The Ridge at Back Brook, LLC v. W. Thomas Klenert

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2345-12T1

THE RIDGE AT BACK BROOK, LLC, APPROVED FOR PUBLICATION

Plaintiff-Respondent, August 12, 2014

v. APPELLATE DIVISION

W. THOMAS KLENERT,

Defendant-Appellant.
_____________________________________________________________

Submitted July 8, 2014 - Decided August 12, 2014

Before Judges Fisher, Grall and Messano.

On appeal from the Superior Court of New
Jersey, Law Division, Hunterdon County,
Docket No. L-611-10.

Steven D. Janel, attorney for appellant.

Wilentz, Goldman & Spitzer P.A., attorneys
for respondent (Robert L. Selvers, of
counsel and on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

Having carefully considered this appeal of an order denying

Rule 4:50 relief, we conclude that the trial judge should have

more liberally indulged the argument that his pro se status

warranted a further opportunity for defendant – once he retained
counsel after entry of final judgment – to argue that the

contract upon which the suit is based is unconscionable.

Accordingly, we vacate the order denying Rule 4:50 relief and

remand the matter for further proceedings.

I

The Ridge at Back Brook, L.L.C. (plaintiff), a New Jersey

limited liability company which owns and operates an eighteen-

hole golf course in Ringoes, filed a complaint against defendant

W. Thomas Klenert, one of its members, on September 17, 2010.

Plaintiff alleged that, by becoming a member, defendant became

obligated to timely pay dues and something labeled "Option B"

payments. In its complaint, plaintiff asserted that defendant

defaulted on these financial obligations in 2004 and, by the

time the complaint was filed nearly six years later, defendant

owed $77,490 in dues and $10,800 in Option B payments, as well

as sales tax and finance charges, for a total obligation of

$160,214.40. Defendant, appearing on his own behalf, filed an

answer denying the material allegations of the complaint.

Thereafter, plaintiff served requests for admissions, pursuant

to Rule 4:22, seeking defendant's admission of essentially every

material aspect of plaintiff's claim. Defendant did not

respond.

2 A-2345-12T1
 Relying on the admissions generated by defendant's failure

to respond to the Rule 4:22 requests, as well as by the

certification of plaintiff's managing member, plaintiff moved

for summary judgment. Prior to the motion's return date,

defendant filed a petition in the United States Bankruptcy Court

for the District of New Jersey. The summary judgment motion was

nevertheless granted on April 1, 2011.

Plaintiff recognized the order granting summary judgment

was ineffectual because defendant's bankruptcy petition

triggered the automatic stay provision contained in 11 U.S.C.A.

§ 362. Following the dismissal of the bankruptcy petition on

March 21, 2012, plaintiff moved to vacate the April 1, 2011

order granting summary judgment but moved again for summary

judgment based on the Rule 4:22 admissions, the facts previously

asserted in support of its original motion, and a certification

explaining how the amount due from defendant had increased to

$253,456.01. In a short pro se pleading, defendant cursorily

argued that the membership agreement was a contract of adhesion

and its terms unconscionable.

On June 15, 2012, the trial judge entered an order that:

vacated the earlier summary judgment, which was precipitously

granted in violation of 11 U.S.C.A. § 362; granted the new

summary judgment motion for the full amount sought; and provided

3 A-2345-12T1
that attorneys' fees would be permitted once a certification of

services was submitted.

In his written decision, the trial judge explained the

basis for his ruling. He relied on the fact that defendant had

failed to respond to plaintiff's Rule 4:22 requests, deeming

those assertions to be admitted. The judge recognized that

defendant had asserted that the membership agreement was a

contract of adhesion and unconscionable but that defendant's

brief written response to the renewed summary judgment was

insufficient to demonstrate the existence of a genuine issue of

material fact. That is, the judge determined that defendant had

not provided facts or a further explanation of his view of the

contract,1 nor did he contest the amount claimed to be due. On

April 20, 2012, the judge awarded plaintiff $8000 in counsel

fees and entered final judgment in the amount of $261,456.01.

Plaintiff immediately sought to collect on the judgment,

and obtained an order permitting defendant's deposition for

purposes of identifying available assets; plaintiff also served

an information subpoena. Shortly before the August 2012

1
In this regard, the judge stated in full: "In his
[c]ertification, defendant states that the contract he entered
into with plaintiff is unconscionable and a contract of
adhesion. . . . However, defendant provides absolutely no basis
for such contention." We agree with the judge's view of the
defendant's opposition.

4 A-2345-12T1
deposition, counsel appeared for defendant and advised of

defendant's intent to move for relief from the summary judgment

pursuant to Rule 4:50. Consequently, plaintiff adjourned the

deposition but soon thereafter moved for an order compelling

defendant's response to the information subpoena; those

responses were provided a few days prior to the motion's return

date.

In November 2012, defendant moved, through counsel, for

relief pursuant to Rule 4:50. In his supporting certification,

defendant asserted that he became a member of the golf club in

1999 by providing a $45,000 deposit and by signing all the

documents plaintiff required. He also asserted that the club

did not open until 2002; that year he paid $7500 in dues. In

2003 he paid $10,000, and in 2004 he paid $13,500. Defendant

claimed he later learned his dues "were improperly utilized for

capital and debt service, contrary to the terms of the

membership agreement, which provided it was to be utilized, if

at all, exclusively for operational expenses." Defendant

asserted that plaintiff took this course because "the project

was millions of dollars over budget" even though plaintiff

"affirmatively advised" at the contract's formation that "there

was no debt and construction was within budget."

5 A-2345-12T1
 Defendant additionally claimed in support of his Rule 4:50

motion that:

Eventually, I came to learn that the project
was millions of dollars over budget, and it
would be the members who would bear the same
through extra costs and expenses not
disclosed or anticipated at the time in
which the membership agreement was entered
into.

More specifically, all existing members were
forced to either (1) loan money to the
[p]laintiff to finance the construction of
the club house; or (2) pay an extra
$2,400.00 per year to finance the
construction. Again, this was contrary to
my understanding of the agreement entered
into and the representations made.

Although the club opened for play in July
2002, the promised clubhouse and cart barn
were not constructed. The clubhouse was not
opened until June 2004. Moreover, the short
game area was not completed at the time of
my resignation, nor was the cart barn. This
was contrary to the original representa-
tions.

Additionally, the various membership rules
continued to change through my tenure as a
member, in ways which were not anticipated
nor disclosed when I entered into the
membership agreement. Apparently, the rules
and by-laws allowed the [p]laintiff to make
whatever changes they deemed appropriate
regarding membership rights. However, a
member had absolutely no redress regarding
these rule changes, as there was no absolute
right to resign from the club.

From the date of my resignation in 2004
through service of the instant [c]omplaint
in November 2010, I never received any
demand for payment, notice that I was

6 A-2345-12T1
 allegedly in breach of the membership
agreement, or any other dunning
correspondence. I did occasionally receive
bills for dues, but never gave them much
thought as I had resigned without objection
from [p]laintiff.

In addressing his failure to make better his case that the

matter was not ripe for summary judgment, defendant asserted

that when served with the complaint he "was in a very stressful

financial condition, and could not afford to retain counsel."

He explained that he attempted to represent himself "as best as

[he] could," and he acknowledged that he "clearly did not meet

the requirements set forth in the Court Rules." Defendant

further asserted that he misunderstood his obligation to timely

respond to plaintiff's Rule 4:22 request for admissions.

Defendant also claimed that the defenses he raised in

opposition to summary judgment, as more fully explained in

support of his Rule 4:50 motion, were found to have credence –

or at least enough substance to avoid summary disposition – in

litigation commenced by other club members in other courts. And

he claimed that even if he could be found liable, the amount due

had been improperly calculated.

The trial judge denied the Rule 4:50 motion on December 21,

2012. In his written decision, the judge rejected defendant's

unconscionability argument on its merits, but without reference

to legal authorities, stating:

7 A-2345-12T1
 [D]efendant cannot assert the contract was
unconscionable simply because years later,
he is dissatisfied with the terms and is
belatedly seeking to stop collection of this
[c]ourt's judgment. Defendant was within his
full rights to seek membership at a
different golf club with different terms in
the membership agreement. Instead, defendant
willfully entered into an agreement with
plaintiff and now, after he has resigned
from membership in violation of the [a]gree-
ment, asserts the terms are unconscionable.
This is not a sufficient basis to set aside
a[n] [o]rder of [f]inal [j]udgment. This
[c]ourt declines to rewrite a contract
freely entered into by both parites simply
because defendant has now fully appreciated
the effect of [a] clause that was unam-
biguously included in his agreement at the
time he entered into it. Moreover, the
[c]ourt has previously addressed this issue
and has found the contract to be valid.[2]

The judge also found that defendant, despite being self-

represented up to and through the entry of final judgment, had

sufficient opportunity to dispute the allegations upon which the

judgment was based. And the judge determined that defendant had

not moved for relief from the judgment within a reasonable

period of time, concluding there were "no exceptional

circumstances supplied by defendant that justify vacating a six-

month old summary judgment decision, and a four-month old

[o]rder of [f]inal [j]udgment." The judge lastly took note of

2
The judge then referred to a decision he rendered in another
member's lawsuit with the golf club.

8 A-2345-12T1
the troubles to which plaintiff was put during defendant's delay

in seeking relief from the judgment.

II

On January 30, 2013, defendant filed a notice of appeal

that identified only the December 12, 2012 order – which denied

his Rule 4:50 motion – as the order defendant would have us

review. In his merits brief, however, defendant includes an

argument that the trial judge erred in granting summary judgment

eight months earlier. Even if we were to ignore defendant's

failure to identify the earlier order in his notice of appeal, 3

and even if we were to assume the earlier summary judgment may

be directly appealed at this late date,4 we would reject this

3
Rule 2:5-1(f)(3)(A) declares that, in civil actions, the notice
of appeal "shall designate the judgment, decision, . . . or part
thereof appealed from." We have recognized that the failure to
comply with this rule permits our refusal to consider its
merits. See, e.g., Sikes v. Twp. of Rockaway, 269 N.J. Super.
463, 465-66 (App. Div.), aff’d o.b., 138 N.J. 41 (1994). We
have, however, in appropriate circumstances, overlooked a
party's failure to designate an order in the notice of appeal.
See N. Jersey Neuro. Assoc. v. Clarendon Nat'l Ins. Co., 401
N.J. Super. 186, 196 (App. Div. 2008).
4
Appeals must be filed within forty-five days of entry of final
judgment. R. 2:4-1(a). This period may be extended for thirty
days "on a showing of good cause and the absence of prejudice."
R. 2:4-4(a). Here, the notice of appeal was filed eight months
after entry of the April 20, 2012 final judgment and, thus,
untimely even if an extension were permissible. "Where the
appeal is untimely, the Appellate Division has no jurisdiction
to decide the merits of the appeal." In re Hill, 241 N.J.
(continued)

9 A-2345-12T1
argument. Defendant only factually responded to plaintiff's

summary judgment motion by providing conclusory claims that the

membership agreement was unconscionable and constituted a

contract of adhesion. He never explained why.5 Bald assertions

are not capable of either supporting or defeating summary

judgment. See Puder v. Buechel, 183 N.J. 428, 440-41 (2005);

(continued)
Super. 367, 372 (App. Div. 1990); see also Alberti v. Civil
Service Com., 41 N.J. 147, 154 (1963); In re Pfizer, 6 N.J. 233,
237-38 (1951).
5
Defendant's written opposition states in its entirety:

Defendant asks that the court reinstate the
complaint and list for trial. The com-
plain[t] was stayed because of the
bankruptcy filing. The defendant did not
comply with the time tables because of the
pending bankruptcy. The bankruptcy being
dismissed leaves me the defendant in a
position where I wish to oppose the com-
plaint and the summary judgment.

The basis for the opposition is the UNCON-
SCIONABLE nature of the contract. The
contract is a contract of [a]dhesion and
therefor[e] should have reasonable expecta-
tions.

The denying of the plaintiff's motion in no
way inhibits them from bringing a new motion
or reinstatement of the old motion to pursue
the damages they seek. Whereas granting the
[p]laintiff's motion does not allow defen-
dant his day in court.

I ask with respect that the [p]laintiff's
motion be denied.

10 A-2345-12T1
Cortez v. Gindhart, 435 N.J. Super. 589, 606 (App. Div. 2014);

Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App.

Div. 1999).

We, thus, reject the argument that the judge erred in

granting summary judgment.

III

The heart of defendant's appeal lies in the argument that

an impecunious pro se litigant, without the wherewithal to

understand the requirements of the rules governing civil

practice, may be relieved of the consequences of that failure.

We agree that Rule 4:50-1(f), which permits relief from

orders or judgments for reasons not provided in the rule's other

subsections, allows for relief in circumstances such as this.

Our courts have long adhered to the view that subsection (f)'s

boundaries "are as expansive as the need to achieve equity and

justice." Court Invest. Co. v. Perillo, 48 N.J. 334, 341

(1966); see also US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449,

484 (2012); Housing Auth. of Town of Morristown v. Little, 135

N.J. 274, 286 (1994); In re Estate of Thomas, 431 N.J. Super.

22, 34 (App. Div. 2013); Parker v. Marcus, 281 N.J. Super. 589,

593 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996).

Judge Havey explained for this court – in holding that a

litigant may, in appropriate circumstances, be relieved of the

11 A-2345-12T1
consequences of his attorney's negligence in the conduct of a

case – that the application of the rule turns on the timeliness

of the relief sought, the reasons for the movant's earlier

failure to comport with the rules, the movant's degree of fault

or blamelessness as opposed to his attorney's fault or blame,

and the prejudice that would accrue to the other party if relief

were granted. Ibid. Appropriate applications of these factors

have excused litigants from the negligence of their attorneys in

failing to answer interrogatories or other discovery requests.

See, e.g., Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super.

190, 195-96 (App. Div. 1985).

We find this approach equally applicable where a party has

negligently represented himself. To be sure, we do not mean to

suggest a self-represented party is entitled to a second chance

in all instances – far from it. We merely hold that a pro se

litigant is entitled to nothing less than that to which a

litigant is entitled when represented by a negligent attorney.

That is, as we held in Rubin v. Rubin, 188 N.J. Super. 155, 159

(App. Div. 1982), pro se litigants are not entitled to greater

rights than litigants who are represented by counsel. But we

also recognized in Rubin – in concluding that a self-represented

litigant was deprived of a meaningful opportunity to be heard

due to a lack of understanding of motion practice – that it is

12 A-2345-12T1
"fundamental that the court system . . . protect the procedural

rights of all litigants and to accord procedural due process to

all litigants." Ibid. See also Midland Funding LLC v. Alfano,

433 N.J. Super. 494, 500-01 (App. Div. 2013).

Here, in seeking relief from the summary judgment entered

against him, defendant asserted he could not then afford an

attorney and that, in attempting to represent himself, he did

not understand the consequences of his failure to respond to

plaintiff's requests for admissions or what he was required to

submit in order to defeat a motion for summary judgment. Had

defendant been represented by an attorney whose same acts or

omissions led to the same result, the guidelines provided in

cases such as Parker would have authorized the granting of Rule

4:50 relief. We think defendant is entitled to the same

consideration.

To say that the rule authorized relief, however, does not

mean that relief should be granted. We simply remand for a

consideration of these principles in light of defendant's

assertions in his Rule 4:50 motion. The judge appears to have

denied the motion solely because he was satisfied that defendant

had a prior opportunity to respond to the ultimately successful

summary judgment motion. This was insufficient because the

judge did not consider why defendant had so failed and whether

13 A-2345-12T1
principles of fairness and equity permit relief from the

consequences. Defendant was entitled to have his Rule 4:50

motion examined in light of the factors outlined in the

authorities discussed above. We, thus, remand for that purpose.

IV

On remand, the judge should consider defendant's assertions

regarding his earlier failures in the litigation. As to one of

the applicable factors – the timeliness of the Rule 4:50 motion

– we reject the judge's conclusion that defendant's delay was

unreasonable. Indeed, that delay paled in comparison to

plaintiff's long delay in commencing the action. And we would

note in this regard that in many cases – and this may be one –

the prejudice incurred by the opposing party may be redressed in

ways other than the denial of the motion; Rule 4:50-1 authorizes

the granting of relief "upon such terms as are just." See ATFH

Real Prop. v. Winberry Rlty., 417 N.J. Super. 518, 527-29 (App.

Div. 2010), certif. denied, 208 N.J. 337 (2011).6

We would lastly observe that the trial judge's ruling

appears to be based in part on his determination that there was

6
In considering the imposition of just terms, the judge must be
mindful that the terms authorized by Rule 4:50-1 are not "to
punish or sanction" but to ameliorate the prejudice to the other
party resulting from the granting of relief. Regional Constr.
Corp. v. Ray, 364 N.J. Super. 534, 543 (App. Div. 2003).

14 A-2345-12T1
no merit in defendant's contention that the contract was

unconscionable. Certainly, if that were so, the judge's

disposition would have been correct; the granting of Rule 4:50

relief would be a futile exercise if plaintiff remained entitled

to judgment as a matter of law. See US Bank Nat'l Ass'n, supra,

209 N.J. at 469 (observing, in quoting from Schulwitz v.

Shuster, 27 N.J. Super. 554, 561 (App. Div. 1953), that "[i]t

would create a rather anomalous situation if a judgment were to

be vacated . . . only to discover later that the defendant had

no meritorious defense"). But – once defendant provided

substance to his earlier conclusory claims – the judge never

examined the parties' contentions in light of applicable legal

principles. Indeed, the judge largely relied on his earlier

holding. The worth of defendant's contentions should be

examined in light of two factors: procedural unconscionability,

which "can include a variety of inadequacies, such as age,

literacy, lack of sophistication, hidden or unduly complex

contract terms, bargaining tactics, and the particular setting

existing during the contract formation process," and substantive

unconscionability, which generally involves harsh or unfair one-

sided terms. See Sitogum Holdings, Inc. v. Ropes, 352 N.J.

Super. 555, 564-66 (Ch. Div. 2002) (quoted with approval in

Muhammad v. Cnty. Bank, Rehoboth Beach, 189 N.J. 1, 15 (2006),

15 A-2345-12T1
cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763

(2007)). These two factors do not "have equal effect but work

together, creating a 'sliding scale' of unconscionability."

Sitogum, supra, 352 N.J. Super. at 565-66 (cited with approval

in Delta Funding Corp. v. Harris, 189 N.J. 28, 40 (2006)). In

concluding that defendant's unconscionability claim was without

merit, the judge did not examine defendant's factual assertions

in light of these principles.

V

The order under review is vacated, and the matter remanded

for further consideration of defendant's motion to be relieved

of the consequences of his failure to adequately represent

himself in conformity with this opinion. We do not retain

jurisdiction.

16 A-2345-12T1