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W.J.A v. D.W.A

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2011

W.J.A., PLAINTIFF-RESPONDENT,
v.
D.W.A., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3100-98.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 7, 2011 -- Decided

Before Judges Parrillo, Yannotti and Skillman.

Defendant appeals from an order entered by the Law Division on October 15, 2010, denying his motion for relief from judgments entered in this action in favor of plaintiff. We affirm.

In 1998, defendant brought an action in the Law Division against plaintiff, who is his uncle, and alleged that plaintiff had sexually molested him when he was a minor. Plaintiff denied these allegations and filed a counterclaim asserting a claim for defamation. The trial court dismissed defendant's complaint, finding that he failed to assert his claims within the time required by the applicable statute of limitations. Thereafter, plaintiff's counterclaim for defamation was tried before a jury, which returned a verdict for plaintiff and awarded him $50,000 plus interest.

On May 29, 2002, the court entered a judgment in the amount of $60,210.40 in plaintiff's favor and against defendant. In addition, the court awarded plaintiff costs for frivolous litigation, and on September 23, 2002, entered another judgment in plaintiff's favor and against defendant in the amount of $41,323.70.

On September 16, 2010, defendant filed a motion in the trial court seeking relief from these two judgments pursuant to Rule 4:50-1. Defendant alleged that plaintiff had committed a fraud upon the court. He asserted that plaintiff perjured himself by testifying in a pre-trial deposition that he had never been arrested. Defendant also asserted that plaintiff had threatened to sue a witness if she testified against him.

On October 15, 2010, the trial court placed its decision on the record. The court found that the motion was untimely. The court also found that defendant had failed to establish a basis for relief from the judgments. The court entered an order dated October 15, 2010, denying defendant's motion.

On appeal, Defendant raises the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE [DEFENDANT'S] MOTION TO BE RELIE[V]ED FROM THE PLAINTIFF'S FINAL JUDGMENTS BECAUSE THEY WERE PROCURED BY FRAUD, PERJURY AND WITNESS TAMPERING BY THE PLAINTIFF AND IN THE INTEREST OF JUSTICE PURSUANT TO [RULE 4:50-1(F)] THE MOTION SHOULD HAVE BEEN GRANTED. POINT II

THE TRIAL COURT ERRED IN DENYING THE [DEFENDANT'S] MOTION TO BE RELIE[V]ED FROM THE PLAINTIFF'S FINAL JUDGMENTS BECAUSE OF THE NEWLY DISCOVERED EVIDENCE OF PERJURY AND WITNESS TAMPERING BY THE PLAINTIFF, WHICH COULD NOT HAVE BEEN DISCOVERED ANY SOONER OR THROUGH ANY DEGREE OF GREATER DUE DILIGENCE AND IN THE INTEREST OF JUSTICE PURSUANT TO [RULE 4:50-1(B)] THE MOTION SHOULD HAVE BEEN GRANTED.

POINT III

THE TRIAL COURT ERRED IN DENYING THE [DEFENDANT'S] MOTION TO BE RELIE[V]ED FROM THE PLAINTIFF'S FINAL JUDGMENTS BECAUSE THEY WERE PROCURED BY FRAUD, THE PLAINTIFF[']S ACTIONS OF NUMEROUS PERJURY AND WITNESS TAMPERING ARE FRAUD WHICH COULD NOT HAVE BEEN DISCOVERED ANY SOONER AND IN THE INTEREST OF JUSTICE PURSUANT TO [RULE 4:50-1(C)] SHOULD HAVE BEEN GRANTED.

POINT IV

THE TRIAL COURT ERRED IN DENYING THE [DEFENDANT'S] MOTION TO BE RELIE[V]ED FROM THE PLAINTIFF'S FINAL JUDGMENTS BECAUSE THEY ARE [NO] LONGER EQUITABLE AND JUST IN VIEW OF THE NEWLY DISCOVERED EVIDENCE OF FRAUD IN THE INTEREST OF JUSTICE PURSUANT TO [RULE 4:50-1(E)] SHOULD HAVE BEEN GRANTED.

POINT V

THE TRIAL COURT ERRED IN DENYING THE [DEFENDANT'S] MOTION TO BE RELIE[V]ED FROM THE PLAINTIFF'S FINAL JUDGMENTS BECAUSE THE COURT ERRED IN DETERMINING THAT EXCEPTIONAL CIRCUMSTANCES WERE NOT SHOWN. CREDIBILITY IS ABSOLUTELY MATERIAL FACTS IN ANY DEFAMATION CASE AND THE PLAINTIFF[']S NEWLY DISCOVERED PERJURY, WITNESS TAMPERING AND FRAUD IS EXCEPTIONAL CIRCUMSTANCES AND NOT HARMLESS ERROR, WHICH WAS NOT COMMENTED ON BY THE TRIAL COURT AND IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED.

We are convinced that these contentions are without merit.

Rule 4:50-1 provides that the court may relieve a party from a final judgment or order for the following reasons:

(a) mistake, inadvertence, surprise, or excusable neglect; (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 [Rule] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

A motion seeking relief pursuant to Rule 4:50-1 must be filed within a reasonable time; however, a motion for relief under subsections (a),(b) or (c) of the rule must be filed not more than one year after entry of the judgment. R. 4:50-2.

Here, defendant sought relief from the judgments pursuant to Rule 4:50-1(c). He alleged that plaintiff had procured the judgments by misconduct, specifically perjury or fraud. According to defendant, plaintiff falsely testified at a pre-trial deposition conducted on April 24, 2000, when he stated that he had never been "arrested." Defendant claimed that he was not aware that plaintiff had testified falsely until September 12, 2008, when plaintiff informed the trial court in a related matter that the police came onto his property, arrested one of his tenants for riding a motorbike on the property, and then arrested him for interfering with the officer.

To obtain relief under Rule 4:50-1(c) on the basis of perjury, the moving party must show by clear and convincing evidence that the testimony: (1) was not merely false but "willfully and purposely given," (2) was material to an issue tried and not merely cumulative, and (3) "probably controlled the result." Pavlicka v. Pavlicka, 84 N.J. Super. 357, 366 (App. Div. 1964). The movant also must show that the falsity of the testimony could not have been discovered by the exercise of reasonable diligence so that it could be refuted during the trial, or that the failure to use due diligence was excusable under the circumstances. Ibid.

Defendant has not shown that plaintiff's statement was willfully false, rather than a mistake or oversight. In addition, the falsity of the statement could have been determined prior to the trial through the exercise of reasonable diligence. Furthermore, although information about plaintiff's arrest might have been used to challenge his credibility at trial, defendant has not shown that this evidence would have affected the result of that proceeding. Thus, defendant's motion for relief from the judgments on the basis of plaintiff's false statement was untimely and without merit.

Defendant additionally argues that he was entitled to relief from the judgments pursuant to Rule 4:50-1(c) because plaintiff allegedly threatened one of his proposed witnesses, C.F. Defendant submitted a certification to the trial court from C.F., dated January 5, 2007, in which she stated that she did not testify at the trial in support of defendant because plaintiff said he would sue her if she testified. C.F. stated that she was intimidated by plaintiff's threat.

However, defendant did not file his motion for relief from the judgments until almost three years after the date of C.F.'s certification. Moreover, it is unclear on this record whether C.F. informed defendant of the alleged threat prior to 2007. Defendant also has not established that C.F. had personal knowledge of facts relevant to plaintiff's defamation claim and that her testimony would have been material to the result. Therefore, defendant's motion for relief from the judgments on the basis of plaintiff's alleged threat was untimely and without merit.

Defendant further argues that relief from the judgments was warranted pursuant to Rule 4:50-1(f), which provides that such relief may be granted for any reason other than those mentioned in the other subsections of the rule. "'No categorization can be made of the situations which would warrant redress'" under this rule. DEG, L.L.C. v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). Rule 4:50-1(f) allows relief in "'exceptional situations'" and, in such cases, its "'boundaries are as expansive as the need to achieve equity and justice.'" Id. at 270 (quoting Perillo, supra, 48 N.J. at 341). We are satisfied from our review of the record that this matter does not involve an exceptional circumstance that would warrant the granting of relief from the judgments.

We have considered defendant's other contentions and find them to be "without sufficient merit to warrant discussion[.]"

R. 2:11-3(e)(1)(E). Affirmed.

20110628

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