December 22, 2010
KENNETH MANGANO AND ANNA MANGANO, HIS WIFE, PLAINTIFFS-RESPONDENTS,
AGM DEVELOPMENT CO., LLC, A LIMITED LIABILITY COMPANY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2497-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010 - Decided Before Judges Fisher and Simonelli.
Defendant AGM Development Co., LLC appeals from the December 11, 2009 Law Division order denying its motion for reconsideration of an order granting the unopposed motion of plaintiffs Kenneth and Anna Mangano to enforce a settlement and for counsel fees and costs. We affirm.
The dispute between the parties involved the termination of a real estate contract. On April 28, 2009, the parties placed a settlement on the record, which required defendant to pay $98,100 to plaintiffs and $983.25 to Karl's Sales & Service for an outstanding invoice dated December 9, 2008 (the invoice).
The invoice remained unpaid for five months after the settlement despite the court's and plaintiffs' counsel's numerous attempts to amicably resolve the matter. As a result, plaintiffs filed a motion to enforce the settlement and for counsel fees and costs, returnable September 25, 2009. Plaintiffs' counsel submitted a certification of services seeking a fee of $1,862 for services rendered in connection with the motion. Copies of the motion papers were served on defendant's counsel. Defendant did not oppose the motion.
On September 28, 2009, the court entered an order compelling defendant to pay the invoice within five days and, upon failure to do so, plaintiffs could apply ex parte for entry of judgment. The court also awarded plaintiffs $650 for reasonable counsel fees and costs for the motion. A copy of the order was served on defendant's counsel by fax and regular mail on October 1, 2009.
Defendant did not pay the invoice within five days. On October 9, 2009, plaintiff filed an ex parte application for entry of judgment and served it on defendant's counsel. On October 9, 2009, the court entered judgment against defendant for $983.25, the amount of the invoice, and for $650, the amount of the attorney's fees previously awarded.
Defendant finally paid the invoice on October 14, 2009. On October 23, 2009, defendant filed a motion for reconsideration of the September 28, 2009 order. Defendant offered no excuse for its failure to respond to plaintiffs' motion. Rather, defendant attempted to oppose it for the first time.
The court entered an order on December 11, 2009, denying defendant's motion as untimely and as lacking any basis for reconsideration. This appeal followed.
As a threshold matter, defendant's notice of appeal states that it only appeals from the December 11, 2009 order denying the motion for reconsideration of the September 28, 2009 order. When a notice of appeal only designates an order denying reconsideration, the appellant is not entitled to review of the earlier order. W.H. Indus. v. Fundicao Balancins, LTDA, 397 N.J. Super. 455, 458 (App. Div. 2008). Thus, we do not address the propriety of the earlier order.
As for the denial of the motion for reconsideration, we have held that "Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence . . . ." [Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02, (Ch. Div. 1990)).]
Notably, and of considerable significance here, a party is not permitted to use a motion for reconsideration as a basis for presenting facts or arguments that could have been provided in opposition to the original motion. Ibid. We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 389.
We discern no abuse of discretion in the judge's denial of defendant's motion for reconsideration. Without explanation, defendant never opposed plaintiffs' motion. Defendant was, thus, precluded from presenting arguments it could have presented in opposition to the original motion.
Further, the motion was untimely. Defendant's counsel actually received the September 28, 2009 order by fax on October 1, 2009.*fn1 Defendant did not file the motion for reconsideration within twenty days after service of the order, as required by Rule 4:49-2. "Neither the parties nor the court may . . . enlarge the time specified by . . . [Rule] 4:49-2 . . . ." R. 1:3-4(c).