Business Law

NOTICE TO THE BAR AMENDMENTS TO RULE 6:7-1 AND APPENDIX XI-H (“EXECUTION AGAINST GOODS AND CHATTELS”)

2011-07-29T13:55:00.001-07:00

NOTICE TO THE BAR

AMENDMENTS TO RULE 6:7-1 AND APPENDIX XI-H (“EXECUTION AGAINST GOODS AND CHATTELS”)

On May 17, 2011, the Supreme Court approved changes to Rule 6:7-1(b)(2) and the form Execution against Goods and Chattels, which is Appendix XI-H to the Rules of Court, with those changes to be effective as of May 17, 2011. The amendments to Rule 6:7-1(b)(2) and Appendix XI-H were necessary in order to conform with new federal regulations that went into effect on May 1, 2011, requiring banks and other financial institutions to look back two months and exclude from garnishment any exempt benefits that were electronically deposited during that period. Rule 6:7-1(b)(2) only required a 45-day look back period, thus necessitating the amendments. Accompanying this Notice are the Court’s Order, the amended Rule and amended form.

Questions regarding the amendments to Rule 6:7-1(b)(2) and Appendix XI-H may be directed to Robert D. Pitt, Chief of Special Civil Part Services, in the Civil Practice Division of the Administrative Office of the Courts, P.O. Box 981, Trenton, NJ 08102.

Dated: June 8, 2011

/s/ Glenn A. Grant

Hon. Glenn A. Grant, J.A.D. Acting Administrative Director of the CourtsSUPREME COURT OF NEW JERSEY

It is ORDERED that the attached amendments to Rule 6:7-1(b) and Appendix XI-H of the Rules Governing the Courts of the State of New Jersey are adopted to be effective immediately.

Dated: May 17, 2011

For the Court, /s/ Stuart Rabner Chief Justice

6:7-1.

Requests for Issuance of Writs of Execution; Contents of Writs of Execution and Other Process for the Enforcement of Judgments; Notice to Debtor; Claim for Exemption; Warrant of Removal; Enforcement of Consent Judgments and Stipulations of Settlement in Tenancy Actions

(a) ... no change

(b) Contents of Writs of Execution and Other Process for the Enforcement of Judgments. All writs of execution and other process for the enforcement of judgments shall provide that any levy pursuant thereto shall exclude:

(1) all funds in an account of the debtor with a bank or other financial institution, if all deposits into the account during the 90 days immediately prior to service of the writ were electronic deposits, made on a recurring basis, of funds identifiable by the bank or other financial institution as exempt from execution, levy or attachment under New Jersey or federal law, and

(2) all funds deposited electronically in an account of the debtor with a bank or other financial institution during the [45 days] two months immediately prior to [service of the writ] the account review undertaken by the bank or other financial institution in response to the writ that are identifiable by the bank or other financial institution as exempt from execution, levy or attachment under New Jersey or federal law.

Note: Source – R.R. 7:11-1; former rule redesignated as paragraph (a) and paragraph (b) adopted and caption amended July 16, 1981 to be effective September 14, 1981; paragraph (b) amended November 1, 1985 to be effective January 2, 1986; caption amended and paragraph (c) adopted November 7, 1988 to be effective January 2, 1989; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; caption and paragraph (c), caption and text, amended July 13, 1994 to be effective September 1, 1994; paragraph (a) caption and text amended June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (d) adopted July 18, 2001 to be effective November 1, 2001; paragraph (c) amended September 14, 2004 to be effective immediately; paragraph (a) amended July 27, 2006 to be effective September 1, 2006; caption

amended, former paragraph (b) redesignated as paragraph (c) and amended, former paragraphs (c) and (d) redesignated as paragraphs (d) and (e), and new paragraph (b) caption and text adopted July 23, 2010 to be effective September 1, 2010; subparagraph (b)(2) amended May 17, 2011 to be effective immediately.

DOCKET NO.: JUDGMENT NO.: WRIT NUMBER:

___ DC-______-__ ___ VJ-_______-__ ____

SUPERIOR COURT OF NEW JERSEY SPECIAL CIVIL PART _______________ COUNTY STATE OF NEW JERSEY

EXECUTION AGAINST GOODS AND CHATTELS

DEBTORS:______________________ ______________________

APPENDIX XI-H EXECUTION AGAINST GOODS AND CHATTELS

PLAINTIFF(S) VS.

DEFENDANT(S)

ADDRESS OF FIRST DEBTOR: STREET ADDRESS CITY NJ ZIP

TO: ___________________________________________ COURT OFFICER OF THE SPECIAL CIVIL PART

YOU ARE ORDERED to levy on the property of any of the debtors designated herein; your actions may include, but are not limited to, taking into possession any motor vehicle(s) owned by any of the debtors, taking possession of any inventory and/or machinery, cash, bank accounts, jewelry, electronic devices, fur coats, musical instruments, stock certificates, securities, notes, rents, accounts receivable, or any item(s) which may be sold pursuant to statute to satisfy this execution in full or in part. Any levy pursuant to this writ shall exclude (1) all funds in an account of the debtor with a bank or other financial institution, if all deposits into the account during the 90 days immediately prior to service of the writ were electronic deposits, made on a recurring basis, of funds identifiable by the bank or other financial institution as exempt from execution, levy or attachment under New Jersey or federal law, and (2) all funds deposited electronically in an account of the debtor with a bank or other financial institution during the [45 days] two months immediately prior to [service of the writ] the account review undertaken by the bank or other financial institution in response to the writ that are identifiable by the bank or other financial institution as exempt from execution, levy or attachment under New Jersey or federal law. All proceeds are to be paid to the court officer who shall pay them to the creditor or the attorney for the creditor, or, if this is not possible, to the court. This order for execution shall be valid for two years from this date.

Local police departments are authorized and requested to provide assistance, if needed, to the officer executing this writ. This does not authorize entry to a residence by force unless specifically directed by court order.

Judgment Date Judgment Amount................................................. Costs and Atty. Fees ............................................. Subsequent Costs .................................................. Total...................................................................... Credits, if any ....................................................... Subtotal A............................................................. Interest .................................................................. Execution costs and mileage ................................. Subtotal B ............................................................. Court officer fee.................................................... Total due this date................................................. Date: ________________.................................... Property to be Levied Upon and Location of Same:

CITY ST ZIP CREDITOR’S ATTORNEY AND ADDRESS: ______________________________________ ______________________________________ ______________________________________ CITY NJ ZIP Telephone: ___-__________

_________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________ $________

Date: ________________

_________________________________ Judge

_________________________________ Clerk of the Special Civil Part

I RETURN this execution to the Court

( ) Unsatisfied ___________________ ( ) Satisfied ( ) Partly Satisfied Amount Collected. . ____________

Fee Deducted. . . . . . ____________ Amount Paid to Atty.____________

______________

Date:

______________________________ Court Officer

[REVISED MAY 17, 2011]

ARI MUTUAL INSURANCE V. JORGE A-1256-10T2 June 16, 2011

2011-07-26T13:55:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1256-10T2

ARI MUTUAL INSURANCE, CO.,

Plaintiff-Respondent,

ANTONIO JORGE,

Defendant-Appellant,

and

ALLSTATE NEW JERSEY INSURANCE

COMPANY, ZINA TRUCKING, INC.,

Defendants.

Argued June 6, 2011 – Decided June 16, 2011

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3019-10.

Edward Rubenstone of the Pennsylvania bar, admitted pro hac vice, argued the cause for appellant (Lamm Rubenstone, L.L.C., attorneys; Christopher J. Fox and Frank Schwartz, on the brief).

Danielle M. Lozito argued the cause for respondent (Methfessel & Werbel, attorneys; Marc L. Dembling, of counsel and on the brief; Ms. Lozito, on the brief).

PER CURIAM

Defendant Antonio Jorge appeals from two orders dated September 28, 2010, denying his summary judgment motion, and granting summary judgment in favor of plaintiff ARI Mutual Insurance Company (ARI). We affirm.

Jorge is the sole owner of Zina Trucking, Inc. In July 2006, he applied to ARI for a commercial insurance policy covering the period August 1, 2006 to August 1, 2007. The first page of the application listed the "named insured and other named insured" as "Antonio Jorge dba [doing business as] Zina Trucking." Under the applicant's name, a box was checked designating the applicant as a "corporation." In the "BUSINESS AUTO SECTION" of the application, the applicant was listed as "Zina Trucking Inc." Accordingly, ARI issued a policy on which the declarations page listed "Zina Trucking Inc[.]" as the named insured. Jorge did not ask ARI to correct the policy to reflect a different named insured.

The policy contained a step-down clause, providing that if a covered person, other than a named insured, was involved in an accident and had other auto insurance, the $1 million in Uninsured Motorists (UM) coverage under the ARI policy would be reduced to the limits of the covered person's own policy. The relevant language is as follows:

. . . if:

(1) An "insured" is not the individual named insured under this policy;

(2) That "insured" is an individual named insured under one or more other policies providing similar coverage; and

(3) All such other policies have a limit of insurance for similar coverage which is less than the Limit of Insurance for this coverage; then the most we will pay for all damages resulting from any one "accident" with an "uninsured motor vehicle" . . . shall not exceed the highest applicable limit of insurance under any coverage form or policy providing coverage to that "insured" as an individual named insured.

On November 27, 2006, about four months after purchasing the policy, Jorge was involved in an accident while driving the Zina truck. Claiming that the accident was caused by a phantom vehicle, he sought UM coverage under the ARI policy. ARI filed a declaratory judgment complaint against Jorge and his personal auto insurer, Allstate New Jersey Insurance company, contending that the $1 million of UM coverage under the ARI policy should be stepped down to $100,000, which was the level of UM coverage available under Jorge's Allstate policy.^¹

Jorge moved for summary judgment, contending that ARI mistakenly listed Zina Trucking as the named insured in the policy, when he had applied for coverage as the individual named insured. In support of the motion, Jorge filed a certification, attesting that at the time he applied for the ARI policy, he understood that he "would be the named insured under any policy to be issued by ARI pursuant to the Application." He attested that he signed the application in his individual capacity, and he would not have purchased that policy if he "had known that ARI intended to change the named insured from myself to Zina Trucking, Inc." He further stated that he did not receive a copy of the policy document until after he purchased the policy. ARI cross-moved for summary judgment.

At oral argument of the motion, Jorge's counsel agreed that he was not challenging the validity or enforceability of the step-down clause. Rather, he argued that, given the way Jorge completed and signed the application, he had a "reasonable expectation" that he would be the named insured. He also argued that any ambiguity, created by a difference between the application and the policy, should be resolved in the insured's favor. Third, he contended that even if Zina Trucking was the named insured, Jorge should be deemed the "alter ego" of the corporation, because he was its sole shareholder.

In an oral opinion placed on the record on September 24, 2010, Judge Phillip Lewis Paley found that the policy unambiguously listed Zina Trucking Inc. as the named insured. He reasoned that Jorge had a duty to read the policy and ask ARI to correct it if he believed his company should not have been listed as the named insured. He concluded:

[D]efendant's expectation that he was a named insured is unreasonable in light of the plain language of the policy. He was in possession of the insurance policy naming [Zina] Trucking as the named insured for several months before the accident.

I cannot ignore the obligation imposed upon him by law to read the plain language of the policy. While it may be that he had a reasonable expectation of coverage as a named insured when he signed his application, his failure to read and/or protest the plain language of the policy as written until after his accident makes his belief unreasonable.

The judge further found that there was no mutual mistake, and no evidence that ARI committed any fraud or unconscionable conduct. He also concluded that any ambiguity was created by Jorge, who listed Zina Trucking as the insured in filling out the application.

Our review of the trial court's summary judgment decision is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Using the Brill^² standard, we determine whether, giving the non-moving party the benefit of all favorable inferences, the undisputed material facts entitle the moving party to judgment. SeeEstate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). After reviewing the record, we conclude that Judge Paley correctly granted summary judgment in favor of ARI.

In Pinto v. New Jersey Manufacturers Insurance Co., 183 N.J. 405 (2005), the Supreme Court held that step-down clauses in insurance policies were enforceable. A 2007 statute superseded Pinto by making step-down clauses unenforceable, N.J.S.A.17:28-1.1(f), but Jorge concedes that the statute is not retroactive. See Olkusz v. Brown, 401 N.J. Super. 496, 499 (App. Div. 2008).^³

Instead, as in the trial court, he seeks to circumvent Pinto by arguing that: the insurance policy "materially differed" from the application; when read together with the application, the policy should be deemed "ambiguous," and the ambiguity should be construed in Jorge's favor and consistent with his reasonable expectations; the UM/UIM endorsement of the policy defines an insured as a natural person whose "family members" will be covered, thereby misleading Jorge into believing that he was the named insured.

We agree with Judge Paley that these arguments are all without merit. They require no further discussion here, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in Judge Paley's opinion. We add the following comments.

In completing the insurance application, Jorge did not indicate that he was applying for insurance or signing the form in his individual capacity, as opposed to in his capacity as owner of the business. The application listed "Antonio Jorge dba Zina Trucking" as the named insured, and immediately thereafter indicated that the applicant was a corporation. In a later section of the application, the applicant was listed only as Zina Trucking Inc. The declarations page of the insurance policy unambiguously listed Zina Trucking Inc. as the named insured. See Lehrhoff v. Aetna Cas. & Sur. Co., 271 N.J. Super. 340, 347 (App. Div. 1994) (ordinarily a policy's declarations page "must be deemed to define coverage and the insured's expectation of coverage").

Upon receiving the policy, Jorge did not object or advise his insurance agent that there was a mistake on the declarations page. "'When an insured purchases an original policy of insurance he may be expected to read it and the law may fairly impose upon him such restrictions, conditions and limitations as the average insured would ascertain from such reading.'" Morrison v. Am. Intern. Ins. Co. of Am., 381 N.J. Super. 532, 542 (App. Div. 2005) (quoting Bauman v. Royal Indem. Co., 36 N.J. 12, 25 (1961)).

Nor is the UM/UIM endorsement ambiguous. The relevant portion of the endorsement indicates that "If the Named Insured is designated in the Declarations as . . . An individual" then the insured's family members are also covered by the policy. The next section provides that if the insured is a corporation, the corporation's employees are insured. These sections control who is entitled to UM coverage under the policy. They do not address the level of that coverage. The amount of coverage is separately controlled by the step-down clause. Jorge's reliance on Progressive Casualty Insurance Co. v. Hurley, 166 N.J. 260, 272 (2001), and O'Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019, 1023 (3d Cir. 1981), is misplaced. Those cases deal with whether individual owners of small businesses, or their family members, are entitled to UM coverage; they do not address step-down clauses.

In an argument raised for the first time on appeal, Jorge argues that ARI should be estopped from enforcing the step-down clause because the insurer allegedly did not act promptly in denying coverage beyond that provided under the clause. We decline to consider this argument, because Jorge did not raise it in the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Similarly, we will not consider his argument, raised for the first time in a footnote in his reply brief (and not supported by any record evidence), that ARI allegedly failed to counsel him about the step-down clause. See Pinto, supra, 183 N.J. at 417 (prospectively requiring insurers to tell commercial insurance applicants that individual employees must be named insureds to avoid operation of the step-down clause).^⁴

Affirmed.

1 Jorge filed a separate complaint and an order to show cause, seeking UM arbitration.

2 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

3 The ARI policy was issued, and expired, before the 2007 legislation was passed. See Hand v. Philadelphia Ins. Co., 408 N.J. Super. 124 (App. Div.) (disagreeing with Olkusz on the retroactivity issue, but declining to apply N.J.S.A. 17:28-1.1(f) to the plaintiff's claim because the relevant insurance policy expired before the statute was enacted), certif. denied, 200 N.J. 506(2009).

4 Although Jorge filed suit against ARI to require UM arbitration, he did not sue the insurance agent who allegedly assisted him in filling out the insurance application and allegedly failed to advise him about the step-down clause.

RANGAR ASSOCIATES V. VINCI A-5607-09T4 June 16, 2011

2011-07-26T13:52:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5607-09T4

RANGAR ASSOCIATES, L.L.C.,

Plaintiff-Respondent,

MATTHEW SALVATORE VINCI, JOHN J.

MONTEFUSCO, JR., and MPA INSURANCE

AGENCY, L.L.C.,

Defendants,

and

ROBERT J. PELLECHIO, JR.,

Defendant-Appellant.

Argued May 3, 2011 – Decided June 16, 2011

Before Judges Wefing, Baxter and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Sussex County, Docket No. L-617-06.

Walter G. Luger argued the cause for appellant

(Walter G. Luger & Associates, attorneys; Mr. Luger,

of counsel and on the brief; Vincenzo M. Mogavero,

on the brief).

Philip A. Parziale argued the cause for

respondent.

PER CURIAM

Defendant Robert J. Pellechio, Jr., appeals from a trial court order denying his motion to vacate a default judgment entered against him. After reviewing the record in light of the contentions advanced on appeal, we modify the trial court’s order and, as modified, we affirm it.

Pellechio, together with defendants John J. Montefusco, Jr. and Matthew S. Vinci, was a principal in a limited liability company, MPA Insurance Agency, L.L.C. (“MPA”), which was engaged in selling personal and commercial lines of insurance. Plaintiff Rangar Associates, L.L.C. (“Rangar”) is a limited liability company whose principals are Mark Ranucci and Robert C. Garofalo, Esq. In December 2004, Rangar and MPA formed a new limited liability company, MPA Insurance Agency/South, L.L.C. (“MPA/South”); and in March 2004, Rangar invested $100,000 in MPA/South. According to Rangar's complaint, MPA, in return, was to provide MPA/South with access to insurance carriers, computer software and technology.

In July 2005, the principals of MPA dissolved that entity, and defendant Pellechio thereafter formed his own business, Pellechio Insurance Agency. The record indicates that following that dissolution, defendant Montefusco continued for a period of time to provide insurance services to MPA/South. Eventually a dispute arose between plaintiff and Montefusco with respect to commissions to which plaintiff claimed entitlement, but Montefusco did not pay. In August 2006, Rangar filed suit, seeking damages for what it alleged was MPA’s breach of the operating agreement for MPA/South and commissions plaintiff alleged were due to it. Plaintiff named as defendants MPA and its principals, Montefusco, Vinci and Pellechio.^¹

Pellechio was served both at his residence and his place of business; on each occasion service was achieved through service on his wife. Pellechio did not file an answer, and default was entered against him on November 28, 2006. On July 31, 2007, the clerk entered a default judgment against Pellechio for $100,000, the damages claimed in plaintiff’s complaint.

Defendant did not formally seek relief from that judgment until May 2010, when, nearly three years after its entry, he filed a motion under Rule 4:50-1(a) to vacate that default judgment. In the interim, plaintiff was contacted on three occasions by different attorneys on behalf of Pellechio with respect to setting aside that default judgment. Defendant supported his motion with certifications denying that proper service had been made. The certifications noted that the return of service indicated service had been achieved at One Wilson Avenue in Randolph while Pellechio lived at One Wilson Avenue in Chester. The certifications also noted a dispute as to the physical description of Mrs. Pellechio, the person upon whom service had been achieved.

In opposing defendant’s motion to vacate the default judgment, plaintiff pointed out that One Wilson Avenue in Randolph is the same location as One Wilson Avenue in Chester; Randolph is merely the address that is used for purposes of mailing. Plaintiff also enclosed a copy of a letter its attorney had received in March 2007, before the default judgment was entered, enclosing a consent order vacating the default. The letter raised no issue with respect to service. Plaintiff also enclosed a copy of a second letter, dated June 4, 2008, from the attorney who filed the motion seeking relief from the default judgment. In that letter, the attorney acknowledged the outstanding judgment, but set forth his position that there was no basis for a judgment against Pellechio, individually. He requested that the judgment be removed. This letter, sent nearly two years before the motion was filed, again raised no question with respect to service.

After hearing oral argument, the trial court denied defendant’s motion, finding that the nearly three-year delay in seeking relief precluded the court from concluding that there was excusable neglect for defendant’s failure to act. This appeal followed.

Defendant presents a variety of arguments on appeal, only one of which, in our judgment, has any legal merit. With respect to the bulk of his contentions, we agree entirely with the trial court that defendant failed to establish that he had acted with reasonable diligence and that any delay on his part was due to excusable neglect.

Defendant brought his motion under subsection (a) of Rule 4:50-1, which permits a trial court to set aside a judgment entered as a result of mistake, inadvertence, surprise, or excusable neglect. Rule 4:50-2 specifies, however, that applications under subsection (a) must be brought within one year of entry of the judgment. Here, the more than three-year delay removed plaintiff from the scope of this subsection of the rule.

In its brief oral opinion, the trial court also noted that to the extent defendant sought relief under any other portion of the rule, he was required to act within a reasonable time of the judgment having been entered. R. 4:50-1(f); R. 4:50-2. Before the trial court and before us, defendant attempted to attribute a large portion of this delay to inaction on the part of the first attorney defendant had retained to set aside the judgment and difficulties the second attorney allegedly experienced in locating plaintiff’s attorney after that attorney relocated his office. Even if we were to assume that those two factors played some role in the delay, defendant was obligated to take reasonable steps to see that his interests were being protected. We agree with the trial court that the record precludes a conclusion that defendant acted with anything approaching reasonable diligence and that the three-year period between entry of the judgment and filing the motion could not be considered a reasonable time in the context of this matter.

We do agree, however, that judgment for $100,000 was improperly entered by the clerk. Under Rule 4:43-2(c), the clerk may, in the event of a default, enter judgment for a sum certain. Plaintiff’s claim for damages, however, cannot be fairly categorized as a book account.

Plaintiff was required to prove its damages at a proof hearing after which the trial court would conclude whether, and to what extent, plaintiff had established that it was entitled to monetary relief, as well as the party against whom relief should be granted. We thus remand this matter to the trial court for further proceedings, which shall include such a proof hearing. The manner and extent to which defendant shall be permitted to participate in that proof hearing is a matter that rests within the discretion of the court presiding over that proof hearing.

We thus affirm the order of the trial court denying defendant’s motion to set aside his default, vacate the judgment that had been entered, and remand the matter to the trial court for further proceedings.

1 The record indicates that Montefusco has filed bankruptcy; it is silent with respect to Vinci.

Complaint Has to be Served on Defendant or its Designated Agent: Thomas v. Monmouth Properties LLC

2011-06-22T13:49:00.000-07:00

Complaint Has to be Served on Defendant or its Designated Agent

Thomas v. Monmouth Properties LLC

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6159-09T3

Submitted May 4, 2011 – Decided June 15, 2011

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-11325-10.

PER CURIAM

In this appeal, the trial court, following a bench trial, awarded plaintiff $3000 in damages after finding that defendant illegally locked plaintiff out of her apartment. Defendant sought reconsideration, arguing that the court proceeded to trial despite the fact that defendant had not been given notice of the proceeding, thereby depriving defendant of the opportunity to present witnesses on its behalf. We reverse.

On May 27, 2010, plaintiff filed a verified complaint and order to show cause (OTSC) seeking an order restoring her to possession of her apartment, which she leased from defendant. In her verification, plaintiff stated:

When I came to my residence that afternoon [May 24, 2010] I could not go into the apartment [due] to the top [and] bottom lock[]s were changed. I called the Long Branch Police - Mr. Shamrock! He called the landlord [and] then told me to remove the rest of my property in [twenty] minutes[.] [T]his was approximately 4:45 p.m. The landlord stated that I abandoned the property[,] which I did not.

The verified complaint was not served upon defendant or its designated agent. Rather, notice of the verified complaint and OTSC was given to defendant's property manager, Arlette Muss (Muss). Later that day, an individual identifying himself as a legal assistant to the Special Civil Part judge telephoned defendant's attorney requesting that counsel appear before the court the next morning.

Defense counsel advised the court's legal assistant that he had just been informed by Muss that plaintiff had agreed to vacate the premises in lieu of being evicted for non-payment of rent and that she had in fact vacated the premises but was now claiming that she had been locked out. Counsel also informed the legal assistant that he had not received any papers from plaintiff. Counsel inquired as to the purpose of the proceeding before the court and advised the legal assistant that if the court intended to conduct a hearing, defendant wanted the opportunity to subpoena witnesses. The legal assistant assured counsel that the proceeding was merely an initial appearance on the OTSC.

Counsel, along with Muss, appeared before the court the next day as directed. Counsel immediately placed on the record the fact that he had been contacted by the court to appear but had not been served with any papers. Counsel also informed the court that a summary dispossess action had previously been filed against plaintiff and that defendant was awaiting a hearing date from the court. Despite counsel's representations of no notice, the court proceeded to conduct a full hearing during which plaintiff and Muss testified.

Plaintiff testified that on May 24, when she came home, the locks had been changed. She called the police, who responded to the scene shortly thereafter and contacted Muss, who advised police that plaintiff had abandoned her apartment. Plaintiff indicated she told Muss that she was "supposed to be moving," but that she had not moved and "still had stuff there[.]"

Muss testified that earlier in the month, plaintiff agreed to voluntarily vacate the premises around May 22 in lieu of an eviction proceeding. Muss memorialized this arrangement in a May 10 letter. Muss told the court plaintiff had given defendant permission to enter the apartment to show it to prospective tenants and that plaintiff had removed ninety-five percent of her belongings, leaving behind what appeared to be garbage. Muss explained that the summary dispossess action was not withdrawn in order to protect defendant's interest.

At its conclusion, the court found that while plaintiff may have intended to move, she had not vacated the apartment and defendant had therefore engaged in an illegal lockout. The court noted that plaintiff had not surrendered her keys and indicated that it "sense[d] that maybe [plaintiff] received some pressure from Long Branch Police that . . . based on the representations made known to the Long Branch Police at the time was that . . . her stuff was out, she had to move." The court proposed three solutions: (1) permitting plaintiff's re-entry into her apartment; (2) providing another apartment to plaintiff in the Long Branch area; (3) awarding "a financial payment to accommodate her in a hotel."

Plaintiff and defendant conferred outside of the presence of the court. When it was determined that re-entry would not be possible, Muss offered to make an apartment, located in Keansburg, available to plaintiff and her children, rent-free, for a reasonable period. Plaintiff accepted the proposal. The agreement was put in writing and signed by both parties. The court reviewed the agreement but rejected it, stating, "this is not what I had in mind[.]" The court then awarded plaintiff $3000 in damages with $1500 representing the penalty for the illegal lockout and the remaining $1500 representing rent for thirty days.

Defendant moved for reconsideration. Defense counsel submitted a certification in support of the motion in which, among other points raised, he reiterated the circumstances surrounding his first notice of the OTSC on May 27, the telephone call from the court's legal assistant requesting that he appear in court the next day, and assurances from the court's legal assistant that the matter would not yet proceed to trial at that time. Defense counsel's certification also referenced plaintiff's post-hearing admission, in the presence of a court officer, that she filed the verified complaint because she would not qualify for financial assistance in the absence of an eviction. Additionally, defense counsel attached what he represented were "before" and "after" photographs of plaintiff's apartment as evidence that plaintiff had in fact vacated the apartment. The court denied the motion, finding that defendant failed to demonstrate that the court made its earlier decision "on a palpably incorrect or irrational basis or failed to consider competent relevant evidence."[1]

On appeal defendant contends it was denied the opportunity to present witnesses who would testify that plaintiff voluntarily vacated the apartment in accordance with their agreement. Further, defendant contends there was no basis for the court to have disregarded the agreement the parties reached. We agree.

The scope of our review of a judgment entered in a non-jury case is limited. We will not disturb the findings and legal conclusions upon which the judgment was based unless we are convinced they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citation and internal quotation marks omitted). Here, it is not that the judge's decision is manifestly unsupported by the competent, relevant and reasonably credible evidence in the record. Rather, it is the undisputed fact that the court conducted a full hearing on an OTSC without affording defendant an opportunity to present witnesses and other proofs establishing that plaintiff had voluntarily entered into an agreement to vacate the premises in lieu of an eviction proceeding and future action for unpaid rent. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005) ("[A]s a matter of fundamental fairness, defendant had the right to present witnesses in his defense."). Although we recognize the urgency presented to the court by a lockout unaccompanied by any court order, the court, pursuant to Rule 4:52-1, could have entered an order providing for interim relief if it was satisfied "from specific facts shown by affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before notice can be served or informally given and a hearing had thereon."

Further, N.J.S.A. 2A:39-6 permits the court to proceed in a summary manner in lockout proceedings. Therefore, the provisions governing summary actions under Rule 4:67-2 may have been employed to provide interim relief to plaintiff while at the same time affording proper notice to defendant and a meaningful opportunity to be heard. Hyman v. Muller, 1 N.J. 124, 128-29 (1948). Given the procedural deficiencies evident here, reversal is warranted.

In light of our reversal, we need not address defendant's remaining argument other than to state that there is nothing under our anti-eviction laws that precluded the parties from resolving their differences through settlement, provided the court is satisfied the agreement was reached knowingly, voluntarily, and with a full understanding of the consequences of a settlement. "[P]arties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone." Dep't of Pub. Advocate v. N.J. Bd. of Pub. Util., 206 N.J. Super. 523, 528 (App. Div. 1985). Because the trial judge made certain factual findings relative to the merits of plaintiff's claim, in fairness to the judge, a different judge should preside over the remand proceedings.

Reversed and remanded for a new trial or further proceedings consistent with this opinion. We do not retain jurisdiction.

[1] The order mistakenly refers to "plaintiff" as not demonstrating that the court made its earlier decision "on a palpably incorrect or irrational basis or failed to consider competent relevant evidence."

Error to Compel Arbitration of the Contractual and Negligence Claims: Wilson v Woodfields at Princeton Highlands

2011-06-21T08:43:00.001-07:00

Error to Compel Arbitration of the Contractual and Negligence Claims

Wilson v Woodfields at Princeton Highlands

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6277-08T1

Submitted January 10, 2011 - Decided

Before Judges Grall, C.L. Miniman and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Docket No. L-6262-07.

PER CURIAM

Plaintiff Stevonne Wilson entered into a contract to purchase from a developer-builder a new home to be built on a lot subject to the bylaws of the Woodfield Estates Homeowners Association (the Association). The contract was executed in July 2000 and the transaction closed on July 18, 2001. On July 17, 2007, Wilson filed a complaint seeking damages for misrepresentations in connection with the construction and sale of the home, construction defects and overcharging of Association fees. She alleged breach of contract, negligence, common law fraud and violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Wilson named several defendants: the developer-builder defendants — Woodfield Developers, L.L.C., its agents Jonathan Frieder and Roy Lomassaro, Woodfields at Princeton Highlands and Garden Homes; the Association and its property managers; the municipality and its inspectors; and an employee of the Department of Community Affairs. The Association filed a counterclaim seeking payment of dues owed. As of June 30, 2009, all claims as to all parties were resolved, and Wilson filed a notice of appeal on August 11, 2009.

On appeal, Wilson argues that the judge erred in granting the developer-builder defendants' motion to dismiss her claims in accordance with an arbitration clause in the sales contract. She also contends that the judge erred in awarding the Association $9450.96 in counsel fees because the Association accepted $365.63 to settle its counterclaim. Wilson does not raise any issue involving another party. As the issues are distinct, we address the judge's determinations regarding arbitration and counsel fees separately.

We first consider the builder-developer defendants' (hereinafter defendants) claim that we lack jurisdiction to hear Wilson's appeal from the order compelling arbitration because it was not timely filed. We reject the argument.

The order compelling arbitration of Wilson's claims against defendants was entered on October 19, 2007. On April 14, 2008, through its decision in Wein v. Morris, 194 N.J. 364 (2008), the Supreme Court prospectively amended Rule 2:2-3 to add orders compelling arbitration to the list of those that are deemed appealable as of right regardless of whether all claims as to all parties have been resolved. Id. at 380.

Because the rule established was "new," the Court gave it purely prospective application and did not apply the new rule in that case. Ibid. When a rule is purely prospective, it applies "'only to cases whose operative facts arise after the new rule is announced.'" State v. Feal, 194 N.J. 293, 308 (2008) (quoting State v. Burstein, 85 N.J. 394, 403 (1981)). Here, the "operative" fact is the entry of the order compelling arbitration and that occurred before, not after, the new rule in Wein was announced. See GMAC v. Pittella, ___ N.J. ___, ___ (2011) (slip op. at 30) (holding that orders denying arbitration are also appealable as of right and that from the date of the decision in GMAC forward, the time for appeal from an order denying arbitration starts on the date the order is entered). Thus, Wilson's appeal was not subject to Wein's new rule and was properly filed within forty-five days of the last order that resolved an outstanding claim. R. 2:4-1(a); N.J. Schs. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010). We have jurisdiction to review the order compelling arbitration.

Wilson's complaint included these allegations relevant to her claims against defendants and we must accept them as true. Printing Mart-Morristown v. Sharp Elecs., 116 N.J. 739, 746 (1989). Defendants made and she relied on affirmative misrepresentations in connection with the sale of her home — misrepresentations about the quality of construction and materials, square footage of the residence, and amenities to be made available to members of the Association such as recreational facilities. Additionally, defendants withheld information material to her decision to purchase the lot and home — wetlands and groundwater conditions on- and off-site that led to regular flooding. She was dissatisfied with conditions she observed during the final walkthrough, but due to her race and gender she was pressured and coerced to close with a threat of per diem charges. After closing, she suffered from problems such as water gushing onto the sidewalks and ponding in the side and rear lawns. Her basement flooded twice, and she learned that essential support beams were not installed and the foundation was cracked and unstable.

The arbitration clause at issue on this appeal was included in the contract of sale. The terms of that contract were negotiated by Wilson's attorney. On Wilson's behalf, her lawyer sought, among other amendments not relevant here, removal of the arbitration clause and of a clause addressing dispute resolution under the New Home Warranty and Builders' Registration Act, N.J.S.A. 46:3B-1 to -20. Although defendants refused to delete those clauses, on July 15, 2000, Wilson agreed to the contract without those changes. The transaction closed on July 18, 2001.

The contract includes a section entitled "12. HOMEOWNERS WARRANTY." It requires defendants to provide insurance-backed warranty coverage under the New Home Warranty Act. Subsection (f) of Section 12 addresses dispute resolution as follows:

Buyer and Seller acknowledge and agree that the warranty and insurance remedies contained in the homeowner warranty provided by Seller to Buyer constitute Buyer's remedy of first recourse. The parties agree that the conciliation and arbitration procedures outlined in the Homeowners Warranty Act are better suited to the determination of outstanding issues, if any, between the parties than any remedy which may be secured by resort to legal process. Buyer represents that he has read the act to which reference is made and that he has secured the advice of counsel in making this election of remedies. This election of remedies shall survive closing of title.

Arbitration is addressed in subsection e of Section 15, "DEFAULTS OF BUYER AND SELLER":

ANY DISPUTES ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR ANY AMENDMENTS TO THIS AGREEMENT, EITHER BEFORE OR AFTER CLOSING OF TITLE, SHALL BE HEARD AND DETERMINED BY ARBITRATION AT THE OFFICES OF THE AMERICAN ARBITRATION ASSOCIATION. THE DECISION OF THE ARBITRATOR SHALL BE FINAL AND BINDING. THE COST OF ARBITRATION SHALL BE SHARED EQUALLY BETWEEN THE PARTIES.

According to Wilson's complaint, she pursued remedies for "some of the defects through the New Home Warranty Act" but was dissatisfied with the outcome, which she alleged was attributable to the arbitrator's relationship with defendants. The parties' disagreement on appeal centers on the enforceability of the arbitration clause.

Wilson, acting pro se in the trial court and on appeal, argues the arbitration clause is unenforceable because it gives insufficient notice of her waiver of the statutory right to a jury trial on her LAD and CFA claims. Because we agree and reverse the order compelling arbitration on that ground, we do not address Wilson's other claims of error related to the dismissal of her claims against defendants.

There is no question that arbitration is a favored and encouraged means of resolving disputes. Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 86 N.J. 179, 186 (1981). Federal law "'requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.'" Curtis v. Cellco P'ship, 413 N.J. Super. 26, 33-34 (App. Div.) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S. Ct. 1248, 1255, 103 L. Ed. 2d 488, 500 (1989)), certif. denied, 203 N.J. 94 (2010); see Martindale v. Sandvik, Inc., 173 N.J. 76, 84 (2002). Moreover, "[a]n agreement to arbitrate should be read liberally in favor of arbitration." Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 132 (2001) (internal quotations omitted); accord Curtis, supra, 413 N.J. Super. at 34; Griffin v. Burlington Volkswagen, Inc., 411 N.J. Super. 515, 518 (App. Div. 2010). Nevertheless, because an agreement to arbitrate is a contract, a party cannot be compelled to arbitrate claims not encompassed by the agreement. Garfinkel, supra, 168 N.J. at 132.

With respect to consumer agreements, "a clause depriving a citizen of access to the courts should clearly state its purpose. The point is to assure that the parties know that in electing arbitration as the exclusive remedy, they are waiving their time-honored right to sue." Marchak v. Claridge Commons, 134 N.J. 275, 282 (1993). In this context, an agreement to arbitrate statutory claims is enforceable when the contract provisions "(1) contain language reflecting a general understanding of the type of claims included in the waiver; or (2) provide that, by signing, the consumer agrees to arbitrate 'all statutory claims arising out of the relationship,' or any claim or dispute based on a federal or state statute." Curtis, supra, 413 N.J. Super. at 35-36 (quoting Gras v. Assocs. First Capital Corp., 346 N.J. Super. 42, 56-57 (App. Div. 2001), certif. denied, 171 N.J. 445 (2002)).

This agreement to arbitrate "any disputes arising in connection with this agreement and/or any amendments to this agreement" does not suggest waiver of the right to bring a suit in court on a statutory claim. In that regard, this arbitration clause is distinguishable from those addressed in Curtis and Griffin. In Curtis, the language unmistakably specified that plaintiff waived his right to a judicial forum and jury trial. 413 N.J. Super. at 37-38. In Griffin, the clause included language referencing statutory claims. 411 N.J. Super. at 518.

We also conclude that the agreement to arbitrate contractual claims, while sufficiently clear when read alone, is not at all clear when the agreement is read as a whole. The contract does not articulate or explain the relationship between the clause addressing alternate dispute resolution under the New Home Warranty Act and the arbitration clause. Read together, these provisions are so confusing that they "confound[] any clear understanding of the parties' undertaking" with respect to resolution of disputes. See Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577, 583 (App. Div.), certif. denied, 181 N.J. 545 (2004). Accordingly, we conclude that it was error to compel arbitration of the contractual and negligence claims as well.

We recognize that Wilson was represented by an attorney who unsuccessfully attempted to negotiate removal of both the dispute resolution and the arbitration clauses. While that fact weighs heavily against Wilson's claim of unconscionablity, it is irrelevant to the adequacy of the contractual language.

Wilson's objections to the order awarding counsel fees to the Association also have merit. The trial court awarded fees for services rendered prior to the date that the Association filed its counterclaim for assessments owed, but the Association is not entitled to fees unrelated to its collection effort. Moreover, the trial judge failed to consider the reasonableness of $9450.96 in counsel fees in light of the small recovery obtained by the Association.

As noted above, Wilson and the Association reached an agreement that resolved the Association's counterclaim against Wilson for past-due fees. Wilson agreed to pay $365.63 and that agreement was memorialized in a consent order. In the consent order, the Association reserved its right to file an application for counsel fees and Wilson reserved her right to oppose it.

The Association's claim for fees is dependent upon Section 4.02 of the Declarations and Covenants in Wilson's chain of title. Section 4.02 provides that assessments by the Association "together with any charges, interest, and costs of collection, including reasonable attorney's fees, shall be a charge and shall constitute a continuing lien" against the property.

A "prevailing party can recover . . . fees if they are expressly provided for by statute, court rule, or contract." Litton Indus. Inc. v. IMO Indus. Inc., 200 N.J. 372, 385 (2009) (internal quotations omitted); N. Bergen Rex Transp. v. Trailer Leasing Co., 158 N.J. 561, 569-70 (1999). Although Section 4.02 entitles the Association to fees connected with collecting Wilson's delinquent dues, neither the consent order nor Section 4.02 entitles the Association to fees for costs incurred in defending against Wilson's complaint. Nevertheless, the certification of services submitted by the Association's attorneys includes fees charged for work done in defending the Association against Wilson's claim. Because it appears that the award includes fees to which the Association is not entitled, a remand is required.

In addition, counsel fees must be reasonable. N. Bergen Rex Transp., supra, 158 N.J. at 570. Pursuant to Furst v. Einstein Moomjy, 182 N.J. 1, 23 (2004), and Rule of Professional Conduct 1.5(a)(4), the amount in dispute and the results obtained are relevant to the reasonableness of the fee sought. We direct the judge to consider that factor along with other pertinent factors when fixing the fee on remand. We also note that if the Association's counsel wishes to be paid for time billed by its paralegal, it must comply fully with Rule 4:42-9(b), including disclosure of the firm's billing rate for paralegal services to clients generally.

Reversed and remanded. We do not retain jurisdiction.

[1] Improperly pled as Woodfield Developers.

Eviction granted based on habitual hardship 2714 SUMMIT AVE., L.L.C. v ELSA JIMENEZ,

2011-06-19T18:39:00.000-07:00

Eviction granted based on habitual hardship 2714 SUMMIT AVE., L.L.C. v ELSA JIMENEZ,

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2413-09T1

Submitted May 17, 2011 - Decided

Before Judges Payne and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-16562-09.

Defendant Elsa Jimenez appeals from a judgment for possession granted to her landlord, plaintiff 2714 Summit Ave., L.L.C., premised on her habitual late payment of rent. N.J.S.A. 2A:18-61.1(j). We affirm.

Plaintiff owns property located at 2714 Summit Avenue in Union City, where defendant has been a month-to-month tenant on an oral lease since June 7, 1994. Plaintiff acquired the property from the prior owner at an unspecified point in time after defendant's tenancy began.

On November 2, 2009, plaintiff filed a summary dispossess complaint alleging defendant habitually remitted rental payments after the due date, which was the first of the month. At trial, plaintiff's agent, Esther Kaplan, testified that plaintiff's records showed defendant's rental payments were late in each of the preceding eight months. Notices to cease were issued on December 23, 2008, February 11, 2009 and April 8, 2009, each advising defendant that her past rental payments were late. Indeed, the April 8, 2009 notice to cease specified that neither the March nor April 2009 rent had yet been received as of the date the third notice to cease was issued. Each of the notices advised defendant that her past rental payments were late, demanded payment by the first day of the month, and warned defendant that she faced eviction if she did not comply.[1] Kaplan testified that all three notices to cease were sent by first-class and certified mail. She explained that each of the certified mail cards had come back to her signed by defendant. All three were received in evidence.

On August 28, 2009, plaintiff served a notice to quit upon defendant, advising her that she had disregarded the three earlier Notices to Cease. The Notice demanded that she vacate the apartment.

Defendant testified. She insisted that because she had moved into the apartment on the seventh day of the month, namely June 7, 1994, her prior landlord had agreed that her monthly rental payments would not be due until the seventh day of each succeeding month. She denied that any of her monthly rent payments were paid any later than that.

At the close of the evidence, the judge made his findings, concluding that, despite the lack of a written lease, the parties understood that rent was due on the first day of the month. He expressly rejected defendant's claims to the contrary. The judge observed that even if he were to accept defendant's version of when her rent was due, on the seventh day of the month, she paid the November 2008 rent significantly later, on November 13. The judge also noted that from January 2009 through April 2009, the situation deteriorated to the point where "the problem became almost unresolvable because thereafter every payment was virtually one month late." Additionally, the February 2009 check did not clear and therefore defendant's late payments persisted even after the third notice to cease was issued.

After finding that plaintiff had met all the applicable jurisdictional requirements, the judge determined that defendant had engaged in a pattern of "habitual late payment of rent" and the late payments continued despite the service upon defendant of the requisite Notices to Cease. The judge granted plaintiff a judgment for possession, and stayed the judgment pending appeal.

On appeal, plaintiff raises a single claim:

I. THE LANDLORD RESPONDENT FAILED TO PROPERLY SERVE TENANT APPELLANT AS REQUIRED BY LAW IN ORDER TO ESTABLISH JURISDICTION WITH THE COURT AS REQUIRED BY N.J.S.A. 2A:18-61.2.

New Jersey's Anti-Eviction Act (Act), N.J.S.A. 2A:18-61.1 to -61.21, provides that no tenant may be removed from premises leased for residential purposes unless good cause is established. N.J.S.A. 2A:18-61.1. "The Act reflects a public policy barring dispossess actions except upon strict compliance with the notice and procedural requirements of the Act." 224 Jefferson St. Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.), certif. denied, 172 N.J. 179 (2002). "We have defined 'strict compliance' as 'punctilious' compliance with all of the Act's provisions, including the notice provisions." Ibid. As pertinent to this appeal, the Act authorizes eviction when the tenant, "after written notice to cease," has "habitually and without legal justification failed to pay rent which is due and owing." N.J.S.A. 2A:18-61.1(j). The landlord bears the burden of proving when the rent was due, when it was received, and that the statutory notices, required by N.J.S.A. 2A:18-61.2, were properly served upon the tenant.

Notice of the intended action is essential to the landlord obtaining a judgment of possession. First, a notice to cease must be sent providing a tenant with notice of the offending conduct and an opportunity to alter that conduct. RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709-10 (App. Div. 1988). Second, if the tenant does not cease the late payments, a notice to quit is mailed informing the tenant that the tenancy has been terminated and explaining the basis of the termination, thereby requiring the tenant to vacate the premises. See Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 123 (1967). The Notice to Quit must "specify in detail the cause of the termination of the tenancy." N.J.S.A. 2A:18-61.2.

Accordingly, a landlord's failure to comply with the notice requirements negates the salutary purpose of the Act, precluding entry of judgment in favor of the landlord. Paige, supra, 346 N.J. Super. at 383-84. Because the Act "does not specify any limit on the number of months that must pass before the Notice to Cease becomes ineffective or must be reissued, nor does it state how many late payments of rent constitute 'habitual' late payment of rent under the statute[,]" the Court has instructed judges to apply "a flexible[,]" rather than a strict, time period so that a determination that the tenant's conduct is "habitual" becomes "a function of time and circumstances." A.P. Dev. Corp. v. Band, 113 N.J. 485, 495-96 (1988).

Applying the requirements of the Act, we are satisfied that the judge's findings of fact are well supported by evidence in the record and that his conclusions of law are unassailable. Plaintiff established an entitlement to a judgment for possession based upon defendant's habitual late payment of rent.

On appeal, plaintiff does not quarrel with the judge's findings on that subject. Instead, she advances a claim never presented in the Law Division, namely, she maintains that plaintiff never served her with notices to cease and therefore the court lacked jurisdiction to enter the judgment for possession. As we have noted, all three of the notices to cease were received in evidence by the judge at trial and the judge made a specific finding that all three had been properly served upon defendant. The notice to quit was also received in evidence. At no time did defendant deny receiving the notices to cease or the notice to quit. As defendant had the opportunity to raise the jurisdictional issue before the Law Division, but chose not to do so, we decline to consider this issue, raised for the first time on appeal. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (observing, with exceptions not relevant here, that an appellate court will decline to consider an issue raised on appeal that was not presented to the trial court when an opportunity to do so existed).

The judgment for possession is affirmed. Remanded to the Law Division to vacate the stay of judgment.

[1] The December 23, 2008 notice specified that the September 2008 rent was paid on September 6, the October rent on October 7, the November rent on November 13 and the December rent on December 6, 2008. The February 11, 2009 notice stated that the January 2009 rent was paid on January 7 and the February rent had not been received as of February 11, 2009. The April 8, 2009 notice specified that the February 2009 rent was paid on March 2, 2009 and that the March and April 2009 rent had not been paid as of April 8, 2009.

ONE STEP UP LTD, VS. SAM LOGISTIC, INC., ET AL. A-2494-09T3

2011-06-01T09:02:00.000-07:00

5-4-11 A bailee that fails to follow the procedure in Capezzaro v. Winfrey when faced with adverse claims can be liable for conversion under the Uniform Commercial Code. A bailee faced with adverse claims cannot avail itself of this exception where it failed to follow the procedure set forth in Capezzaro v.Winfrey, 153 N.J. Super. 267, 273 (App. Div. 1977). Specifically, in order to establish that the property was released in "good faith," the bailee must show that it either (1) investigated the competing claims and confirmed the validity of the claim underlying the release, or (2) filed an action for interpleader.

42:2B-17. Filing of certificates; effectiveness

2011-05-19T12:58:00.004-07:00

42:2B-17. Filing of certificates; effectiveness
17. a. The original signed copy of the certificate of formation and of any certificates of amendment or cancellation (or of any judicial decree of amendment or cancellation), and of any certificate of merger or consolidation and of any restated certificate shall be delivered to the Secretary of State. A person who executes a certificate as an agent or fiduciary need not exhibit evidence of his authority as a prerequisite to filing. Any signature on any certificate authorized to be filed in the office of the Secretary of State under any provision of this act may be a facsimile. Unless the Secretary of State finds that any certificate does not conform to law, upon receipt of all filing fees required by law the Secretary of State shall:

(1) Certify that the certificate of formation, the certificate of amendment, the certificate of cancellation (or of any judicial decree of amendment or cancellation), the certificate of merger or consolidation or the restated certificate has been filed in his office by endorsing upon the original certificate the word "Filed," and the date and hour of the filing. This endorsement is conclusive of the date and time of its filing in the absence of actual fraud;

(2) File and index the endorsed certificate; and

(3) Prepare and return to the person who filed it or his representative a copy of the original signed instrument, similarly endorsed, and shall certify such copy as a true copy of the original signed instrument.

b. Upon the filing of a certificate of amendment (or judicial decree of amendment) or restated certificate in the office of the Secretary of State, or upon the future effective date or time of a certificate of amendment (or judicial decree thereof) or restated certificate, as provided for therein, the certificate of formation shall be amended or restated as set forth therein. Upon the filing of a certificate of cancellation (or a judicial decree thereof), or a certificate of merger or consolidation which acts as a certificate of cancellation, or upon the future effective date or time of a certificate of cancellation (or a judicial decree thereof) or of a certificate of merger or consolidation which acts as a certificate of cancellation, the certificate of formation is cancelled.

L.1993,c.210,s.17.

42:2B-17. Filing of certificates; effectiveness

2011-05-19T12:58:00.003-07:00

42:2B-16. Action to compel execution of certificate, agreement

2011-05-19T12:58:00.001-07:00

42:2B-16. Action to compel execution of certificate, agreement
16. a. If a person required to execute a certificate required by this act fails or refuses to do so, any other person who is adversely affected by the failure or refusal may petition the Superior Court to direct the execution of the certificate. If the court finds that the execution of the certificate is proper and that any person so designated has failed or refused to execute the certificate, it shall order the Secretary of State to record an appropriate certificate.

b. If a person required to execute an operating agreement or amendment thereof fails or refuses to do so, any other person who is adversely affected by the failure or refusal may petition the Superior Court to direct the execution of the operating agreement or amendment thereof. If the court finds that the operating agreement or amendment thereof should be executed and that any person required to execute the operating agreement or amendment thereof has failed or refused to do so, it shall enter an order granting appropriate relief.

42:2B-15. Execution of certificates

2011-05-19T12:57:00.003-07:00

42:2B-15. Execution of certificates
15. a. Each certificate required by this act to be filed in the office of the Secretary of State shall be executed by one or more authorized persons.

b. Unless otherwise provided in an operating agreement, any person may sign any certificate or amendment thereof or enter into an operating agreement or amendment thereof by an agent, including an attorney-in-fact. An authorization, including a power of attorney, to sign any certificate or amendment thereof or to enter into an operating agreement or amendment thereof need not be in writing, need not be sworn to, verified or acknowledged, and need not be filed in the office of the Secretary of State, but if in writing, must be retained by the limited liability company.

c. The execution of a certificate by an authorized person constitutes an oath or affirmation, under the penalties of perjury in the third degree, that, to the best of the authorized person's knowledge and belief, the facts stated therein are true.

42:2B-14 Cancellation of certificate of formation; filing of certificate of cancellation.

2011-05-19T12:57:00.001-07:00

42:2B-14 Cancellation of certificate of formation; filing of certificate of cancellation.

14. a. A certificate of formation shall be canceled upon the dissolution and the completion of winding up of a limited liability company, or upon the filing of a certificate of merger or consolidation if the limited liability company is not the surviving or resulting entity in a merger or consolidation.

b.A certificate of cancellation shall be filed in the office of the Secretary of State to accomplish the cancellation of a certificate of formation upon the dissolution and the completion of winding up of a limited liability company and shall set forth:

(1)The name of the limited liability company;

(2)The date of filing of its certificate of formation;

(3)The reason for filing the certificate of cancellation;

(4)The future effective date or time (which shall be a date or time certain) of cancellation if it is not to be effective upon the filing of the certificate; and

(5)Any other information the person filing the certificate of cancellation determines.

c.(Deleted by amendment, P.L.1998, c.79.)

L.1993,c.210,s.14; amended 1997, c.139, s.10; 1998, c.79, s.3.

42:2B-13. Amending a certificate of formation

2011-05-19T12:56:00.002-07:00

42:2B-13. Amending a certificate of formation
13. a. A certificate of formation is amended by filing a certificate of amendment thereto in the office of the Secretary of State. The certificate of amendment shall set forth:

(1) The name of the limited liability company; and

(2) The amendment to the certificate of formation.

b. A manager or, if there is no manager, any member who becomes aware that any statement in a certificate of formation was false when made, or that any matter described has changed making the certificate of formation false in any material respect, shall promptly amend the certificate of formation.

c. A certificate of formation may be amended at any time for any other proper purpose.

d. Unless a later effective date (which shall be a date certain not later than 30 days after the date of filing) is provided for in the certificate of amendment, a certificate of amendment shall be effective at the time of its filing with the Secretary of State.

L.1993,c.210,s.13.

42:2B-12. Certificate of correction; filing

2011-05-19T12:56:00.001-07:00

42:2B-12. Certificate of correction; filing
12. If any instrument filed with the Secretary of State under any provision of this act is an inaccurate record of the limited liability company action therein referred to, or was defectively or erroneously executed, the instrument may be corrected by filing with the Secretary of State a certificate of correction executed by an authorized person. The certificate of correction shall specify the inaccuracy or defect to be corrected and shall set forth the correction. The instrument so corrected shall be deemed to have been effective in its corrected form as of its original filing date except as to persons who actually relied in good faith upon the inaccurate portion of the certificate and who are adversely affected by the correction. As to these persons, the correction shall be effective as of the effective date of filing of the certificate of correction. Such filing shall only be made if the Secretary of State consents to the filing.

L.1993,c.210,s.12.

42:2B-11 Certificate of formation; filing.

2011-05-19T12:54:00.003-07:00

42:2B-10. Indemnification powers

2011-05-19T12:54:00.001-07:00

42:2B-10. Indemnification powers
10. Subject to such standards and restrictions, if any, as are set forth in its operating agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.

L.1993,c.210,s.10.

42:2B-9. Members', managers' rights, obligations

2011-05-19T12:53:00.002-07:00

42:2B-9. Members', managers' rights, obligations

9. Except as otherwise provided in an operating agreement, a member or manager may lend money to, borrow money from, act as a surety, guarantor or endorser for, guarantee or assume one or more specific obligations of, provide collateral for, and transact other business with a limited liability company and, subject to other applicable law, has the same rights and obligations with respect to any such matter as a person who is not a member or manager.

L.1993,c.210,s.9.

42:2B-8.1. Annual report by limited liability company to Secretary of State

2011-05-19T12:53:00.001-07:00

42:2B-8. Purpose of limited liability company; powers

2011-05-19T12:52:00.000-07:00

42:2B-8. Purpose of limited liability company; powers
8. a. A limited liability company may carry on any lawful business, purpose or activity.

b. A limited liability company shall possess and may exercise all the powers and privileges granted by this act or by any other law or by its operating agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business, purposes or activities of the limited liability company.

L.1993,c.210,s.8.

42:2B-6. Company office; agent LLC

2011-05-19T12:51:00.000-07:00

42:2B-5 Exclusive use, reservation of specified name

2011-05-19T12:47:00.000-07:00

42:2B-5 Exclusive use, reservation of specified name

5. a. The exclusive right to the use of a name may be reserved by:

(1) Any person intending to organize a limited liability company under this act and to adopt that name;

(2) Any domestic limited liability company or any foreign limited liability company registered in this State which, in either case, proposes to change its name;

(3) Any foreign limited liability company intending to register in this State and adopt that name; and

(4) Any person intending to organize a foreign limited liability company and intending to have it register in this State and adopt that name.

b. The reservation of a specified name shall be made by filing with the Secretary of State an application, executed by the applicant, together with a duplicate copy, which may be either a signed or conformed copy, specifying the name to be reserved and the name and address of the applicant. If the Secretary of State finds that the name is available for use by a domestic or foreign limited liability company, he shall reserve the name for the exclusive use of the applicant for a period of 120 days. Once having so reserved a name, the same applicant may again reserve the same name for successive 120 day periods. The right to the exclusive use of a reserved name may be transferred to any other person by filing in the office of the Secretary of State a notice of the transfer, executed by the applicant for whom the name was reserved, together with a duplicate copy, which may be either a signed or conformed copy, specifying the name to be transferred and the name and address of the transferee. The reservation of a specified name may be cancelled by filing with the Secretary of State a notice of cancellation, executed by the applicant or transferee, together with a duplicate copy, which may be either a signed or conformed copy, specifying the name reservation to be cancelled and the name and address of the applicant or transferee. Any duplicate copy filed with the Secretary of State as required by this subsection shall be returned by the Secretary of State to the person who filed it or his representative with a notation thereon of the action taken with respect to the original copy thereof by the Secretary of State.

L.1993,c.210,s.5.

42:2B-4. Conditions for use of alternate name; certificate of registration

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42:2B-3 Name of limited liability company

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42:2B-3 Name of limited liability company

3.The name of each limited liability company as set forth in its certificate of formation:

a.Shall contain the words "Limited Liability Company" or the abbreviation "L.L.C.," or "LLC";

b.May contain the name of a member or manager;

c.Must be such as to distinguish it upon the records in the office of the State Treasurer from the name of any corporation, limited partnership, business trust or limited liability company reserved, registered, formed or organized under the laws of this State or qualified to do business or registered as a foreign corporation, foreign limited partnership or foreign limited liability company in this State; provided, however, that a limited liability company may register under any name which does not distinguish it upon the records in the office of the State Treasurer from the name of any domestic or foreign corporation, limited partnership, business trust or limited liability company reserved, registered, formed or organized under the laws of this State with the written consent of the other corporation, limited partnership, business trust or limited liability company, which written consent shall be filed with the State Treasurer; and

d.Shall not contain any word or phrase, or any abbreviation or derivative thereof, the use of which is prohibited or restricted by any other statute of this State, unless the restrictions have been complied with.

L.1993, c.210, s.3; amended 2011, c.27, s.5.

42:2B-2 Definitions relative to limited liability companies.

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42:2B-1. Short title 1. This act shall be known and may be cited as the "New Jersey Limited Liability Company Act."

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42:2B-1. Short title
1. This act shall be known and may be cited as the "New Jersey Limited Liability Company Act."

L.1993,c.210,s.1.

56:12-1 Plain Language Law NJ Definitions

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56:12-1 Plain Language Law NJ Definitions
As used in this act:

"Consumer contract" means a written agreement in which an individual:

a. Leases or licenses real or personal property;

b. Obtains credit;

c. Obtains insurance coverage, except insurance coverage contained in policies subject to the "Life and Health Insurance Policy Language Simplification Act" (P.L.1979, c. 167, C. 17B:17-17 et seq.);

d. Borrows money;

e. Purchases real or personal property;

f. Contracts for services including professional services,

for cash or on credit and the money, property or services are obtained for personal, family or household purposes. "Consumer contract" includes writings required to complete the consumer transaction. "Consumer contract" does not include a written agreement involving a transaction in securities with a broker-dealer registered with the Securities and Exchange Commission, or a transaction in commodities with a futures commission merchant registered with the Commodities Futures Trading Commission.

L.1980, c. 125, s. 1, eff. Oct. 16, 1980. Amended by L.1981, c. 464, s. 1; L.1982, c. 195, s. 1, eff. Dec. 8, 1982.

56:12-2. Contracts to be written in simple, clear, understandable and easily readable way
A consumer contract entered into on or after the effective date of this amendatory and supplementary act shall be written in a simple, clear, understandable and easily readable way. In determining whether a consumer contract has been written in a simple, clear, understandable and easily readable way as a whole, a court, the Attorney General or the Commissioner of Insurance, in regard to contracts of insurance provided for in subsection c. of section 1 of this act (C. 56:12-1c.), shall take into consideration the guidelines set forth in section 10 of this act. Use of technical terms or words of art shall not in and of itself be a violation of this act.

L.1980, c. 125, s. 2, eff. Oct. 16, 1980. Amended by L.1981, c. 464, s. 2; L.1982, c. 88, s. 1, eff. July 23, 1982.

Sika Corp. v. Hostler Restrictive covenant

2011-05-12T08:02:00.000-07:00

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SIKA CORPORATION, Plaintiff-Appellant,

JOSEPH HOSTLER, Defendant-Respondent,

and

BASF GROUP,

Defendant. ________________________________

Argued: October 18, 2010 – Decided: May 11, 2011

Before Judges C.L. Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-118-09.

Steven F. Ritardi argued the cause for appellant (Carmagnola & Ritardi, LLC, attorneys; Mr. Ritardi and Domenick Carmagnola, of counsel; Mr. Ritardi and Gina Casale, on the briefs).

Jonathan E. Hill argued the cause for respondent.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2159-09T3

Plaintiff Sika Corporation appeals from two final orders entered on November 6 and December 18, 2009, denying its appli- cation for an award of counsel fees to be paid by defendant Joseph Hostler (Hostler) and denying its motion for reconsidera- tion of same. We dismiss the appeal from the November order because it was not timely filed. However, we reverse the Decem- ber denial of plaintiff's motion for reconsideration as a mistaken exercise of discretion.

I. The facts can be stated briefly. Plaintiff is a New Jersey

corporation with its principal place of business in Lyndhurst. Plaintiff manufactures and sells chemicals "for use in the con- struction industry and automotive markets." Among plaintiff's line of products are "epoxies, structural strengthening systems, wood floor bonding adhesives and primers, industrial flooring, polyurethane sealants and adhesives." Hostler has been employed in the wood-flooring business and the sale of wood-floor adhesives since 1992.

Plaintiff hired Hostler in July 2004 as its "National Sales Manager" for its "Wood Floor Bonding Unit." The parties exe- cuted a "Confidentiality, Non-compete and Assignment Agreement" on August 2, 2004. In Section One of the agreement, Hostler agreed to "hold in trust, keep confidential, and . . . not

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publish, disclose or otherwise disseminate to any third party or make any use of the Confidential Information of [plaintiff]" without its approval. In Section Two, Hostler agreed not to solicit on behalf of a new employer any of plaintiff's customers or employees for one year following termination. Hostler also agreed in Section Three that, for a period of one year following his termination, he would not, without the prior consent of plaintiff, directly or indirectly work for one of plaintiff's competitors or prospective competitors in any state or country in which plaintiff did business. Section Six, which is at issue here, provided that "[i]n the event of a breach . . . , [plain- tiff] shall be entitled to such injunctive relief and damages and also shall be entitled to reimbursement . . . of [plain- tiff's] reasonable attorneys' fees and costs incurred by [plain- tiff] in enforcing" the agreement. Attached to the agreement was a "Schedule A Employee Statement," which included a list of clients with whom Hostler had a prior relationship that would not be deemed clients of plaintiff.

In early April 2009, Hostler notified plaintiff he was leaving its employ to go to work for defendant BASF Group (BASF), a multinational chemical corporation that employs over 15,000 employees in North America with its United States headquarters in Florham Park. Hostler had been in negotiations

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with BASF since February 2009. BASF notified Hostler that his employment with them would not conflict with the agreement he signed with plaintiff because it permitted Hostler to continue business with those customers on the client list provided in Schedule A. Hostler accepted the offer of employment.

Plaintiff immediately commenced suit by way of order to show cause. In its April 14, 2009, complaint against Hostler and BASF, plaintiff alleged, in part, that Hostler (1) breached his contractual duties by emailing confidential information, including a customer contact list, to his private email address prior to leaving plaintiff and by maintaining possession of a "Top 20 Accounts" list which he emailed to himself in January 2009; (2) solicited plaintiff's customers on behalf of BASF while employed with plaintiff; and (3) solicited several of plaintiff's employees to work with Hostler at BASF.

The judge entered the order on April 24, 2009, requiring defendants to show cause why a preliminary injunction should not issue. That order temporarily restrained Hostler from commencing active employment with BASF; performing any duties for BASF; furnishing services to or for plaintiff's clients or customers; soliciting, contacting, or communicating with any client or customer of plaintiff; and soliciting, contacting, or communicating with any employee of plaintiff for the purpose of

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recruiting or hiring such employee. It also restrained defendants from maintaining, disclosing, or otherwise using any confidential, proprietary, or trade secret information belonging to plaintiff and restrained BASF from putting Hostler on its payroll.

The judge heard oral argument on the application for a preliminary injunction on May 12, 2009, and on June 18, 2009, entered a preliminary injunction. That order restrained Hostler from attempting to induce plaintiff's employees to accept employment with Hostler or any entity with which he was affiliated and preliminarily restrained defendants from hiring any of plaintiff's sales representatives who reported to Hostler. With the exception of the Schedule A client list, the order preliminarily restrained Hostler from competing with plaintiff in the floor-adhesives industry, including wood floor bonding adhesives, and from soliciting or inducing plaintiff's customers who purchased products from plaintiff over the two- year period ending April 2009. The order also recognized that Hostler had returned certain of plaintiff's documents and property and that he represented he had not given same to BASF or anyone else, but compelled him to return any additional documents or property that might remain in his possession and restrained him, or anyone acting in concert with him, from using

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or disclosing plaintiff's confidential information and proprietary documents. This order provided plaintiff with substantially all of the relief against Hostler that it sought in the order to show cause. The only exception was the Schedule A client list.

Following the entry of these preliminary restraints, the parties were able to amicably resolve the litigation with a final consent order. The order was entered on September 30, 2009, and reflected the parties' agreement that, through and including April 6, 2010, Hostler was restrained from soliciting or inducing plaintiff's employees to accept employment with defendants and from hiring any of plaintiff's sales representatives who reported to Hostler as of April 2009. Additionally, with the exception of the Schedule A client list, the order restrained Hostler from competing with plaintiff in the floor-adhesives industry, including wood floor bonding adhesives, and from soliciting plaintiff's customers who had purchased products or services from it during the two-year period preceding April 2009. The order also recognized that Hostler had returned certain of plaintiff's documents and property and that he represented he had not given same to BASF or anyone else, but compelled him to return any additional documents or property that might remain in his possession and

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restrained him, or anyone acting in concert with him, from using or disclosing plaintiff's confidential information and proprietary documents. The order further provided that the trial judge "retain[ed] jurisdiction . . . to address the issue of attorneys['] fees," the only issue remaining for resolution.

Plaintiff filed a subsequent motion for an award of counsel fees, which was denied on November 6, 2009. At the hearing on plaintiff's application, it argued that it was entitled to fees notwithstanding the fact that the trial court did not make a final ruling on the merits of plaintiff's complaint beyond granting a preliminary injunction. Plaintiff noted that there had been "certain breaches" of the confidentiality agreement that caused it to file suit to enforce the agreement. Finally, plaintiff argued that Hostler had violated his duty of good faith and loyalty, which caused plaintiff to incur costs to enforce the agreement.

Hostler argued that plaintiff was not entitled to attorneys' fees since he abided by the terms of the agreement. Hostler explained that his understanding of and cooperation with the agreement was reflected in his correspondence with BASF and BASF's agreement to employ Hostler to the extent that he could only bring his Schedule A clients to the company.

A-2159-09T3

The judge agreed with Hostler, holding that plaintiff was not entitled to attorneys' fees under the agreement. The judge explained that he was not in a position to make any findings that Hostler had violated the agreement since the case proceeded only to the preliminary injunction stage. The amicable resolution between the parties "disable[d the judge] from quantifying, or even identifying, areas of success and failure" of plaintiff's claims.

In support of plaintiff's motion for reconsideration, it cited legal authority "for the proposition that the fact that the parties resolved the matter by consent does not preclude the court from enforcing a contractual fee shifting provision." At the December 18, 2009, hearing on plaintiff's motion for reconsideration, plaintiff urged that the judge erred as a matter of law in utilizing prevailing-party analysis to determine the fee application and that the judge was able to award fees based on the grant of a preliminary injunction because that relief justified the action. From there, plaintiff urged the case ultimately settled with a final injunction in its favor. Thus, plaintiff asserted that the judge could award fees up to the point in time when the preliminary injunction was granted. Plaintiff pointed out that it was not seeking an award

of fees incurred thereafter.

Plaintiff argued that the

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settlement did not preclude the award of fees incurred in securing the preliminary injunction, especially where the ultimate relief so closely mirrored the preliminary relief.

The trial judge rejected this argument, explaining that although there was some evidence of raiding, the injunction "was fundamentally about . . . whether or not Hostler was going to be able to go to work for a serious competitor of . . . plaintiff and then utilize everything he learned from that operation and compete against [plaintiff]." The judge also noted that he "never determined as a finding that there was a breach of the agreement by [Hostler]." The judge continued, "There certainly was a lot of evidence of some breaching relating to raiding of employees, but I don't remember any strong evidence, certainly no finding that there was exploitation of confidential information, that there was an improper poaching of clients, that there [were] . . . any violations nor proven determinations." The judge cited the "lack of any proceeding whereby [he] made findings of fact as to violations," and noted further that "the record . . . does not establish the extent to which the . . . final order[] reflects a success . . . by the" plaintiff. The judge denied plaintiff's motion for reconsideration following the hearing.

A-2159-09T3

Plaintiff appealed from both orders denying fees on January 11, 2010. It asserts that the judge misapplied and misconstrued applicable law, resulting in a mistaken exercise of discretion to deny counsel fees. It further asserts that the judge erred in denying an award of fees and costs plaintiff was required to expend to enforce its confidentiality agreement because the judge unequivocally found that preliminary injunctive relief was necessary and subsequently entered a final order granting such relief. Thus, plaintiff was a prevailing party entitled to recover its counsel fees and costs. Finally, it urges that barring such relief simply because the parties settled the matter violates the public policy favoring settlement of litigation. Hostler responds that the judge did not mistakenly exercise his discretion and urges that the fee-shifting provision is unenforceable as a matter of law.

II. We begin with the procedural posture of this appeal. The

November order denying counsel fees was a final judgment as it disposed of all issues as to all parties. N.J. Sch. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010); Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008). Its entry triggered the running of the forty-five days allowed by Rule 2:4-1(a) for filing an appeal.

A-2159-09T3

Here, the time for appeal from the November 6 order would ordinarily have lapsed on December 21. Nevertheless, the time for appeal may be tolled in certain circumstances governed by Rule 2:4-3, which provides in pertinent part:

The running of the time for taking an appeal . . . shall be tolled:

....

(e) In civil actions on an appeal to the Appellate Division by the timely filing and service of a motion to the trial court for . . . rehearing or reconsideration seek- ing to alter or amend the judgment or order pursuant to [R.] 4:49-2. The remaining time shall again begin to run from the date of the entry of an order disposing of such a motion.

[R. 2:4-3(e).] Plaintiff filed its motion for reconsideration on November

30, the twenty-fourth day after entry of the order denying its fee application, leaving twenty-two days for appeal.1 That motion was denied by order entered on December 18. Plaintiff then filed its notice of appeal twenty-four days later on January 11, 2010——two days late.

1 The record on appeal does not establish whether this motion was timely filed. Because the record is silent, we presume that it was filed within twenty days of service of the November 6, 2009, order on all parties, the event triggering the time for a motion under Rule 4:49-2.

A-2159-09T3

Where a notice of appeal has not been timely filed, we lack jurisdiction to consider the issues presented by the appeal. Alberti v. Civil Serv. Comm'n, 41 N.J. 147, 154 (1963); In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990). Of course, the time for filing an appeal may be extended by us for thirty days pursuant to Rule 2:4-4. However, no motion for an extension of time under this rule has been made. As such, the record does not establish the requisite showing of good cause, and we will not enlarge the time without such a showing. R. 2:4-4(a). Thus, we have no jurisdiction to consider the issues respecting the November 6 order and confine our consideration to the denial of the motion for reconsideration.

III. The scope of our review is limited. A motion to alter or

amend a judgment or order under Rule 4:49-2 is a matter left to "the trial court's sound discretion." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). Additionally, a determination on a fee application is committed to the sound discretion of the trial court. Rendine v. Pantzer, 141 N.J. 292, 317 (1995); Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008).

A-2159-09T3

"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

[Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952).]

The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Moreover, the exercise of judicial discretion must have a factual underpinning and legal basis. Id. at 110. Applying these principles, we have explained:

Judicial discretion, sound discretion guided by law so as to accomplish substantial justice and equity, is a magisterial, not a personal discretion. It is legal discretion, in which the judge must take account of the applicable law and be governed accordingly. If the judge misconceives or misapplies the law, his discretion lacks a foundation and becomes an arbitrary act. When that occurs, the reviewing court should adjudicate the matter in light of applicable law to avoid a manifest denial of justice.

[Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997) (internal quotation marks omitted), certif. denied, 156 N.J. 381 (1998).]

A-2159-09T3

See also New Century Fin. Servs., Inc. v. Nason, 367 N.J. Super. 17, 28 (App. Div. 2004) (holding that we owe no deference to an exercise of discretion based on an error of law).

Where the trial court makes a discretionary ruling, that decision will not be reversed on appeal absent a showing of a mistaken exercise of discretion. In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974). A trial judge's decision will constitute a mistaken exercise of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Reconsideration is available only when the judge's decision is based on plainly incorrect reasoning, when the judge failed to consider evidence, or there is good reason to consider new evidence. Capital Fin. Co., supra, 398 N.J. Super. at 310; Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005). No new evidence was presented here; thus, we determine only whether the judge failed to consider evidence or based his decision on plainly incorrect reasoning, including a

A-2159-09T3

mistake of law. Accordingly, we examine each of plaintiff's claims.

IV. Although New Jersey disfavors the award of attorneys' fees,

"'a prevailing party can recover those fees if they are expressly provided for by statute, court rule, or contract.'" Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 385 (2009) (citation omitted). Parties are clearly permitted by contract to agree to pay attorneys' fees. N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 569-70 (1999). Although the language of such contractual provisions should be construed "in light of the general policy disfavoring the award of attorneys' fees," id. at 570, there is no claim here that the language is ambiguous, nor do we find it to be so. Contractual attorneys' fees must be "reasonable," and a "threshold issue" is whether the party seeking fees is a "prevailing party." Ibid. We thus reject plaintiff's contention that the judge erred in utilizing prevailing-party analysis to evaluate its fee application. We next consider whether the judge misapplied that analysis to the facts.

Courts utilize a two-prong test to determine whether a party seeking attorneys' fees is the "prevailing party." Mason v. City of Hoboken, 196 N.J. 51, 73 (2008). The first prong

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requires the claimant to demonstrate that the lawsuit is "'causally related to securing the relief obtained; a fee award is justified if [the party's] efforts are a "necessary and important" factor in obtaining the relief.'" N. Bergen Rex, supra, 158 N.J. at 570. "The first prong requires a factual causal nexus between the pleading and the relief ultimately received." Ibid. By laying the complaint beside the preliminary injunction and the final injunction, it is clear that there was "a factual causal nexus between the pleading and the relief ultimately received," ibid.; the first prong has been established as a matter of law.

The second prong requires the party seeking fees "to show that 'the relief granted had some basis in law.'" Id. at 571 (quoting Singer v. State, 95 N.J. 487, 494, cert. denied, 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64 (1984)). There can be no doubt that an action for misappropriation of confidential business information, including trade secrets and customer lists, is a cause of action with a basis in law. That does not end the inquiry, however, because this prong requires both "a factual and legal determination." Ibid. All relief sought need not be recovered. Ibid. "[R]ather, there must be the settling of some dispute that affected the behavior of the [party asked

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to pay attorneys' fees] towards the [party seeking attorneys' fees]." Ibid. (internal quotation marks omitted).

Put differently, a party prevails "when actual relief on the merits of [the] claim materially alters the relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Mason, supra, 196 N.J. at 73 (internal quotation marks omitted). Whether that resolution involves "a judicial decree, a quasi-judicial determination, or a settlement [is] not a factor." Teeters v. N.J. Div. of Youth & Fam. Servs., 387 N.J. Super. 423, 432 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007). To assess whether a party prevailed, "courts must look to whether a plaintiff's lawsuit acted as a catalyst that prompted defendant to take action and correct an unlawful practice." Mason, supra, 196 N.J. at 74.

Plaintiff argues that the judge misapplied prevailing-party analysis when he concluded that it was not a prevailing party because he failed to consider that it prevailed on its application for a preliminary injunction, which led the parties to consent to a final injunction that largely mirrored the preliminary one. We agree. The issue should never have been whether plaintiff would have prevailed had the matter been tried

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to a conclusion. Such an inquiry would indeed run counter to the policy favoring settlements.

The judge ought to have focused on the issue of whether "plaintiff's lawsuit acted as a catalyst that prompted defendant to take action and correct an unlawful practice." Ibid. It certainly did. For example, before the temporary restraints and preliminary injunction, Hostler violated the bar on solicitation of his co-workers for the benefit of BASF contained in Section Two, ¶ 1(b), of the Agreement and apparently admitted doing so in his deposition. In granting the preliminary injunction, the judge found that "there's sufficient evidence" that this occurred. Thereafter, Hostler was restrained from engaging in this behavior and complied with that restraint. Thus, plaintiff was a prevailing party.

We are satisfied the order denying the motion for reconsideration constituted a mistaken exercise of discretion inasmuch as the initial exercise of discretion to deny an award of fees was based on legal error. We therefore remand for an award of reasonable counsel fees and costs.

Dismissed in part and reversed and remanded in part.

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Kenneth Vercammen was included in the 2011 “Super Lawyers” list published by Thomson Reuters.

2011-04-20T05:06:00.001-07:00

Kenneth Vercammen was included in the 2011 “Super Lawyers” list published by Thomson Reuters.

PROFESSIONAL OFFICE SPACE AVAILABLE IN EDISON LAW OFFICE

2011-04-10T04:20:00.000-07:00

PROFESSIONAL OFFICE SPACE AVAILABLE IN EDISON LAW OFFICE

2053 Woodbridge Ave.

Edison, NJ 08817

Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd office or location to meet clients in Edison.

The offices are located on the 1st floor of the building.

2 rooms office approx 12.4 x 9.4

and front room appr 8 x 9

plus use of reception room 16.6 x 7.2

and use of storage area in basement and garage

$600 per month

Call 732-572-0500

Owner of building is local attorney, Kenneth Vercammen who handles Criminal /Municipal Court, Personal Injury, Elder Law, and Probate Law.

Available April 15

PROFESSIONAL OFFICE SPACE AVAILABLE IN EDISON LAW OFFICE

2011-04-03T18:55:00.000-07:00

PROFESSIONAL OFFICE SPACE AVAILABLE IN EDISON LAW OFFICE

2053 Woodbridge Ave.

Edison, NJ 08817

Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd office or location to meet clients in Edison.

The offices are located on the 1st floor of the building.

2 rooms office approx 12.4 x 9.4

and front room appr 8 x 9

plus use of reception room 16.6 x 7.2

and use of storage area in basement and garage

$600 per month

Call 732-572-0500

Owner of building is local attorney, Kenneth Vercammen who handles Criminal /Municipal Court, Personal Injury, Elder Law, and Probate Law.

Available April 15

Docketing of a Judgment in New Jersey Courts Based on Another States Judgment

2011-04-01T13:40:00.001-07:00

New Jersey's version of the UEFJA is this state's selected mechanism "for discharging its Full Faith and Credit obligations" under U.S. Const. art. IV, § 1. Singh v. Sidana, 387 N.J. Super. 380, 382 (App. Div. 2006), certif. denied, 189 N.J. 428 (2007). As we held in Sonntag Reporting Serv. Ltd. v. Ciccarelli, 374 N.J. Super. 533, 540 (App. Div. 2005), "[t]he focus of the UEFJ is the enforcement of judgments." The statute was designed "merely as a facilitating device and was not intended to alter any substantive rights of the parties in an action for enforcement of a foreign judgment." Id. at 539. Therefore, "merit or substantive defenses," which could have been raised in the foreign state, must be raised in that state's proceedings and cannot be used to collaterally attack the domesticated New Jersey judgment. Id. at 540.

However, the Constitutional requirements of the Full Faith and Credit Clause are predicated upon the judgment debtor having been accorded due process in the forum state. Id. at 538. A denial of due process occurs "when 'the rendering state 1) lacked personal jurisdiction over the judgment debtor, 2) lacked subject matter jurisdiction, [or] 3) failed to provide the judgment debtor adequate notice and an opportunity to be heard.'" Ibid. (quoting Choi v. Kim, 50 F.3d 244, 248 (3d Cir. 1995)). Thus, the judgment debtor may raise "due process defenses" in any enforcement action in New Jersey under the UEFJA. Sonntag, supra, 374 N.J. Super. at 540. This is consistent with our jurisprudence that pre-dates the 1997 passage of the UEFJA. See James v. Francesco, 61 N.J. 480, 485 (1972) (Full Faith and Credit Clause only applies to foreign judgment grounded upon proper jurisdiction over the debtor).

N.J.S.A. 2A:49A-26 defines a "foreign judgment" as "any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this State." (Emphasis added). Defendant argues since Maine's judgments were obtained without the required personal jurisdiction over SeKap, they are not entitled to full faith and credit in New Jersey, and, hence, are not foreign judgments for purposes of N.J.S.A. 2A:49A-29(a) or (b). We reject this circular argument.

No reported New Jersey case has considered the stay provisions contained in N.J.S.A. 2A:49A-29. However, a number of other jurisdictions have considered the equivalent statutory language found in their versions of the UEFJA in circumstances similar to those presented here. Almost uniformly, these other jurisdictions have required the judgment debtor to post adequate security in order to stay execution of any judgment domesticated in those states.

In Jackson v. Alexander, 706 So.2d 364, 365 (Fla. App. 1998), the Florida appellate court interpreted that state's version of the UEFJA which specifically provided for a stay of enforcement of a domesticated foreign judgment in two circumstances:

(1) If, within 30 days after the date the foreign judgment is recorded, the judgment debtor files an action contesting the jurisdiction of the court which entered the foreign judgment or the validity of the foreign judgment and records a lis pendens directed toward the foreign judgment, the court shall stay enforcement of the foreign judgment and the judgment lien upon the filing of the action by the judgment debtor.

(2) If the judgment debtor shows . . . any ground upon which enforcement of a judgment of any . . . court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

[Fla. Stat. § 55.509(1) and (2).]

Thus, under subsection (1), the judgment debtor could specifically attack the forum state's lack of jurisdiction. Nevertheless, despite the omission of any security requirement in subsection (1), the Florida court, reading the statute in pari materia, concluded the debtor was required to post a bond before the action challenging jurisdiction and staying execution could proceed. Ibid.; accord Expedia Inc. v. McKenney's Inc., 611 So.2d 98, 100 (Fla. App. 1992) (interplay of two subsections of Fla. Stat. §55.509 requires posting of security before stay of alleged invalid foreign judgment); SCG Travel v. Westminster Financial, 583 So.2d 723, 726 (Fla. App.), app. dismissed, 591 So.2d 185 (Fla. 1991).

In Segal v. Segal, 823 A.2d 1208 (Conn. 2003), the debtor sought a stay of enforcement of a domesticated Nevada judgment pending final decision of his appeal in Nevada. Id. at 1209. He argued that a judgment under appeal was not a judgment entitled to full faith and credit under the Constitution and, thus, not a "foreign judgment" under the UEFJA. Id. at 1213-14. The lower court agreed, and determined that the Nevada judgment was not enforceable as a final judgment entitled to full faith and credit until the appeal was decided. Id. at 1210. The Connecticut Supreme Court rejected this argument and concluded that without posting adequate security, the debtor was not entitled to stay enforcement of the domesticated judgment. It reasoned that any other interpretation of the statute would nullify the express provisions of the UEFJA which required the posting of adequate security pending direct appeal. Id. at 1214.

In Ex Parte Lyon Financial Servs., Inc., 775 So.2d 181 (Ala. 2000), the Alabama Supreme Court reversed the trial court's stay of enforcement of a Minnesota judgment against an Alabama debtor. Id. at 182. The debtor sought the stay based upon a third-party claim, initially brought in Minnesota, but dismissed by that court. Ibid. The debtor argued that it should be allowed to continue its litigation against the third-party in Alabama, and that all enforcement actions based upon the domesticated Minnesota judgment should be stayed pending the resolution of its suit. Ibid. Interpreting Alabama's version of N.J.S.A. 2A:49A-29(b), the court concluded that the debtor was not entitled to the stay because 1) the third-party claim would not properly result in a stay under Alabama law and 2) the debtor had not posted the required security. Id. at 184. Accord Hinkle, Cox, Eaton, Coffield & Hensley v. The Cadle Co., 676 N.E.2d 1256, 1257 (Ohio App.) (holding debtor must post security to obtain a stay under Ohio's equivalent of N.J.S.A. 2A:49A-29(b)), discretionary appeal not allowed, 673 N.E.2d 143 (Ohio 1996).

In Dependable Ins. Co. v. Automobile Warranty Corp., 797 P.2d 1308 (Colo. App. 1990), the court interpreted Colorado's stay provisions which are identical to N.J.S.A. 2A:49A-29. Id. at 1309-10. In that case, defendant debtor filed a direct appeal of the Florida judgment in Florida and then sought a stay of execution on its assets in Colorado based upon the domesticated Colorado judgment. Id. at 1309. Noting the "important purpose of a supersedeas bond" is "to protect the non-appealing party's rights during an appeal," the court concluded that despite the pending direct appeal in Florida, the debtor was required to post a bond to secure a stay of execution in Colorado. Id. at 1310. Otherwise, the statute's "purpose would be negated." Ibid. It then considered the debtor's second argument under Colorado's equivalent to N.J.S.A. 2A:49A-29(b). Ibid. The court concluded that since Colorado law required the posting of security to obtain a stay, defendant's failure to post security required denial of the stay. Ibid. But see Pickwick Intern. v. Tomato Music Co., Ltd., 462 N.Y.S.2d 781, 784 (Sup. Ct. Spec. Term 1983) (holding under New York's equivalent of N.J.S.A. 2A:49A-29(b), court may, in its discretion, stay execution without posting of security because New York law permitted a stay under such circumstances).

Legal fees permitted on Suit on Note SOVEREIGN BANK, v CALLIE LASCH and VINCENT ROGGIO,

2011-01-23T11:45:00.000-08:00

Legal fees permitted on Suit on Note SOVEREIGN BANK,

v CALLIE LASCH and VINCENT ROGGIO,

Defendants-Appellants,and

CALLIE LASCH, Third-Party Plaintiff, v.

MONDO DEVELOPMENT CORP. and MONDO PALLON,

Third-Party Defendants.

September 8, 2010

Submitted: May 12, 2010 – Decided:

Before Judges Payne and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-519-05.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2216-08T1

PER CURIAM

Defendants Callie Lasch and Vincent Roggio appeal from a November 21, 2008, judgment in favor of plaintiff Sovereign Bank (Sovereign) in the amount of $182,444.41 for principal, interest, late fees, post-judgment interest, attorneys' fees, and costs due under a promissory note, business loan agreement, and commercial guaranty. We affirm.

On December 17, 2003, Lasch and Sovereign entered into a Business Loan Agreement pursuant to which Sovereign agreed to lend Lasch $100,000. Lasch simultaneously executed and delivered to Sovereign a Promissory Note wherein she promised to pay Sovereign the principal sum of $100,000 plus interest on or before May 15, 2004. Roggio, Lasch's husband, executed a Commercial Guaranty the same day, in which he personally guaranteed payment of Lasch's indebtedness to Sovereign. Among many other provisions, the Promissory Note and Business Loan Agreement each included a "Right of Setoff" clause that gave Sovereign the authority to deduct the amount due on May 15, 2004, from Lasch's accounts at Sovereign. The Promissory Note and Business Loan Agreement also permitted Sovereign to recover attorneys' fees and costs associated with collection proceedings.

On June 4, 2004, Lasch and Sovereign executed a Note Modification Agreement, which Roggio again guaranteed. In its first recital, the Note Modification Agreement stated that on December 17, 2003, Lasch obtained from Sovereign "a Time Loan evidenced by a Promissory Note in the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00) (the 'Principal Amount') bearing the same date (the 'Note')." The second recital stated the Promissory Note's requirement that Lasch repay $100,000 plus interest on May 15, 2004, and make all required monthly interest payments. The third and fourth recitals stated: "Whereas, the outstanding principal balance owing on the Note as of June 3, 2004, is Zero and 00/100 Dollars ($0.00) (the 'Outstanding Balance');^[[1]] and Whereas at the request of [Lasch] and in agreement of [Sovereign] the Note will be modified." Based on these recitals, Lasch and Sovereign agreed to extend the "Time Loan" maturity date to December 15, 2004, "on which date all principal, accrued unpaid interest, and fees if any, shall be due and payable in full." The Note Modification Agreement also affirmed Roggio's status as the personal guarantor of Lasch's indebtedness to Sovereign.

Consistent with the terms of these documents, Lasch made monthly interest-only payments on the fifteenth day of each month from January to November 2004. However, the principal sum was not paid when due. On December 22, 2004, Lasch's loan was referred to John Giangrossi, relationship manager for a portfolio of defaulted commercial loans for Sovereign. The loan was forwarded to Sovereign's in-house counsel for the purpose of instituting collection litigation. Sovereign thereafter filed suit on or about January 31, 2005, against Lasch and Roggio seeking judgment for the amount due.[2]

In 2007 when discovery was proceeding, defendants' attorney sent notices in lieu of subpoenas to various individuals, including Stacy Carbone, a Vice President of Sovereign. Carbone is the former manager of Sovereign's Red Bank branch and was living in Florida in 2007 and at the time of trial. Roggio believed her testimony was "critical to this case." On or about September 29, 2008, Lasch and Roggio, no longer represented by counsel,[3] sent a letter to Sovereign's counsel setting forth a list of documents to be produced and employees they wished to depose that Sovereign had "agreed to produce for trial." Carbone was on this list. On October 8, 2008, Sovereign's counsel informed Lasch and Roggio that Carbone's deposition would be taken on October 13. However, on October 14, Sovereign's counsel informed Lasch and Roggio that the deposition was postponed because Carbone had work-related issues. Trial was scheduled for October 20, 2008.

When Roggio raised the issue of Carbone's availability on the day scheduled for trial, Sovereign's counsel informed the judge that Carbone was no longer a bank employee and he had no ability to compel her to appear. He informed the judge of the various efforts he made to arrange for Carbone's deposition. The following day, Sovereign's counsel reiterated Carbone's lack of responsiveness to his requests. Roggio explained that he did not pursue Carbone himself because he relied on the alleged promises and guarantees of Sovereign's counsel that Carbone would be available. Sovereign's counsel then, with court permission, stepped outside the courtroom and called Carbone on his cell phone. During the ensuing conversation, Carbone told Sovereign's counsel that she would only be available Thursday, October 30. The case then moved forward without Carbone's testimony.

After pre-trial proceedings, during which the judge bifurcated the jury trial on the auto loan,[4] the case was heard without a jury on October 23, 2008. At this point, Sovereign's records showed that Lasch and Roggio owed $150,378.97, consisting of $100,000.00 in principal, $43,259.03 in unpaid accrued interest, and $7119.94 in late fees. Giangrossi testified that no principal payments on the loan were ever made. Regarding the recital in the Note Modification Agreement stating the loan balance was $0.00, Giangrossi explained that he was not present when the agreement was signed and the reference to a zero balance in the recital was a typographical error. When the loan was referred to him, Giangrossi determined the amount due based on Sovereign's screen system; a printout from the screen reflecting the amount Lasch and Roggio owed was introduced into evidence.

Lasch also testified at the trial. She believed that the $100,000 principal amount was repaid sometime between May 2004 and June 2004 after Roggio's account "was offset to do so." Lasch admitted that she had no documents demonstrating that the loan was repaid in full by her between May and June 2004. Consistent with his wife's testimony, Roggio testified that the loan was paid off sometime between May 17, 2004, and June 2004. He stated that he and Lasch "only found this out when [Sovereign's counsel] sent us this exhibit this week, and that triggered our memory. And we made inquiries to make certain that our memory was correct, that it is correct." Roggio nonetheless admitted that he never received a notification from the bank stating that the loan had been paid in full.

The judge rendered an oral decision after the parties' summations. The judge found Lasch and Roggio jointly and severally liable in the amount of $150,378.97. The judge also found that Sovereign could recover attorneys' fees pursuant to the note's provisions and requested Sovereign to submit a certification as to the proper amount.

On or about November 4, 2008, Sovereign filed a notice of motion for an award of attorneys' fees and costs and entry of judgment. Sovereign also filed a certification in support of the motion, attesting to the quantum of fees sought. Sovereign submitted a supplemental certification on or about November 17, 2008.[5] On November 21, 2008, the court, over defendants' opposition, granted Sovereign's motion and awarded $29,670.00 in fees and $1498.92 in costs for a total of $31,168.92. The court also entered a final judgment against Lasch and Roggio, holding them jointly and severally liable for $182,444.41. This amount consisted of: $150,378.97 in principal, accrued interest to October 23, 2008, and late charges; $30.91 per day in post-judgment interest pursuant to Rule 4:42-11, totaling $896.52; and the aforementioned $31,168.92 in fees and costs.

Defendants filed a notice of appeal on January 5, 2009. They raised a variety of evidentiary issues, asserted that the judge abused her discretion in denying a continuance to permit them to depose Carbone, and contended that the judge abused her discretion in awarding post-judgment interest, attorney's fees and costs.

On March 11, 2010, we sua sponte ordered the appeal dismissed without prejudice as to Lasch only because she filed a bankruptcy petition on October 20, 2009, which operated as an automatic stay of the proceedings as against her pursuant to 11 U.S.C.A. § 362. We further ordered that any party was permitted to move to reinstate the appeal as to Lasch if the case had not been disposed of or if the Bankruptcy Court lifted the stay. Finally, we ordered that the appeal as to Roggio would proceed.

II.

Our scope of review of the issues raised in this appeal is very limited. With respect to evidentiary issues, "[a]s a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). See also Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (review of evidential ruling is limited to examining the decision for abuse of discretion); Brenman v. Demello, 191 N.J. 18, 31 (2007) (determination of admissibility of evidence is reviewed for palpable abuse of discretion). Reversal is warranted only in cases of a clear abuse of discretion. Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982).

A trial court decision will constitute a clear abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)). However, if a judge makes a discretionary decision, but acts under a misconception of the applicable law, we need not defer; instead, we must adjudicate the controversy in the light of the applicable law in order that a manifest denial of justice be avoided. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960).

With respect to a refusal to grant a continuance to depose a witness, "[t]he granting of a continuance is a matter exclusively within the province and sound discretion of the trial judge and should not be upset unless it appears from the record that defendant suffered manifest wrong or injury." In re Elizabeth Educ. Ass'n, 154 N.J. Super. 291, 299 (App. Div. 1977) (citation omitted), certif. denied, 77 N.J. 492 (1978); see also State v. Gallegan, 117 N.J. 345, 354 (1989) (ordinarily, adjournments committed to the discretion of the trial court). A trial court's refusal to continue a trial is reviewed for an abuse of that discretion. See Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974) (stating the proposition of law that reversal of discretionary decisions only follows in cases of clear abuse of that discretion).

As to an award of attorneys' fees and post-judgment interest, a fee award is committed to the discretion of the trial judge and is thus reviewed for an abuse of that discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001). "'[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Id. at 444 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

The court's award of post-judgment interest pursuant to Rule 4:42-11(a) is similarly reviewed for an abuse of discretion. Baker v. Nat'l State Bank, 353 N.J. Super. 145, 174 (App. Div. 2002); see also Musto v. Vidas, 333 N.J. Super. 52, 74 (App. Div.) (reviewing an award of pre-judgment interest for an abuse of discretion), certif. denied, 165 N.J. 607 (2000). Although Rule 4:42-11(a) instructs that post-judgment interest shall run from the date of judgment, trial courts are vested with the discretion to vary the award in the interests of equity. Id. at 173 (citing Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 264 (App. Div. 1997)). The trial court's award of post-judgment interest is, therefore, reviewed for an abuse of discretion. Schweizer, supra, 130 N.J. Super. at 127.

When a party does not object to an alleged trial error, the court's decision is reviewed for plain error. R. 2:10-2; Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 317-18 (2006). "Under that standard, the issue is whether the [decision] had the 'clear capacity for producing an unjust result.'" Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 493 (2001) (quoting State v. Melvin, 65 N.J. 1, 18 (1974); citing Rule 2:10-2); accord Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 128 (2008); Kvaerner Process, Inc. v. Barham-McBride Joint Venture, 368 N.J. Super. 190, 201 (App. Div. 2004). See also Pressler, Current N.J. Court Rules, comment 2 on R. 2:10-2 (2010) ("Plain error" is error "clearly capable of producing an unjust result.").

III.

Roggio first argues that the trial court improperly admitted extrinsic evidence to vary the terms of the Note Modification Agreement. He contends that the trial judge erred in disregarding the "clear language" of the agreement that the outstanding balance on the loan was zero. Roggio claims that instead of "harmoniz[ing] the payment provisions to provide a rational meaning to the language, the [c]ourt chose . . . to rewrite the agreement to abrogate the parties' stated recognition that no money was due" on the Promissory Note as of June 3, 2004. Roggio then claims that he provided the only rational explanation as to why the Note Modification Agreement recited a zero balance, namely, that Sovereign exercised its right of setoff as provided in the Promissory Note and Business Loan Agreement. Roggio concludes that his and Lasch's testimony in this respect and statements allegedly made by Carbone that the loan had been paid off "negate the speculative assumption that the statement of amount due as of June 3, 2004 was a typographical error."

After detailing why the adduced evidence supports the judgment, Sovereign argues that Giangrossi's testimony that the error was typographical was not the sole basis on which the trial court found that an amount was still outstanding. It asserts that Roggio cannot now complain of Giangrossi's testimony about a typographical error, because Roggio and Lasch elicited that testimony at trial. Regarding the payment history, Sovereign contends that it submitted the document, not to vary the terms of the Note Modification Agreement, but rather, to demonstrate which payments were made and which were outstanding. Sovereign concludes that Roggio's "rational explanation" of the zero-balance recital is in fact irrational because the plain terms of the Note Modification Agreement "show quite differently."

In her oral decision on October 23, 2008, the judge began by reviewing the witnesses' testimony and the documentary evidence. She then found that Lasch and Roggio signed for the loan and were responsible for the loan. The judge also found that payments were made on the loan. In analyzing the zero-balance recital in the Note Modification Agreement, the judge cautioned that the statement could not be taken out of context and the entire agreement must be examined. After reading the other recitals and terms of the agreement into the record, the judge found that the zero-balance recital was a typographical error and "[t]here would be no reason for Ms. Lasch and Mr. Roggio to go to the bank on June 4th, 2004 and sign a modification if the loan was paid. And I find as a fact that it was not." The judge then noted that there was no evidence that the loan was repaid, except for defendants' testimony that they "must have paid it." Instead, "[a]ll the evidence set forth by [Sovereign] shows that the note was not paid." This included the interest-only payments and the printout showing the $100,000 outstanding balance. Based on all the evidence, the judge concluded that Lasch was responsible for the entire amount of the note, as was Roggio as the guarantor. They were held jointly and severally liable.

At its core, Roggio's argument is that the trial judge erred when she examined evidence other than the zero-balance recital in concluding that the recital was a typographical error, the loan was not repaid, and they were liable for the balance due. Generally, "the parol evidence rule prohibits the introduction of evidence that tends to alter an integrated written document." Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 268 (2006). However, that general rule no longer applies where the agreement itself is ambiguous. Then, parol evidence is admissible to determine the intent of the parties. Id. at 268-69.

Here, the Loan Modification Agreement was clearly ambiguous. Preparing and executing such an agreement after a loan has been paid in full renders the entire document a nullity immediately. There is simply no reason for anyone to sign such a document. Thus, resort to parol evidence was required to construe the agreement and resolve the ambiguity in the recital. In any event, Roggio and Lasch elicited the testimony from Giangrossi; they cannot complain of it now. Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 296 (App. Div. 1998) (trial errors induced by party claiming error generally cannot support reversal on appeal).

Moreover, the trial judge discredited defendants' testimony about the loan being repaid, a credibility determination to which we must defer. Monogram Credit Card Bank of Ga. v. Tennesen, 390 N.J. Super. 123, 126 (App. Div. 2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). By finding defendants not credible, the court properly interpreted the Note Modification Agreement in light of the other evidence, including the parties' conduct, such as Lasch's interest-only payments after the agreement was executed. That evidence fully supported the judge's fact-finding that the loan remained unpaid at the time of trial.

Roggio's second argument is that the trial judge abused her discretion in barring statements attributed to Carbone as inadmissible hearsay. During Roggio's testimony, Sovereign's counsel asked him to specify the date on which the loan was allegedly paid in full. The following exchange then took place:

MR. ROGGIO: I can't give you the exact date, because when I went into the bank the other day, the person I spoke to who was familiar with this situation --

MR. MANNING: Your Honor, we're getting into hearsay, and I don't think --

THE COURT: We have a lot of hearsay in here. I don't understand about Ms. Carbone. Wasn't that hearsay? There's an objection. You can't tell us what somebody else told you.

Roggio contends on appeal that the person to whom he was referring was Carbone and her statements were admissible as vicarious admissions binding on Sovereign pursuant to N.J.R.E. 803(b)(4). He argues that the judge's "erroneous disallowance of Ms. Carbone's out of court statements obviated the need for plaintiff to produce . . . witnesses to rebut the claim that Mr. Roggio's account balances were applied to the outstanding loan amounts."

Sovereign argues that Lasch and Roggio have misinterpreted the foregoing testimony because the testimony does not actually identify Carbone. According to Sovereign, "Roggio was not attempting to testify to what Carbone told him because she was not employed by Sovereign 'the other day.'" Sovereign also contends that, even if the trial court did preclude Roggio from testifying as to what Carbone said about payment of the loan, the error did not constitute reversible plain error because Lasch had previously testified that Carbone confirmed payment of the Promissory Note.

Under N.J.R.E. 803(b)(4), "[a] statement offered against a party which is . . . a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" is not excluded by the hearsay rule. This rule "sanctions the admissibility of admissions made by agents, employees, or representatives at any time prior to termination of the agency, employment, or representative relationship when the admissions related to matters within the performance duties of the agent, representative, or employee." Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 803(b) (2009). The statements need not be made "while the agent is actually technically engaged in his agency duties to be admissible." Ibid.

Any statement made by Carbone at "the bank the other day" was not admissible under the rule because Lasch had not been employed by Sovereign for more than a year. Additionally, any abuse of discretion in excluding this testimony was harmless. When asked whether the loan was paid off, Lasch testified she was "told by Stacey Carbone that the loan had been paid off and that there was a new loan." On cross-examination, Lasch further testified that Carbone told her and Roggio that "there would be a new note to be signed for $100,000." Roggio made no proffer of his testimony respecting Carbone's statement and thus has not established any prejudice from the judge's ruling precluding his testimony in this respect.

We are satisfied the trial judge did not abuse her discretion in sustaining the objection to the hearsay testimony, because her decision did not rest on an impermissible basis. Scurry, supra, 193 N.J. at 504. Even if the judge did abuse her discretion, there was no prejudicial error.

Roggio next asserts that Sovereign failed to establish a proper foundation to admit certain records under the business-records exception to the hearsay rule, and the judge, therefore, improperly admitted the documents. Roggio specifically challenges exhibits P-5 (the screen printout) and P-6 (the payment history). Roggio contends that Giangrossi was not competent to testify as to how the documents were prepared or if they were made in the regular course of business, because he was not from the bank department that generated the data. Roggio claims that the documents were not issued in the regular course of business before inception of this suit and are "nothing more than the work product of a post-default 'relationship manager' in preparation for trial." Roggio therefore concludes that, even though they did not object at trial, it was plain error for the court to accept the exhibits into evidence.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by Roggio do not warrant extended discussion in this opinion. R. 2:11-3(e)(1)(E), and affirm admission of these two documents into evidence. We add briefly that the business-records exception does not apply only to documents created before a controversy arises. Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380 (2007).

Giangrossi identified P-5 as a "screen snapshot" of the amount due on the account, which he retrieved from the computer records. He stated that the information contained in the printout was prepared by a person who had knowledge of its contents and was inputted at or near the time that the Promissory Note was made in December 2003. Giangrossi further testified that it was Sovereign's regular practice to make such records and records like the printout were kept in the ordinary course of Sovereign's business activities. Giangrossi then testified as to the contents of the printout. Exhibit P-5 was admitted into evidence without objection. This was an adequate foundation under N.J.R.E. 803(c)(6).

Exhibit P-6 is a summary of Lasch's payment history. The exhibit shows that Lasch made eleven payments from January 2004 to November 2004 on the fifteenth of each month in amounts ranging from $402.78 to $495.14. The exhibit also shows the amount of interest that accrued each month and the total interest accrued as of October 20, 2008, which equaled $43,254.80. Giangrossi testified during cross-examination that exhibit P-6 was a payment history on the Promissory Note that he prepared and gave to counsel. He testified as to the document's contents. On redirect examination, Giangrossi reiterated that he prepared the exhibit from the screen system available at Sovereign. This, too, was an adequate foundation under N.J.R.E. 803(c)(6).

N.J.R.E. 803(c)(6) does not require testimony of the custodian or other qualified witness as a condition for admission of the business record; rather, the required foundation may be laid by proof that would satisfy a trial judge in a hearing under N.J.R.E. 104(a). N.J.R.E. 803(c)(6) (Supreme Court Committee Comment). However, "[i]f the purpose for which the record was prepared was the anticipation of or the use in litigation, it should be subjected to special scrutiny for trustworthiness." Ibid. (citing Palmer v. Hoffman, 318 U.S. 109, 111-16, 63 S. Ct. 477, 479-82, 87 L. Ed. 645, 648-51 (1943)). Because P-6 was prepared from P-5, it was clearly trustworthy. Even were it not, no objection was made at trial, and its admission was not plainly erroneous. R. 2:10-2. Computer-generated business records are not subject to any special evidentiary requirements. Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(6) (2009) (citing Carmona, supra, 189 N.J. at 380).

Roggio contends that the judge impermissibly considered a letter dated December 2, 2004, sent by defendants' former counsel to Sovereign. In the letter, defendants' former counsel references the loan number (#0050948822-18) and a previous letter in which Sovereign proposed a settlement of the loan through payment of $100,503.48 by December 15, 2004. Former defense counsel stated he was authorized counter-offer to reduce the settlement amount by $20,000 for the damages Lasch suffered as a result of Sovereign's negligence in dealing with the car loan. The judge accepted the letter into evidence for the limited purpose of establishing the loan number to which counsel was referring. Roggio claims the trial judge's consideration of the letter for that sole purpose was "disingenuous" and violated N.J.R.E. 408. Roggio concludes that the trial judge "plainly erred in basing its finding of liability, in whole or part, upon the contents of [former counsel's] letter."

In response, Sovereign points out that N.J.R.E. 408 allows introduction of settlement negotiations for a purpose other than proving liability. Sovereign argues that the letter shows that six months after the alleged payment of the loan, defendants were claiming entitlement to a $20,000 set-off and made no claim of actual payment. Sovereign also claims that the letter was properly offered to impeach defendants' oral testimony of payment, and hence there was no violation of N.J.R.E. 408. Finally, Sovereign claims that even if the trial court erred in admitting the letter, it was not plain error because the other evidence supported the ruling.

Sovereign introduced the December 4, 2004, letter during cross-examination of Roggio. Roggio recognized the letter and testified as to its contents. Despite the letter and the statements therein, Roggio maintained that the loan had been paid off six months earlier. During her oral opinion, the trial judge discussed the letter, noting that she was "not using that note to talk about settlement negotiations" but could "consider what was said in that note." She then described the letter's contents. Later in the opinion, she again examined the letter. She noted that she was "reviewing it for the purposes of noting that [defendants' former counsel] mentioned a commercial line of credit, a commercial loan, and he puts [loan] numbers in two parts of his letter. Both of those numbers comport with the numbers for the Bank."

N.J.R.E. 408 governs the admissibility of settlement offers and negotiations. The rule states:

When a claim is disputed as to validity or amount, evidence of statements or conduct by parties or their attorneys in settlement negotiations, with or without a mediator present, including offers of compromise or any payment in settlement of a related claim, shall not be admissible to prove liability for, or invalidity of, or amount of the disputed claim. Such evidence shall not be excluded when offered for another purpose; and evidence otherwise admissible shall not be excluded merely because it was disclosed during settlement negotiations.

[N.J.R.E. 408.]

Importantly, "[t]he rule permits the use of evidence arising out of settlement negotiations for purposes other than proving liability or the amount of damages." N.J.R.E. 408 Supreme Court committee comment.

The transcript of Roggio's cross-examination demonstrates that the letter was not introduced to prove liability. Rather, Sovereign introduced the letter in an attempt to contradict and rebut Roggio's testimony that the loan had been repaid. Introduction of the letter on this premise was therefore consistent with N.J.R.E. 408. The transcript of the judge's decision evinces a similar conclusion in that the judge stated multiple times that she was not considering the letter for liability purposes, but rather for other purposes.

Furthermore, even if the judge impermissibly considered the letter as evidence of liability, there was no plain error. The other evidence adduced at trial established liability on the part of Lasch and Roggio. This included the Promissory Note, the Business Loan Agreement, the Note Modification Agreement, the computer screen printout, and Giangrossi's testimony. Therefore, consideration of the settlement offer as proof of liability would not have prejudiced defendants and was therefore not "clearly capable of producing an unjust result." Pressler, Current N.J. Court Rules, comment 2 on R. 2:10-2 (2010).

IV.

In Roggio's second point on appeal, he claims that the trial judge abused her discretion in refusing to grant a reasonable continuance to obtain the deposition of Carbone. Roggio states that Sovereign's counsel advised defendant that he would produce Carbone for a deposition and they reasonably relied on his representations. Roggio reasons that based on this representation, the critical nature of Carbone's testimony to their case, and the absence of juror commitments in this nonjury case, the judge "should have exercised her discretion to allow a reasonable amount of time for the parties to conduct a telephonic deposition of Ms. Carbone to be used at trial." He concludes that the trial judge "had no rational reason for refusing a reasonable continuance" and her decision constituted reversible error.

Sovereign asserts that the judge did not abuse her discretion in refusing to grant a continuance for several reasons. First, defendants were represented for over three years before counsel withdrew, and their counsel did not take any depositions during that period. Second, defendants, while acting pro se from March 2008 through trial, did not attempt to take any depositions "until after the discovery end date." Third, defendants "made no effort to secure Ms. Carbone's testimony through their own efforts," instead relying on the attempts at accommodation made by Sovereign's counsel. Sovereign also claims that defendants testified to what they contend Carbone would have said, specifically, that the Promissory Note was paid off and the Note Modification Agreement was actually a new note; therefore, they were not prejudiced by Carbone's absence.

Under Rule 4:36-3(b), "[a]n initial request for an adjournment for a reasonable period of time to accommodate a scheduling conflict or the unavailability of . . . a witness shall be granted if made timely in accordance with this rule." Such a request "should be made as soon as the need is known but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week." R. 4:36-3(b). "Requests made after the specified time will be granted only in exceptional circumstances[.]" Pressler, Current N.J. Court Rules, comment 3.2 on R. 4:36-3(b) (2010).

A continuance should generally be granted for legitimate reasons, including the unavailability of a necessary witness. State v. Tsetsekas, 411 N.J. Super. 1, 12 (App. Div. 2009). "However, every rule has its limits. Postponement requests must be considered, in part, in light of preparation efforts. If they are not, parties will have no incentive to prepare." Ibid. (internal quotations and citation omitted).

Defendants first raised the issue of a continuance on October 20, 2008, the date the trial was scheduled to begin. This request was clearly made outside the time period permitted by Rule 4:36-3(b). Moreover, Roggio has not pointed to any exceptional circumstances excusing defendants' delay in making the request that would allow them to obtain a continuance despite the lateness of their request. Indeed, the only facts Roggio cites in support of his argument are the statements of Sovereign's counsel regarding his attempts at accommodating their desire to depose Carbone. Defendants' failure to comply with Rule 4:36-3(b) cannot be excused.

The precepts outlined in Tsetsekas, supra, 411 N.J. Super. at 12, serve as a second basis for rejecting Roggio's arguments. This case was pending for more than three and one-half years before it finally went to trial, discovery expired on November 4, 2006, and defendants were represented by counsel until May 9, 2008. Even though Roggio should not be penalized for counsel's failure to secure Carbone's deposition, Kosmowski v. Atlantic City Medical Center, 175 N.J. 568, 575 (2003), he himself failed to secure Carbone's testimony in the five and one-half months he was acting pro se between counsel's dismissal and the trial date. Defendants knew of the allegedly critical nature of Carbone's testimony, yet instead of personally attempting to obtain her testimony, they relied on the efforts of Sovereign's counsel. Their failure to prepare for trial justifies the judge's denial of their request for a continuance. Tsetsekas, supra, 411 N.J. Super. at 12.

Based on the foregoing, it is clear that the judge did not abuse her discretion in refusing to grant Lasch and Roggio a continuance. Although she did not cite Rule 4:36-3(b) or Tsetsekas, supra, 411 N.J. Super. at 12, in denying defendants' request, her decision was consistent with the relevant law and therefore rested on a permissible basis. As such, her decision was not an abuse of discretion. Scurry, supra, 193 N.J. at 504.

In his final argument, Roggio challenges the awards to Sovereign of attorneys' fees and costs and post-judgment interest as not justified by the documentation Sovereign submitted. Roggio states that Sovereign's counsel failed to indicate "what portion of each invoice represented charges for defense of the counterclaim." He argues that by accepting "summary invoices[] with no itemization of the services performed and the time expended," the court "could not possibly have made a determination of the reasonableness of the charges" under Rule of Professional Conduct 1.5(a). Roggio also claims that the award of post-judgment interest was inappropriate because the judgment provided that post-judgment interest began accruing on October 23, 2008, before the judgment had been entered. Defendants' second claimed error is that the post-judgment interest rate in 2008 was 5.5%, which equates here to $22.97 per day, not the $30.91 per day awarded by the court. Roggio, therefore, seeks vacation of both awards.

Sovereign contends that the trial court awarded fees and calculated post-judgment interest correctly. Sovereign urges rejection of Roggio's argument that the award of fees was improper due to Sovereign's alleged failure to submit full invoices because "the law does not require them." Citing Rule 4:42(9)(b) and Rendine, supra, 141 N.J. 292, Sovereign asserts that it submitted the requisite information, including identities and experience levels of attorneys, specific services provided, hours expended by each attorney, and relevant billing periods. Sovereign, therefore, concludes that Roggio's arguments "are completely unfounded in both law and fact." Sovereign similarly argues that the award of post-judgment interest was correct because the court entered a judgment from the bench on October 23 and the interest rate set by the court was consistent with Rule 4:42-11(a)(iii).

On November 4, 2008, counsel filed a certification in support of Sovereign's motion for award of attorneys' fees and costs. Counsel certified that his firm had a fee agreement with Sovereign at a flat rate of $230 per hour, which was a reduction from counsel's standard rate of $340 per hour. Counsel explained the fees incurred as seen in invoices or time sheets for ten individual months between November 2006 and November 2008. Counsel specified the names and titles of attorneys, specific number of hours worked, miscellaneous expenses incurred, and character of work performed. Appendix A to the certification included nine invoices sent to Sovereign.

The trial judge placed an oral decision on the record, explaining that Sovereign sought payment for 129 hours of work at a rate of $230 per hour, for a total of $29,670, plus $1498.92 in expenses. The judge stated that, while the invoices counsel submitted to Sovereign were not detailed, the attorney did submit an affidavit explaining each invoice in detail. The judge noted that counsel reduced the total fees incurred by twenty percent, which was his estimation of the proper allocation between the case that settled and the case that went to trial. After reviewing the affidavit, the judge "conclude[d] that the fees requested are fair and reasonable and adequately explained." A total amount of $31,168.92 was awarded. The judge also entered an order memorializing this award and finalizing the judgment. This order included an award of $30.91 per day in post-judgment interest pursuant to Rule 4:42-11, for a total of $896.52.[6]

We have examined the record and the judge's decision and conclude that the fee award complied in all respects with controlling Supreme Court law. See Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (the test for reasonable attorneys' fees in contract cases is that used in other attorneys' fee-award cases; requesting party must establish that suit was causally related to securing the relief obtained and a fee award will be justified if the party's efforts were necessary and important in obtaining relief); Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 25 (2004); (application should be sufficiently detailed to allow a trial court to determine the nature of the work performed, who performed the work, the reasonableness of the hourly rate, and the hours expended); Rendine, supra, 141 N.J. at 336-37 (same).

Last, we consider Roggio's claim that the award of post-judgment interest was in error. Rule 4:42-11(a) governs awards of post-judgment interest. The rule states in pertinent part:

Except as otherwise ordered by the court or provided by law, judgments, awards and orders for the payment of money, taxed costs and counsel fees shall bear simple interest as follows:

. . . .

(ii) For judgments not exceeding the monetary limit of the Special Civil Part at the time of entry, regardless of the court in which the action was filed: commencing January 2, 1986 and for each calendar year thereafter, the annual rate of interest shall equal the average rate of return, to the nearest whole or one-half percent, for the corresponding preceding fiscal year terminating on June 30, of the State of New Jersey Cash Management Fund (State accounts) as reported by the Division of Investment in the Department of the Treasury.

(iii) For judgments exceeding the monetary limit of the Special Civil Part at the time of entry: in the manner provided for in subparagraph (a)(ii) of this Rule until September 1, 1996; thereafter, at the rate provided in subparagraph (a)(ii) plus 2% per annum.

[R. 4:42-11(a).]

This judgment clearly exceeds the monetary limit of the Special Civil Part. The Publisher's Note immediately following Rule 4:42-11 lists the annual rates; for the 2008 calendar, the annual rate was 5.5%, plus the two-percent increase. Pressler, Current N.J. Court Rules, Publisher's Note on R. 4:42-11(a) (2010).

"[T]he rule indicates that interest normally shall run from the date of judgment," and a trial court may in its discretion vary the award in the interests of equity. Baker, supra, 353 N.J. Super. at 173. In Baker, we held that the trial court did not abuse its discretion in ordering interest to accrue from the date of the jury verdict because the rules provided the court with latitude to deviate from them and a consent order was entered that made the compensatory damages award in the case enforceable with an award of interest from the date of the verdict. Id. at 174. In so ruling, we rejected the appellant's argument that interest should not have started accruing until the verdict was memorialized in the subsequent court order. Id. at 173-74.

Even if there were some error in the award of post-judgment interest, Roggio was not prejudiced. The applicable rate under Rule 4:42-11(a) was 7.5%, and the pre-judgment rate of interest on the promissory note was 8.5%. Roggio was not prejudiced by a reduction of the interest due between October 23, 2008, and the date of judgment.

Affirmed.

[1] This recital is obviously erroneous because, if the loan had been paid, there would be no need for a loan modification agreement.

[2] After Sovereign filed its complaint, Lasch and Roggio counterclaimed and filed a third-party complaint in which they sought judgment against Mondo Development Corporation (MDC) and Mondo Pallon, an officer of MDC. In late 2003 or early 2004, Pallon allegedly represented to Lasch that he would sell her MDC's 2002 Jeep Liberty for $16,600. Lasch secured a loan from Sovereign to purchase the vehicle. However, MDC and Pallon never transferred title of the vehicle to Lasch, and she thereafter filed suit. This case was eventually dismissed for want of prosecution. However, Sovereign amended its complaint to include a claim for the amount due on the auto loan for this Jeep.

[3] Their counsel withdrew from the case on May 9, 2008.

[4] The trial on the personal note was scheduled to begin on October 27, 2008. At that hearing, Lasch and Roggio sought a continuance so that they could depose Carbone. The judge denied the request.

[5] The parties thereafter settled the claims on the personal note, and the case was dismissed pursuant to a stipulation of dismissal entered November 14, 2008.

[6] The rate of $30.91 per day was calculated by prorating the $150,378.97 award of principal over 365 days, or $412 per day, and then assessing interest at a rate of 7.5% per day.

Kenneth Vercammen Law Office 25th Anniversary Party Friday, July 30, 2010

2010-07-02T18:06:00.001-07:00

Kenneth Vercammen Law Office
25th Anniversary Party
Friday, July 30, 2010

"Celebrating 25 years of providing excellent service to clients and the community"
1985-2010
Happy Hour, Open House, Client & Community Appreciation Social. Open to the public 4-7 PM

Food, Refreshments, T- shirts and special gifts

The Law office is located at 2053 Woodbridge Avenue, Edison, NJ 08817 near the Nixon Post Office, approximately 1/2 mile from Route 1/ Wick Plaza, and 1 mile from Middlesex County College. There is 50 parking spaces nearby on Russell Ave. and Lillian St. around the corner from Kim’s Kafe, on Woodbridge Ave. near the Green Derby Tavern, and across the street on School House Lane.
Visit our website at www.njlaws.com for Directions and other details or call and we will fax directions or email at KenV@njlaws.com

Kenneth Vercammen, Esq. at (732) 572-0500(Law office)
Fax form to 732-572-0030 or email
kenvnjlaws@verizon.net

-Yes, We will be attending the party

Name: _____________________________
email: _____________________________
http://www.kennethvercammen.com/25th.party.html

Wills and Estate Planning for Bankers and Bank Executives

2010-05-23T17:58:00.001-07:00

Wills and Estate Planning for Bankers and Bank Executives

By Kenneth Vercammen, Esq.

Where there’s No Will …

If you do not write a Will, the State has already written one for you. Your assets go to whoever a state law says receives the assets, or to the government itself! A Will should be a statement to the things you truly care about: your spouse, your children, your parents, your friends, your Church and charities. You can consider remembering your church or school.

It is important to do secession planning. Also, if you have partners in your business, a signed partnership agreement is valuable. Make sure you also have a Power of Attorney signed to plan for temporary disability. If your business is the primary support of family, how will your business continue to operate? How can your business be sold? It’s time for a call to action.

If You Have No Will:

If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get your assets.
2. State law determines who gets assets, not you
3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees
4. You lose the opportunity to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes
5. A Judge determines who gets custody of children. A greedy brother or crazy mother in law could ask the court for custody.
6. If you have no spouse or close relatives the State may take your property
7. The procedure to distribute assets becomes more complicated
8. It probably will cause fights and lawsuits within your family
9. If no partnership agreement or procedure to transfer client files your business good will could be lost.

When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns.

Think- Who don’t you want to receive your assets? Without a Will, they could receive your assets and request custody of children.

Who is not the best choice to raise your children, or safeguard your children's money for college? Do you want children, or grandchildren, to get money when they turn 18? Will they invest money wisely, or go to Seaside and play games?

Business assets

It is important to prepare a Will which sets forth distribution of a valuable property such as the good will of your business, the phone number of your business and equipment you own.
A Will must not only be prepared within the legal requirements of the state Statutes but should also be prepared so it leaves no questions regarding your intentions.

THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH KENNETH VERCAMMEN’S LAW OFFICE OFTEN INCLUDES IN A WILL

1ST: DEBTS AND TAXES
2ND: SPECIFIC BEQUESTS
3RD: DISPOSITION TO SPOUSE
4TH: DISPOSITION OF REMAINDER OF ESTATE
5TH: CREATION OF TRUSTS FOR SPOUSE
6TH: CREATION OF TRUST FOR CHILDREN
7TH: OTHER BENEFICIARIES UNDER 21
8TH: EXECUTORS
9TH: TRUSTEES
10TH: GUARDIANS
11TH: SURETY OR BOND
12TH: POWERS
13TH: AFTERBORN CHILDREN
14TH: PRINCIPAL AND INCOME
15TH: NO ASSIGNMENT OF BEQUESTS
16TH: GENDER
17TH: CONSTRUCTION OF WILL
18TH: NO CONTEST CLAUSE

WHY PERIODIC REVIEW IS ESSENTIAL

Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are:

* Marriage, death, birth, divorce or separation affecting either you or anyone named in your Will

* Significant changes in the value of your total assets or in any particular assets which you own

* A change in your domicile

* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, trustee or guardian of infants, or of one of the witnesses to the execution of the Will

* Annual changes in tax law

* Changes in who you like

MAY I CHANGE MY CURRENT WILL?

Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of property until they are mature. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a codicil signed to legally change portions of the Will.

A portion of your Will and Estate Planning can be deducted on your income tax return when it deals with tax planning. Thus, part of the fee is tax deductible for income tax purposes.
Under the law in New Jersey, if a person dies without a Will and without children, their spouse will inherit all assets, even if they are separated from the spouse. In addition, if you have children from a previous marriage, but no Will, your separated spouse will get half your estate. Therefore, you may wish to do the following:

1) Have an Elder Law attorney prepare a Will to distribute your assets to the people you care the most about. If you already have a Will, prepare a new Will and have the old Will revoked. ( Your estate planning attorney will explain this to you.)
2) Prepare a Power of Attorney to select someone to handle your finances if you become disabled. Have your old power of attorney revoked.
3) Prepare a Living Will prepared
4) Change your beneficiary on assets you may own, such as stocks, bank accounts, IRA, and other financial assets. Change your beneficiary under your own life insurance, whether whole life insurance or term insurance.
5) Contact your human resources person and change the beneficiary on life insurance, pension, stock options or other employee benefits. Note that your spouse must sign a written waiver permitting you to change beneficiaries.
6) Keep your personal papers at a location where family can find them.
7) Have your attorney prepare a prenuptial agreement if you decide to get re-married.
8) Make sure the trustee for any funds designated for your children is the "right" trustee.
9) In New Jersey, if you are married and living with your spouse, under certain instances the surviving spouse has a right to "elect against the Will" The disinherited spouse may like to elect against the Will and try to obtain one third of the estate. Your attorney can explain how you can protect yourself and your children.
10) If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody.

SAVE MONEY- Have your attorney prepare a self- proving Will with a No bond clause

Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond. With a well-drawn Will, you may also reduce death taxes and other expenses. Don’t pinch pennies now to the detriment of your beneficiaries

The proper preparation of a Will should involve a careful analysis of the your assets, family and desires.
Estate Planning is the process of examining what will happen to your property when you die and arranging for its distribution in such a manner as will accomplish your objectives.
The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.

Be sure your Will takes into account the 2009 Federal Tax changes and any Inheritance Tax changes. Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s witnesses after death.

OTHER DOCUMENTS TO BE PREPARED BY YOUR ATTORNEY
-Power of Attorney- to allow a trusted person to administer your assets during your lifetime, either upon disability or now
-Living Wills- to state your wishes concerning medical care in the event of your serious illness
-Trusts (and Medicaid Trusts)

CONCLUSION

Planning can only be done if someone is competent and/or alive. Make sure your assets can be passed directly to your loved ones. Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on litigation topics. He has been selected to lecture to trial lawyers by the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.
Call our office to schedule a confidential appointment 732-572-0500

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE

2010-05-20T12:12:00.000-07:00

PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE
2053 Woodbridge Ave.
Edison, NJ 08817

Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd location or location to meet clients in Edison.

The offices are located on the 1st floor of the building.
2 rooms office approx 12.4 x 9.4
and front room appr 8 x 9
plus client use of reception room 16.6 x 7.2
and use of 2nd floor conference room

$700 per month
Call 732-572-0500
Owner of building is local attorney, Kenneth Vercammen who handles Personal Injury, Elder Law, and Criminal Law.
Available June 15

2A:44-127. Action to recover debt not barred

2010-03-01T09:57:00.001-08:00

2A:44-127. Action to recover debt not barred
Nothing in this article contained shall affect or impair the right of a creditor for labor performed or materials furnished to maintain an action to recover such debt against the person liable therefor.

2A:44-126. Definitions

2010-03-01T09:56:00.001-08:00

2A:44-126. Definitions
As used in this article:

"Contractor" means a person, his assigns or legal representatives, with whom a contract with a public agency is made.

"Public agency" means any county, city, town, township, public commission, public board or other municipality in this state authorized by law to make contracts for the making of any public improvement in any city, town, township or other municipality.

"Subcontractor" means a person having a contract under a contractor for the performance of the same work, or any specified part thereof, and also a person having such a contract with a subcontractor, for the performance of the same work or any specified part thereof.

2A:44-129. Commencement and extent of lien; exception

2010-02-26T13:20:00.000-08:00

2A:44-129. Commencement and extent of lien; exception
A lien created by this article shall, from the time of the filing thereof, attach, to the extent of the liability of the contractor or subcontractor as the case may be, for the claim preferred upon any funds due or to grow due to the contractor from the public agency under the contract against which the lien claim is filed unless released as provided by section 2A:44-130 of this title.

2A:44-128.Debts for labor and materials; funds liable; asserting lien; forfeiture of lien

2010-02-26T13:18:00.001-08:00

2A:44-128.Debts for labor and materials; funds liable; asserting lien; forfeiture of lien
2A:44-128. a. Any person who, as laborer, mechanic, materialman, merchant or trader, or subcontractor, in pursuance of or conformity with the terms of any contract for any public improvement made between any person and a public agency as defined in N.J.S.2A:44-126 and authorized by law to make contracts for the making of public improvements, performs any labor or furnishes any materials, including the furnishing of oil, gasoline or lubricants and vehicle use, toward the performance or completion of any such contract, shall, on complying with the provisions of subsection b. of N.J.S.2A:44-128, N.J.S.2A:44-132 and N.J.S.2A:44-133, have a lien for the value of the labor or materials, or both, upon the moneys due or to grow due under the contract and in the control of the public agency, to the full value of the claim or demand. The lien may be filed and, to the extent of the amount due or to grow due under the contract, shall become an absolute lien to the full value of the labor performed or materials furnished in favor of every person and his representatives and assigns employed by or furnishing materials to the contractor or subcontractor.
No public agency shall be required to pay a greater amount than the contract price of the labor performed and materials furnished or the value thereof when no specific contract is made with respect to the same by the contractor or subcontractor, respectively.

b. Any person who may seek to assert a lien under subsection a. of this section shall, within 20 days of the first performance of work or performance of work or delivery of labor or materials to a subcontractor, file with the municipal clerk, the chief financial officer of the county or the chairman of the commission, board or authority, whichever is appropriate, written notice that he or she has furnished labor or materials to the subcontractor. The notice shall contain the name, address and telephone number of the person providing the labor or materials, the name and geographical location of the public improvement for which the labor or materials have been supplied, the name of the subcontractor to which the labor or materials have been supplied, a description of the labor or materials supplied, and the date that the labor or materials were first supplied to the subcontractor. The officer of the public agency shall maintain a separate file for all written notices which shall be available to the public for inspection and copying during regular business hours. Failure to provide this written notice as required within 20 days of the first performance of work or delivery of labor or materials to the subcontractor shall be a bar to secure a lien for the labor or materials provided, unless there is money owing from the contractor to the subcontractor to whom the labor or materials were provided, in which case the lien shall be limited in value to a sum not greater than the money owing from the contractor to the subcontractor.

The public entity with which the notice required by this section is filed may charge an inquiry fee for information contained in the notice to any person, including the contractor. The inquiry fee shall be reasonable and shall be set to reflect the cost to the public entity of retrieving the information.

Notwithstanding the provisions of this section to the contrary, if a notice is filed after the 20-day period, the person so filing may assert a lien under subsection a. of this section for any labor or materials provided on or after that filing date.

No additional notice shall be required for work or materials provided under the same public improvement contract subsequent to the initial notice, notwithstanding that the work and materials may be provided under a separate contract or purchase order.

Written notice shall be substantially in the following form:

NOTICE OF THE DELIVERY OF LABOR OR MATERIALS

In accordance with the terms and provisions of the "Municipal Mechanics' Lien Law," N.J.S.2A:44-125 et seq., notice is hereby given that:

1. (Name of person supplying labor or materials) of (address of person supplying labor or materials) has on (date) provided to (name of subcontractor) the following: (description of labor or materials). My telephone number is (telephone number of person supplying labor or materials).

2. The (description of labor or materials) were provided for the (name of public improvement) in (name of municipality), New Jersey.

Signed:..........................................

For:...............................................

Individual, firm or corporation...........

c. Funds received by a contractor and paid to a subcontractor or supplier for work performed or labor or materials supplied pursuant to a contract for any public improvement shall be applied only to amounts due and owing for work performed or labor or materials supplied for such public improvement. Any subcontractor or supplier who knowingly applies such payment received from the contractor on the public improvement to amounts due and owing for work performed or labor or materials supplied on a construction project other than the public improvement and then claims a lien on the public improvement for non-payment shall forfeit all lien rights under this title. A subcontractor or supplier forfeiting his lien rights pursuant to this section shall be liable for all damages incurred by any contractor as a result of the misapplication of such funds, including attorney's fees, and shall be liable for all court costs and reasonable legal expenses, including attorneys' fees, incurred by the contractor in defending or causing the discharge of the lien claim.

L.1951 (1st SS), c.344; amended 1996, c.81, s.1.

2A:44-125. "municipal mechanics' lien law

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2A:44-125. Short title
This article may be cited as the "municipal mechanics' lien law" .

L.1951 (1st SS), c.344.

2A:44-126. Definitions
As used in this article:

"Contractor" means a person, his assigns or legal representatives, with whom a contract with a public agency is made.

"Public agency" means any county, city, town, township, public commission, public board or other municipality in this state authorized by law to make contracts for the making of any public improvement in any city, town, township or other municipality.

"Subcontractor" means a person having a contract under a contractor for the performance of the same work, or any specified part thereof, and also a person having such a contract with a subcontractor, for the performance of the same work or any specified part thereof.

L.1951 (1st SS), c.344.

2A:44-127. Action to recover debt not barred
Nothing in this article contained shall affect or impair the right of a creditor for labor performed or materials furnished to maintain an action to recover such debt against the person liable therefor.

2A:44A-38. Waivers of construction lien rights

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2A:44A-38. Waivers of construction lien rights
38. Waivers of construction lien rights are against public policy, unlawful, and void, unless given in consideration for payment for the work, services, materials or equipment provided or to be provided, and such waivers shall be effective only upon and to the extent that such payment is actually received.

2A:44A-37. Furnishing of list of subcontractors, suppliers

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2A:44A-37. Furnishing of list of subcontractors, suppliers
37. a. If required in a contract or upon written request from an owner to a contractor, a subcontractor, or both, the contractor or subcontractor shall, within 10 days, provide the owner with an accurate and full list of the names and addresses of each subcontractor and supplier who may have a right to file a lien pursuant to the provisions of this act.

b. If required in a contract or upon written request from a contractor to a subcontractor, the subcontractor shall, within 10 days, provide the contractor with an accurate and full list of the names and addresses of each subcontractor or supplier who may have a right to file a lien pursuant to the provisions of this act.

c. Any list provided pursuant to the provisions of subsection a. or b. of this section shall be verified under oath by the person providing same.

d. Reliance upon the verified list by the person requesting same or by the owner shall be prima facie evidence establishing the bona fides of payment made in reliance thereon and shall constitute an absolute defense to any claim that the party making such payment should have made additional inquiry to determine the identity of potential claimants.

e. Any person to whom a written request has been made pursuant to the provisions of subsection a. or b. of this section who does not provide a list in compliance with this section shall be directly liable in damages to the party requesting the list or to the owner, including, but not limited to, court costs and the reasonable legal expenses, including attorneys' fees, incurred by said party or the owner, or both, in defending or causing the discharge of a lien claim asserted by a party whose name has been omitted from the list.

2A:44A-36. Liability for fraud 36. A person who fraudulently deprives a person entitled to the benefits of this act shall be liable to that p

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2A:44A-36. Liability for fraud
36. A person who fraudulently deprives a person entitled to the benefits of this act shall be liable to that person for any damages resulting therefrom.

2A:44A-35. Filing, recording of discharge

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2A:44A-35. Filing, recording of discharge
35. A discharge, subordination or release of a lien claim or Notice of Unpaid Balance and Right to File Lien shall be duly acknowledged or proved, and recorded in a properly indexed book for that purpose. A notation of the record of the discharge of a lien claim or Notice of Unpaid Balance and Right to File Lien shall be endorsed upon the margin of the record in the book where the original lien or Notice of Unpaid Balance and Right to File Lien is recorded stating that the discharge is filed and recorded, giving the date of filing and recording and setting forth the book and the page number where the discharge, or receipt of payment of the lien or order discharging the lien, is recorded.

2A:44A-34. Book, page number of original record of lien claim necessary for release, discharge

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2A:44A-34. Book, page number of original record of lien claim necessary for release, discharge
34. A discharge, subordination or release of a lien claim or Notice of Unpaid Balance and Right to File Lien, a receipt of payment of a lien claim, or any order of the court discharging or releasing a lien claim, shall recite the book and page number of the original record of the lien claim, and a full description of the property discharged or released. The county clerk may refuse to discharge, release or satisfy a lien claim or file a receipt of payment of a lien claim unless the provisions of this section have been satisfied.