ARCHON DISTRIBUTION, INC. VS. AMJAD SAIYED (C-000150-14, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3504-17T1
ARCHON DISTRIBUTION,
INC.,
Plaintiff-Respondent,
v.
AMJAD SAIYED,
Defendant-Appellant,
and
AZAMSS DISTRIBUTION
CORPORATION,
Defendant-Respondent.
________________________
Submitted February 3, 2020 – Decided July 21, 2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. C-
000150-14.
Amjad Saiyed, appellant pro se.
Respondents have not filed a brief.
PER CURIAM
In this pro se appeal, defendant Amjad Saiyed challenges a March 5, 2018
order denying his third motion to reconsider the court's order that he reimburse
$5000 of plaintiff's counsel's fees as a condition of vacating a $232,000 default
judgment entered against him after a proof hearing. Then-represented by
counsel, Saiyed argued he could not afford to pay the $5000. Although the trial
court noted that the motion was untimely, it nonetheless addressed the merits
and found that Saiyed had failed to demonstrate that the court overlooked
evidence, or to present evidence that was unavailable to him before. We discern
no abuse of discretion and affirm. See Cummings v. Bahr, 295 N.J. Super. 374,
384 (App. Div. 1996) (stating that reconsideration decisions are vested in the
trial court's sound discretion).
I.
We note that in Saiyed's merits brief, he inappropriately seeks our review
of prior orders. Specifically, he challenges the April 5, 2016 default judgment,
entered after a March 21, 2016 proof hearing, which the court conducted after
he left the courthouse before trial. He also challenges the court's March 31,
2017 order vacating the default judgment, conditioned on his paying $5000 of
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plaintiff's fees. We previously denied Saiyed's motion to consider his June 2018
appeal of those orders as within time; and we denied defendant's motion to
reconsider. Nonetheless, some background about those orders will put in
context the order that is properly before us.
Plaintiff sued Saiyed, who was a former employee, and his alleged
employer, Azamss Distribution Corp., for breach of a non-competition
agreement. After a period of discovery, the case was scheduled for trial on
March 21, 2016. Saiyed appeared in the courthouse that morning and met with
defense counsel, but left before the matter was heard. Defense counsel informed
the court that his client simply walked out, stating that Saiyed did not wish to
contest the case. Defense counsel had previously informed the court that
Azamss also no longer wished to defend. The court excused defense counsel
and proceeded to conduct a proof hearing, and ultimately entered judgment
against defendants.
Saiyed promptly moved for reconsideration under Rule 4:49-2, or to
vacate under Rule 4:50-1. Represented by new counsel, Saiyed alleged that his
prior defense counsel had misrepresented the circumstances surrounding
Saiyed's departure from the courthouse. Saiyed alleged that his defense counsel
threatened to withdraw after Azamss ceased paying his fee, and Saiyed resisted.
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Saiyed said he left the courthouse only after defense counsel assured him that
he would secure an adjournment.
On February 8, 2017, the court held a plenary hearing at which defense
counsel and Saiyed presented opposing versions of why Saiyed absented himself
from the trial. In findings issued immediately following the hearing, the court
implicitly rejected defendant's contention that he left the courthouse based on
defense counsel's alleged assurance that he would secure a trial adjournment.
Nonetheless, the court found that defendant did not fully understand the
consequences of leaving the courthouse that day, and defense counsel was not
completely forthcoming to the court regarding the circumstances surrounding
defendant's departure. In particular, the court found that defense counsel was
aware that Saiyed had vigorously opposed plaintiff's claims for a year-and-a-
half and his apparent willingness to allow a judgment against him was
inexplicable.
The court stated that had defense counsel candidly stated that he believed
his client must have misunderstood the consequences of his actions – as opposed
to stating unqualifiedly that his client had decided to cease contesting the lawsuit
– the court would have handled the matter differently, by which we infer, the
court would not have proceeded to a proof hearing. In short, the court found
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that Saiyed's departure was excusable, and it decided to vacate the default
judgment, subject to consideration of plaintiff's application for fees.
On March 24, 2017, the court considered plaintiff's request to condition
vacatur of the judgment upon the award of $30,000 in fees. The court did not
calculate a lodestar fee for plaintiff's counsel's services. But, the court found
that, under the circumstances, an award against Saiyed of $5000 was equitable.
Without recounting defense counsel's role, the court found that plaintiff’s fees
"were incurred in large part because of Mr. Saiyed's conduct," and "Mr. Saiyed's
conduct caused the . . . default hearing to be heard . . . ."
The court entered a March 31, 2017 order to implement its decisions on
February 8 and March 24, 2017. Saiyed was required to pay $5000 to plaintiff
by April 28, 2017, as a condition of vacating the default judgment, which would
otherwise remain in effect. The court allowed Saiyed until April 28, 2017 to
file a motion to seek an extension of time for payment.
Saiyed filed a motion to reconsider the March 31, 2017 order – as opposed
to a motion to extend time for payment. The court denied that motion on May
26, 2017. The record includes only the first page of the notice of motion for
reconsideration. It does not include the order, the court's statement of reasons,
or a transcript (if oral argument was heard).
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After three months, plaintiff filed a motion seeking compliance with a
subpoena duces tecum, returnable September 15, 2017. In response, Saiyed filed
a cross-motion for reconsideration – his second attempt – of the order to pay
$5000. In support of that motion, Saiyed certified that he was unemployed
despite diligent efforts to find work as an accountant; he and his wife suffered
from medical issues; he had no income in 2017; he had no bank accounts; and
he had substantial credit card debt. He stated he attached a matrimonial case
information statement, with supporting documents, but they are omitted from
the record before us. The court denied the cross-motion in a December 15, 2017
order. The record includes neither the order, the court's statement of reasons,
nor the transcript, if any.
On January 3, 2018, Saiyed filed his third motion for reconsideration. He
reiterated his description of his dire financial circumstances, and proposed that
the court assess the $5000 against his recovery in a pending federal lawsuit
against Archon and two individuals. In oral argument, his counsel proposed, as
an alternative, that the court break the $5000 payment up into two installments.
On March 5, 2018, the court denied the motion. It noted the motion was
untimely, but held, on the merits, that Saiyed had not provided sufficient
documentary proof that he was unable to pay the $5000. The court noted that
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Saiyed had not explained how he was able to pay $1200 a month rent, plus living
expenses. The court observed that the CIS did not prove Saiyed's income or
expenses. It was incumbent upon Saiyed to present "underlying information."
II.
In his merits brief, Saiyed does not directly address whether the court
abused its discretion in declining to waive the $5000 fee in response to the third
reconsideration motion. Rather, Saiyed challenges the order entering default
judgment; and the order vacating the default judgment on the condition he pay
$5000 of plaintiff's fee.
Those arguments are not properly before us. The sole issue before the
court on the reconsideration motion leading to the March 5, 2018 order was
Saiyed's ability to pay. Saiyed may not, in the guise of an appeal of
reconsideration denial, avoid the time bar otherwise precluding appeal of the
April 5, 2016 default judgment, and the March 31, 2017 vacatur order.
We addressed a similar issue in Fusco v. Board of Education of City of
Newark, 349 N.J. Super. 455 (App. Div. 2002). The plaintiff attempted to secure
review of an underlying order granting summary judgment dismissing his
constructive discharge and age and disability discrimination complaint, by
appealing the order denying his motion for reconsideration. However, the sole
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issue in the motion for reconsideration was whether the court erred in refusing
to consider an unemployment compensation document that stated plaintiff quit
because no job was offered to him after he returned from a sick leave.
We recognized that "in some cases a motion for reconsideration may
implicate the substantive issues in the case and the basis for the motion judge's
ruling on the summary judgment and reconsideration motions may be the same."
Id. at 461. In those cases, "an appeal solely from . . . the denial of
reconsideration may be sufficient for an appellate review of the merits of the
case . . . ." Ibid. However, we found that was not true in Fusco. The "motion
for reconsideration was limited to the single issue of whether the Unemployment
Determination provided a valid basis as 'newly discovered evidence' for [the
judge] to reconsider his ruling." Ibid.
Likewise here, the motion to reconsider the award of the $5000 fee was
limited to the single issue of Saiyed's ability to pay. It did not implicate the
correctness of the court's April 5, 2016 or March 31, 2017 orders. In any event,
a motion to reconsider the merits of those orders would have been seriously out
of time. See R. 4:49-2. In sum, the only order subject to appeal before us is the
March 5, 2018 order, denying Saiyed's motion to reconsider the denial of his
previous motion to waive the $5000 fee payment.
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III.
We need not even reach the merits of the March 5, 2018 order because (1)
Saiyed does not address the order under any point heading, see Almog v. Israel
Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997) (refusing
to consider arguments that are not made under appropriate point headings as
Rule 2:6-2(a)(5) requires); and (2) he does not provide us with a sufficient record
of the December 15, 2017 order, which he asked the court to reconsider, see
Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte,
P.C., 381 N.J. Super. 119, 127 (App. Div. 2005) (stating the court is not "obliged
to attempt review of an issue when the relevant portions of the record are not
included"). Nonetheless, we acknowledge that throughout his pro se brief,
Saiyed refers to his allegedly dire financial circumstances.
That is not enough to persuade us to disturb the trial court's order.
"Motions for reconsideration are granted only under very narrow
circumstances." Fusco, 349 N.J. Super. at 462. Saiyed was obliged to
demonstrate that the trial court based its December 15, order on a "palpably
incorrect or irrational basis" or the court overlooked or failed to properly
consider the evidence. Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990)). The court reasonably concluded that Saiyed did not
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present to the court any evidence that was unavailable to him before the prior
order. Id. at 463 (rejecting plaintiff's effort to bring a "document in under the
guise of reconsideration" that was available previously). The court reasonably
found that Saiyed failed to provide sufficient documentary proof of his financial
circumstances, in order to justify a waiver of the $5000 award. In sum, the trial
court did not abuse its discretion in denying Saiyed's third motion for
reconsideration.
Affirmed.
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