STATE OF NEW JERSEY VS. DEMETRIUS J. HARRISON (14-12-2923 AND 15-07-1587, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0121-15T3

ALLIANCE LAUNDRY
SYSTEMS, L.L.C.,

Plaintiff-Respondent,

v.

1576 MAPLE AVENUE ASSOCIATES,
L.L.C., FILOMENA GIUDICE, FRANK GIUDICE,
GIUSEPPE GIUDICE, and TERESA GIUDICE,
jointly and severally,

Defendants-Appellants.
________________________________________

Submitted November 29, 2016 – Decided March 15, 2017

Before Judges Reisner and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-0733-
12.

DeMarco & DeMarco, attorney for appellants
(Michael P. DeMarco, on the briefs).

Foley & Lardner, L.L.P., attorney for
respondent (Anne B. Sekel, on the brief).

PER CURIAM

In this commercial lending dispute, defendants, 1576 Maple

Avenue Associates, L.L.C., Filomena Giudice, Frank Giudice,
Giuseppe Giudice, and Teresa Giudice, appeal from a July 20, 2015

Law Division order denying reconsideration of a February 4, 2014

order, which denied their motion to vacate a June 13, 2013 default

judgment. Having carefully reviewed the arguments raised in light

of the record and applicable law, we affirm.

I.

We discern the following factual and procedural history from

the record. On or about December 5, 2008, defendants executed a

promissory note borrowing $335,000 from plaintiff for the purchase

of equipment for defendants' laundromat in Hillside. A security

interest in the equipment was given to plaintiff, and was properly

perfected with a Uniform Commercial Code filing. In addition,

each individual defendant executed a personal guaranty of the

note.

In February 2012, plaintiff filed a complaint, followed by

an amendment in November 2012, against defendants for failing to

make loan payments and sought replevin of the equipment. After

default was subsequently entered against defendants, default

judgment was ordered on June 13, 2013, in the amount of $235,510.15

plus costs.

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 On December 4, 2013, defendants filed a motion to vacate the

default judgment. In support, Giuseppe1 certified that, "on behalf

of all the [d]efendants," he faxed a request to adjourn the motion

for entry of default judgment because he had a landlord/tenant

matter scheduled the same day. A copy of the adjournment request

was attached to his certification, but a confirmation of the

court's receipt of the fax transmission was not submitted.

Giuseppe further stated an unnamed court staff person told him

over the telephone that the motion was adjourned and he would

receive a new court date, but he was never notified of a new date.

Giuseppe was not represented by counsel at that time.

Defendants also contended the court lacked jurisdiction

because the loan documents contained a forum selection clause

providing that any disputes between the parties would be litigated

in state or federal court in Wisconsin. In addition, defendants

raised the defense of fraud in the inducement, and asserted that

the judgment may not have given proper credit for the selling of

the replevined equipment.

The motion judge did not afford defendants oral argument as

requested, and entered an order on February 4, 2014 (February

1
Since individual defendants have the same last name, we use first
names to avoid confusion and we mean no disrespect.

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order) denying the motion. In a written statement of reasons, the

judge, citing Rules 4:43-3 and 4:50-1 and Goldhaber v. Kohlenberg,

395 N.J. Super. 380, 391 (App. Div. 2007), explained:

Defendants have not demonstrated excusable
neglect. Rather, [d]efendants acknowledge
receipt of both the original and amended
complaint. Defendant Giuseppe Giudice has
provided a copy of a fax which he stated was
sent to [the motion court], but there is no
transmission verification and the only date
reference is "the 16th." Moreover, there are
five named defendants to the underlying action
and [d]efendants have provided no explanation
for why none of the other [d]efendants
appeared or responded on the date of default.
Nor have they presented this [c]ourt with
justification for their failure to respond to
the initial complaint or amended complaint.
In fact, Giuseppe Giudice's purported
"excusable neglect" relates only to his
failure to appear at the default hearing and
does not serve to explain [d]efendants'
failure to respond to the [c]omplaint.

The judge also found that defendants did not raise any

meritorious defenses. Relying upon Kubis & Perszyk Associates v.

Sun Microsystems, 146 N.J. 176, 188 (1996), she reasoned that the

loan documents' forum selection clause did not divest New Jersey

courts of jurisdiction where New Jersey had jurisdiction over

defendants, New Jersey residents, and the laundry equipment

situated in Hillside. Additionally, the judge rejected

defendants' claim of fraud in the inducement in the acquisition

of the equipment because plaintiff merely financed the equipment

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purchase and there were no proofs that plaintiff was connected

with the sale of the equipment.

Defendants then timely moved under Rule 4:49-2 for

reconsideration of the February order. However, after several

adjournments of the motion due to settlement discussions, they

notified the court by letter on or about June 30, 2014, that the

motion was withdrawn without prejudice due to continuing

settlement efforts. The letter further advised that, if the motion

were to be re-filed, in the event the matter was not settled, the

plaintiff agreed not to contest the motion based on the twenty-

day time limit to seek reconsideration per Rule 4:49-2.

When settlement talks ceased almost a year later, defendants

filed a new motion for reconsideration of the February order, with

a request for oral argument. On July 20, 2015, the same judge who

entered the February order, denied reconsideration, without oral

argument. In her statement of reasons, the judge determined that

the motion was "woefully out of time." Nevertheless, on the merits

of the motion, she stated that reconsideration was "essentially a

reiteration of the motion to vacate judgment[,]" and was without

merit for the same reasons given when she decided the February

order. The judge further emphasized, "[d]efendants did not, and

still do not, provide any justification, let alone an adequate

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one, for their failure to respond to the [c]omplaint in a timely

fashion." This appeal ensued.

II.

Before us, defendants contend the motion judge erred in

entering the February order denying their motion to vacate default

judgment and denying the subsequent motion for reconsideration.

In particular, defendants argue that their re-filed motion for

reconsideration was timely because they withdrew their initial

motion for reconsideration without prejudice due to settlement

discussions and the parties agreed that the twenty-day time limit

under Rule 4:49-2 would not bar re-filing of the motion.

Defendants also contend their failure to answer the complaint was

justified by excusable neglect pursuant to Rule 4:50-1(f), the

"catchall" category of the rule pronounced in Court Investment Co.

v. Perillo, 48 N.J. 334, 341 (1966), "to achieve equity and

justice." Defendants claim that had Giuseppe been advised of the

default judgment hearing date following his adjournment request

and telephone conservation with the court, counsel would have been

retained to defend the action.

Defendants' remaining arguments reiterate the allegedly

meritorious defenses rejected by the motion judge. They argue

that the loan agreement's forum selection clause designating state

court or federal court in Wisconsin as the forum to resolve

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disputes should have been enforced to bar suit in New Jersey.

Defendants assert fraud in the inducement in purchasing the

equipment, claiming that they were misled as to projected revenue

and profits from the laundromat. Lastly, defendants argue

plaintiff failed to offer any competent proof that it disposed of

the laundry equipment in a reasonably commercial manner, thus the

judgment amount should be vacated.

We have considered defendants' contentions in light of the

record and applicable legal principles, and conclude they are

without sufficient merit to warrant a discussion in a written

opinion. R. 2:11-3(e)(1)(E). We affirm essentially for the

reasons expressed by the motion judge in her written decisions.

We add only the following comments.

We agree with defendants that the judge should not have

determined that the re-filed reconsideration motion was untimely

pursuant to Rule 4:49-2. The record is clear that, due to the

parties' earnest efforts to settle the matter, the initial

reconsideration motion was adjourned twice and then withdrawn

without prejudice. Moreover, the judge was advised plaintiff

agreed that should the motion be re-filed, plaintiff would not

claim the motion was untimely. However, the ruling was harmless

error because as noted, the judge properly addressed the merits

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of defendants' motion to vacate the default judgment and motion

for reconsideration.

Lastly, we find it necessary to address the motion judge's

decision not to entertain defendants' requests for oral argument.

Defendants' requests should have been granted as of right. Rule

1:6-2; see also Raspantini v. Arocho, 364 N.J. Super. 528, 531

(App. Div. 2003). Oral argument requests can be denied where the

court sets forth appropriate reasons on the record. Raspantini,

supra, 364 N.J. Super. at 531-32 (citations omitted). Nonetheless,

we conclude that the judge's refusal to allow oral argument does

not require us to reverse her orders. As noted, we affirm based

upon the judge's written statement of reasons, which adequately

set forth her factual findings and legal conclusions. In this

case, oral argument would not have changed the result.

Affirmed.

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