JOROMI BAZUAYE v. YVONNE MANNS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOROMI BAZUAYE,

Plaintiff-Appellant,

v.

YVONNE MANNS, LORETTA STRACHAN,

and TED MOZES,

Defendants-Respondents.

_____________________________________________

CENDANT MORTGAGE CORPORATION,

n/k/a PHH MORTGAGE CORPORATION,

Defendant/Intervenor-Respondent.

____________________________________________

December 9, 2015

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-80-08.

Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the briefs).

William C. Sandelands argued the cause for respondents Yvonne Manns and PHH Mortgage Corporation (Sandelands Eyet LLP, attorneys; Mr. Sandelands, of counsel and on the brief).

PER CURIAM

Plaintiff Joromi Bazuaye appeals from the Chancery Division's April 11, 2014 order denying his Rule 4:50-1 motion to vacate the final judgment entered in this action. Having reviewed the arguments in light of the record and applicable law, we affirm.

The facts underlying this dispute are recited at length in our previous decision in this case, Bazuaye v. Manns, No. A-2608-11, A-3013-11 (App. Div. Oct. 22, 2013), cert. denied, 217 N.J. 293 (2014). We therefore provide only a brief synopsis of the relevant history.

On May 23, 2008, plaintiff filed an initial complaint in the Chancery Division against defendants Loretta Strachan, Ted Mozes, and Yvonne Manns. The complaint alleged that Strachan, using the services of attorney Mozes, fraudulently sold plaintiff's home to Manns. Plaintiff sought to void the transfer to Manns and money damages. On June 16, 2008, Strachan submitted a pro se answer containing general denials of the allegations against her.

The Chancery court severed plaintiff's legal claims and transferred them to the Law Division. Trial began in the Chancery Division on May 12, 2009. At trial, the judge noted that Strachan had failed to appear, and ordered her answer stricken and defenses suppressed. On July 14, 2011, plaintiff's counsel and defendants' counsel took a de bene esse deposition of Strachan, who was living in Georgia at the time. On November 30, 2012, the trial judge dismissed plaintiff's equitable claims against defendants Manns and Mozes. On February 6, 2012, the judge entered a $30,000 default judgment against Strachan. Meanwhile, on January 20, 2012, the Law Division dismissed plaintiff's remaining legal claims on the basis of res judicata and collateral estoppel. Separate appeals were filed from the decisions of the Chancery and Law Divisions.

We consolidated the appeals and, on October 22, 2013, issued a decision affirming the Chancery and Law Division dismissals but vacating the Chancery court's default judgment against Strachan. See Bazuaye, supra, No. A-2608-11, A-3013-11, (slip op. at 19). Plaintiff sought to appeal our decision to the Supreme Court, but certification was denied. Bazuaye v. Manns, 217 N.J. 293 (2014).

On March 11, 2014, plaintiff filed a motion in the Chancery Division pursuant to Rule 4:50-1 for relief from the trial court's November 30, 2012 order dismissing the claims against Manns and Mozes. Judge Hector R. Velazquez heard argument on the motion on April 11, 2014. That same day, the judge issued an order and written opinion denying the motion. This appeal followed.

In our review, we recognize that the decision whether or not to grant relief under Rule 4:50-1 rests within the sound discretion of the trial judge, guided by principles of equity. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994); Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App. Div. 2009) ("Rule 4:50 is instinct with equitable considerations."). For that reason, a trial court's decision in response to an application to open a judgment will be left undisturbed unless it represents a clearly abusive or mistaken exercise of that discretion. Compare U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012), with Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 100-01 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999).

A decision constitutes an abuse of discretion when it is "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123-24 (2007) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). A mistaken exercise of discretion occurs when insufficient deference is given to the common law principles governing the motion. Davis, supra, 317 N.J. Super. at 100-01.

Plaintiff's overarching contention on appeal is that the motion judge abused his discretion in denying plaintiff's Rule 4:50-1 motion to vacate the trial court's November 30, 2012 order dismissing the claims against Manns and Mozes. Specifically, plaintiff contends that his motion should have been granted under either subpart (e) or (f) of Rule 4:50-1. We disagree.

Rule 4:50-1(e) permits relief from a final judgment where "the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application[.]" In evaluating a motion brought under subpart (e), "[t]he issue is not the rightness or wrongness of the original determination at the time it was made but what has since transpired or been learned to render [the decision's] enforcement inequitable." In re Guardianship of J.N.H., 172 N.J. 440, 476 (2002). Rule 4:50-1(f) is a catch-all provision, permitting relief from a final judgment for "any other reason justifying relief from the operation of the judgment or order." R. 4:50-1(f).

Plaintiff argues that our prior order vacating the default judgment against Strachan constituted a reversal of a "prior judgment or order" under Rule 4:50-1(e). However, plaintiff fails to show that the Chancery judge's order of dismissal was "based on" the decision to suppress Strachan's answer. On the contrary, the court's dismissal was clearly based on evidence adduced at trial, especially Strachan's video-recorded de bene esse deposition testimony and the live testimony of several other witnesses, including plaintiff.

Likewise, plaintiff fails to show how reinstatement of Strachan's answer has an impact upon the factual findings of the trial court. Plaintiff argues that Strachan's answer contains implied admissions of guilt under Rule 4:5-3 and -5, and that the motion judge erred by failing to consider the impact of those admissions on the other defendants. However, we expressly rejected that argument on direct appeal, holding "Rule 4:5-5 is inapplicable here. . . . Plaintiff has failed to include Strachan's answer in his appellate appendix but, at trial, his attorney conceded that Strachan had filed a responsive pleading that generally denied the allegations." Bazuaye, supra, No. A-2608-11, A-3013-11 (slip op. at 19). Judge Velazquez did not abuse his discretion by relying on findings of fact made by the Chancery judge and binding conclusions of law made by this court.

In sum, we agree with the Chancery court's April 11, 2014 decision that plaintiff is essentially seeking to relitigate the same issues disposed of by this court on direct appeal.

Affirmed.