DAVID CHU VS. PHYSIQUES UNLIMITED, INC. AUGIE DASILVA VS. PHYSIQUES UNLIMITED, INC. (L-7727-13 AND L-7728-13, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 19, 2018
• Docket: A-4594-16T2/A-4595-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4594-16T2 A-4595-16T2

DAVID CHU,

Plaintiff-Respondent,

v.

PHYSIQUES UNLIMITED, INC.,

Defendant-Appellant,

and

SIGNATURE FITNESS, LLC, 492 CORTLANDT STREET REALTY, LLC,

Defendants,

ALEXANDER SICIGNANO, individually and derivatively on behalf of PHYSIQUES UNLIMITED II, INC.,

Defendants/Third-Party Plaintiffs,

v. AUGIE DASILVA and PHYSIQUES UNLIMITED II, INC.,

Third-Party Defendants. _________________________________________

AUGIE DASILVA,

ALEXANDER SICIGNANO, individually and derivatively on behalf of PHYSIQUES UNLIMITED II, INC.,

DAVID CHU and PHYSIQUES

A-4594-16T2 2 UNLIMITED II, INC.,

Third-Party Defendants. __________________________________

Submitted October 3, 2018 – Decided October 19, 2018

Before Judges Reisner and Mawla.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-7727-13 and L- 7728-13.

Rachel Schulman, PLLC, attorneys for appellant Physiques Unlimited, Inc., (Rachel Schulman, of counsel and on the briefs).

Respondents have not filed a brief.

PER CURIAM

This opinion addresses two related appeals, both filed by defendant

Physiques Unlimited, Inc. In A-4594-16, defendant appeals from a March 31,

2017 order, denying its motion to vacate an April 29, 2016 order granting

judgment in favor of plaintiff David Chu. In A-4595-16, defendant appeals from

a March 31, 2017 order, denying its motion to vacate a January 15, 2015 order

granting judgment in favor of plaintiff Augie Dasilva. Judge Christine A.

Farrington entered the underlying judgments from which defendant sought

relief. Judge Annette Scoca entered the March 31, 2017 orders on appeal. At

the bottom of each order, Judge Scoca wrote a statement of her reasons for

A-4594-16T2 3 denying the motion. . In essence, defendant claimed that the two judgments were

obtained by fraud and without notice to its rightful corporate owner. Judge

Scoca concluded that a responsive certification, filed in each motion by the

attorney who represented the plaintiffs in those lawsuits, refuted the claims of

fraud and lack of notice.

We dismiss both appeals as improperly perfected. In both appeals counsel

failed to provide us with the complete trial court record, so that we could conduct

a meaningful appellate review of Judge Scoca's decisions. See R. 2:6-1(a)(1)(I)

(appellant's appendix must include those portions of the record that "are

essential to the proper consideration of the issues"). In particular, counsel failed

to provide us with the responses to defendant's motions to vacate, thus

presenting a one-sided record. The missing documents include the certification

that was critical to Judge Scoca's decisions in both of these cases. In addition,

appellant's appendix improperly includes documents that were not filed with the

trial court. See R. 2:5-4(a).

Moreover, although the appeals concern the denial of motions to vacate

summary judgment orders, counsel did not provide us with any of the summary

judgment motion evidence or argument transcripts. Without those documents,

we cannot meaningfully review whether the orders should have been vacated.

A-4594-16T2 4 Accordingly, we dismiss the appeal. See Noren v. Heartland Payment Sys., Inc.,

448 N.J. Super. 486, 500 (App. Div. 2017).

Finally, even if we considered the merits of this appeal, absent a proper

record on which to evaluate Judge Scoca's decision, we would be constrained to

treat her factual findings as binding for purposes of this appeal. In fact we note

that, in a letter filed in support of a motion for reconsideration of both March

31, 2017 orders, defendant's counsel essentially conceded the accuracy of the

certification on which Judge Scoca relied. 1 In light of the judge's factual

findings, we perceive no abuse of discretion in her decisions, and if we

considered the merits, we would affirm the orders on appeal. See U.S. Bank

Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).

Dismissed.

1 Defendant did not appeal from Judge Scoca's June 9, 2017 orders denying reconsideration. A-4594-16T2 5