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Ainsworth v. DeMatteis


June 15, 2007


On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-10333-97.

Per curiam.


Argued November 9, 2006

Before Judges Collester and Sabatino.

William Ainsworth sued Richard Abrahamsen in legal malpractice for paying all settlement proceeds from a civil action to Dr. Jon DeMatteis, one partner in a car wash business, and none to Ainsworth, the other partner. Abrahamsen previously represented DeMatteis and his wife, Karen, in several transactions prior to the purchase of the car wash with Ainsworth. Both DeMatteis and Ainsworth filed suit a year after to rescind the transaction with the prior owner based on claimed misrepresentation of revenue and a tainted well. The lawsuit generated complicated legal activity including a foreclosure action and was further complicated by divorce proceedings between DeMatteis and his wife, who was also Ainsworth's sister.

The legal malpractice filed by Ainsworth against Abrahamsen was settled and the complaint dismissed in 2001. The stipulation of settlement required Abrahamsen to make an initial payment of $5,000 to Ainsworth followed by periodic payments starting on June 10, 2001, of $800 per month for forty-six months with a final payment of $700 on April 10, 2005. The stipulation further provided that $2500 of the settlement was to be paid to Karen DeMatteis for her legal fees in the matter. William Gold, Esq. represented Ainsworth, and his firm, Bendit Weinstock, P.A., served as escrow agent for all parties.

Abrahamsen made the initial payment of $5,000 and timely periodic payments of $800 from June 10, 2001, until November 2004, when he stopped because a dispute as to the amount of the remaining balance. The stipulation of settlement contained a provision that if any payment was not received within five days of the due date, and notice was given to Abrahamsen, Ainsworth could obtain a judgment for the amount remaining, plus interest from the date of filing of the complaint, and counsel fees for collection. Ainsworth filed an ex parte application asserting Abrahamsen's default, and obtained a judgment on March 14, 2005, for the balance due of $4,700, interest of $1,574 and attorneys fees of $350.

On May 2, 2005, Abrahamsen moved for relief from the March 14 judgment based on R. 4:50-1 and alleging he did not receive the notice required in the stipulation of settlement. Judge Mark M. Russello granted Abrahamsen's motion over Ainsworth's opposition and entered an order on May 27, 2005, vacating the judgment. The order also provided that Abrahamsen was to pay the undisputed balance of $3,900 within twenty days with the remaining $800 in controversy to be paid following an accounting by Bendit Weinstock. Meanwhile, Ainsworth had moved on May 24, 2005 to amend the March 14, 2005 order to correct an error in calculation of the amount owed by Abrahamsen to include additional attorneys fees incurred for collection as per the settlement agreement. On July 14, 2005, Judge Russello granted Ainsworth's motion and denied a cross-motion by Abrahamsen for various relief.

Judge Russello entered another order on August 19, 2005, granting Ainsworth's application for a turnover order of monies in Abrahamsen's bank account levied upon by the Bergen County sheriff awarding Ainsworth counsel fees and denying Abrahamsen's cross-motion to vacate the July 14, 2005, order increasing the amount of the balance as well as denying Abrahamsen a $2500 credit due to an alleged breach of the agreement by Karen DeMatteis, who was not a party to it. On August 29, 2005, Abrahamsen filed a notice of appeal from the July 14, 2005 order.

Abrahamsen argues that the July 14, 2005 order amending the judgment entered on March 14, 2005, increasing the balance owed should be reversed because Ainsworth's motion to amend the judgment was filed on March 24, 2005, seventy days after the March 14, 2005 order and was beyond the specific time limitation of R. 4:49-2, which reads in pertinent part as follows:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for re-hearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than twenty days after service of the judgment or order upon all parties by the party obtaining it.

The issue on appeal illustrates the procedural morass created by overlapping motions and cross-motions filed with respect to an amount constituting approximately one-tenth of the settlement.

It is uncontested that Ainsworth's motion to amend the March 14 order was outside the twenty-day limit and that the proposed amendment was not clerical but substantial. See Belfer v. Merling, 322 N.J. Super. 124, 137 (App. Div. 1999) (error with regard to miscalculations to raise a setoff or recoupment issue does not constitute clerical error). After Abrahamsen moved to vacate the March 14, 2005 order, Ainsworth moved to amend that order to correct an error in calculations as to what Abrahamsen owed. Abrahamsen's motion to vacate was granted on May 27, 2005. Therefore, when Judge Russello issued his opinion and entered the July 14, 2005 order, there was no March 14, 2005 final judgment to amend because it has been vacated on May 27, 2005. However, the May 27, 2005 order stated that there was to be an accounting of payments to demonstrate what Abrahamsen actually owed to satisfy the settlement agreement. Meanwhile, three days earlier on May 24, 2005, Ainsworth moved to amend the March 14, 2005 judgment to correct an error of calculations as to the amount owed by Abrahamsen. In his opinion on July 14, 2005, Judge Russello used his discretionary authority to cut through the confusion and, in the interest of justice, decided the issue without the necessity of Ainsworth filing yet another motion to set the amount of the judgment. We find this was a proper exercise in discretion. See New Jersey Turnpike Auth. v. Tootle, 59 N.J. 308, 314 (1971). Judge Russello's conversion of Ainsworth's motion to enter final judgment avoided further dissipation of judicial time and additional legal fees for both sides. Abrahamsen's claim of error is unfounded.

Abrahamsen makes various arguments with regard to the August 19, 2005 order, which granted additional attorneys fees to Ainsworth of $4,970. However, Abrahamsen did not appeal the August 19, 2005 order in his notice of appeal. An appellant must specifically state the judgment or order from which they are appealing for that order or judgment to be subject to appellate review. Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); R. 2:5-1(f)(1). Accordingly, we will not entertain the merits of Abrahamsen's arguments relating to the August 19, 2005 order.

Abrahamsen's remaining arguments on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



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