Robert Sipko v. Koger Distributed Solutions, Inc.

NOT FOR PUBLICATION WITHOUT THE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-0439-22

ROBERT SIPKO,

Plaintiff-Respondent,

v.

KOGER, INC., KOGER
DISTRIBUTION SOLUTIONS,
INC., KOGER PROFESSIONAL
SERVICES, INC., KOGER
LIMITED (DUBLIN), and
GEORGE SIPKO,

Defendants-Respondents,

and

RASTISLAV SIPKO,

Defendant-Appellant.
____________________________

Argued October 3, 2023 – Decided November 13, 2023

Before Judges Whipple, Mayer and Paganelli.

On appeal from the Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
C-000393-07.
 Daniel Jay Cohen argued the cause for appellant
(Newman, Simpson & Cohen, LLP, attorneys; Daniel
Jay Cohen and Daniel C. Stark, on the briefs).

Erik M. Corlett argued the cause for respondent Robert
Sipko (Pashman Stein Walder Hayden, PC, attorneys;
Michael S. Stein, of counsel; Erik M. Corlett and
Timothy Patrick Malone, on the brief).

PER CURIAM

Defendant Rastislav Sipko (Ras)1 appeals from a post-judgment order

approving a judgment credit allocation and calculation. Ras argues that the

judge abused his discretion by entering the post-judgment order. We are

persuaded that the judge properly exercised his discretion and, as such, affirm.

I.

The New Jersey Supreme Court has twice reviewed this matter and recited

the parties' extensive history. Sipko v. Koger, 214 N.J. 364 (2013) and Sipko v.

Koger, Inc., 251 N.J. 162 (2022). Here, it is unnecessary to repeat the long

history of this "fractured family and broken family businesses . . . ." Sipko, 251

N.J. at 167. Instead, we summarize the facts and procedural history giving rise

to this appeal.

1
Given that the family members have the same last name, we use their first
names to avoid confusion. We intend no disrespect by this informality.

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 On August 19, 2016, the trial court entered a judgment awarding Robert

damages against his father, George, his brother, Ras, and the corporate entities

of Koger, KPS and KDS in the amount of $24,697,571.14. The judgment

amount represented $18,260,257 for Ras' interest in KPS and KDS and

$6,437,311.14 in pre-judgment interest.

Despite the entry of the judgment, George and Ras continued their "pattern

of acts calculated to prevent Robert from obtaining compensation for his

interests in KDS and KPS . . . ." Sipko, 251 N.J. Super. at 173. For instance:

(1) "George and Ras claimed, without documentary support, that they were

unable to post a bond," ibid.; (2) "Ras offered [real property in] Connecticut"

despite, "without notice to the [New Jersey] court, . . . [having] obtained an

attachment order in his Connecticut divorce proceeding which made that

property part of the assets to be distributed in the divorce, and, therefore, beyond

the [New Jersey] court's reach," Ibid. n.4; (3) "Ras 'drew down $2.5 million on

his [Koger] credit line, exhausting the line,'" id. at 174; (4) they "revealed,

apparently for the first time . . . that they owned real estate in Slovakia," ibid.;

and (5) "[m]ost shockingly . . . transferred approximately $20 million in cash to

overseas accounts . . . desperate to get the money out of the country and beyond

[Robert's] reach." Id. at 176.

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 Ras does not deny failing to make any voluntary payments to satisfy the

judgment. Instead, after entry of a judgment in his favor, Robert was compelled

to embark on a six-year effort to collect the awarded sum. Intermittently, as

Robert recovered funds to satisfy the judgment, he provided Ras with

contemporaneous information regarding the amount of each payment collected

and the date it was applied as a judgment credit. Ras does not deny receiving

this information. Moreover, Robert notes "the trial court has entered at least a

dozen orders since 2017 governing the allocation of credits as between the

judgment principal and interest related to payments." Ras does not deny notice

of or the entry of the orders.

II.

Ras argues it was an abuse of discretion for the judge to enter the "post-

judgment order approving the judgment credit allocation and calculation." He

avers: (1) "further discovery and examination was and is needed to properly

evaluate the proposed judgment calculation"; (2) "judgment credits should be

applied when funds were available or when available funds were ordered to be

distributed"; and (3) "credits for payment under the April 16, 2018 and October

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17, 2017 orders should be allocated to judgment principal, not post-judgment

interest."2

A.

Ras argues that the judge erred in granting the judgment calculation

without allowing him discovery or a further examination of the purported

underlying facts. 3 Ras urges that these additional steps are necessary because

the lengthy motion papers detailed a six-year history of piecemeal payments,

which he was evaluating while incarcerated.

In response, Robert contends that Ras makes bald assertions for back-up

materials and ignores the documentation supporting the motion. Moreover,

Robert argues that Ras was advised "contemporaneously of each payment, the

2
Robert argues that Ras has "unclean hands" and this appeal should be
dismissed. We decline to consider this argument because either: (1) it was not
presented to the motion judge and, therefore, is not appropriate on appeal, see
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), or (2) the motion
judge denied its application and Robert has not appealed that decision. See
Pressler & Verniero, Current N.J. Rules, cmt. 5 on Rule 2:6-2 (2023).
3
In his reply brief, Ras suggests that "an evidentiary hearing is necessary here."
However, "[r]aising an issue for the first time in a reply brief is improper."
Goldsmith v. Camden Cty. Surrogate's Off., 408 N.J. Super. 376, 387 (App. Div.
2009) (alteration in original) (quoting Borough of Berlin v. Remington &
Vernick, Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001)).
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date of the credit, the court order it was received pursuant to, and the allocation

of it to principal or interest pursuant to court order."

"Appellate review of a trial court's discovery order is governed by the

abuse of discretion standard." State in Interest of A.B., 219 N.J. 542, 554 (2014)

(citing In re Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 162

(2013) (citing Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371

(2011))). "Thus, an appellate court should generally defer to a trial court's

resolution of a discovery matter, provided its determination is not so wide of the

mark or is not 'based on a mistaken understanding of the applicable law.'" Ibid.

(quoting Pomerantz Paper, 207 N.J. at 371); see generally Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002) (holding that "abuse of discretion" "arises

when a decision is 'made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'").

We are satisfied that the judge did not abuse his discretion in denying Ras'

requests for further discovery or an opportunity to, anew, review supporting

materials. The relevant materials for calculating the credit allocation were

provided during the course of this litigation. Moreover, Ras' request, at this

stage, fails to offer with any particularity the information he seeks and amounts

to little more than a fishing expedition.

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 B.

Ras next argues the judge abused his discretion by executing the post-

judgment order allowing for judgment credits to be applied when the payments

were actually received and allocating the proceeds under the October 17, 2017

and April 16, 2018 orders. We disagree.

A "Chancery judge has broad discretionary power to adapt equitable

remedies to the particular circumstances of a given case." Marioni v. Roxy

Garments Delivery Co., Inc., 417 N.J. Super. 269, 275 (App. Div. 2010). "[T]he

court of equity has the power of devising its remedy and shaping it so as to fit

the changing circumstances of every case and the complex relations of all the

parties." Sears, Roebuck & Co. v. Camp, 124 N.J. Eq. 403, 411-12 (E. & A.

1938) (quoting Pom. Eq. Jur. § 109 (4th ed. 1918)). We "decline to intervene

[regarding a judge's determination of an appropriate equitable remedy] absent

an abuse of discretion, or where the judge's conclusions prove inconsistent with

his own findings of fact." Marioni, 417 N.J. Super. at 275-76 (citation omitted).

i.

Ras argues that judgment credits should be applied when funds were

available or when available funds were ordered to be distributed. Ras complains

that "because of administrative, logistical, or processing delays entirely out of

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[his] control, the funds were not transferred or finally deposited until days,

weeks or months later . . . ."

We are satisfied that the judge properly exercised his discretion in denying

Ras' request to now calculate judgment credits when funds were available or

when available funds were ordered to be distributed. It is reasonable for the

judge to determine, consistent with the prior judge's endorsement and

considering the parties' history, to apply the credits when payments were

actually received.

ii.

Ras argues credits for payment under the October 17, 2017 order should

be allocated first to pre-judgment interest and credits for payment under the

April 16, 2018 order should be allocated entirely to judgment principal. We

disagree.

October 17, 2017

The October 17, 2017 order provides "[m]onies paid to Robert . . .

pursuant to . . . this [o]rder shall be for purposes of satisfying the August 18,

2017, [o]rder, . . . shall be credited 50% to pre and post judgment interest and

50% towards the judgment principal." The August 18, 2017 order provides for

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a turnover of funds and the application of those funds "to the Judgment (first to

principal, then to interest)."

Here, Ras notes that the October 17, 2017 "[o]rder does not specify

whether pre- or post- judgment interest should be credited first." He seeks to

apply the "credit first to pre-judgment interest, since this has the effect of

reducing the balance of the judgment on which post-judgment interest accrues,

and results in less interest accruing and the judgment being satisfied sooner."

In response, Robert argues that the "allocations were . . . based on

[d]efendants' requests, which the court accepted." At the October 17, 2017

hearing Robert's counsel argued "to allocate these payments to the principal

judgment . . . so that Robert . . . receives the tax benefits . . . ."

The attorney for the co-defendants, with Ras' attorney present, argued to

the prior judge that he "made a ruling not too long ago and you said 50/50. That's

how you cut the baby." Counsel's oral argument paralleled a letter previously

sent to the prior judge wherein counsel for Ras' co-defendants argued that "the

allocation of these payments [should be] consistent with prior orders directing

that 50[%] of the payment be credited toward judgment interest and 50[%]

toward principal."

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 Ras took no position on the issue during the October 17, 2017 hearing.

Instead, he remained silent on the allocation issues.

Moreover, Robert argues that "defendants were fully aware of [the

allocations] at the time of receipt of payment[s] and the parties all relied on the

allocations for tax payments for years."

Ras now argues that Robert should be judicially estopped from seeking to

implement the October 17, 2017 order because he originally took the position

contrary to what the order provided. However, Ras' argument misapplies

judicial estoppel. "[E]stoppel principles preclude a party from disavowing a

previous position if repudiation violates the demands of justice and good

conscience." Morgan v. Raymours Furniture Co., Inc., 443 N.J. Super. 338, 342

(App. Div. 2016) (citations omitted). The doctrine does not, as Ras suggests,

require a party to maintain an unsuccessful position despite a court order

providing otherwise. Instead, after not receiving the relief he requested, Robert

appropriately pursued the relief he was awarded. Estoppel is inapplicable in

such a situation.

Thus, we are satisfied the judge did not abuse his discretion in denying

Ras' request to apply the credit first to pre-judgment interest.

April 16, 2018

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 The April 16, 2018 order provides that "$3,500,000 . . . may be released

. . . and a credit to the judgment shall be effectuated . . . ." On May 25, 2018,

the court heard argument regarding the allocation, between interest and

principal, of the $3,500,000. As of May 2018, the parties were operating under

a March 3, 2017 order that provided "[a]llocation of the credit shall be first

against post-judgment interest, then against pre-judgment interest, then against

the judgment."

In the May 25, 2018 proceeding, Robert sought a revision of the March 3,

2017 order, because there were "efforts to undermine [collection] activities" and

"efforts had been made to stymie the satisfaction of the judgment." Therefore,

Robert sought to have the full $3,500,000 "allocated all to the judgment

principal . . . ." This new allocation would have resulted in Robert receiving "a

more favorable tax treatment [than] defendants."

Ras' co-defendants countered that allocating in the manner requested by

Robert would result in their sustaining "significant tax effects." Therefore, they

requested that the court apply the apportionment from the March 3, 2017 order

and "ask[ed] the court to apply [the $3,500,000] first to prejudgment and then

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post-judgment interest and principal."4 The prior judge sided with defendants

and enforced the March 3, 2017 order.

Here, Ras argues for relief in direct contradiction to the relief specified in

the March 3, 2017 order.

Having reviewed the record, we are satisfied the judge did not abuse his

discretion in denying Ras' request that the $3,500,000, provided for in the April

16, 2018 order and as controlled by the earlier March 3, 2017 order, should be

allocated first to pre-judgment interest.

Affirmed.

4
Ras' counsel arrived after argument and after the prior judge's decision. The
prior judge "underst[oo]d that there [was] one application we can get into even
in [Ras' counsel's] absence; and that would be settling the apportionment of the
existing judgment between the judgment itself and the interest component." The
better practice would have been to wait for all counsel or allow late arriving
counsel to address the argument upon arrival. Nevertheless, the prior judge
denied Robert's request and merely enforced his existing March 17, 2017 order
without any modification. Under these circumstances, therefore, Ras was not
prejudiced.
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