Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the FIFTH THIRD BANK, a/k/a OLD KENT BANK v. R. MAXIMILIAN GOEPP, III BARRY J. FRY, ESTATE OF CARLA GOE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0943-16T2

FIFTH THIRD BANK, a/k/a
OLD KENT BANK,

        Plaintiff-Respondent,

v.

R. MAXIMILIAN GOEPP, III,
BARRY J. FRY, ESTATE OF CARLA GOEPP,
A.M. RICHARDSON, PC, and
CHARIOT RECOVERY, INC.,

        Defendants,

v.

BARRY J. FRY, CHARIOT RECOVERY, INC.,
and A.M. RICHARDSON, PC,

        Third-Party Plaintiffs-
        Appellants,

v.

CHICAGO TITLE COMPANY,

        Third-Party Defendant-
        Respondent,

and

HILDEGARDE WENNING MEECH,

        Third-Party Defendant.
            Submitted November 28, 2017 – Decided December 18, 2017

            Before Judges Carroll and Mawla.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Mercer County, Docket No.
            F-024167-08.

            Richardson & Richardson, LLC, and Ambrose M.
            Richardson (Solomon Blum Heymann LLP) of the
            New York bar, admitted pro hac vice, attorneys
            for appellants (Coulter K. Richardson and
            Ambrose M. Richardson, on the briefs).

            Blank Rome LLP, attorneys for respondent Fifth
            Third Bank (Edward W. Chang and David A.
            DeFlece, on the brief).

            Herrick,   Feinstein   LLP,  attorneys   for
            respondent Chicago Title Insurance Company
            (Michelle M. Sekowski, of counsel and on the
            brief).

PER CURIAM

     In this mortgage foreclosure action, defendants Barry J. Fry

("Fry"), A.M. Richardson, P.C. ("Richardson"), and Barry Sharer

("Sharer"),     Chapter   7   Bankruptcy   Trustee   (collectively,

"appellants"), appeal from a September 16, 2016 order denying

their motion to vacate an August 13, 2014 consent order dismissing

the case without prejudice.    The trial court denied the motion as

untimely.    On appeal, appellants contend the Chancery judge erred

in denying their motion, as the circumstances required the consent

order be vacated.     Following our review of these arguments in

light of the record and the applicable law, we affirm.


                                  2                          A-0943-16T2
     Plaintiff Fifth Third Bank filed the action in June 2008,

seeking to foreclose on property in Princeton owned by defendant

R. Maximilian Goepp III ("Goepp").       Also named as defendants were

the estate of Goepp's deceased sister Carla Goepp ("Carla"), and

junior mortgagees Fry, Richardson, and Chariot Recovery, Inc.

("Chariot").      Fry, Richardson, and Chariot filed a contesting

answer that also asserted cross-claims against Goepp and Carla

seeking judgment on their respective notes and mortgages, and a

third-party complaint against Chicago Title Insurance Company

("Chicago Title") relating to a prior denial of coverage of a

fraud claim asserted against Goepp by another sister, Hildegarde

Wenning Meech ("Meech").    Goepp filed a non-contesting answer with

respect to the first and subordinate mortgages, and cross-claims

against Chicago Title and Meech.

     Goepp   thereafter    filed   for   bankruptcy,   and   Sharer   was

appointed trustee. Counsel for Fry and Chariot was later appointed

by the United States Bankruptcy Court to serve as special counsel

to Sharer to bring claims of Goepp's bankruptcy estate against

Chicago Title.1




1
  Prior to this appeal being submitted, the Bankruptcy Court
approved the sale and assignment of the bankruptcy estate's claim
against Chicago Title. Consequently, the Bankruptcy Trustee has
withdrawn the appeal as against Chicago Title.

                                   3                             A-0943-16T2
       Defendants   later   moved   for   summary   judgment   dismissing

plaintiff's    foreclosure    complaint.     Ultimately,   the   parties

entered into a "Consent Order Dismissing Case Without Prejudice"

(the "consent order"), which was filed with the court on August

13, 2014.     In relevant part, the consent order states:

                 The parties hereby stipulate and agree
            that the case be voluntarily dismissed without
            prejudice and without costs against any party;

                 IT IS ON THIS 13th day of August, 2014,
            hereby:

                 ORDERED, that the claims of Fifth Third
            Bank in this action shall be voluntarily
            dismissed on consent, and without prejudice
            or costs to any party.

       The consent order was executed by all parties except Chicago

Title.    On August 12, 2014, appellants' counsel advised the court

that Chicago Title's signature was not required because it "did

not participate in the motion, and is not adversely affected by

it."     On August 22, 2014, plaintiff filed a notice of voluntary

dismissal, "request[ing] that the within matter be voluntarily

dismissed."

       In September 2015, appellants filed a motion for summary

judgment seeking to enter judgment on their subordinate mortgage

liens.    Appellants assert they were then advised by the court that

the foreclosure action had been dismissed.            In January 2016,

appellants filed a motion to correct the docket pursuant to Rule

                                     4                            A-0943-16T2
1:13-1, seeking to restore the case to the active trial list.                      The

court heard argument on February 5, 2016, and entered an order on

February 25, 2016, denying both motions. Appellants did not appeal

that order.

       In the interim, Goepp's default under the first mortgage

purportedly continued, and on December 21, 2015, plaintiff filed

a new foreclosure action ("the 2015 action").                      In June 2016,

appellants filed a contesting answer with cross-claims and a third-

party complaint against Chicago Title, essentially renewing the

claims they presented in the prior action.                Appellants also filed

a motion pursuant to Rule 4:50 seeking relief from the consent

order and to restore their claims in the prior action.                 Appellants

contended      the     consent    order    was    only    intended    to    dismiss

plaintiff's     claims     without   prejudice.          Plaintiff,    Meech,      and

Chicago Title opposed the motion.

       Judge    Paul     Innes    considered      oral    argument    and      denied

appellants' motion.         The judge noted the motion was filed nearly

two years after the consent order was entered, and accordingly it

was time-barred under Rule 4:50-2.                 A memorializing order was

entered and this appeal followed.

       Before us, appellants assert they are entitled to relief

under Rule 4:50-1(f), which does not contain a time limit.                        They

base   their    argument     on    their       contentions   the     motion     judge

                                           5                                  A-0943-16T2
disregarded: (1) the text and context of the consent order; (2)

the fact all parties did not sign the consent order; (3) the

prejudice to appellants because their claims may now be barred by

the statute of limitations; and (4) the jurisdiction of the

Bankruptcy Court to resolve claims involving Goepp.               We do not

find these arguments persuasive.

     Consent judgments resolving litigation are authorized by Rule

4:42-1, Midland Funding, LLC v. Giambanco, 
422 N.J. Super. 301,

310-11 (App. Div. 2011), and are "not strictly a judicial decree,

but rather in the nature of a contract entered into with the solemn

sanction of the court."      Cmty. Realty Mgmt. v. Harris, 
155 N.J.
 212, 226 (1998) (quoting Stonehurst at Freehold v. Twp. Comm. of

Freehold, 
139 N.J. Super. 311, 313 (Law Div. 1976)).                   Stated

differently, a consent judgment is "an agreement of the parties

under the sanction of the court as to what the decision shall be."

Fid. Union Trust Co. v. Union Cemetery Ass'n, 
136 N.J. Eq. 15, 25

(Ch. 1944) (internal citations omitted), aff'd, 
137 N.J. Eq. 456

(E & A 1946).

     "[A] consent judgment may only be vacated in accordance with

R[ule] 4:50-1."     Harris, 
155 N.J. at 226 (quoting Stonehurst at

Freehold,   
139 N.J.   Super   at  313);   see   DEG,   LLC   v.   Twp.   of

Fairfield, 
198 N.J. 242, 261 (2009) ("The rule does not distinguish

between consent judgments and those issued after trial."); see

                                      6                               A-0943-16T2
also Pope v. Kingsley, 
40 N.J. 168, 173 (1963) ("A consent judgment

has equal adjudicative effect to one entered after trial or other

judicial determination."   (citations omitted)).

     A motion to vacate a judgment may be granted upon proof of

one of the enumerated bases set forth in the rule.    "Rule 4:50-1

is not an opportunity for parties to a consent judgment to change

their minds; nor is it a pathway to reopen litigation because a

party either views his settlement as less advantageous than it had

previously appeared, or rethinks the effectiveness of his original

legal strategy."   DEG, 
198 N.J. at 261.

     Under Rule 4:50—1, the trial court may relieve a party from

an order or judgment for the following reasons:

          (a) mistake, inadvertence, surprise, or
          excusable neglect; (b) newly discovered
          evidence which would probably alter the
          judgment or order and which by due diligence
          could not have been discovered in time to move
          for a new trial under R. 4:49; (c) fraud
          (whether heretofore denominated intrinsic or
          extrinsic),   misrepresentation,    or   other
          misconduct of an adverse party; (d) the
          judgment or order is void; (e) 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; or (f) any other
          reason justifying relief from the operation
          of the judgment or order.




                                7                           A-0943-16T2
       Motions   made     under   Rule   4:50-1   must   be   filed     within    a

reasonable time.     R. 4:50-2; see also Deutsche Bank Trust Co. Ams.

v. Angeles, 
428 N.J. Super. 315, 319 (App. Div. 2012).                    Motions

based on Rule 4:50-1(a), (b), and (c) must be filed within a year

of the judgment.         Angeles, 
428 N.J. Super. at 319.            However, the

one-year limitation for subsections (a), (b), and (c) does not

mean that filing within one year automatically qualifies as "within

a reasonable time."        Orner v. Liu, 
419 N.J. Super. 431, 437 (App.

Div. 2011); R. 4:50-2.

              [T]he one-year period represents only the
              outermost time limit for the filing of a
              motion based on Rule 4:50-1(a), (b)[,] or (c).
              All Rule 4:50 motions must be filed within a
              reasonable time, which, in some circumstances,
              may be less than one year from entry of the
              order in question.

              [Orner, 
419 N.J. Super. at 437.]

       A motion for relief under Rule 4:50-1 should be granted

sparingly and is addressed to the sound discretion of the trial

court, whose determination will not be disturbed absent a clear

abuse of discretion.        U.S. Bank Nat'l Ass'n v. Guillaume, 
209 N.J.
 449,    467    (2012).       "[A]buse    of   discretion      only    arises     on

demonstration of 'manifest error or injustice[,]'"                    Hisenaj v.

Kuehner, 
194 N.J. 6, 20 (2008) (quoting State v. Torres, 
183 N.J.
 554, 572 (2005)), and occurs when the trial court's decision is

"made without a rational explanation, inexplicably departed from

                                         8                                A-0943-16T2
established      policies,       or   rested   on   an   impermissible    basis."

Guillaume, 
209 N.J. at 467.           Accordingly, this court's task is not

"to decide whether the trial court took the wisest course, or even

the better course, since to do so would merely be to substitute

our judgment for that of the lower court.                  The question is only

whether the trial judge pursued a manifestly unjust course."

Gittleman v. Cent. Jersey Bank & Trust Co., 
103 N.J. Super. 175,

179 (App. Div. 1967), rev'd on other grounds, 
52 N.J. 503 (1968).

       Here, we find no abuse of discretion by the trial court.

Notably, appellants do not include a copy of their motion for

relief from the consent order in their appendix.2                     Appellants'

failure to do so hampers to a degree our review of their argument

that     they     sought     relief       pursuant       to   Rule     4:50-1(f).

Notwithstanding, their brief before the trial court was supplied

by opposing counsel and clearly shows they sought relief under

subsection      (a)   of   the    rule,   based     on   mistake,   inadvertence,

surprise, or excusable neglect.            Consequently, appellants' motion

was time-barred under Rule 4:50-2, as the motion judge properly

found.




2
  The appendix must include "such other parts of the record . . .
as are essential to the proper consideration of the issues[.]" R.
2:6-1(a)(1)(I).

                                          9                               A-0943-16T2
      Regardless,   appellants    do    not    qualify   for   relief     under

subsection (a) of the rule.       The kind of mistake contemplated by

the rule has been described as one that the parties could not have

protected themselves against during the litigation.            DEG, 
198 N.J.

at 263.    Such is not the case here.      Moreover, appellants' neglect

or   inadvertence   is   not   excusable      since   they   have   failed     to

demonstrate it was "compatible with due diligence or reasonable

prudence." Mancini v. EDS, 
132 N.J. 330, 335 (1993) (citing Bauman

v. Marinaro, 
95 N.J. 380, 394 (1984) and Tradesmens Nat'l Bank &

Trust Co. v. Cummings, 
38 N.J. Super. 1, 5 (App. Div. 1955)).

      To the extent appellants now assert they are entitled to

relief under Rule 4:50-1(f), we decline to consider arguments

raised for the first time on appeal.           See Nieder v. Royal Indem.

Ins. Co., 
62 N.J. 229, 234-35 (1973) (discussing the limited

circumstances in which an appellate court will consider an argument

first raised on appeal).        However, even if we were to consider

this contention, relief under this subsection of the rule is only

available when "truly exceptional circumstances are present."

Guillaume, 
209 N.J. at 484 (quoting Hous. Auth. of Morristown v.

Little, 
135 N.J. 274, 286 (1994)).              "The rule is limited to

'situations in which, were it not applied, a grave injustice would

occur.'"    Ibid. (quoting Little, 
135 N.J. at 289).           Appellants do

not meet that standard here.

                                   10                                   A-0943-16T2
     Appellants also argue the consent order is invalid because

Chicago Title did not sign it, and because Goepp purportedly signed

a previous version of it.   However, the doctrine of invited error

precludes appellants from asserting the absence of Chicago Title's

signature invalidates the consent order, since appellants' counsel

represented to the court it was not required.   See Brett v. Great

Am. Recreation, 
144 N.J. 479, 503 (1996) ("The doctrine of invited

error operates to bar a disappointed litigant from arguing on

appeal that an adverse decision below was the product of error,

when that party urged the lower court to adopt the proposition now

alleged to be error.").   Moreover, even if Goepp mistakenly signed

a prior draft of the consent order, this does not excuse his

failure to timely seek relief.    R. 4:50-1(a); R. 4:50-2.

     To the extent we have not specifically addressed appellants'

remaining arguments, we find they lack sufficient merit to warrant

further discussion in a written opinion.   R. 2:11-3(e)(1)(E).

     Affirmed.




                                 11                          A-0943-16T2