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

G
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        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.
                                                                          A-5054-18
                                       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


                                                                           A-5054-18
                                       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.
                                                                           A-5054-18
                                        4
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.
                                                                            A-5054-18
                                        5
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
                                       6
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.
                                                                           A-5054-18
                                        7
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).




                                                                             A-5054-18
                                        8
      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").
                                                                             A-5054-18
                                        9
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.
                                                                             A-5054-18
                                       10
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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                                       11
      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).
                                                                           A-5054-18
                                      12
     We see no abuse of discretion in the trial court's denial of Morris Canal's

cross-motion.

     Affirmed.




                                                                          A-5054-18
                                     13

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