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Marina District Development Co., L.L.C. v. Sevilla


July 15, 2010


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part Camden County, Docket No. DJ-294660-08.

Per curiam.


Submitted May 25, 2010

Before Judges Gilroy and Simonelli.

Plaintiff Marina District Development Co., L.L.C. t/a Borgata appeals from a Special Civil Part judgment denying its motion to amend a docketed default judgment. We affirm.

Plaintiff operates a casino and spa resort in Atlantic City. While gambling in plaintiff's casino, defendant issued a check for $3,000 in exchange for a credit slip. The bank upon which the check was drawn later dishonored it. After unsuccessful attempts to collect the debt, on May 28, 2008, plaintiff filed a complaint in the Special Civil Part seeking judgment in the amount of $3,000. On June 9, 2008, plaintiff's attorney mistakenly credited to defendant's account a $500 payment made by debtor on a different account.

Following defendant's default, plaintiff submitted proof of amount due of $2,500. On August 22, 2008, the court entered a default judgment in that amount plus interest and court costs, for a total judgment of $2,629.24. The judgment was docketed on November 26, 2008 for $2,629.24, and a writ of execution for that amount was issued on April 23, 2009.

After discovering the mistake, in July 2009, plaintiff's attorney filed a motion pursuant to Rule 1:6-2(d) for a ruling on the papers to amend the judgment to $3,129.24. His certification submitted in support of the motion explained the mistake but raised no arguments and cited no authority for the relief sought. The trial judge denied the motion, finding it was untimely filed, Rule 4:49-2, and that the exception in Rule 1:13-1 did not apply because there was no clerical mistake but rather "[t]he mistake was made by counsel."

For the first time on appeal, plaintiff contends that Rule 4:49-2 does not apply to the motion, and relief should have been granted pursuant to Rule 4:50-1(a) (mistake, inadvertence, surprise, or excusable neglect) and (f) (any other reason justifying relief from the operation of the judgment or order). We disagree.

On review, we will "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Neither exception applies here and, accordingly, we affirm. Nonetheless, we will explain why plaintiff's contentions lack merit.

Plaintiff's motion papers clearly indicate that the motion was one to "amend" the judgment, not vacate it. Accordingly, the trial judge properly considered the motion pursuant to Rule 4:49-2, which provides as follows, in relevant part:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. (Emphasis added.)

Rule 1:1-2 permits relaxation of the rules of court to secure a just determination. However, "[n]either the parties nor the court may... enlarge the time specified by... R. 4:49-2 (motion to alter or amend a judgment)." R. 1:3-4(c). See also Baumann v. Marinaro, 95 N.J. 380, 389 (1984) (declining to apply Rule 1:1-2 to time limitation in Rule 4:49-1(b), which is also precluded from enlargement by Rule 1:3-4(c)). Accordingly, Rule 1:1-2 cannot be applied here.

Further, even if the motion was brought pursuant to Rule 4:50-1, the protections of the rule do not apply to attorney error. Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971). Also, the protections of Rule 4:50-1(f) apply "'sparingly, in exceptional situations' to prevent grave injustice." Nowosleska v. Steele, 400 N.J. Super. 297, 304 (App. Div. 2008) (quoting Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212 (1998)). Such an exceptional situation does not exist here.



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