KATHLEEN A. MULDERIG v. THE ESTATE OF EDUARDO SABA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3241-07T13241-07T1

KATHLEEN A. MULDERIG and

DENISE L. MULDERIG,

Plaintiffs-Appellants,

v.

THE ESTATE OF EDUARDO SABA,

ROSS ESTATES, INC., a BVI

Corporation, and

SIXTH AVENUE GARDENS,

Defendants-Respondents.

________________________________

 

Argued February 2, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1158-99.

Kathleen A. Mulderig and Denise L. Mulderig, appellants, argued the cause pro se.

Terry E. Thornton argued the cause for respondents, Estate of Eduardo Saba and Ross Estates, Inc. (O'Brien Thornton LLC, attorneys; Merrill M. O'Brien, on the brief).

Joel N. Kreizman argued the cause for respondents, Sixth Avenue Gardens and Ivor Braka (Evans, Osborne and Kreizman, LLC, attorneys; Mr. Kreizman, on the brief).

PER CURIAM

Plaintiffs Kathleen A. Mulderig and Denise L. Mulderig appeal from the trial court's decision on limited remand that they failed to show that evidence obtained post-trial was "newly discovered evidence." We affirm.

We summarize the facts from the record. Plaintiffs were tenants in a condominium located in Deal (the condo). Ivor Braka (Braka), a principal of defendant Sixth Avenue Gardens (Sixth Avenue), owned the condo. In July 1997, Braka transferred title of the condo to defendant Ross Estates, Inc. (Ross Estates). Eduardo Saba, a business partner of Braka, was a principal of Ross Estates.

Braka notified plaintiffs that they had to vacate the condo because Saba wanted to occupy it. After plaintiffs failed to do so, Ross Estates served a valid Notice to Quit on or about September 29, 1997.

Prior to the institution of an eviction action, the parties entered into a settlement agreement. Apparently due to a typographical error, the landlord named in the settlement agreement was "D.B. Ross Estates." Nevertheless, plaintiffs agreed to vacate the condo by November 30, 1997, in exchange for payment of $2562.50 and permission to remain in the condo rent-free for October and November 1997.

In connection with the settlement, plaintiffs also executed a release to Braka and Sixth Avenue for "[a]ny and all claims arising out of the Landlord/Tenant relationship between the parties[.]" The release applies to Braka and Sixth Avenue and to "all who succeed to [their] rights and responsibilities[.]"

Plaintiffs claimed that Saba never personally occupied the condo after they vacated it. As a result, they filed a complaint against Saba, Ross Estates, D.B. Ross Estates, Braka and Sixth Avenue for damages pursuant to the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12. They also alleged equitable fraud, intentional and malicious conduct and conspiracy. After Saba died, his estate was substituted as a defendant. Plaintiffs' claims against Braka were dismissed on summary judgment pursuant to the release.

After a nine-day bench trial, Judge Coogan found that the settlement agreement and release barred plaintiffs' claims. He concluded that "[t]here can be no confusion here and, most importantly, no escaping the plain meaning of [the settlement agreement and release], which is that plaintiffs were entering into, both voluntarily and knowingly, a global settlement of their differences with the landlord of [the condo], whomever that landlord was."

The judge also addressed the merits of plaintiffs' anti-eviction claims, concluding that they did not prove that Saba arbitrarily failed to personally occupy the condo and permitted occupancy by another tenant. N.J.S.A. 2A:18-61.1a.

As to plaintiffs' remaining claims, the judge found credible Braka's testimony about his relationship with Saba and the reasons for transferring title of condo to the Ross Estates. The judge concluded that the transfer was "a completely above-board transaction. It was not done to deceive the plaintiffs; it was not done as a fiction to oust the plaintiffs from their tenancy." (Emphasis original.) Finding plaintiffs' testimony not credible, the judge also concluded that they did not establish legal and equitable fraud, intentional and malicious conduct or conspiracy.

Finally, the judge dismissed the claims against Saba's estate, finding that Saba never individually owned the condo and that plaintiffs "offered no evidence to indicate culpability/liability against the [e]state nor could they as a matter of law." Judgment was entered on June 4, 2006 dismissing the complaint with prejudice.

Plaintiffs appealed. Thereafter, because Judge Coogan had concluded that Saba never owned the condo, plaintiffs decided to investigate the condo's ownership. They conducted an internet search on an entity known as US Realty Management, which revealed that Braka, David Braka and Benjamin M. Braka, were principals of that company. Plaintiffs concluded therefrom that "David" and "Benjamin" were the "D.B." in D.B. Ross Estates. Also, plaintiffs took a photograph of the roster of owners appearing in the hallway of the building where the condo is located, which contained the name "I. Braka."

Plaintiffs concluded from this "newly discovered evidence" that Braka, not Saba, owned the condo, and that defendants had perpetrated a fraud. They filed a motion to set aside the judgment based on this "newly discovered evidence." The motion was denied for lack of jurisdiction.

Plaintiffs then filed a motion in the Appellate Division for a stay and remand to the Law Division for consideration of the "newly discovered evidence." We remanded to the Law Division to consider the "newly discovered evidence" and dismissed the appeal. We also ordered as follows:

Plaintiffs must move for reconsideration in the Law Division, requesting the Law Division to review the "newly discovered evidence." The Law Division should review the "newly discovered" evidence to determine whether it could have and should have been discovered prior to final disposition in the trial court.

If the Law Division determines that the evidence is actually newly discovered and relevant, that evidence should be considered to determine whether the final disposition should be altered.

If the Law Division determines that the evidence does not qualify as "newly discovered" or that it is not relevant to the outcome, plaintiffs' motion for reconsideration should be denied and the appeal may be reinstated.

On remand, plaintiffs filed a motion for reconsideration, arguing that they could not have discovered the "newly discovered evidence" until after trial because a pre-trial order barred certain discovery. They also attempted to submit numerous non-newly discovered documents, which Judge Coogan rejected. As to the "newly discovered evidence," the judge concluded that:

Here the posting of I. Braka's name in a public corridor, the fact that David and Benjamin [Braka] are listed as individuals having a connection with US Realty Management in some executive position as vice presidents, the fact that it was posted on the internet all of that was available. It could have been generated, to the extent that it had relevancy here, as part of the discovery period during the trial.

And certainly I could not find, based upon the presentation here, that the plaintiffs have carried their burden of meeting the criteria for newly discovered evidence pursuant to R. 4:50. And that also is true with regard to the collateral alternative that the plaintiffs present on the issue of fraud.

This appeal followed.

Motions to vacate a judgment based on newly discovered evidence "are addressed to the sound discretion of the trial court and will not be disturbed unless that discretion has been clearly abused." Quick Chek Food Stores v. Springfield Tp., 83 N.J. 438, 446 (1980). See also Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994); Regional Const. Corp. v. Ray, 364 N.J. Super. 534, 541 (App. Div. 2003). To obtain relief from a judgment based on newly discovered evidence, it is not sufficient to merely show that the evidence was newly acquired. The movant must show that the evidence "would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at trial, and that the evidence was not merely cumulative." Quick Chek, supra, 83 N.J. at 445 (citations omitted). See also McDonald v. Estate of Mavety, 383 N.J. Super. 347, 363 (App. Div.), certif. denied, 187 N.J. 79 (2006).

Based upon our careful review of the record, we are satisfied that no abuse of discretion occurred here. We are satisfied that the "newly discovered evidence" was available to plaintiffs and should have been discovered prior to final disposition by the trial court. The pre-trial order barring certain discovery does not change this outcome.

We are further satisfied that the "newly discovered evidence" would not have changed the result. The evidence does not prove that Braka owned the condo.

Affirmed.

The deed from Braka to Ross Estates was dated July 22, 1997. It was recorded in Monmouth County on August 8, 1997.

The trial began on September 1, 2005 and continued to October 31, 2005. After submission of post-trial briefs, the judge rendered a written opinion on May 25, 2006.

We dismissed the appeal as to Braka and Sixth Avenue.

(continued)

(continued)

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A-3241-07T1

February 25, 2009