MAIMOUNAT AKEGNAN VS. BENJAMIN FAGANSÂ (L-7201-13, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1477-15T3
MAIMOUNAT AKEGNAN,
Plaintiff-Respondent,
v.
BENJAMIN FAGANS and FULTON
CONSTRUCTION & CARPETING, INC.,
Defendants-Appellants,
and
JOYCE N. MOORE, JOHN KRILLA,
NEW JERSEY HOME FUNDING GROUP,
LLC,
Defendants.
_________________________________
Argued March 16, 2017 – Decided October 12, 2017
Before Judges Suter and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-7201-13.
Peter J. Koulikourdis argued the cause for
appellants (Koulikourdis and Associates,
attorneys; Joseph A. Takach, on the brief).
Daniel S. Eichhorn argued the cause for
respondents (Cullen and Dykman, LLP,
attorneys; Mr. Eichhorn, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Defendants Benjamin Fagans and Fulton Construction &
Carpeting, Inc. (defendants) appeal the October 23, 2015 order
denying reconsideration of their unsuccessful motion to vacate a
default judgment entered against them in favor of plaintiff
Maimounat Akegnan (plaintiff) for $279,184. Because defendants
did not show any basis for reconsideration, there was no abuse of
discretion in denying the motion.
We relate only the facts that are necessary. In 2013,
plaintiff filed suit against defendants arising from three real
estate transactions. Plaintiff alleged with respect to a first
property in New York, that she paid defendants $24,184.50. When
that real estate deal could not be completed, she alleged
defendants owed her these monies. Two other potential investment
properties were located in New Jersey. The first on Gloria Lane
in Monroe was to be plaintiff's for her personal use. She alleges
she paid defendants $91,000 for this property but when that
transaction was not finalized, defendants reimbursed her only a
portion of her investment, leaving a balance of $32,440. The
second property, on Spotswood Gravel Hill Road in Monroe, involved
an investment by plaintiff of $255,000. The seller of that
2 A-1477-15T3
property terminated the transaction when defendants could not
obtain financing. Plaintiff contends defendants owe her these
funds. The complaint alleged causes of action against defendants
for fraud, negligent misrepresentation, unjust enrichment,
conversion, breach of fiduciary duty, breach of contract and good
faith and fair dealing, civil conspiracy and RICO.1
Defendants did not file an answer and were defaulted.
Plaintiff's motion for the entry of a default judgment was granted
in April 2014, entering judgment in the amount noted.
It was not until July 2015, that defendants filed a motion
to vacate the default judgment. Defendant Benjamin Fagans claimed
he did not recall being served with the complaint despite the
process server's return of service. He acknowledged learning
about the complaint and receiving it by regular mail. He then
started looking for documents to support his defenses, but being
unaware of the deadlines and having a need to retain a person to
translate some of the documents, did not file an answer.
Judge Robert C. Wilson denied the motion to vacate on August
3, 2015. He found based on the proof of service and defendant's
actual knowledge of the complaint that defendant Benjamin Fagans
1
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A.
§§ 1961-1968.
3 A-1477-15T3
was served with process both personally and as agent for Fulton
Construction & Carpeting, Inc. (Fulton). The judge concluded that
defendants were not entitled to relief under Rule 4:50-1(a), (b),
and (c), because the time for filing under those sections had
expired. Under subsection "f", the judge found no exceptional
circumstances or legal basis to vacate the judgment. See R. 4:50-
1(f). Defendants did not assert a meritorious defense but simply
denied "they took all the monies from plaintiff."
Defendants filed a motion for reconsideration. The motion
included, without any certification, a purported contract between
plaintiff and defendants for the New York transaction and copies
of the front and back of a few checks written on Fulton check
stock. Defendants reiterated their prior arguments but added that
plaintiff did not pay what she was supposed to for two of the real
estate deals.
On October 23, 2015, Judge Wilson denied reconsideration,
concluding that his earlier order of August 3, 2015 was "based on
correct reasoning" and that defendants did not "demonstrate[] good
cause to overturn" the previous order. The court noted "all
factual predicates, including exhibits" were available to
defendants when they requested to vacate the default judgment.
Defendants' motion was based on "events that allegedly occurred
4 A-1477-15T3
from 2009 through 2012." The court previously considered
defendants' "asserted defenses" and determined they were not
meritorious. Defendants had not shown excusable neglect. There
was "evidence that [d]efendant [Benjamin] Fagans received notice
of the litigation, . . . was aware of the ongoing litigation, and
presumably received and reviewed the documents at issue in this
matter."
Defendants appeal only the October 23, 2015 order denying
reconsideration. They contend the court erred because they
submitted additional documents, which showed defendants complied
with their obligations. All of defendants' other arguments on
appeal are directed to the August 3, 2015 order that denied their
request to vacate the default judgment. That order is not properly
before us. See W.H. Industries, Inc. v. Fundicao Balancins, Ltda,
397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it
is only the orders designated in the notice of appeal that are
subject to the appeal process and review."); Fusco v. Bd. of Educ.
of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.)
(reviewing only denial of the plaintiff's motion for
reconsideration and refusing to review the original grant of
summary judgment because that order was not designated in the
notice of appeal), certif. denied, 174 N.J. 544 (2002).
5 A-1477-15T3
"[A] trial court's reconsideration decision will be left
undisturbed unless it represents a clear abuse of discretion."
Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super.
378, 382 (App. Div. 2015). The grounds for reconsideration are
limited. State v. Puryear, 441 N.J. Super. 280, 294 (App. Div.
2015). Reconsideration is not appropriate merely because a
litigant is dissatisfied with a decision. D'Atria v. D'Atria, 242
N.J. Super. 392, 401 (Ch. Div. 1990). Reconsideration is
appropriate only where "1) the [c]ourt has expressed its decision
based upon a palpably incorrect or irrational basis, or 2) it is
obvious that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent evidence."
Ibid. Reconsideration may also be granted where "a litigant wishes
to bring new or additional information to the [c]ourt’s attention
which it could not have provided on the first application." Ibid.
We discern no abuse of discretion here. The trial court's
decision denying reconsideration was reasonably based on
consideration of all the evidence. Defendants were served with
the complaint, were aware of it, and failed to answer. Defendants
submitted nothing new to rebut this finding. Defendants attached,
without a certification, a purported contract for one of the
transactions, which confirmed rather than disputed that there was
6 A-1477-15T3
some type of financial transaction between plaintiff and
defendants involving real estate in New York. That defendants may
have paid some money toward one of the transactions proves nothing
about their obligations, and more importantly, does not address
plaintiff's claim that defendants owed her money. The copies of
the checks were uncertified and lacking in explanation. The court
considered all the information before it and expressed its decision
cogently.
If we were to consider the August 3, 2015 order that denied
defendants' motion to vacate the default judgment, our review
would conclude that Judge Wilson did not abuse his discretion in
denying defendants' motion to vacate. See In re Adoption of Child
of Indian Heritage, 111 N.J. 155, 184(1988) (observing that "a
motion for vacation of judgment is addressed to the sound
discretion of the trial court, whose resolution of the motion will
not be disturbed on appeal unless it results from a clear abuse
of discretion."). Defendants appear to limit their argument under
Rule 4:50-1 to subsection "f" providing relief for "any other
reason justifying relief from the operation of the judgment or
order." R. 4:50-1(f). Subsection "f" should be used "sparingly,"
First Morris Bank & Trust v. Roland Offset Serv., Inc., 357 N.J.
Super. 68, 71 (App. Div.), certif. denied, 176 N.J. 429 (2003),
7 A-1477-15T3
and relief is available only when "truly exceptional circumstances
are present." Hous. Auth. of Morristown v. Little, 135 N.J. 274,
286 (1994).
There were no exceptional circumstances raised here. The
excuse that time was needed to gather documents and to translate
them was not supported by any proof of the volume of the documents
or the time to translate them. Defendants' alleged meritorious
defenses were boilerplate without any substance for the court's
consideration. Although they contend now that plaintiff's proofs
were inadequate to show defendants breached these contracts or
that they intended to convert funds for their benefit, defendants
are raising these issues for the first time on appeal. We decline
to address what the trial court did not have the opportunity to
address. See State v. Galicia, 210 N.J. 364, 383 (2012) (observing
that "[g]enerally, an appellate court will not consider issues
. . . which were not raised below."). Defendants did not establish
there was excusable neglect, any meritorious defenses or a lack
of service.
Affirmed.
8 A-1477-15T3