PONZIO'S KINGSWAY REAL ESTATE, LLC v. GLENN MARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4710-11T2

PONZIO'S KINGSWAY REAL ESTATE, LLC,

Plaintiff-Respondent,

v.

GLENN MARK, HOP YEE MARK, RUSSELL

PALERMO, ALICE PALERMO, RUSSELL R.

PALERMO, INC., GEM ONE HOUR CLEANER,

INC., DONG SAM CHUN, SA YONG CHOI,

HAE SOON OH, ONE HOUR CLEANERS, INC.,

JACOB D. SMOGER, SYE'S ONE HOUR

CLEANERS, INC., WHARIAN LEASING AND

DEVELOPMENT CORP. OF PA, and WHARIAN

LEASING AND DEVELOPMENT CORPORATION,

Defendants,

and

SOUTH JERSEY CHINESE COMMUNITY CENTER,

INC.,

Defendant-Appellant.

_________________________________________

May 3, 2013

 

Argued April 15, 2013 Decided

 

Before Judges Fasciale and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2970-09.

 

Lance D. Brown argued the cause for appellant (Lance Brown and Associates, LLC, attorneys; Mr. Brown, of counsel and on the brief).

 

Louis Giansante argued the cause for respondent (Giansante & Assoc., LLC, attorneys; Mr. Giansante, of counsel and on the brief).

PER CURIAM

Defendant South Jersey Chinese Community Center, Inc. (SJCCC) appeals from two May 11, 2012 orders (a) denying SJCCC's motion to vacate default judgment, and (b) granting plaintiff's cross-motion in aid of litigant's rights. We remand for consideration by the motion judge whether SJCCC is entitled to relief under Rule 4:50-1(f).

Plaintiff is the owner of property located at 7 Marlton Pike, Cherry Hill, New Jersey. Located on plaintiff's property is Ponzio's Diner, operated by a related corporation. This dispute arises from the discovery of soil and groundwater contamination at a property immediately adjacent to plaintiff's property at 12-16 Kings Highway, Cherry Hill (adjacent property), which is alleged to have migrated onto and contaminated plaintiff's property.

The adjacent property had been utilized for many years by various entities to conduct dry cleaning operations. Plaintiff alleges that a 2005 environmental investigation of the adjacent property by a prospective buyer revealed the presence of chemicals, typically associated with dry cleaning operations, in the soil and groundwater at levels exceeding New Jersey Department of Environmental Protection (DEP) standards. Also, during the investigation, an underground storage tank was uncovered and petroleum hydrocarbons (TPH) were detected in the soil samples located beneath the tank. In September 2005, the contamination was reported to the DEP.

In 2006, site remediation plans were submitted to the DEP. These purportedly included results from a monitoring well placed on plaintiff's property by the adjacent property owner's environmental consultant. The monitoring well detected that the chemicals discharged by the operators of the adjacent property contaminated the soil and groundwater at levels above DEP standards.

In 2008, plaintiff was notified by the owner of the adjacent property, defendant Glenn Mark, that the contamination may have migrated onto plaintiff's property. In February 2008, Mark's engineer collected a total of twenty-one samples, and concluded that there was soil and groundwater contamination which had migrated onto plaintiff's property. Also, according to plaintiff, the levels of tetrachloroethene (PCE) discovered at the adjacent property were 22,000 times greater than the DEP maximum contaminant level. Component chemicals of PCE, such as trichloroetene (TCE) and Cis-1,2 Dichloroetene, were also found on the adjacent property, at levels 2,800 and 300 times above DEP maximum levels, respectively.

On June 15, 2009, plaintiff commenced this lawsuit, naming as defendants all former operators of the adjacent property, its current owners, Glenn Mark and Hop Yee Mark (collectively, defendants Mark), and all past owners in the chain of title to the adjacent property during and after the period that dry cleaning operations were conducted there. Plaintiff's complaint alleged violations of the Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11 to -23.24, and the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -60. Plaintiff also sought damages and associated relief from defendants for negligence, nuisance, and trespass.

In September 2010, plaintiff received notification from the Cherry Hill tax assessor that, without any notice to plaintiff while the litigation was proceeding, defendants Mark had transferred title to the adjacent property to SJCCC.1 Plaintiff alleges that, following this transfer, Mark abandoned their environmental investigation and the remedial efforts which the DEP had ordered.

Upon leave granted, plaintiff filed an amended complaint on November 4, 2010, naming SJCCC as an additional defendant. The amended complaint was served on SJCCC's registered agent, Kim Ling, on November 21, 2010. When SJCCC failed to timely answer, plaintiff filed a request to enter default, with a copy to Ling, who signed for it on January 15, 2011. SJCCC did not interpose any objection to the request, and default was entered against it. In January 2011, plaintiff again served a motion upon SJCCC. On February 3, 2011, plaintiff's counsel sent a "filed" copy of the default to SJCCC. Again, Ling signed for this notice. In May 2011, plaintiff moved for entry of final judgment by default, on notice to the SJCCC. On August 19, 2011, the court entered judgment against SJCCC and eight other defendants, jointly and severally, in the amount of $985,000. Plaintiff again sent a copy of the judgment to Ling.

On December 21, 2011, plaintiff filed an ex parte petition for post-judgment discovery, which the court granted on January 3, 2012. That order was served on Ling, who again accepted its delivery. The order required SJCCC's representative to appear on January 17, 2012, to provide certain financial discovery. Thereafter, SJCCC retained counsel, who contacted plaintiff's counsel and secured plaintiff's consent to adjourn the discovery date, and to explore potential settlement.

When no settlement was reached, on April 2, 2012, SJCCC filed this motion to vacate the default judgment, relying on Rule 4:50-1(a) and (f). SJCCC argued excusable neglect in failing to answer because it had not been properly served. SJCCC further contended it had meritorious defenses to assert. These defenses included (1) there was no DEP mandate requiring SJCCC, specifically, to clean up the contamination; (2) SJCCC's expert reviewed the Phase II environmental investigation report and concluded that the need for major remediation did not exist; (3) SJCCC was not directly responsible for the contamination; (4) SJCCC never agreed to bear the responsibility to remediate the contamination; and (5) the $985,000 estimate provided by plaintiff's expert was exorbitant, and includes work which is premature and/or unnecessary.

In opposing the motion, plaintiff submitted documentation that on numerous occasions since November 2010, it properly served defendant's registered agent with every pleading leading to the entry of default and default judgment. Plaintiff maintains that SJCCC also failed to demonstrate any meritorious defenses, as it relied on the opinion of a consultant who is not licensed to investigate or remediate a contaminated site in New Jersey. Finally, plaintiff contends that SJCCC cannot establish exceptional circumstances sufficient to warrant relief under Rule 4:50-1(f), and that it is plaintiff who continues to sustain harm due to the delay attendant to SJCCC's failure to prevent the ongoing contamination of plaintiff's property. Plaintiff also cross-moved to enforce its judgment, and to compel the financial discovery.

Following oral argument on May 11, 2012, the motion judge denied SJCCC's motion to vacate the default judgment and granted plaintiff's cross-motion.2 The judge concluded:

In this case, it appears that there is no excusable neglect that has been demonstrated by the moving party. From the documents that were presented, they were properly served, albeit, initially in their motions they make allegations that there was not service.

 

The proofs that were submitted by the plaintiff show that the registered agent was properly served. And moreover, it was noticed as this matter proceeded on.

 

[D]efendant[], [SJCCC], simply sat on their hands and did nothing. They now come back to the [c]ourt without the necessary showing of excusable neglect, and I have no alternative but to deny the application to vacate the final judgment at this time.

This appeal follows.

On appeal, SJCCC argues that the motion court abused its discretion (1) when it denied SJCCC's motion to vacate pursuant to Rule 4:50-1(a); and (2) when it failed to consider SJCCC's motion under Rule 4:50-1(f).

Our standard of review is well-settled. As Justice Patterson recently reiterated in US Bank National Association v. Guillaume, 209 N.J. 449, 467 (2012), a "party seeking to vacate [a default] judgment" must satisfy Rule 4:50-1, which states in pertinent part that:

[o]n motion, with briefs and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order.

 

The rule is "designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Ibid. (internal quotation marks omitted).

We afford "substantial deference" to the trial judge and reverse only if the judge's determination amounts to a clear abuse of discretion. Ibid. An abuse of discretion is when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Ibid. (internal quotation marks omitted).

Regarding its Rule 4:50-1(a) contention, we conclude, as did the motion judge, that SJCCC has not demonstrated excusable neglect as required under this section of the rule and case law. See Guillaume, supra, 209 N.J. at 469. "Excusable neglect" may be found when the default was "'attributable to an honest mistake that is compatible with due diligence or reasonable prudence.'" Id. at 468 (quoting Mancini v. EDS, 132 N.J. 330, 335 (1993)). Here, plaintiff properly served SJCCC with the summons and amended complaint, and it ignored service of process. SJCCC then further ignored, without excuse, continued notices of these proceedings, including both entry of default and entry of default judgment, until plaintiff sought to enforce its judgment. In short, SJCCC has failed to make a showing of excusable neglect and, accordingly, notwithstanding its proffer of meritorious defenses, its motion to vacate the default judgment under Rule 4:50-1(a) was properly denied by the trial court.

We next turn to SJCCC's contention that, notwithstanding its inability to establish excusable neglect, the trial court failed to properly consider its request for relief under subsection (f) of Rule 4:50-1, or to articulate any basis for denying relief under that subsection.

Our case law recognizes that, in limited situations, a party may be entitled to relief from a default judgment under Rule 4:50-1, even where that party's failure to have contested the complaint in a timely fashion is not readily explained. In particular, Rule 4:50-1(f) provides that a court may vacate a judgment for "any other reason justifying relief from the operation of the judgment or order." When considering this basis for relief,

[n]o categorization can be made of the situations which would warrant redress under subsection (f). . . . the very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice.

 

[Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966).]

 

See also Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994).

At times our courts have afforded relief from judgment under subsection (f) of Rule 4:50-1 in certain instances where the party seeking such relief did not provide a compelling excuse for failing to respond to the lawsuit. See, e.g., Morales v. Santiago, 217 N.J. Super. 496, 505 (App. Div. 1987) (vacating a default judgment where defendants offered a meritorious defense, but presented a questionable explanation for their failure to respond); see also Siwiec v. Fin. Res., Inc., 375 N.J. Super. 212, 219-20 (App. Div. 2005) (vacating a default judgment despite defendant's failure to respond, where plaintiffs had advanced a novel legal theory of defendant's liability at the proof hearing).

Here, in denying SJCCC's motion, the trial court limited its determination to a finding that SJCCC failed to make the necessary showing of excusable neglect. While pertinent to the court's analysis under subsection (a) of the rule, the failure to establish excusable neglect is not necessarily determinative of whether SJCCC is entitled to relief under subsection (f). Moreover, the judge made no specific findings with respect to SJCCC's proffered defenses, or whether they were sufficient to establish such "exceptional circumstances" as to warrant relief from the sizable judgment entered against SJCCC. See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (requiring court to clearly state its factual findings and correlate them with the relevant legal conclusions).

We are thus constrained to remand the matter to permit the trial court to consider SJCCC's motion to vacate the default judgment under Rule 4:50-1(f). On remand, the judge should consider the defenses proffered by SJCCC, including that SJCCC did not cause the discharge of the contaminants, and that at least a portion of plaintiff's estimated damages may be premature. Also, in light of SJCCC's status as a not-for-profit entity, to whom this adjacent property was purportedly donated, the court may choose to consider the availability of other remedies in lieu of entering a substantial damages award. Specifically, the court can consider issuing a mandatory injunction requiring SJCCC to conduct an investigation of the contamination, to undertake remediation, to make its property accessible to plaintiff for investigation and/or remediation, or to contribute a share of the costs of remediation.

Injunctions are generally used in pollution-related actions brought on the theory of nuisance, although in proper circumstances they may be issued in actions brought for negligence and trespass, and if there is no other adequate remedy, an injunction is available to abate continuous and permanent pollution that causes irreparable injury, or to prevent a multiplicity of suits.

 

[61C Am. Jur. 2d Pollution Control 1932 (2010) (emphasis added) (footnotes omitted).]

 

In opposing the motion, plaintiff cites the potential for increased harm should contamination from SJCCC's property continue to migrate onto plaintiff's property. New Jersey courts have recognized that delays of cleanup efforts in contamination cases are particularly costly due to the potential damages suffered by the environment, and that "the determination of responsibility between or among successive owners possibly liable for the contamination may impede the swift implementation of cleanup efforts." See Superior Air Prods. Co. v. NL Indus., Inc., 216 N.J. Super. 46, 61-62 (App. Div. 1987), appeal dismissed, 126 N.J. 308 (1991). On remand, the court may thus consider the effect of further delay upon plaintiff, and whether the effects of such delay can be ameliorated by granting temporary injunctive relief, if appropriate, in the interim.

Plaintiff also argues on appeal that the post-judgment financial discovery reveals that SJCCC has no real assets other than a small amount of cash raised from fund raisers, and accordingly SJCCC lacks the ability to properly investigate the contaminants on its property and prevent the ongoing contamination of plaintiff's property. This information was not available to the trial court when it decided the motion, nor is it properly part of the record on appeal. On remand, to the extent that this new information may be relevant, the trial court in its discretion may choose to consider whether it bolsters, or negates, SJCCC's claim that sufficient exceptional circumstances exist to warrant relief from the August 11, 2011 default judgment.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 In support of SJCCC's motion to vacate the default judgment, its president, Peter Lo, certified that this adjacent property was donated to SJCCC in 2009.

2 The motion judge was not the same judge who entered the August 19, 2011 default judgment.