COOPER LEVENSON APRIL NEIDELMAN & WAGENHEIM, P.A. v. V.J. FLANDERS CONDOMINIUM ASSOCIATION, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1421-04T11421-04T1

COOPER LEVENSON APRIL

NEIDELMAN & WAGENHEIM, P.A.,

Plaintiffs-Respondents,

v.

V.J. FLANDERS CONDOMINIUM

ASSOCIATION, INC.,

Defendant-Appellant.

_______________________________

 

Submitted January 17, 2006 - Decided February 7, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey,

Special Civil Part, Cape May County, Docket No.

DC-1511-04.

Stark & Stark, attorneys for appellant (Heather N.

Oehlmann, on the brief).

Cooper Levenson April Niedelman & Wagenheim,

attorneys for respondent (Gerard W. Quinn, on the

brief).

PER CURIAM

Defendant, V.J. Flanders Condominium Association, Inc. (Association), appeals from Special Civil Part orders of October 19, 2004, denying its motions to vacate default judgment and file its answer and counterclaim out of time, and granting the motion of plaintiff, Cooper Levenson April Neidelman & Wagenheim, P.A. (law firm), for a turnover of funds. We affirm.

The procedural history may be briefly summarized. On June 29, 2004, plaintiff filed a complaint against defendant, a former client, seeking recovery of fees for legal services rendered to defendant between April 2001 and August 2003. Defendant failed to respond in a timely manner, and a default was entered on August 23, 2004. When defendant filed an out-of-time answer and counterclaim on August 26, 2004, the pleading was classified as "non-conforming" and rejected as a result of the prior entry of default.

A default judgment was entered against defendant on August 30, 2004, based on written proofs submitted by plaintiff. A levy was placed on defendant's funds in response to the default judgment, and a "certification of levy" was issued on September 20, 2004. Plaintiff filed a motion to turnover bank funds on September 22, 2004. Defendant moved for leave to file its answer and counterclaim out-of-time on September 23, 2004, and cross-moved to vacate default judgment on September 30, 2004.

In a comprehensive decision on October 19, 2004, Judge Todd denied defendant's motion to vacate the default judgment, finding no meritorious defense to plaintiff's claim and "no meaningful explanation . . . as to why the fees in question are not due." The judge concluded:

It is clear, as is recognized in the briefs submitted, that defendant is generally required to present both excusable neglect and a meritorious defense to justify the relief requested. The court is satisfied that defendant has established the first prong of that analysis, that is, that there was excusable neglect for the failure to file the answer and potential counterclaim more promptly.

Having considered everything that has been submitted, however, the court simply is not convinced that defendant has a meritorious defense to this claim. In requesting an order vacating the prior default, defendant has failed to present any competent proofs indicating that plaintiff is not entitled to the fees in question. In simple terms all that has been offered by defendant is a certification from defendant's attorney which refers in turn to a series of separate defenses set forth in defendant's proposed answer. No facts are presented. There is no meaningful explanation offered as to why the fees in question are not due. That lack of substance is obvious from a brief review of the separate defenses in question. Just by way of example, the first and fifth separate defenses refer to the actions or omissions of codefendants. There are no codefendants. Other separate defenses refer to the concepts of assumption of the risk, avoidable consequences, the lack of defendant's negligence and various equitable defenses. There is no apparent reason why those types of defenses would be applicable to a claim for fees for legal services.

On appeal, defendant argues that the lack of timely notice of the default judgment under Rule 6:6-3(e) obviates the need to establish a meritorious defense and, alternatively, that the Association has demonstrated a meritorious defense. We disagree.

 
As to the former, this precise issue was not raised below. Rather, plaintiff simply argued that where Rule 6:6-3(e) notice is insufficient, the remedy may be vacation of the default judgment. Plaintiff did not argue, as here, that "notice" beyond the seven-day requirement of Rule 6:6-3(e) warrants application of the lesser "good cause" standard and excuses the need to show a meritorious defense. Thus, having failed to sufficiently present the issue to the trial court, it may not be considered now on appeal. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998); Saul v. Midlantic Nat'l Bank/South, 240 N.J. Super. 62, 82 (App. Div.), certif. denied, 122 N.J. 319 (1990). In any event, the argument is clearly "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E). As to the latter, that is whether defendant has shown a meritorious defense, we rely substantially on the reasons set forth by Judge Todd in his memorandum of decision of October 19, 2004.

Affirmed.

(continued)

(continued)

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A-1421-04T1

February 7, 2006