CHARLES UDOH VS. ENTERPRISE RENTAL CAR INC. (L-4335-12, 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NOT FOR PUBLICATION WITHOUT THE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-1816-14T2
FTA FINANCIAL L.L.C.,
Plaintiff-Respondent,
v.
JAMES WHITE,
Defendant-Appellant.
_________________________________
Submitted October 11, 2016 – Decided March 7, 2017
Before Judges Espinosa and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Passaic
County, Docket No. DC-9962-14.
James White, appellant pro se.
Zager Fuchs, P.C., attorneys for respondent
(Michael T. Warshaw, on the brief).
PER CURIAM
Defendant James White appeals a November 14, 2014 order that
denied his motion to vacate a $14,250 judgment entered against him
in favor of plaintiff FTA Financial, L.L.C. (FTA).1 We affirm.
Defendant and four other individuals signed a $20,000
"Promissory Note" (Note) in April 2012 that was payable to John's
Bail Bonds (John's) in order to obtain a recognizance bond for
defendant Donny Bono's appearance on criminal charges, where bail
was set at $200,000. They also signed an "Unpaid Premium
Agreement" (Agreement) with John's which obligated them to pay the
$15,000 remaining balance for the bond in $400 bi-weekly
installments, a document that listed "Conditions of Release," a
"Detainer Notice," and individual indemnity agreements with the
surety on the bond, First Indemnity of America Insurance Company.
The Agreement required defendant to "pay all . . . costs of
collections including attorney's fees and court costs." John's
received an initial $5,000 down payment and another $2,950, leaving
an unpaid balance of $12,050.
In August 2014, John's assigned this account receivable to
FTA for collection. FTA then sued defendant and the other
signatories in the Passaic County Superior Court, Special Civil
1
Defendant's Notice of Appeal only referenced the November 14,
2014 order and not the October 17, 2014 order that entered the
judgment.
2 A-1816-14T2
Part, seeking $14,250 in damages for the unpaid balance and
collection costs, and $750 in attorney's fees. Defendant was the
only party who answered the complaint.
FTA requested summary judgment, contending there were no
genuine issues of fact regarding defendant's obligation to pay
under the Note and Agreement. Defendant opposed the motion saying
that he was "lied to and misled by John's." He asserted the
documents were blank when he signed them at 10:00 p.m. in a van
at his house, that John's rushed him to sign and he was tired at
the time. He claimed he was signing for a bond and did not
remember signing a "fee contract." He asserted the documents were
not filled out when he signed them nor properly notarized.
Defendant asked to consolidate this case with a case he filed
in the Hudson County Special Civil Part. In that case, defendant
sued John's for $15,000 claiming he was "tricked into signing a
paper [in] which I was made a guarantor of the bondsman's fee."
He claimed he was not advised of the delinquency, and questioned
the amount due under the contract. Defendant contested the venue
of FTA's case in Passaic County because he said Bono moved out of
the county before suit was filed.
On October 17, 2014, the trial judge granted FTA's motion for
summary judgment. In his written opinion, the judge found the
case was properly venued in Passaic County because Bono lived in
3 A-1816-14T2
Clifton and defendant had no proof to corroborate that Bono had
moved. The court declined to consolidate this case with the case
pending in Hudson County because neither FTA nor defendant had
"any bona fide connection to Hudson County."2 The judge also found
there were no factual issues precluding summary judgment because
defendant acknowledged signing the documents and did not provide
"documentary evidence" in support of his claims that the documents
were not filled out when he signed them nor properly notarized.
The trial court entered a $14,250 judgment against defendant and
denied FTA's request for attorney's fees without prejudice because
it failed to submit a certification of services.
Defendant filed a motion under Rule 4:50-1 to vacate the
judgment, claiming he had new evidence that Bono was not living
in Clifton when the complaint was filed. FTA opposed the motion
and filed a cross-motion for sanctions and attorney's fees.
The trial court denied defendant's motion to vacate, finding
the case was properly venued in Passaic County because Bono was
residing in Passaic County "at the time that this suit was filed,"
that Bono was served with the complaint in Passaic County and that
defendant presented no documentary evidence to show Bono's current
2
The Hudson County case was dismissed according to FTA, and
reconsideration denied, but those orders are not part of our
record.
4 A-1816-14T2
address or to corroborate his claim Bono had moved. The court
found that although settlement discussions may have occurred
between the parties, those discussions could not be considered by
the court, citing to N.J.R.E. 408. The court denied FTA's request
for sanctions because it had not sent the pre-action letter notice
required by Rule 1:4-8(b).3
Defendant appeals the November 14, 2014 order that denied his
request to vacate the judgment. He contends the trial court erred
by failing to consider the concept of joint and several liability,
and by also failing to consider that, before collecting on the
bond, FTA was required to prove substantial efforts to capture the
defendant. We discern no error by the trial court in denying his
motion to vacate the judgment.
We review trial court decisions on motions to vacate
judgments, R. 4:50-1, with greater deference than our review of
summary judgment orders. See Hous. Auth. of Morristown v. Little,
135 N.J. 274, 283 (1994) (internal citations omitted) ("The
decision granting or denying an application to open a judgment
will be left undisturbed unless it represents a clear abuse of
discretion.").
3
We omit discussion of subsequent motions involving collection
activities because they have no bearing on our resolution of the
issues.
5 A-1816-14T2
Defendant raises nothing in this appeal that demonstrates
an abuse of discretion. Instead, defendant cites to principles
of tort law involving joint and several liability as a ground to
vacate the judgment. However, joint and several liability has no
relevance to this breach of contract action. Defendant signed a
contract that allowed FTA to seek the full amount from defendant
or any of the co-signers, either individually or jointly. This
then was not a basis under Rule 4:50-1 to vacate the judgment.
Similarly, defendant's contention on appeal that FTA needed
to show efforts to recapture an at-large defendant to recover
under the note is simply incorrect. This is not a case where
there was a failure by a criminal defendant to appear; rather,
defendant and others obligated under the note failed to pay for
the bail bond.
Defendant did not appeal the October 17, 2014 order that
entered judgment because it was not listed in his Notice of Appeal.
See W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super.
455, 458 (App. Div. 2008) (citing Sikes v. Twp. of Rockaway, 269
N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41(1994)) ("It is clear that it is only the orders designated in the
notice of appeal that are subject to the appeal process and
review."). Defendant's Case Information Statement did list the
October 17, 2014 order that granted FTA summary judgment. However,
6 A-1816-14T2
even if we elected to review the summary judgment order, see Tara
Enters. Inc. v. Daribar Mgmt. Corp., 369 N.J. Super. 45, 60 (App.
Div. 2004), it provided no basis to vacate the judgment. See
Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J.
436, 445-46 (2007) (citing Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 536 (1995) (finding that summary judgment is
appropriate where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law)). We
review a summary judgment decision using the same standards that
govern the trial court. Murray v. Plainfield Rescue Squad, 210
N.J. 581, 584 (2012).
Here, defendant acknowledged signing the documents without
first reading them.4 He contended he thought he was signing for
the bond, and not for the amount needed to purchase the bond.
Although he described the circumstances under which he signed the
documents, he never asserted that he signed them based on threats
made or wrongful conduct by the bail bondsman. See Shanley &
Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 213 (App. Div.
1987) (internal quotation marks and citation omitted) (holding
that acts or threats do not constitute duress unless they are
wrongful). Instead, he believed he was doing Bono a favor by
4
Defendant apparently abandoned his claim of forgery at oral
argument where he admitted signing the documents.
7 A-1816-14T2
agreeing to the bond. Defendant acknowledges the documents were
available for him to read when he signed them and that he could
have asked for and obtained a copy. The pre-printed portions of
those documents were clear in setting forth that defendant was
financially obligated because one was a "Promissory Note," and
another was an "Unpaid Premium Agreement." Defendant did not
plead legal or equitable fraud as a defense, nor did he raise with
any specificity facts that would support his bald assertion he was
misled. See R. 4:5-8(a). Additionally, he acknowledged he signed
the documents, which, for him, obviated any issue about the
notarization of the document.
The certification submitted in connection with the motion for
summary judgment supported the judgment for $14,250. The
promissory note was for $15,000 but because $2,950 has been paid,
and $2,200 had been assessed for the costs of collection, the
total amount awarded was $14,250. The record is devoid of any
genuine issue challenging these amounts.
Finally, venue in Special Civil Part is proper "in the county
in which at least one defendant in the action resides." Rule 6:1-
3(a). Defendant twice failed to show Bono had moved out of the
county prior to the filing of the suit.5 Therefore, venue was
5
The trial court's opinion references "jurisdiction." Defendant
does not allege on appeal that the court lacked jurisdiction.
8 A-1816-14T2
proper in Passaic County because the trial court found Bono lived
there when the complaint was served and filed.
Affirmed.
9 A-1816-14T2