THE RIDGE CONDOMINIUM ASSOCIATION v. LORI BUCCOLO

NOT FOR PUBLICATION WITHOUT THE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-3291-16T2

THE RIDGE CONDOMINIUM
ASSOCIATION,

        Plaintiff-Respondent,

v.

LORI BUCCOLO,

     Defendant-Appellant.
__________________________________

              Submitted May 15, 2018 – Decided June 14, 2018

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Somerset County, Docket No.
              F-024062-15.

              William J. Jeffrey, attorney for appellant.

              Griffin   Alexander,   PC,    attorneys   for
              respondent (David L. Dockery, on the brief).

PER CURIAM
     Defendant Lori Buccolo appeals from a March 3, 20171 Chancery

Division order denying her motion to vacate default judgment.                 The

matter stems from defendant's failure to pay condominium fees and

attorneys'     fees   owed     to   plaintiff,         The   Ridge   Condominium

Association.      We affirm.

                                       I

     In   September    2014,    plaintiff      filed     a   complaint   against

defendant for failure to pay common expenses and attorneys' fees.

The parties settled that suit, which resulted in the entry of a

money judgment in favor of plaintiff; however, defendant defaulted

on the settlement terms.        Eventually, plaintiff received payment

of most of the judgment via wage garnishment.

     In   April    2016,   plaintiff       filed   a    foreclosure   complaint

against defendant alleging she failed to pay maintenance fees,

special assessment fees, late fees, fines, and counsel fees.

Defendant filed an answer and counterclaim, alleging plaintiff


1
  Although defendant's brief asserts she appeals from the court's
August 5, 2016 order granting plaintiff's motion for summary
judgment, her amended notice of appeal fails to include this order.
Moreover, defendant's case information statement, which directed
her to give the date and summary of judgment, order, or decision
being appealed and attach a copy, lists only the March 3, 2017
order denying her motion to vacate default judgment. Accordingly,
we decline to address defendant's arguments regarding the summary
judgment motion.   See W.H. Indus., Inc. v. Fundicao Balancins,
Ltda, 
397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that
it is only the orders designated in the notice of appeal that are
subject to the appeal process and review.").

                                       2                                 A-3291-16T2
committed breach of contract by failing to repair and maintain her

condominium unit in violation of the master deed and condominium

association's by-laws, as well as asserting plaintiff's pleadings

were frivolous.

     Subsequently, plaintiff filed a motion for summary judgment,

and on August 5, 2016, the court granted that motion and struck

defendant's answer and counterclaims as non-contesting.        However,

the court denied plaintiff's motion for an entry of final judgment,

and instead directed plaintiff to file its motion with the Office

of Foreclosure.     Defendant filed a motion for reconsideration,

which the court denied.

     On November 7, 2016, plaintiff filed a motion requesting the

entry of a final judgment of foreclosure.         Defendant failed to

oppose   the   motion.    According   to   plaintiff,   the   Office    of

Foreclosure granted its motion, and defendant does not contest

that assertion.    Defendant then filed a "motion to vacate default

and for leave to file an amended answer."       On March 3, 2017, the

trial court denied the motion, finding "neither excusable neglect

nor a meritorious defense is present."      This appeal followed.

                                 II

     On appeal, defendant argues the trial court impermissibly

granted summary judgment even though there exist disputed issues

of material fact.    She further argues that, in granting summary

                                  3                              A-3291-16T2
judgment,      the    court   erroneously      relied     upon    an    improper

certification.        Specifically, she asserts David L. Dockery, an

attorney with the law firm representing plaintiff, certified to

facts absent personal knowledge, thereby committing fraud upon the

court.

      Rule 4:50-1 sets forth the standard for vacating a default

judgment, and provides that a default judgment may be set aside

due to, among other things, "mistake, inadvertence, surprise, or

excusable neglect . . . or newly discovered evidence . . . ." Our

Supreme Court has explained that the rule is "designed to reconcile

the   strong    interests     in   finality    of   judgments     and   judicial

efficiency with the equitable notion that courts should have

authority to avoid an unjust result in any given case."                 U.S. Bank

Nat'l Ass'n v. Guillaume, 
209 N.J. 449, 467 (2012) (quoting Mancini

v. EDS, 
132 N.J. 330, 334 (1993)).            Moreover, it held, "The trial

court's     determination      under    the    rule    warrants       substantial

deference, and should not be reversed unless it results in a clear

abuse of discretion."         Ibid.     (citation omitted).           We find an

abuse of discretion "when a decision 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    (2007)   (quoting    Flagg    v.   Essex   Cty.

Prosecutor, 
171 N.J. 561, 571 (2002)).

                                        4                                 A-3291-16T2
     Because the record fails to demonstrate excusable neglect or

a meritorious defense, the trial judge did not abuse her discretion

in denying defendant's motion to vacate the judgment entered

against her.     Although defendant argues a genuine dispute of

material facts precludes summary judgment, we again note she failed

to appeal from the order granting summary judgment, but rather

appealed from the court's order denying her motion to vacate

default judgment.     Accordingly, as previously noted, we decline

to address her arguments regarding the summary judgment motion.

     The "new" evidence defendant presented in support of her

motion to vacate the default judgment was available and in her

possession     when   plaintiff's   summary    judgment    motion    and

defendant's reconsideration motion were pending.          Moreover, the

trial judge concluded that if defendant "is entitled to set offs

for sums paid or collected," such evidence bears relevance only

to the issues of when and whether the court should consider the

judgment satisfied.

     Additionally, we note defendant's arguments regarding the

Dockery certification provide no basis for granting defendant

relief.   The court granted plaintiff's summary judgment motion

based upon the certification of plaintiff's property manager, Adam

McCallum, not the Dockery certification.      The trial court properly

relied upon McCallum's certification as it clearly states he is

                                    5                           A-3291-16T2
familiar with the action and "testifying as to [his] personal

knowledge . . . ."      See N.J.R.E. 901; R. 1:6-6.        Accordingly,

defendant's unsupported argument that Dockery committed fraud upon

the   court    lacks   persuasion,   particularly   in   light   of   the

certification's lack of bearing on the trial court's ultimate

disposition.

      Affirmed.




                                     6                           A-3291-16T2