NOT FOR PUBLICATION WITHOUT THE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.
3 A-0121-15T3
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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