On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, C-349-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sapp-Peterson.
Defendant T. Robert Zochowski appeals from the June 9, 2006 order from the Chancery Division permitting plaintiff Richard D. Zochowski to solely negotiate and execute all papers in connection with the sale of real estate. The effect of the order was to modify an earlier order the court entered on July 22, 2005, that authorized plaintiff to solely execute all papers in connection with the sale of the same real estate in another transaction. Because we are satisfied that defendant has presented proof that he was unaware of the motion until after the court issued its order, we vacate the June 9, 2006 order and remand to the Chancery Division for further proceedings.
Defendant and plaintiff are brothers and the only shareholders of a family real estate holding corporation known as Zachmar, Inc. (Zachmar). Each brother holds a fifty percent interest in the holding company, whose only asset is a multi-acre commercial real estate property located in Hammonton. In July of 2005, the court entered an order authorizing the sale of the property for $1,500,000 to Matzel Development Company. That proposed sale, however, did not materialize and plaintiff proceeded to negotiate the sale of the property with another prospective buyer. On January 18, 2006, plaintiff received an offer on the property from another buyer.
On April 26, 2006, plaintiff filed a Notice of Motion To Modify the July 22, 2005 Order, returnable May 26, 2005. In his certification in support of the motion, plaintiff stated that once defendant was advised of the most recent offer, he corresponded with a representative of the prospective buyer to indicate that there were outstanding issues that required resolution before the agreement would be acceptable. Plaintiff stated that defendant's conduct led him to believe that defendant was impeding his efforts to sell the property and, for that reason, he sought relief from the court to modify the July 22, 2005 order.
Plaintiff requested oral argument on the motion. The certification of mailing appended to the motion certified that a copy of the motion was forwarded to defendant's attorney. No opposition to the motion was submitted. The motion was granted on June 6, 2006 as unopposed. The present appeal was filed July 17, 2006.
Defendant challenges the validity of the June 6, 2006 order on the grounds that he was never given notice of the hearing on the motion. In support of his appeal, defendant submitted a certification in which he advised us that he first learned of the court's order modifying its earlier decision in the latter part of June 2006 when his brother provided him with a copy of the order. In addition, defendant's former attorney has also filed a certification in connection with this appeal in which she states that when she was served with a copy of the notice of motion, she telephonically notified opposing counsel that she no longer represented defendant and also followed up with a letter dated May 17, 2006, confirming that she no longer represented defendant. However, in October 2006, that letter was returned to her "in a sliced open package with [plaintiff's counsel's] name and office address removed and [the] letter . . . removed from the package and stapled to the front of the envelope." Finally, her certification noted that the court's June 6, 2006 signed order indicates that she appeared before the court on the matter when she in fact made no such appearance.
We recognize that defendant's appeal was already pending when his former attorney's letter advising plaintiff's counsel that she no longer represented him was returned to her in October 2006. Defendant, however, became aware of the court's action in late June and inexplicably failed to move for relief from judgment pursuant to Rule 4:50-1. Had he done so, we are certain that the trial court, once it realized that defendant had no notice of the proceedings, would have granted the relief and permitted oral argument on the motion. See I.E.'s, L.L.C. v. Simmons, 392 N.J. Super. 520, 530 (Law Div. 2006) (holding that "New Jersey Law recognizes that if personal service is defective, a judgment is deemed void and may be set aside under R. 4:50-1(d)"); see also M & D Assocs. v. Mandara, 366 N.J. Super. 341, 356 (App. Div.), certif. denied, 180 N.J. 151 (2004).
We therefore remand the matter for further proceedings on the motion. In light of the remand, we decline to address the remaining points raised in defendant's appeal which defendant may present in opposition to plaintiff's motion.
The June 6, 2006 order is vacated and the matter is remanded to the Chancery Division for further proceedings consistent with this opinion. We do not retain jurisdiction.
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