GIG'S INC. v. KYUNG HEE PARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GIG'S INC. t/a TOM SWIFT'S,

Plaintiff-Respondent,

v.

KYUNG HEE PARK,

Defendant-Appellant,

and

JIMMY PARK and KH&Y CORP.,

Defendants.

______________________________

September 3, 2013

Submitted August 28, 2013 Decided

Before Judges Waugh and Haas.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0750-06.

Kimm Law Firm, attorneys for appellant (Michael S. Kimm and Francesco A. Savoia, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Kyung Hee Park (Park) appeals from the March 30, 2012 order of the Law Division denying her motion to amend the September 24, 2008 final judgment entered against her and co-defendants Estate of Jimmy Park and KH&Y Corp.1 in favor of plaintiff Gig's Inc. Park also appeals the judge's May 11, 2012 order denying her motion to correct the September 24, 2008 judgment and for reconsideration of the March 30, 2012 order. After reviewing the record in light of the contentions advanced on appeal, we affirm.

This matter originated in a dispute between defendants, who operated a restaurant on property they leased from plaintiff, their landlord. The essential background facts are set forth in our earlier opinion in Gig's Inc. v. Park, No. A-0909-08 (App. Div. April 14, 2010) and need not be repeated in detail here.

On June 5, 2008, following a trial, the jury awarded plaintiff $105,775 for damage caused by defendants to the leased premises. According to the transcript of the verdict, the jury was asked to determine "[w]hat percentages are the defendants liable to the plaintiffs for these damages?" The jury foreperson reported the jury had assessed "33-and-one-third" to each of the three defendants. There is no indication in the trial transcript as to whether the jury intended defendants to be jointly and severally liable for the $105,775 judgment.

Plaintiff's attorney submitted a draft "Order for Final Judgment." Park did not object to the form of the order and it was signed and filed by the judge on September 24, 2008. With regard to defendants' liability, the judgment provides in pertinent part:

ORDERED that Judgment be entered for the Plaintiff against K[H]&Y Corp. d/b/a Forte Restaurant and Baden Baden in the amount of $35,258.33 together with prejudgment interest and costs to be taxed; and it is further

ORDERED that Judgment be entered for the Plaintiff against The Estate of Jimmy Park in the amount of $35,258.33 together with prejudgment interest and costs to be taxed; and it is further

ORDERED that Judgment be entered for the Plaintiff against Kyung Hee Park a/k/a Kay Park in the amount of $35,258.33 together with prejudgment interest and costs to be taxed; and it is further

ORDERED that judgment is further entered against Kyung Hee Park a/k/a Kay Park, Estate of Jimmy Park and K[H]&Y Corp. d/b/a Forte Restaurant and Baden Baden, jointly and severally in the amount of $105,775.00 together with prejudgment interest and costs to be taxed[.]

Park filed a notice of appeal from this final judgment and applied to the trial judge for a stay pending appeal. On January 9, 2009, oral argument was held on the motion. Rule 2:9-5(a) requires a party seeking a stay of a "judgment or order in a civil action adjudicating liability for a sum of money" to post a bond. Rule 2:9-6(a)(1) provides that "[u]nless the court otherwise orders after notice on good cause shown, the bond shall be conditioned for the satisfaction of the judgment in full, together with interest and trial costs . . . ."

Park's attorney stated she had posted one-third of the total judgment because the Estate of Jimmy Park "has no money or assets anywhere [and] KH&Y Corporation isn't active anymore." Plaintiff's attorney argued that Park should be required to post a bond for the full amount of the judgment because "[t]he judgment holds the defendants jointly and severally liable." He also disputed Park's claim that KH&Y was "inactive" because Park had testified at trial that she "had merely moved the business . . . to a new location."

The judge noted that, although the jury had apportioned liability equally among the three defendants, the judgment provided that they were jointly and severally liable for the entire amount and defendants "never objected to it[.]" The judge then stated:

So how is that resolved? Okay. I went back, and I actually looked at and listened to our charge conference that was held on, I think, the afternoon of June 3rd, at which time the verdict sheet was put together. And it appears that everybody agreed that the jury would determine how much, if there were any damages. And, if there was liability, what was the percentage of liability against each party.

So maybe I entered the judgment in error. Because, if there were three parties and the - - and everybody wanted to understand what each party's percentage of liability was and assessment for damages was, then how is one - - how are they all jointly and severally liable for the total amount?

And yet, there is no motion to modify the judgment. And - - all right, I guess, maybe I could do it sua sponte, but.

At that point, the parties' attorneys interjected and began talking about the briefing schedule for the pending appeal. Park's attorney did not assert that the judgment had erroneously provided that all three defendants were jointly and severally liable for the judgment and did not move to amend or otherwise correct the judgment.

The judge decided to grant Park a stay pending appeal, "provided that she posts . . . either cash in the amount of the judgment, or a supersedeas bond in the amount of the judgment, in accordance with Rule 2:9-6." The order setting the amount to be posted is not included in Park's appendix on appeal. Park asserts she only posted one-third of the total amount due under the judgment.

On April 14, 2010, we affirmed the $105,775 judgment entered against Park and the other defendants in an unpublished opinion. Gig's Inc., supra. In her appellate brief, Park did not assert that the judgment imposing joint and several liability on defendants was erroneous.

Almost two years later, Park filed a motion on February 17, 2012 in the Law Division seeking relief from the September 24, 2008 judgment under Rule 4:50-1(f). In a certification accompanying the motion, Park asserted she had retained an attorney in May 2011 to negotiate a settlement of the judgment with plaintiff after she received several demands that she pay the full amount of the judgment. These negotiations were unsuccessful. At that point, she stated her attorney reviewed the judgment and now believed she was only liable for one-third of the total amount due. Park asked that the judgment be amended to remove the provision providing that all three defendants were jointly and severally responsible for payment.

Plaintiff opposed the motion as untimely. It also asserted that the inclusion of the joint and several liability provision in the judgment was not an error. Rather, it was included based upon the fact that Park was the sole recipient of her husband Jimmy's estate and the sole owner of KH&Y Corp.

Following oral argument, the trial judge denied Park's motion in an order dated March 30, 2012. The judge found that the essence of Park's motion was her contention that the joint and several liability provision had been included in the judgment by mistake. Therefore, the judge determined the motion should proceed under Rule 4:50-1(a), rather than Rule 4:50-1(f). A motion under Rule 4:50-1(a) must be filed within one year of the judgment. R. 4:50-2. Because Park had waited over three years to file her motion to correct the "mistake" in the judgment, the judge found that her motion was untimely.2

On April 24, 2012, Park filed a motion to correct the September 24, 2008 judgment under Rule 1:13-1. She asserted the joint and several liability provision had been included in the judgment because of a "clerical error" and, therefore, it should be corrected. She also sought reconsideration of the March 30, 2012 order. Plaintiff opposed the motion. Following oral argument, the judge denied Park's motion in an order issued on May 11, 2012.3 This appeal followed.

On appeal, Park has presented the following arguments for our consideration:

1. THE LAW DIVISION ERRED IN FINDING RULE 1:13-1 INAPPLICABLE TO CORRECT THE CLERICAL ERROR IN THE FINAL JUDGMENT FILED 9-24-08 THAT CONTRADICTS THE JURY'S DETERMINATION OF DAMAGES AND LIABILITY.

A. The Trial Court Should Have Granted Defendant['s] Motion to Correct the Clerical Mistake in the Order for Final Judgment Pursuant to R. 1:13-1.

B. The Trial Court Effectively Ruled that the Judgment was One-Third Each and Sequestered Ms. Park's One-Third in Court Trust Fund to Secure Her Share.

C. It Is Universally Held That Clerical Errors and Mistakes . . . Can Be Corrected at Any Time and Are Not Subject to a 1-year Limitation.

We find these contentions to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

Rule 1:13-1 states:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal.

Park contends the inclusion of the joint and several liability provision in the September 24, 2008 judgment was a "clerical mistake" that could be corrected at any time. We disagree.

We have consistently held that only errors made by the clerk in the entry of a judgment are subject to correction under Rule 1:13-1. See, e.g., Heim v. Wolpaw, 271 N.J. Super. 538, 541 (App. Div.) (because the judge, rather than the clerk, entered the disputed order, Rule 1:13-1 did not apply and any mistake in the order had to be addressed under Rule 4:50-1(a)), certif. denied, 137 N.J. 316 (1994)); Kustka v. Batz, 236 N.J. Super. 495, 498-99 (App. Div. 1989) (because the order omitting a provision that defendants were jointly and severally liable from the judgment was entered by the clerk, rather than by the trial judge, plaintiff could seek to correct this error under Rule 1:13-1). Here, the decision to include a joint and several liability provision in the judgment was one made by the judge, not by the clerk. Therefore, Park had to proceed under R. 4:50-1(a), rather than Rule 1:13-1, to seek to correct the alleged error. As noted, Rule 4:50-2 requires that motions under Rule 4:50-1(a) be filed within one year of the entry of the judgment. Because Park did not file her motion to amend the judgment until over three years after its entry, her motion was properly denied by the judge as untimely.

It is also not clear on this record that the inclusion of this provision in the judgment was a "mistake." Plaintiff consistently took the position that Park and the other two defendants were essentially one and the same and, accordingly, they should be jointly and severally liable for the entire judgment. Park did not object to the form of the order prior to the judge signing it. Even when the judge raised the possibility that this provision had been included "in error" in determining to grant a stay of the judgment pending Park's appeal, Park did not ask to address the alleged mistake at that time.4 She also failed to raise the issue in her initial appeal to us. Park did not assert she was not jointly and severally liable until February 2012, over three years after the judgment was entered. These circumstances strongly support the conclusion that there was no error in the September 24, 2008 judgment.

1 Defendant Jimmy Park was Park's husband. Defendant KH&Y Corp. was a company owned and operated by Park.

2 The judge further found that, even if the motion was considered under Rule 4:50-1(f) as one seeking relief from the judgment for "any other reason[,]" the motion was still untimely because it had not been made "within a reasonable time" as required by Rule 4:50-2.

3 Plaintiff filed a cross-motion to require Park to turn over certain funds plaintiff had levied upon. The judge denied the motion on June 6, 2012 and that decision is not a subject of this appeal.

4 Contrary to Park's contention in Point I.B of her brief, the judge made no finding that the September 24, 2008 order had been entered by mistake. The judge merely stated "maybe I entered the judgment in error" and sought input from counsel. Park's attorney did not address the issue further and never asked that the joint and several liability provision be removed from the judgment.