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MARIE-GLASBY v. HART, A-1213-14T4. (2016)

Court: Superior Court of New Jersey Number: innjco20160711243 Visitors: 7
Filed: Jul. 11, 2016
Latest Update: Jul. 11, 2016
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Plaintiff Alexis Marie Glasby appeals from an order entered by the Law Division on October 6, 2014, which denied her second motion for reconsideration of an order entered on May 12, 2014, granting summary judgment to defendants Steven and Wendy Hart (the Harts), and Century 21 Marquis-Greaves Agency and Susan R. Greaves (the Century 21 defendants). We affirm. We briefly summarize the relevant facts and procedur
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Plaintiff Alexis Marie Glasby appeals from an order entered by the Law Division on October 6, 2014, which denied her second motion for reconsideration of an order entered on May 12, 2014, granting summary judgment to defendants Steven and Wendy Hart (the Harts), and Century 21 Marquis-Greaves Agency and Susan R.

Greaves (the Century 21 defendants). We affirm.

We briefly summarize the relevant facts and procedural history. In January 2006, the Harts entered into a real estate listing and commission agreement with Century 21 and Greaves for the sale of their home on Halsey Road in Hampton Township. Century 21 was named as the broker and Greaves the listing agent for the sale. In June 2006, plaintiff entered into a contract to purchase the home from the Harts for $322,000.

Plaintiff claims that she was led to believe the home was legally authorized to have three bedrooms. It appears that the home had three rooms on the second floor. Two of those rooms were bedrooms, and the third room was a den that the Harts had used as a third bedroom. It is undisputed that the property had an approved septic system suitable for a two-bedroom home. Plaintiff claimed the $322,000 purchase price was commensurate with the price of a three-bedroom home.

In October 2006, plaintiff re-listed the home for sale and thereafter entered into a contract of sale. In December 2006, shortly before the closing on the transaction, the attorney for the prospective buyers sent a letter to plaintiff's attorney indicating, among other things, that plaintiff and her agents had not accurately represented the number of bedrooms in the home.

The prospective buyers cancelled the contract. Plaintiff subsequently re-listed the property for sale as a two-bedroom home with a two-bedroom septic system, at a purchase price of $280,000. In 2008, plaintiff executed a short sale of the property at a price of $248,500.

Plaintiff later filed a complaint against the Harts, the Century 21 defendants, and others. Among other things, plaintiff alleged that she paid the Harts for a three-bedroom home, but suffered a significant financial loss because she had to sell the property as a two-bedroom home.

Plaintiff asserted a breach of contract claim against the Harts; negligence claims against the Harts and the Century 21 defendants; claims of common law fraud against various defendants; claims against the Century 21 defendants under the Consumer Fraud Act, N.J.S.A. 56:8-1 to-204; a legal malpractice claim against her attorney, Joseph Jones; negligence claims against the persons who appraised the property, the entity that performed the home inspection, and the agents who assisted plaintiff in purchasing the home; and a claim of unjust enrichment against certain parties.

Thereafter, default judgments were entered against some defendants, and others were dismissed from the action. The Harts, the Century 21 defendants, and Jones were the only remaining defendants in the case. They each filed motions for summary judgment. Plaintiff opposed those motions, and filed a cross-motion for summary judgment against the remaining defendants.

On May 2, 2014, the court heard oral argument and placed an oral decision on the record, finding that there were no genuine issues of material fact and the Harts, the Century 21 defendants, and Jones were entitled to summary judgment. The court denied plaintiff's cross-motion for summary judgment. The court memorialized its decisions in an order filed on May 12, 2014.

The court provided a copy of the order to plaintiff's counsel on May 16, 2014. The order stated that a copy should be forwarded to all parties within seven days of its receipt. On May 22, 2014, plaintiff's counsel served a copy of the order upon all counsel by email. On May 23, 2014, plaintiff's counsel served a copy upon all counsel by regular mail.

On June 10, 2014, plaintiff filed a motion for reconsideration of the May 12, 2014 order. The trial court found that the motion was untimely because it had not been filed within twenty days after service of the judgment or order, as required by Rule 4:49-2. The court entered an order dated July 25, 2014, denying plaintiff's motion. On August 6, 2014, plaintiff filed a second motion for reconsideration. The court entered an order dated October 6, 2014, denying the motion.

On November 7, 2014, plaintiff filed a motion in this court to extend the time to appeal from the trial court's order of May 12, 2014. Plaintiff also filed a notice of appeal from the court's May 12, 2014 and October 6, 2014 orders. On January 2, 2015, we denied plaintiff's motion to extend the time for appeal.

In our order, we noted that plaintiff had not filed a notice of appeal from the May 12, 2014 order within forty-five days after the entry of that order, as required by Rule 2:4-1(a). We also pointed out that plaintiff had not filed a timely motion for reconsideration of the May 12, 2014 order, and therefore her motion for reconsideration did not toll the time for appeal.

We stated that "[t]he only order from which the appeal is timely taken is the October 6, 2014 order denying the second motion for reconsideration." On January 21, 2015, plaintiff filed an amended notice of appeal, stating that she was appealing from the court's October 6, 2014 order denying her second motion for reconsideration.

On appeal, plaintiff raises the following arguments:

I. THE TRIAL COURT ERRED IN DENYING THE PLAINTFF'S SECOND MOTION FOR RECONSIDERATION, LACKING PROPER STATEMENT OF REASONS AND FINDINGS OF FACT CONSTITUTING [REVERSIBLE] ERROR A. IT IS APPROPRIATE FOR THE APPELLATE COURT TO MAKE A FINDING OF FACT AND DECIDE LEGAL ISSUES RAISED ON APPEAL B. PLAINTIFF'S CASE WAS PREJUDICED DUE TO DELAY IN [THE] TRIAL COURT[`]S DECISION ON [THE] MOTIONS FOR SUMMARY JUDGMENT C. PLAINTIFF'S FIRST MOTION FOR RECONSIDERATION SHOULD ALSO BE CONSIDERED IN CONNECTION WITH THIS APPEAL II. THE TRIAL COURT ERRED IN GRANTING THE GREAVES AND HART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT A. DISCOVERY WAS INCOMPLETE, MAKING SUMMARY JUDGMENT INAPPROPRIATE B. THE GREAVES DEFENDANTS VIOALTED THE NEW JERSEY CONSUMER FRAUD ACT AND ARE LIABLE FOR RESULTING DAMAGES SUFFERED BY THE PLAINTIFF 1. UNLAWFUL PRACTICE a. AFFIRMATIVE ACTS b. KNOWING OMISSIONS i. NO PROOF OF A PERSON BEING MISLED, DECEIVED OR DAMAGED REQUIRED c. VIOLATION OF A REGULATION d. ASCERTAINABLE LOSS e. CAUSATION III. PLAINTIFF'S CLAIM OF COMMON LAW FRAUD SHOULD SURVIVE SUMMARY JUDGMENT AS TO BOTH GREAVES AND HART DEFENDANTS A. MATERIAL MISRPRESENTATION OF A KNOWN FALSE FACT B. INTENT THAT PURCHASER RELY UPON MISREPRESENTATION C. RELIANCE D. DAMAGES IV. PLAINTIFF'S NEGLIGENCE CLAIM SHOULD WITHSTAND [SUMMARY JUDGMENT] V. THE PLAINTIFF'S BREACH OF CONTRACT CLAIM AS TO THE HART DEFENDANTS WAS WRONGFULLY DISMISSED A. DAMAGES

As we indicated in our order of January 21, 2015, the trial court's order of October 6, 2014, is the only order from which plaintiff has taken a timely appeal. Appeals from final judgments of the trial courts must be taken within forty-five days after their entry. R. 2:4-1(a). The time within which an appeal must be filed may be tolled pursuant to Rule 2:4-3(b) by the timely filing of a motion for reconsideration. Van Horn v. Van Horn, 415 N.J.Super. 398, 413 (App. Div. 2010).

As we have explained, the trial court entered its order granting summary judgment on May 12, 2014. Plaintiff did not, however, file a notice of appeal within forty-five days after the entry of the order. Rather, she filed a motion for reconsideration on June 10, 2014. On July 25, 2014, the trial court entered an order denying the motion.

The court correctly determined that plaintiff's motion was untimely because it had been filed more than twenty days after the May 12, 2014 order was served, as required by Rule 4:49-2. Thus, the filing of the untimely motion for reconsideration did not toll the time for appeal from the May 12, 2014 order.

On August 6, 2014, plaintiff filed a second motion for reconsideration. In support of that motion, plaintiff submitted a certification of counsel, in which counsel stated that she had received a copy of the court's May 12, 2014 order on May 16, 2014. She asserted that she subsequently served all counsel with the order on May 22, 2014 by email, and on May 23, 2014, by regular mail.

The court entered an order dated October 6, 2014, denying the motion. On the order, the court wrote that the motion was denied for the reasons stated when the first motion for reconsideration was argued. The court stated that nothing had been presented to warrant a different conclusion. The court wrote, "[A] motion for reconsideration is not a substitute for appeal."

We review the denial of a motion for reconsideration under an abuse of discretion standard. Fusco v. Bd. of Educ. of Newark, 349 N.J.Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). A court will grant a motion for reconsideration "only under very narrow circumstances[.]" Id. at 462. Indeed, reconsideration is only warranted when "(1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. (quoting D'Atria v. D'Atria, 242 N.J.Super. 392, 401 (Ch. Div. 1990)).

Here, the trial court correctly determined that there was no basis to reconsider the July 25, 2014 order denying plaintiff's first motion for reconsideration. The court again found that the first reconsideration motion had been filed beyond the time required by Rule 4:49-2. As the court noted, in her second motion for reconsideration, plaintiff presented nothing to warrant a different conclusion.

On appeal, plaintiff contends the trial court erred in its ruling on the second reconsideration motion because the court failed to provide sufficient findings of fact to explain its decision. Rule 1:7-4 requires the trial court to make appropriate factual findings and legal conclusions when ruling on motions. Berger v. First Trenton Indem. Co., 339 N.J.Super. 402, 405 (App. Div. 2001) (citations omitted).

The obligation to provide such findings is of "critical importance . . . both in terms of the trial and appellate process." Filippone v. Lee, 304 N.J.Super. 301, 306 (App. Div. 1997). Here, the trial court met its obligation under Rule 1:7-4. The court's statement of reasons was concise, but the court provided the parties with the basis for the court's determination.

Plaintiff also argues that reconsideration should have been granted because her first motion for reconsideration was timely. Plaintiff contends the twenty-day period for filing a reconsideration motion began to run on May 22, 2014, when her attorney served the court's order upon all parties by email, or on May 23, 2014, when her attorney served the parties by regular mail.

Plaintiff concedes that she was served with the court's order on May 16, 2014, and the order stated that it should be served on the other parties within seven days. Rule 1:5-1 provides in pertinent part that "[t]he party obtaining an order or judgment shall serve it as [prescribed in the rules] within [seven] days after the date it was signed unless the court otherwise orders therein." Plaintiff argues that the time for filing a motion for reconsideration begins to run on the date a copy of the order is served on all parties by the proponent attorney.

We disagree with plaintiff's argument. The Harts, the Century 21 defendants, and Jones were the moving parties and the

May 12, 2014 order granted their motions for summary judgment. However, the record shows that the court served a copy of the order addressing all three motions upon plaintiff's attorney on May 16, 2014. The order stated that it should be served on the other parties. Plaintiff's counsel understood that she, not the attorneys for the successful moving parties, was required to serve the order which the court had provided to her.

We are convinced that, under the circumstances, the time in which plaintiff was required to file her first motion for reconsideration began to run on May 16, 2014, when plaintiff's attorney obtained a copy of the court's order, not the date when plaintiff's attorney served that order on the other parties.

Plaintiff also argues that the trial court erred by granting summary judgment to the Harts and the Century 21 defendants. However, these arguments are addressed to the court's May 12, 2014 order. Because plaintiff did not file a timely appeal from that order, we need not consider these issues.

Affirmed.

Source:  Leagle

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