13 Marion, LLC v. Adams Constr. & Demolition

• Docket Number: A-0740-22
• Decision Date: 28 December 2023
• Parties: 13 MARION, LLC, Plaintiff-Respondent, v. ADAMS CONSTRUCTION AND DEMOLITION, INC., SHENANDOAH ADAMS, SR., and SHENANDOAH ADAMS, JR., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

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13 MARION, LLC, Plaintiff-Respondent,
v.
ADAMS CONSTRUCTION AND DEMOLITION, INC., SHENANDOAH ADAMS, SR., and SHENANDOAH ADAMS, JR., Defendants-Appellants.

No. A-0740-22

Superior Court of New Jersey, Appellate Division

December 28, 2023

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Submitted December 18, 2023

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1203-20.

Shay Shailesh Deshpande, LLC, attorneys for appellants (Shay S. Deshpande, on the briefs).

Post Polak, PA, attorney for respondent (David Lawrence Epstein, of counsel and on the brief; Kathryn A. Kopp, on the brief).

Before Judges Mawla and Chase.

PER CURIAM

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Defendants, Adams Construction and Demolition, LLC ("Adams"), Shenandoah Adams, Jr. ("Junior"), and Shenandoah Adams, Sr. ("Senior") ^[1]appeal from an order denying their motion to vacate default judgment under Rule 4:50-1, which was entered almost two years earlier in favor of plaintiff, 13 Marion, LLC ("Marion"). Having considered the record and applicable legal principles, we affirm.

I.

Adams is a licensed home improvement contractor operated by Junior and Senior. In March 2019, Marion and Adams entered into a contract where Adams agreed to perform construction services for Marion for a sum of $314,244. The contract contained a condition that Marion would obtain a loan commitment at a favorable interest rate. The contract required defendants to submit certain information to prospective lenders. Defendants failed to do so, and a lender withdrew its offer to finance the project. Marion subsequently identified another lender, but despite Marion's repeated requests, defendants again failed to provide the information needed. As a result, Marion was unable to obtain a suitable loan commitment.

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In February 2020, Marion filed a complaint in the Law Division for breach of contract and consumer fraud. Marion then filed an affidavit of service, indicating successful service on Adams as a corporation, and Junior and Senior individually. One week later, a claims specialist for Golden State Claims contacted Marion's counsel, identified himself as an administrator for defendants' insurance carrier, and requested proof of service of the complaint and an extension to file a responsive pleading. Marion received no further communications from defendants or their insurance adjuster.

Subsequently, Marion's counsel moved for default judgment due to defendants' failure to answer the complaint within the time limit set forth under Rule 4:6-1(a). In November 2020, the trial court entered default judgment against Adams, Junior, and Senior, jointly and severally, totaling $154,113.25. Defendants were served with the order for default judgment on November 18, 2020.

In September 2021, an information subpoena was served on defendants. In August 2022, Marion filed a motion to enforce litigant's rights, which sought to obtain information via subpoena "regarding the whereabouts of assets in the possession of . . . [defendants], following unsuccessful attempts to secure certified responses." Additionally, Marion sought an arrest warrant in the event

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defendants failed to answer the subpoena. In response, defendants filed a crossmotion to vacate the November 2020 default judgment pursuant to Rule 4:50-1.

On September 28, 2022, the trial court denied defendants' motion. The court reasoned the motion was untimely without any excusable neglect, and defendants failed to present any meritorious defenses. The court...