Opinion
DOCKET NO. A-0176-13T3
09-03-2014
LORRAINE ELGENDY, Plaintiff-Appellant, v. DAN TARRATS, Defendant-Respondent.
Lorraine Elgendy, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Sussex County, Docket Nos. DJ-60883-13 and DC-3170-06. Lorraine Elgendy, appellant pro se. Respondent has not filed a brief. PER CURIAM
Pro se plaintiff Lorraine Elgendy appeals from the August 9, 2013 order of the Law Division denying her motion to vacate a December 4, 2006 judgment in favor of defendant Daniel Tarrats. For the reasons that follow, we affirm.
I.
We glean the following facts from the sparse record on appeal. On February 9, 2006, Elgendy contracted with D.T. Co. (DTC) to remove and dispose of an oil tank and contaminated soils from her property in Newark. The contract was signed by Elgendy and by Tarrats on behalf of DTC and called for payment of $7,500, with $3,500 due at the start of the work plus $120 for a permit. Elgendy anticipated subsidizing part of the cost of the remediation through a grant from the Underground Storage Tank Remediation Fund (USTF), and the contract provided that "DTC agrees to accept the remainder of contract payment after grant approval or 90 days whichever comes first."
Elgendy paid DTC $3,500 and applied for a USTF grant. DTC applied for a construction permit on February 22, 2006, but apparently removed the tank on March 3, 2006, before the permit was issued on April 28, 2006.
On March 27, 2006, the New Jersey Department of Environmental Protection (DEP) advised Elgendy that her grant application could not be approved at that time because additional information was required, including soil samples, justification of the need for excavation equipment, and further explanation of her proposed labor and equipment costs.
On May 5, 2006, a second letter from DEP provided a more detailed description of the additional information required, and advised her that her application would be withdrawn if she did not correct the deficiencies within thirty days. On May 24, 2006, the DEP closed Elgendy's application due to her failure to provide the required information.
Elgendy filed a complaint against Tarrats in Special Civil Part and Tarrats filed a counterclaim. On December 4, 2006, the court dismissed Elgendy's complaint and entered judgment in favor of Tarrats for $4,135. Neither party appealed from that judgment.
The pleadings were not included in the record on appeal.
In an effort to collect on the judgment, Tarrats filed a motion for an information subpoena pursuant to Rule 4:59-1(f) and Rule 6:7-2(b)(1). When Elgendy failed to comply with that request, Tarrats filed a motion to enforce litigant's rights. On June 11, 2013, Elgendy moved to vacate the judgment based on newly discovered evidence. She alleged unspecified "fraud, misrepresentation and misconduct" by Tarrats. Elgendy also claimed that in 2006, she owned the property with her husband "who should have been part of this action but was not personally notified[.]"
On August 9, 2013, the court heard oral argument and denied Elgendy's motion. The court noted that her motion was filed six-and-one-half years after entry of the judgment and was therefore untimely.
In the statement of reasons accompanying the August 9, 2013 order, the motion judge indicated that his written findings supplemented the court's findings placed on the record. Elgendy failed to provide a transcript of these proceedings in violation of Rule 2:5-3.
II.
"Courts should use Rule 4:50-1 sparingly, in exceptional situations[.]" Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994). The Rule provides, in pertinent part:
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: . . . (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . or (f) any other reason justifying relief from the operation of the judgment or order.
[R. 4:50-1.]
To prevail under Rule 4:50-1, a party must prove "exceptional and compelling circumstances" as the Rule is designed "to balance the interests of finality of judgments and judicial efficiency against the interest of equity and fairness." Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004) (internal quotation marks omitted).
A trial judge's "decision granting or denying an application to open a judgment rests within the sound discretion of the trial court, exercised with equitable principles in mind, and will not be overturned in the absence of an abuse of that discretion." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964).
"[A]buse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). Our task is to determine "whether the trial judge pursued a manifestly unjust course." Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968).
Although the motion judge denied relief solely on the basis that Elgendy's motion was untimely and did not specifically address her allegations of fraud and newly discovered evidence, our review of the record reveals no evidence of either.
Elgendy's claim that DTC failed to comply with local, state, and federal laws is a matter that should have been raised during the 2006 action. We reject her argument that DTC was somehow responsible for complying with the deficiency notices Elgendy received from DEP on March 27, and May 5, 2006. In the contract with Elgendy, DTC did not undertake to obtain the USTF grant. Rather, DTC agreed only "to accept the remainder of contract payment after grant approval[.]" There was no contractual or legal obligation by DTC to obtain and submit the items required by DEP for grant approval.
We also reject Elgendy's claim that the judgment must be vacated because her husband should have been joined as a party. Although Elgendy presents a deed establishing that she and her husband Hany Elgendy purchased the subject premises in February 2006, we note that she entered into the contract with DTC in her individual capacity, without any apparent participation by her husband. Similarly, her application for the grant and all of her dealings with DEP were done in her name only. When Elgendy filed a complaint against Tarrats in 2006, she did so in her individual capacity. Not surprisingly, when Tarrats counter-claimed, he named only Elgendy. Had she wished to include her husband in this litigation, then would have been the time. See Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 444 (2011) ("[A] party to any litigation is obligated to reveal the existence of any non-party who should be joined or who might have 'potential liability to any party on the basis of the same transactional facts.'") (quoting Rule 4:5-1(b)(2)).
Elgendy raised this argument in her June 11, 2013 motion for relief from the final judgment, but does not include the argument in her brief on appeal. Consistent with our practice of granting leeway to pro se parties, see Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982), we address the issue.
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For evidence to be "newly discovered" it must be material and obtained after litigation ends, which could not have been found through the exercise of ordinary diligence. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009). Elgendy made no effort to include her husband in the litigation and her belated attempt to include him now does not constitute newly discovered evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION