MARY L. GEISLER v. ADAM LEONARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARY L. GEISLER,

Plaintiff-Appellant,

v.

ADAM LEONARD,

Defendant-Respondent.

_______________________________

April 2, 2014

Submitted January 13, 2014 Decided

Before Judges Harris and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5947-09.

Mary L. Geisler, appellant pro se.

Hanlon Niemann, attorneys for respondent (Christopher J. Hanlon, on the brief).

PER CURIAM

Plaintiff appeals from the denial of her motion to reconsider an earlier order of the court denying her motion to "reinstate [the] case and enter judgment" against defendant. Plaintiff argues that the motion judge erred in failing to consider "extrinsic evidence" that defendant had not complied with a stipulation of settlement to repair property and to provide a proper "quit claim" deed. We disagree and affirm.

Plaintiff filed a complaint in the Law Division against defendant seeking judgment for the difference between the "judgment debt" and the fair market value of certain property in Howell Township. It appears that the property had been "purchased back" by plaintiff at a sheriff's sale following a successful foreclosure. Defendant appears to have been the mortgagor on the property that had been foreclosed.

After an initial settlement fell through, the parties entered into a second, written "stipulation of settlement" that required defendant to pay plaintiff $25,000; execute a quit claim deed for the premises; and begin repairs on the property in accordance with an estimate identified in the stipulation and complete the repairs by February 1, 2011.

Plaintiff thereafter moved to "reinstate [the] case and enter judgment" against defendant, contending that defendant had not completed the repairs, as agreed. Defendant opposed the motion and contended that under their agreement, he was only obligated to make the repairs and that he was not obligated to buy the extensive materials necessary for the repairs.

The judge denied the motion, determining, in part, that while the settlement agreement does not explicitly allocate responsibility to buy materials for the repairs, the agreement references a repair estimate by a contractor provided to plaintiff which stated that the contractor "can provide all required materials or supplies." Further, defendant indicated in a certification that plaintiff's husband told him that plaintiff was uncertain about whether to "spend the money to complete the renovation[,]" evidencing plaintiff's recognition that she was obligated to buy the materials.

Several weeks later, plaintiff filed a "motion to reconsider," alleging that defendant had not provided a quit claim deed, and asserting that defendant, through his behavior, had acknowledged his obligation to provide the materials to effect the repairs. Defendant replied in a certification that he had signed the deed prepared by plaintiff's own lawyer and had left it with that lawyer.

The judge denied plaintiff's motion for reconsideration and determined that plaintiff "has not provided any information or argument which was not available at the time of the first motion [.]" She added that plaintiff, further, had not shown that defendant breached the settlement agreement.

On April 19, 2013, plaintiff filed a notice of appeal indicating she was appealing from the order of the Law Division denying reconsideration. Before discussing the merits of plaintiff's legal arguments, we clarify what is cognizable on appeal and what is not.

Rule 2:5-1(f)(3)(A) provides that "[i]n civil actions the notice of appeal . . . shall designate the judgment, decision, action or rule, or part thereof appealed from . . . ." "[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2014); and see, e.g., 30 River Court East Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006) (refusing to review orders dismissing the defendant's affirmative claims because they were not included in the notice of appeal); Campagna ex rel. Greco v. American Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001).

"Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, supra, comment 6.1 on R. 2:5-1. We have so held in a number of cases. See, e.g., W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008) (considering only the order denying reconsideration because it was the only order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002).

As noted, plaintiff's notice of appeal only listed the order denying reconsideration. Therefore, as to the substantive issues raised by plaintiff on appeal, we limit our review to the provisions of that order.

Plaintiff's appeal from the denial of her motion for reconsideration is governed by Rule 4:49-2. Such a motion is addressed to the trial court's sound discretion. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). "Reconsideration should be utilized only for those cases [that] fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see also Fusco, supra, 349 N.J. Super. at 462. Trial courts should grant motions for reconsideration "only under very narrow circumstances." Fusco, supra, 349 N.J. Super. at 462.

Guided by these principles, we find that the judge did not abuse her discretion by denying plaintiff's motion for reconsideration. The record clearly supports the finding that plaintiff's arguments for reconsideration amounted to a re-hash of previous arguments already considered and rejected by the judge. To the extent that plaintiff raised a new issue with respect to the deed, we note that that issue could have been raised earlier and that, in any event, the record clearly supports the finding that defendant had signed the deed prepared by plaintiff's lawyer and left it in his office.