FRANK POBICKI v. TREUMAN SALES, L.L.C., JULES KOVACH et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1401-04T51401-04T5

FRANK POBICKI,

Plaintiff,

v.

TREUMAN SALES, L.L.C., JULES

KOVACH and JEANNIE FOSTER,

Individually,

Defendants.

____________________________________________

TREUMAN SALES, L.L.C.,

Defendant-Counterclaimant-Respondent,

v.

HOWARD WEBER,

Defendant on the Counterclaim-Appellant.

____________________________________

 

Submitted September 28, 2005 - Decided January 27, 2006

Before Judges Parker, Grall and Levy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10274-00.

Brigiani, Cohen & Schneider, attorneys for appellant (Elias L. Schneider, on the brief).

Respondent has not filed a brief.

PER CURIAM

Attorney Howard Weber, the defendant on the counterclaim, appeals from the denial of his motion to vacate a $130,000 default judgment, which was entered against him, personally, on July 9, 2002. The judgment resulted from Weber's admittedly improper filing of a lis pendens on behalf of plaintiff, Frank Pobicki, against the property of defendant, Treuman Sales. Treuman lost a sale of the property to Arisa Realty Co. VI, L.L.C. as a result of the lis pendens, suffering the damages it recovered from Weber.

In a separate action, Treuman sued Arisa for breach of the contract for sale of its property demanding $100,000 in liquidated damages. Arisa denied liability and maintained it was Treuman that breached the contract by not being able to convey title free of encumbrances, given the lis pendens. Arisa's answer was the first notice Treuman received of the lis pendens, filed on behalf of Pobicki, Weber having neglected to serve a copy upon Treuman, in violation of N.J.S.A. 2A:15-7. Ultimately, on May 10, 2002, Arisa settled the suit by paying Treuman $25,000, plus interest and costs. The $130,000 judgment against Weber was based on the difference between the original purchase price under the Arisa contract, $1,155,000, and the price for which the property ultimately sold, $1,000,000, less the $25,000 recovered from Arisa.

This is the second time an appeal of the denial to vacate the default judgment is before us. In the first appeal, Weber sought to reverse the trial court's order of January 3, 2003 denying his motion to vacate the default judgment. On February 9, 2004, pursuant to R. 2:11-3(e)(1)(E), we affirmed the trial court's order, concluding Weber's arguments lacked merit in light of the record and applicable law.

On March 8, 2004, Weber moved before the Supreme Court for the same relief. His motion alleged that Treuman's claims against him ceased to exist when, prior to naming him as an additional defendant in this case, Treuman recovered a judgment in separate litigation against Arisa.

In a certification in support of the motion, Weber's attorney advised the Court that Weber did not become aware of the litigation against Arisa until after argument before the Appellate Division. He also advised the Court that Treuman had violated R. 4:5-1 by failing to certify in this case that the matter in controversy was also the subject of the litigation against Arisa.

Weber alleged in the motion that Treuman's recovery prejudiced his rights to seek indemnification or contribution from Arisa and constituted res judicata. Weber asked the Court to vacate the judgment and dismiss the case, or to remand the case to the trial court to develop a record and consider dismissal or permit Weber to file an answer, counterclaim and a third-party complaint against Arisa. Weber also sought a stay pending appeal. By an order of May 19, 2004, the Supreme Court denied all relief.

On July 22, 2004, Weber again moved before the trial court, seeking the very same substantive relief he had sought from the Supreme Court. On October 8, 2004, that motion was denied because the same arguments had been presented to the Supreme Court, which decided the judgment should not be vacated and the case should not be considered by the trial court on remand.

Weber has argued that the Supreme Court denied his motion on procedural grounds only and not on the merits. His position was based upon a phone conversation his attorney had with a court staff attorney who told him the court refused to consider his motion, because, without a record from the trial court, the Supreme Court was an inappropriate forum for the application. In rejecting Weber's argument, the trial court stated:

I am not satisfied that the Supreme Court did not resolve this matter. Based upon this order it seems to me the Supreme Court did, so I'm not [going to] entertain that . . . . I'm denying the motion to vacate and the reason I'm denying it [is] this has been based upon what I see [was] brought before the Supreme Court and the Supreme Court decided that based upon your application that the judgment should not be vacated and further that it should not be considered by . . . the trial court on remand.

Now, if you want to go to the Supreme Court and get a clarification of [the Court's] order, fine. If the Supreme Court says, "No, . . . we didn't decide this on the merits, you're free to argue before the trial court," then fine, come back, argue before the trial court.

On October 18, 2004, Weber made a motion to the Supreme Court for clarification of its May 19, 2004 order. In a certification in support of that motion, Weber's counsel explicitly advised the Court of the reason for the motion. He certified that a staff attorney for the Court told him his motion was denied because it "was not appropriately before" the Court. Nevertheless, the trial court concluded that the May 19, 2004 order was decided on the merits. Counsel then advised the Court that the trial court would not entertain a motion to vacate the judgment without a clarification from the Supreme Court that it's order was entered on procedural grounds alone.

In a brief in support of the motion, Weber's attorney again argued that his application was based on new facts learned after the Appellate Division oral argument. They included the fact that Treuman's attorney failed to certify the existence of the related Arisa law suit. Thus, Treuman's attorney filed a false certification under R. 4:5-1. Furthermore, Weber's attorney argued the judgment obtained by Treuman against Arisa replaced all claims Treuman had against Weber. Notwithstanding this presentation, which fully apprised the court of Weber's position, the Supreme Court denied the motion for clarification by an order dated December 7, 2004.

A motion to vacate a default judgment must be "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). See also Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994); Davis v. DND/Fidoreo, Inc. 317 N.J. Super. 92, 99 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999). Nevertheless, a default judgment will not be disturbed even if the failure to appear and defend was excusable under the circumstances unless the defendant can also demonstrate a meritorious defense to the action. Hous. Auth. of Morristown, supra, 135 N.J. at 284.

Weber has twice presented the merits of his case to the Supreme Court, and each time he has argued that the default judgment should be vacated based on newly discovered evidence. Notwithstanding those arguments, the Supreme Court has twice refused to grant relief. Moreover, Weber's last motion to the Supreme Court, for clarification, clearly advised the Court that the trial court would not consider his motion to vacate the default judgment unless the Supreme Court clarified the original denial of his motion was only on procedural grounds. Nevertheless, the Supreme Court denied his motion for clarification. Although the Supreme Court's denial of review is not a disposition on the merits, State v. Hodge, 105 N.J. 518, 519 (1986), after a review of the record, we conclude that Weber's claim of newly discovered evidence is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Weber had sued Treuman on behalf of Pobicki. Pobicki was a Treuman employee who claimed Treuman breached a promise to "take care of him" if he stayed on as an employee while the business was sold. Although Pobicki did not claim any interest in Treuman's property, Weber, without any basis in law, filed the lis pendens, in an apparent effort to secure collection of a potential judgment.

Weber also petitioned for certification, which was denied.

The trial court, apparently inadvertently, because both parties submitted orders, signed two orders denying the same motion, the first on October 8, 2004 and the second on October 21, 2004. This appeal is from both orders.

(continued)

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A-1401-04T5

January 27, 2006