MICHAEL D. SCHOTTLAND, P.A., v. JOAN BYRON-MARASEK AND TIGERS ONLY PRESERVATION SOCIETY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1188-05T51188-05T5

MICHAEL D. SCHOTTLAND, P.A.,

T/A SCHOTTLAND, MANNING, CALIENDO

& THOMSON, P.A.,

Plaintiffs-Respondents,

v.

JOAN BYRON-MARASEK AND TIGERS

ONLY PRESERVATION SOCIETY,

Defendants-Appellants.

________________________________________________________________

 

Submitted October 17, 2006 - Decided November 8, 2006

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-2735-02.

Joan Byron-Marasek, appellant pro se.

Manning, Caliendo & Thomson, attorneys for respondents (Stephen M. Bacigalupo, II, on the brief).

PER CURIAM

Defendants, Joan Byron-Marasek and Tigers Only Preservation Society (TOPS), appeal from the September 23, 2005 Law Division order denying their motion to vacate a default judgment in the amount of $24,580.33 entered against them on October 7, 2002. The judgment was based upon defendants' indebtedness to plaintiffs for unpaid legal fees. Defendants argue on appeal:

POINT I

THE TRIAL COURT ERRED BY SUMMARILY DISMISSING THE DEFENDANT'S MOTION TO VACATE THE DEFAULT JUDGMENT WITHOUT A PROPER FINDING OF FACTS AND CONCLUSIONS OF LAW, AND BY NOT GRANTING DEFENDANTS AN ADJOURNMENT ON MEDICAL GROUNDS, REGARDING THE SEPTEMBER 23, 2005 SCHEDULED PROCEEDING FOR ORAL ARGUMENT.

POINT II

THE DEFENDANTS ARE NOT INDEBTED TO PLAINTIFF FOR ANY AMOUNT.

POINT III

IN NO EVENT, ARE THE INDIVIDUAL DEFENDANTS PERSONALLY LIABLE TO PLAINTIFF, BECAUSE THE LEGAL SERVICE RENDERED BY PLAINTIFF, WERE SUPPOSED TO BE FOR TIGERS ONLY PRESERVATION SOCIETY (TOPS) A NONPROFIT ORGANIZATION.

Defendants' arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm. We nevertheless set forth a brief summary of the matter involved and some comments regarding defendants' appeal arguments.

On December 28, 2000, plaintiffs and defendants entered into a retainer agreement. The agreement was unambiguously entered into by "JOAN BYRON-MARASEK and [TOPS]" (emphasis added), and was signed by Marasek "Individually and on behalf of 'TOPS.'" The agreement set forth a fee schedule. An itemized bill for services rendered from December 26, 2000 through July 23, 2001 was submitted to defendants and not paid. All services were itemized, and the rates charged were in accordance with the retainer agreement. The net balance due was $24,580.33. After making demand for payment, to which defendants did not respond, plaintiffs filed this action.

On July 30, 2002, service of process was effected on defendants by personally serving Marasek while she was conducting business in the Ocean County Courthouse. An affidavit of service to that effect was filed. Marasek contends she did not recall being served at the time because she was ill. She has provided documentation showing that she was taken to the hospital on that date experiencing chest pains. She contends she thought she was having a heart attack. In any event, she was released from the hospital the same day. We are satisfied that service was effective. See R. 4:4-3(a); R. 4:4-4(a)(1) and (6).

Defendants did not file an answer or otherwise respond. On September 9, 2002, plaintiffs moved for entry of default. Default judgment was entered on October 7, 2002. On October 15, 2002, plaintiffs sent a copy of the judgment, with an information subpoena to Marasek's address, by certified and regular mail. Certified mail was unclaimed, but the regular mail was not returned. Defendants did not respond. On August 30, 2004, plaintiffs again sent an information subpoena to Marasek at her address by certified and regular mail. The certified mail again went unclaimed, and again the regular mail was not returned.

Defendants continued to be non-responsive, and in September 2004, plaintiffs filed a motion to enforce litigant's rights, serving defendants at Marasek's address, again by certified and regular mail. The certified mail again went unclaimed. On October 20, 2004, defendants forwarded to plaintiffs incomplete answers to the previously sent information subpoenas, thus conclusively establishing that Marasek had indeed received the information subpoenas. All of the mailings were to the same address.

Plaintiffs obtained a writ of execution, which was levied upon defendants' real property on December 13, 2004. On February 8, 2005, defendants filed a motion to vacate the judgment. Marasek claimed "excusable neglect, excusable default, and [] emergent circumstances and events that occurred beyond defendants' control." She contended she had "no recollection concerning this matter and received no papers relating to this law suit prior to the plaintiffs recently instituting enforcement proceedings in September 2004." She acknowledged, however, that after learning of the matter in September 2004, she recalled being served in the Ocean County Courthouse on July 30, 2002, but she "was in extremis, suffering from debilitating chest pains, and was confused, and dazed." She claimed the legal fees were excessive and that she had a good defense to plaintiffs' claim.

On the return date of defendants' motion, September 23, 2005, Marasek did not appear. She called the court the previous day requesting an adjournment, stating she was going into the hospital for surgery on September 23. However, when a medical certificate was requested, Marasek called back, now saying, as the judge described it, "she had a doctor's appointment, and the story went downhill from there." Because of Marasek's unexcused absence, the court proceeded in her absence and, based upon a review of the moving and opposing papers, found no merit in defendants' position and denied the motion.

Rule 4:50-1 authorizes vacation of a final judgment for "(a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order." A motion for such relief under Rule 4:50-1(a) must be made within one year, and under Rule 4:50-1(f), within a reasonable time after entry of the judgment. R. 4:50-2. Defendants have not established grounds for relief under Rule 4:50-1(a), and, in any event, the motion was untimely for such relief. Even if we accept Marasek's contention that when she was served on July 30, 2002 she was in some medical distress, she was served with a copy of the default judgment soon after it was entered and long before expiration of one year from its entry.

We also find no basis for relief under Rule 4:50-1(f), the "catch all" provision. Although applications to vacate default judgments are treated with great liberality, when the application arises under subsection (f), the policy favoring finality of judgments takes on added importance. First Morris Bank and Trust v. Roland Offset Serv., Inc., 357 N.J. Super. 68, 71 (App. Div. 2003). Relief is available under this subsection only in truly exceptional circumstances, and it should be sparingly granted, only when necessary to avoid a grave injustice. Ibid. We are satisfied there were no exceptional circumstances here and no injustice will result from enforcement of the judgment.

We find no mistaken exercise of discretion in the judge's refusal to adjourn the hearing on defendants' motion, nor in his decision to deny the motion. Finally, there is no question that judgment was properly entered against Marasek individually as well as against TOPS. She entered into the retainer agreement on behalf of herself and TOPS.

Affirmed.

 

The case was listed for oral argument on October 17, 2006. Appellant, Joan Byron-Marasek, did not appear. Kenneth L. Thomson, Esquire appeared for respondents, and made very brief comments, without addressing the legal issues in the appeal.

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A-1188-05T5

November 8, 2006