ROBERT U. DEL VECCHIO v. JANET E. BARON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3475-04T23475-04T2

ROBERT U. DEL VECCHIO, TRUSTEE

OF THE ROBERT U. DEL VECCHIO

PENSION TRUST,

Plaintiff-Respondent,

v.

JANET E. BARON

Defendant-Appellant,

and

ALBERT W. BARON, GREAT FALLS BANK,

PUBLIC SERVICE ELECTRIC & GAS CO.

and MOORE ESTATE CONDOMINIUM

ASSOCIATION, INC.,

Defendants.

________________________________________

 

Argued December 14, 2005 - Decided

Before Judges Fall and Grall.

On appeal from Superior Court of New Jersey,

Chancery Division, Morris County,

F-13748-00.

Salvatore Salibello argued the cause for

appellant.

Joseph C. Petriello argued the cause for

respondent.

PER CURIAM

Defendant Janet E. Baron appeals from a post-judgment order denying her motion to vacate a final judgment foreclosing her right to redeem her property from the lien of a tax sale certificate and denying as moot her request for discovery. The final judgment defendant sought to vacate vests title to property she owned in plaintiff, Robert U. Del Vecchio, Trustee of the Robert U. Del Vecchio Pension Trust. We affirm substantially for the reasons stated by Judge MacKenzie in a written statement of findings and conclusions.

The property at issue is commonly known as 19 Cadence Court, Morristown. On August 23, 2000, plaintiff filed a complaint to foreclose a tax sale certificate on the property. Final judgment was entered on January 22, 2001.

Defendant filed her first motion to vacate this final judgment on December 19, 2001. She claimed that service was not adequate because her husband accepted the service and failed to inform her. Judge MacKenzie denied that motion by order dated February 8, 2002. He explained:

Delivery of a copy of the Complaint and Summons on Mr. Baron was effective service upon Mrs. Baron. The Barons lived together at 19 Cadence Court . . . . Mr. Baron's alleged failure to turn over to Mrs. Baron a copy of the Summons and Complaint is an issue between them, but not a legal basis to set aside service.

Thus, the judge concluded that even assuming the truth of defendant's claims, service of process was consistent with both the rules of court and the requirements of due process.

Judge MacKenzie also found that defendant, who is a licensed real estate agent and who had redeemed in prior tax sale foreclosure actions against her property, was aware of and understood the process. He concluded that defendant failed to establish mistake, inadvertence, surprise, excusable neglect or exceptional circumstances warranting relief under R. 4:50-1 or this court's decision in Bergen-Eastern Corp. v. Koss, 178 N.J. Super. 42 (App. Div. 1981), appeal dismissed, 88 N.J. 499 (1981).

On February 27, 2002, defendant filed a motion for reconsideration. Judge MacKenzie denied that motion by order dated April 5, 2002. On June 12, 2002, plaintiff obtained a writ of possession. On July 15, 2002, Judge MacKenzie filed a consent order extending the eviction date from July 31, 2002 to August 30, 2002.

On July 17, 2002, defendant filed a motion with this court for leave to appeal nunc pro tunc from the order of February 8, 2002. On July 24, 2002, Judge Mackenzie vacated the July 15, 2002 consent order on the ground that defendant's attorney had not disclosed to plaintiff his client's intention to file an appeal. The judge stayed the February 8, 2002 order pending appeal. On August 14, 2002, this court denied defendant's motion to appeal nunc pro tunc and dismissed the appeal.

The Supreme Court denied defendant's petition for certification on November 13, 2002 and dismissed her appeal. Del Vecchio v. Baron, 175 N.J. 79 (2002).

After the Supreme Court denied defendant's petition and dismissed her appeal, she filed a second motion for reconsideration of the April 5, 2002 order. Judge MacKenzie denied that motion on March 11, 2003. Although the judge considered the certifications defendant presented to support her claim that her husband had not told her about the summons and complaint, he concluded: "[T]he February 8, 2002 [o]rder has already been reconsidered. Thus, defendant is attempting to re-litigate the application of R. 4:50-1(f) which had been denied by [] both the February 8, 2002 [o]rder and the April 5, 2002 [order on] reconsideration." As noted above, in ruling on defendant's motion, the judge had not discredited defendant's factual assertions; he had found that the facts lacked legal significance. On March 11, 2003, the judge denied defendant's motion to vacate because she failed to establish a basis for reconsideration of the prior rulings.

On March 31, 2003, defendant filed a notice of appeal from the order of March 11, 2003. On April 25, 2003, Judge MacKenzie denied defendant's motion to stay the sale of the property pending appeal. That ruling was based upon the judge's conclusion that defendant had failed to establish a likelihood of success on the merits of her appeal and the balance of equities. On April 28, 2003, plaintiff sold the property to a third party.

By order dated October 21, 2003, this court granted plaintiff's motion to dismiss defendant's second appeal. Defendant then moved before this court for reconsideration of the order dismissing her appeal, which motion was denied by order dated December 8, 2003. The Supreme Court denied leave to file an untimely notice of petition for certification and dismissed her notice of petition as moot by order dated February 5, 2004. Del Vecchio v. Baron, No. 55,714 (2004).

On December 18, 2004, defendant filed the motion that lead to this appeal. She alleged that: plaintiff conveyed the property to a buyer on April 28, 2003 for $380,000; the property had a value of $415,000; the buyer resold the property to plaintiff on June 29, 2004; the buyer received a $15,000 gift in return for his participation in this transaction; "the motive behind the transactions was to thwart [her] attempts to set aside the default judgment . . .", and she could establish that motive if given limited discovery.

After accurately summarizing the proceedings and defendant's new allegations on this motion, Judge MacKenzie concluded:

Assuming the [court's] ability to offer relief [consistent with R. 4:50-1 and

R. 4:50-2], the court sees no need to exercise it here. [Defendant] complains of Del Vecchio's sale of the property under an Order of this court entitling him to sell it. Even if that sale frustrated her attempt to appeal the court's decision, the act was clearly valid and authorized. Further, any claim of unfairness based on the purchase price or any other grounds could have been brought in 2003. Baron has presented no grounds for vacating this court's earlier orders at this late date.

On that basis, the judge denied the motion to vacate the default and the motion for limited discovery.

We see no reason to disturb the order under review. It is warranted by findings that are supported by the record and legal conclusions that are unassailable. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

The first of the post-judgment sales about which defendant now complains took place on April 28, 2003, a date approximately one year and nine months after the date of the default judgment at issue and one month after the March 11, 2003 order. That subsequent and unrelated real estate transaction cannot provide grounds for relief from the default judgment.

 
Affirmed.

(continued)

(continued)

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A-3475-04T2

January 3, 2006