a default judgment entered pursuant to an
arbitration award is ordinarily found in [Rule] 4:21A-4(f)." SWH Funding Corp.
v. Walden Printing Co., 399 N.J. Super. 1, 9 (App. Div. 2008). Rule 4:21A-4(f)
6
Morris Canal incorrectly asserts that it also moved pursuant to subpart (c),
which provides for vacation of a judgment due to "fraud . . . , misrepresentation,
or other misconduct of an adverse party." R. 4:50-1(c). Its notice of motion
belies that assertion. See Alloco v. Ocean Beach & Bay Club, 456 N.J. Super.
124, 145 (App. Div. 2018) (applying "well-settled" principle that appellate court
will not consider an issue that was not raised before the trial court). Moreover,
Morris Canal does not in this appeal make any arguments about fraud under
subpart (c) or the judgment being satisfied or void under subpart (e).
Accordingly, we do not address those subparts. See W.H. Indus., Inc., 397 N.J.
Super. at 459 (stating "[a]n issue not briefed is deemed waived").
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sets the consequences for failure to appear at a Rule 4:21A-1 arbitration: "[i]f a
party defending against a claim of damages does not appear, that party's pleading
shall be stricken, the arbitration shall proceed, and the non-appearing party shall
be deemed to have waived the right to demand a trial de novo." It also
establishes the procedure to obtain relief from those consequences: "[r]elief
from any order entered pursuant to this rule shall be granted only on motion
showing good cause, which motion shall be filed within 20 days of the date of
service on the non-appearing party." Ibid.
After service of the arbitration award, Morris Canal through its counsel of
record D'Elia, attempted to file a demand for a trial de novo. The court correctly
rejected that demand because by failing to appear at the arbitration, Morris Canal
was "deemed to have waived the right to demand a trial de novo." R. 4:21A-
4(f). Morton, who was not then counsel of record, attempted to file a motion
"to vacate fee arbitration default judgment." The court correctly found that
motion to be deficient, 7 and the motion was subsequently withdrawn. Morris
Canal cannot now avail itself of the "good cause" standard of Rule 4:21A-4(f)
7
Even if it had not been deficient, the motion would have been untimely, having
been filed more than twenty days after service of the arbitration award.
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when it failed to file the motion that would have rendered that standard
applicable.
Morris Canal argues it demonstrated "excusable neglect" under Rule 4:50-
1(a) based on the "failure of its attorney . . . to inform [Morris Canal] that the
[a]rbitration had been scheduled." As we emphasized in SWH Funding Corp.,
399 N.J. Super. at 10, "'good cause' under [Rule] 4:21A-4(f) is not synonymous
with the 'excusable neglect' standard in [Rule] 4:50-1(a)." "Excusable neglect"
under subpart (a) may be found when "the default" was "'attributable to an
honest mistake that is compatible with due diligence or reasonable prudence.'"
Guillaume, 209 N.J. at 468 (quoting Mancini v. Eds ex rel. N.J. Auto. Full Ins.
Underwriting Ass’n, 132 N.J. 300, 335 (1993)).
Although attorney carelessness, lack of diligence, and inadvertence may
be enough to establish good cause, they are "insufficient grounds for the
establishment of excusable neglect." Burns v. Belafsky, 326 N.J. Super. 462,
471 (App. Div. 1999), aff'd, 166 N.J. 466 (2001); see also SWH Funding Corp.,
399 N.J. Super. at 10 (finding "Rule 4:50-1(a) relief [was] not available, because
inadvertence of counsel alone is insufficient, as a matter of law, to establish
'excusable neglect'"). The trial court did not abuse its discretion in finding
Morris Canal had not established excusable neglect.
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Morris Canal focuses its appeal on subpart (f), the "catchall provision" of
Rule 4:50-1. A.B. v. S.E.W., 175 N.J. 588, 593 (2003). "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.'" Hous.
Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) (quoting Baumann v.
Marinaro, 95 N.J. 380, 395 (1984)); see also Guillaume, 209 N.J. at 484.
Morris Canal argues the trial court should have applied the Jansson8
factors we utilized in Parker v. Marcus, 281 N.J. Super. 589, 593-94 (App. Div.
1995), to determine whether its counsel's negligence constituted "truly
exceptional circumstances" meriting relief under Rule 4:50-1(f). In Parker, the
plaintiff "made every effort to keep in contact with his attorney during the
pendency of his case," received incorrect information from his attorney
regarding the status of the case, and took immediate action when he learned of
his attorney's misdeeds. 281 N.J. Super. at 594. That is not the record before
us. This case does not present "truly exceptional circumstances" meriting relief
under Rule 4:50-1(f).
8
Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 195 (App. Div.
1985).
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We see no abuse of discretion in the trial court's denial of Morris Canal's
cross-motion.
Affirmed.
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