NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0740-22
13 MARION, LLC,
Plaintiff-Respondent,
v.
ADAMS CONSTRUCTION AND DEMOLITION, INC., SHENANDOAH ADAMS, SR., and SHENANDOAH ADAMS, JR.,
Defendants-Appellants. ______________________________
Submitted December 18, 2023 – Decided December 28, 2023
Before Judges Mawla and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1203-20.
Shay Shailesh Deshpande, LLC, attorneys for appellants (Shay S. Deshpande, on the briefs).
Post Polak, PA, attorney for respondent (David Lawrence Epstein, of counsel and on the brief; Kathryn A. Kopp, on the brief).
PER CURIAM Defendants, Adams Construction and Demolition, LLC ("Adams"),
Shenandoah Adams, Jr. ("Junior"), and Shenandoah Adams, Sr. ("Senior") 1
appeal from an order denying their motion to vacate default judgment under
Rule 4:50-1, which was entered almost two years earlier in favor of plaintiff, 13
Marion, LLC ("Marion"). Having considered the record and applicable legal
principles, we affirm.
I.
Adams is a licensed home improvement contractor operated by Junior and
Senior. In March 2019, Marion and Adams entered into a contract where Adams
agreed to perform construction services for Marion for a sum of $314,244. The
contract contained a condition that Marion would obtain a loan commitment at
a favorable interest rate. The contract required defendants to submit certain
information to prospective lenders. Defendants failed to do so, and a lender
withdrew its offer to finance the project. Marion subsequently identified another
lender, but despite Marion's repeated requests, defendants again failed to
provide the information needed. As a result, Marion was unable to obtain a
suitable loan commitment.
1 Because the individuals' last names are the same as the business, and because the individuals' first names are so similar, we refer to them by their suffixes, intending no disrespect. A-0740-22 2 In February 2020, Marion filed a complaint in the Law Division for breach
of contract and consumer fraud. Marion then filed an affidavit of service ,
indicating successful service on Adams as a corporation, and Junior and Senior
individually. One week later, a claims specialist for Golden State Claims
contacted Marion's counsel, identified himself as an administrator for
defendants' insurance carrier, and requested proof of service of the complaint
and an extension to file a responsive pleading. Marion received no further
communications from defendants or their insurance adjuster.
Subsequently, Marion's counsel moved for default judgment due to
defendants' failure to answer the complaint within the time limit set forth under
Rule 4:6-1(a). In November 2020, the trial court entered default judgment
against Adams, Junior, and Senior, jointly and severally, totaling $154,113.25.
Defendants were served with the order for default judgment on November 18,
2020.
In September 2021, an information subpoena was served on defendants.
In August 2022, Marion filed a motion to enforce litigant's rights, which sought
to obtain information via subpoena "regarding the whereabouts of assets in the
possession of . . . [defendants], following unsuccessful attempts to secure
certified responses." Additionally, Marion sought an arrest warrant in the event
A-0740-22 3 defendants failed to answer the subpoena. In response, defendants filed a cross-
motion to vacate the November 2020 default judgment pursuant to Rule 4:50-1.
On September 28, 2022, the trial court denied defendants' motion. The
court reasoned the motion was untimely without any excusable neglect, and
defendants failed to present any meritorious defenses. The court further
determined defendants failed to supply proof of alternate address or other
documentation to show lack of service and there was not a sufficient legal or
equitable basis for the requested relief. Defendants appeal from that order.
II.
We review a trial court's decision to deny vacatur of a final judgment
under Rule 4:50-1 for abuse of discretion. Deutsche Bank Nat'l Tr. Co. v. Russo,
429 N.J. Super. 91, 98 (App. Div. 2012). "The decision whether to vacate a
judgment . . . is a determination left to the sound discretion of the trial court,
guided by principles of equity." F.B. v. A.L.G., 176 N.J. 201, 207 (2003). On
appeal, "[t]he decision granting or denying an application to open a judgment
will be left undisturbed unless it represents a clear abuse of discretion." Hous.
Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). See also U.S. Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (trial court's determination
under Rule 4:50-1 "warrants substantial deference and should not be reversed
A-0740-22 4 unless it results in a clear abuse of discretion"). "The Court finds an abuse of
discretion when a decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'"
Guillaume, 209 N.J. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J.
88, 123 (2007)).
All motions to vacate under Rule 4:50-1 must be filed within a "reasonable
time[,]" regardless of the motion's grounds. See Citibank, N.A. v. Russo, 334
N.J. Super. 346, 353 (App. Div. 2000) (citing R. 4:50-2). "We have explained
that a reasonable time is determined based upon the totality of the
circumstances[.]" Romero v. Gold Star Distrib., LLC, 468 N.J. Super. 274, 296
(App. Div. 2021). And motions to vacate default judgments under Rule 4:50-
1(a) through (c) must be filed "not more than one year after the
judgment . . . was entered[.]" R. 4:50-2; see also Orner v. Liu, 419 N.J. Super.
431, 437 (App. Div. 2011) (describing one year as "the outermost time limit"
for filing).
Defendants argue the trial court erred in denying their motion to vacate
default judgment because Marion's failure to effectuate service justified the lack
of response to the February 2020 complaint. Specifically, defendants assert
service could not be effectuated at their place of business because Junior and
A-0740-22 5 Senior were not working regularly due to the onset of the COVID-19 pandemic.
Defendants next assert both Junior and Senior are far in excess of the heights
and weights of the persons described in the affidavits of service. Therefore, the
discrepancies in the descriptions warrant a remand to cross-examine the process
server and determine whether service occurred.
We glean that defendants' motion was brought on Rule 4:50-1(a) grounds
because they argue the trial court should have found Marion did not properly
effect service, and so defendants were unaware of the pending litigation, which
constituted excusable neglect. Their motion to vacate was thus time-barred
under the one-year limitation mandated by Rule 4:50-2.
Additionally, defendants' argument about not being aware of the litigation
is belied by the facts.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0740-22
13 MARION, LLC,
Plaintiff-Respondent,
v.
ADAMS CONSTRUCTION AND DEMOLITION, INC., SHENANDOAH ADAMS, SR., and SHENANDOAH ADAMS, JR.,
Defendants-Appellants. ______________________________
Submitted December 18, 2023 – Decided December 28, 2023
Before Judges Mawla and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1203-20.
Shay Shailesh Deshpande, LLC, attorneys for appellants (Shay S. Deshpande, on the briefs).
Post Polak, PA, attorney for respondent (David Lawrence Epstein, of counsel and on the brief; Kathryn A. Kopp, on the brief).
PER CURIAM Defendants, Adams Construction and Demolition, LLC ("Adams"),
Shenandoah Adams, Jr. ("Junior"), and Shenandoah Adams, Sr. ("Senior") 1
appeal from an order denying their motion to vacate default judgment under
Rule 4:50-1, which was entered almost two years earlier in favor of plaintiff, 13
Marion, LLC ("Marion"). Having considered the record and applicable legal
principles, we affirm.
I.
Adams is a licensed home improvement contractor operated by Junior and
Senior. In March 2019, Marion and Adams entered into a contract where Adams
agreed to perform construction services for Marion for a sum of $314,244. The
contract contained a condition that Marion would obtain a loan commitment at
a favorable interest rate. The contract required defendants to submit certain
information to prospective lenders. Defendants failed to do so, and a lender
withdrew its offer to finance the project. Marion subsequently identified another
lender, but despite Marion's repeated requests, defendants again failed to
provide the information needed. As a result, Marion was unable to obtain a
suitable loan commitment.
1 Because the individuals' last names are the same as the business, and because the individuals' first names are so similar, we refer to them by their suffixes, intending no disrespect. A-0740-22 2 In February 2020, Marion filed a complaint in the Law Division for breach
of contract and consumer fraud. Marion then filed an affidavit of service ,
indicating successful service on Adams as a corporation, and Junior and Senior
individually. One week later, a claims specialist for Golden State Claims
contacted Marion's counsel, identified himself as an administrator for
defendants' insurance carrier, and requested proof of service of the complaint
and an extension to file a responsive pleading. Marion received no further
communications from defendants or their insurance adjuster.
Subsequently, Marion's counsel moved for default judgment due to
defendants' failure to answer the complaint within the time limit set forth under
Rule 4:6-1(a). In November 2020, the trial court entered default judgment
against Adams, Junior, and Senior, jointly and severally, totaling $154,113.25.
Defendants were served with the order for default judgment on November 18,
2020.
In September 2021, an information subpoena was served on defendants.
In August 2022, Marion filed a motion to enforce litigant's rights, which sought
to obtain information via subpoena "regarding the whereabouts of assets in the
possession of . . . [defendants], following unsuccessful attempts to secure
certified responses." Additionally, Marion sought an arrest warrant in the event
A-0740-22 3 defendants failed to answer the subpoena. In response, defendants filed a cross-
motion to vacate the November 2020 default judgment pursuant to Rule 4:50-1.
On September 28, 2022, the trial court denied defendants' motion. The
court reasoned the motion was untimely without any excusable neglect, and
defendants failed to present any meritorious defenses. The court further
determined defendants failed to supply proof of alternate address or other
documentation to show lack of service and there was not a sufficient legal or
equitable basis for the requested relief. Defendants appeal from that order.
II.
We review a trial court's decision to deny vacatur of a final judgment
under Rule 4:50-1 for abuse of discretion. Deutsche Bank Nat'l Tr. Co. v. Russo,
429 N.J. Super. 91, 98 (App. Div. 2012). "The decision whether to vacate a
judgment . . . is a determination left to the sound discretion of the trial court,
guided by principles of equity." F.B. v. A.L.G., 176 N.J. 201, 207 (2003). On
appeal, "[t]he decision granting or denying an application to open a judgment
will be left undisturbed unless it represents a clear abuse of discretion." Hous.
Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). See also U.S. Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (trial court's determination
under Rule 4:50-1 "warrants substantial deference and should not be reversed
A-0740-22 4 unless it results in a clear abuse of discretion"). "The Court finds an abuse of
discretion when a decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'"
Guillaume, 209 N.J. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J.
88, 123 (2007)).
All motions to vacate under Rule 4:50-1 must be filed within a "reasonable
time[,]" regardless of the motion's grounds. See Citibank, N.A. v. Russo, 334
N.J. Super. 346, 353 (App. Div. 2000) (citing R. 4:50-2). "We have explained
that a reasonable time is determined based upon the totality of the
circumstances[.]" Romero v. Gold Star Distrib., LLC, 468 N.J. Super. 274, 296
(App. Div. 2021). And motions to vacate default judgments under Rule 4:50-
1(a) through (c) must be filed "not more than one year after the
judgment . . . was entered[.]" R. 4:50-2; see also Orner v. Liu, 419 N.J. Super.
431, 437 (App. Div. 2011) (describing one year as "the outermost time limit"
for filing).
Defendants argue the trial court erred in denying their motion to vacate
default judgment because Marion's failure to effectuate service justified the lack
of response to the February 2020 complaint. Specifically, defendants assert
service could not be effectuated at their place of business because Junior and
A-0740-22 5 Senior were not working regularly due to the onset of the COVID-19 pandemic.
Defendants next assert both Junior and Senior are far in excess of the heights
and weights of the persons described in the affidavits of service. Therefore, the
discrepancies in the descriptions warrant a remand to cross-examine the process
server and determine whether service occurred.
We glean that defendants' motion was brought on Rule 4:50-1(a) grounds
because they argue the trial court should have found Marion did not properly
effect service, and so defendants were unaware of the pending litigation, which
constituted excusable neglect. Their motion to vacate was thus time-barred
under the one-year limitation mandated by Rule 4:50-2.
Additionally, defendants' argument about not being aware of the litigation
is belied by the facts. A week after service, a claims adjuster representing
Adams' general liability carrier contacted Marion's attorney. This demonstrates
defendants had knowledge of the lawsuit and were properly served. Without
any evidence to the contrary, the trial court did not abuse its discretion in relying
on this information to determine no meritorious defenses existed for defendants'
failure to respond.
Defendants' reliance on the onset of the COVID-19 pandemic and
additional health issues also does not establish ineffective service, since service
A-0740-22 6 occurred prior to lockdown measures being implemented. Moreover, defendants
failed to provide any proof of additional addresses where process could have
been served. The affidavits of service to Junior, Senior, and the corporation also
indicate effective service. The trial court's reliance on this evidence, and
defendants' lack of evidence to the contrary, was not an abuse of discretion.
Defendants' argument that the descriptions of persons accepting service
on the affidavits did not match the appearances of Junior and Senior fails on its
face. The descriptions identify Junior and Senior as individuals over six feet in
height and over 200 pounds in weight. Because the descriptions did not list
Junior and Senior closer to their purported heights of two to four inches taller
than six feet and weights of well over two hundred pounds does not make the
descriptions inaccurate or misleading.
All other arguments raised by appellants lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0740-22 7