SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0402-20

LOT 20.06, LLC,

Plaintiff-Appellant,

v.

FURNITURE SOUP, INC.,

Defendant/Third-Party 

Plaintiff-Respondent,

v.

KENNETH HENICK,

Third-Party Defendant.

Submitted January 6, 2022 – Decided March 1, 2022

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. L-3193-18.

Mark Williams, attorney for appellant.

Seth D. Josephson, attorney for respondent.

NOT FOR PUBLICATION WITHOUT THE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.
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A-0402-20

PER CURIAM

Plaintiff Lot 20.06, LLC, appeals the February 15, 2019 grant of summary 

judgment to defendant Furniture Soup, Inc., dismissing its complaint. Plaintiff 

also appeals July 17, 2020 orders denying reconsideration and imposing Rule

1:4-8 sanctions. Plaintiff's central point on appeal, which we do not reach, is 

the propriety of a September 5, 2014 judgment entered in a different lawsuit 

under a different docket number imposing a $115,000 equitable lien on Block 

34, Lot 20.06 in Upper Freehold Township. By way of background, on 

September 4, the day before the lien was imposed, plaintiff acquired the land 

knowing an application to enter the lien would be heard the following day. The 

seller of the land, also the debtor, took back a $550,000 mortgage on the 

property; the record seems to indicate no payments were ever made. We affirm 

dismissal of the complaint and the 2020 orders. 

On September 4, 2018, when defendant attempted to collect on the 

judgment by obtaining a writ of execution, plaintiff filed its complaint. 

Defendant filed an answer and counterclaim, demanding costs and fees for 

frivolous litigation, and a third-party complaint against Kenneth Hennick, 

plaintiff's owner, seeking to discharge the mortgage as "a legal fiction" only 

intended to insulate the property from the lien. 
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Plaintiff participated in a post-judgment October 24, 2014 argument, 

initiated by the seller, regarding the equitable lien and related issues in the 

earlier litigation. Plaintiff's counsel then acknowledged on the record that his 

client knew of the pending application for an equitable lien before buying the 

real estate. Thereafter, plaintiff did not appeal, renew its application for 

intervention, or attempt to quiet title. Plaintiff's complaint sought relief from 

the writ of execution and to vacate the lien.

On February 15, 2019, the trial judge denied plaintiff's summary judgment 

motions and granted defendant the right to execute the writ. The judge found 

that although plaintiff had not been a party in the prior matter, it was in direct 

privity with the judgment debtor-seller who conveyed the property to plaintiff 

the day before the issuance of the equitable lien. The court further concluded 

that plaintiff's arguments should have been raised four years prior. Thus, the 

judge dismissed the complaint pursuant to the doctrine of collateral estoppel and 

laches, but imposed no sanctions. 

Plaintiff filed a notice of motion seeking reconsideration of the court's 

February 15, 2019 order, reinstatement of its complaint, discharge of the lien, 

and the modification of certain clauses in the 2014 order. Defendant crossmoved for counsel fees.
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When the parties appeared in court on July 17, 2020 to argue the motions,

plaintiff contended the court had erred by reading the September 4, 2018 

complaint as requesting reconsideration of the 2014 order. Defendant in turn 

argued fees and costs should be imposed. The judge granted defendant's 

application and denied plaintiff's, observing that plaintiff's assertions were 

nothing more than "a rehash of the argument that was made in front of me that 

was decided in February 2019." She concluded there was no basis for the relief

plaintiff sought, and awarded defendant fees and costs. 

Plaintiff's points on appeal continue the attack on the underlying 2014 

order:

POINT I

STATEMENT C IN JUDGE O'BRIEN'S ORDER OF 

SEPTEMBER 5, 2014, WHICH STATES THAT 

"JUDGMENTS AS AGAINST STEVEN D. 

CATALANO SHALL BE LIENS AND 

ENCUMBRANCES AGAINST LOT 20.06 IN BLOCK 

34 IN UPPER FREEHOLD TOWNSHIP" SHOULD 

BE INVALIDATED.

A. Judge O'Brien correctly found in the same Order 

that he had no jurisdiction over S.D. Catalano, 

Inc., and repeatedly denied relief as to this 

corporation, thus directly contradicting the 

creation of a lien against Lot 20.06 owned by 

S.D. Catalano, Inc.
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B. The Rules do not affect Plaintiff's right to bring 

this action.

C. The equitable defenses of Collateral Estoppel and 

Laches do not bar Plaintiff's action.

D. An Order entered against a non-party over whom 

the Court has no jurisdiction can be challenged in 

a collateral declaratory action under N.J.S.A. 

2A:16-50.

The Complaint alleges this right of action. The 

Court ignores this point and focuses on Plaintiff's 

failure to pursue its relief in the prior Furniture 

Soup action.

E. The remedy of imposing an equitable lien was 

never available without proof of an agreement in 

which the reasonable intent of the parties is to 

designate a particular property as security for the 

satisfaction of a contractual obligation; and was 

therefore an improper exercise of Judge O'Brien's 

discretion, and invalid.

POINT II

THE FINDINGS OF FACT IN JUDGE O'BRIEN'S 

ORDER OF SEPTEMBER 5, 2014 WHICH STATES 

THAT "IT APPEARING THAT S.D. WALKER, INC. 

OWNS TEN PERCENT OF BLOCK 34, LOT 

20.06 . . . ." HAD NO SUPPORT WHEN IT WAS 

ENTERED, AND SHOULD BE INVALIDATED.

POINT III

THE WRIT OF EXECUTION ISSUED BY THE 

SUPERIOR COURT DIRECTING THE SHERIFF'S 

SALE OF LOT 20.06 SHOULD BE QUASHED.
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A. The Court never had jurisdiction over its owner.

B. The Writ should independently be quashed 

because an equitable lien does not support 

issuance of a Writ of Execution.

POINT IV

THE TRIAL JUDGE GRANTING ATTORNEY FEES 

UNDER RULE 1:4-8 IGNORED HER PRIOR 

DECISION ON THE GROUNDS FOR AWARDING 

FEES, AND THE MOVANT'S BURDEN UNDER 

RULE 4:49-2.

I.

"The general rule is that findings by a trial court are binding on appeal 

when supported by adequate, substantial, credible evidence." Gnall v. Gnall, 

222 N.J. 414, 428 (2015) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 

(1998)); see Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 

366, 378 (1995) ("A trial court's interpretation of the law and the legal 

consequences that flow from established facts are not entitled to any special 

deference."). Here, we are bound by the court's factual findings, as they are

supported by the record. We also concur with the court's legal conclusion 

regarding laches.

Because laches is dispositive, we do not address the trial judge's other

bases for dismissal. The doctrine of laches is properly "invoked to deny a party 
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enforcement of a known right when the party engages in an inexcusable and 

unexplained delay in exercising that right to the prejudice of the other party." 

Knorr v. Smeal, 178 N.J. 169, 180-81 (2003) (citing In re Kietur, 332 N.J. Super. 

18, 28 (App. Div. 2000)). 

The policy underlying the doctrine of laches is to discourage stale claims. 

Gladden v. Bd. of Trs., Pub. Emps.' Ret. Sys., 171 N.J. Super. 363, 371 (App. 

Div. 1979) (citing Flammia v. Maller, 66 N.J. Super. 440, 453-54 (App. Div. 

1961)). "The key factors . . . are the length of the delay, the reasons for the 

delay, and the 'changing conditions of either or both parties during the delay.'" 

Knorr, 178 N.J. at 181 (quoting Lavin v. Bd. of Educ., 90 N.J. 145, 152 (1982)). 

As a matter of equity, "[w]hether laches should be applied depends upon the 

facts of the particular case and is a matter within the sound discretion of the trial 

court." Fox v. Millman, 210 N.J. 401, 418 (2012) (alteration in original) 

(quoting Mancini v. Twp. of Teaneck, 179 N.J. 425, 436 (2004)).

When plaintiff purchased the real estate, it knew that the court would 

address the creditor's application for an equitable lien against the seller's real 

estate on the day following the closing and mortgage takeback. Plaintiff's 

attorney had weeks of advance notice. Plaintiff's attorney attended the October 

2014 hearing on seller's application for the court to reconsider the lien. In 
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essence, plaintiff did nothing from 2014 until filing its complaint on September 

4, 2018. 

Some compelling reason must be expressed by a litigant seeking to avoid 

the effect of the doctrine of laches. Zilberberg v. Bd. of Trs., 468 N.J. Super. 

504, 513 (App. Div. 2021). Plaintiff offers none. 

Laches is an equitable doctrine that

is invoked to deny a party enforcement of a known right 

when the party engages in an inexcusable and 

unexplained delay in exercising that right to the 

prejudice of the other party. [In re Kietur, 332 N.J. 

Super. at 28 (citing Cnty. of Morris v. Fauver, 153 N.J. 

80, 105 (1998))]. Laches may only be enforced when 

the delaying party had sufficient opportunity to assert 

the right in the proper forum and the prejudiced party 

acted in good faith believing that the right had been 

abandoned. [Dorchester Manor v. Borough of New 

Milford, 287 N.J. Super. 163, 172 (Law Div. 1994)].

The time constraints for the application of laches "are 

not fixed but are characteristically flexible." [Lavin, 90 

N.J. at 151.] The key factors to be considered in 

deciding whether to apply the doctrine are the length of 

the delay, the reasons for the delay, and the "changing 

conditions of either or both parties during the delay." 

[Id. at 152.] The core equitable concern in applying 

laches is whether a party has been harmed by the delay.

[Chance v. McCann, 405 N.J. Super. 547, 567 (App. 

Div. 2009) (citing Knorr, 178 N.J. at 180-81).]

Plaintiff does not explain its years-long failure to act despite knowing

about the equitable lien against property. That the record does not include any 
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reference to any cash being exchanged at closing, and does not include the fact

the seller took back a mortgage for $550,000, may explain plaintiff's silence. In 

any event, the doctrine of laches seems uniquely relevant. Having known of the 

existence of the equitable lien for over four years and taken no action to relieve 

the property of the encumbrance, plaintiff cannot do so now. No reason for 

delay appears in the record. No changes in condition justify the delay. The trial 

judge did not err in dismissing the complaint based on laches.

II.

One of plaintiff's points is that the writ failed to meet certain technical 

requirements of Rule 4:59. Because plaintiff is barred from quashing the writ, 

if any technical errors exist, they need not be addressed here. The point does 

not require further discussion in a written opinion. See R. 2:11-3(e)(1)(E).

III.

A trial court's decisions regarding reconsideration under Rule 4:49-2 and 

the imposition of counsel fees are afforded substantial deference, and will be 

disturbed only upon a showing of a clear "abuse of discretion." See Branch v. 

Cream-O-Land Dairy, 244 N.J. 567, 582 (2021); Litton Indus., Inc. v. IMO 

Indus., Inc., 200 N.J. 372, 386 (2009) (quoting Packard-Bamberger & Co. v. 
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Collier, 167 N.J. 427, 444 (2001)). In this case, the judge's denial of 

reconsideration informed her decision to award counsel fees. 

This court also reviews a judge's decision on a motion for sanctions under 

Rule 1:4-8 for abuse of discretion. Bove v. AkPharma Inc., 460 N.J. Super. 123, 

146 (App. Div. 2019). "Reversal is warranted 'only if [the decision] "was not 

premised upon consideration of all relevant factors, was based upon 

consideration of irrelevant or inappropriate factors, or amounts to a clear error 

in judgment."'" Ibid. (alteration in original) (quoting McDaniel v. Man Wai Lee, 

419 N.J. Super. 482, 498 (App. Div. 2011)). No abuse of discretion occurred 

when the judge awarded legal fees to defendant. 

Under Rule 1:4-8, an opposing party must first serve a "written notice and 

demand" on the attorney who signed the pleading. R. 1:4-8(b)(1). That notice 

must warn that sanctions will be sought "if the offending paper is not withdrawn 

within [twenty-eight] days of service of the written demand[,]" but if "the 

subject of the application for sanctions is a motion whose return date precedes 

the expiration of the [twenty-eight]-day period, the demand shall give the 

movant the option of either consenting to an adjournment of the return date or 

waiving the balance of the [twenty-eight]-day period then remaining." Ibid. 
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As the trial judge found, Rule 4:49-2 requires a motion for reconsideration 

to "state with specificity the basis on which it is made, including a statement of 

the matters or controlling decisions which counsel believes the court has 

overlooked or as to which it has erred . . . ." Plaintiff failed to identify any 

grounds for relief in the reconsideration application that had not already been 

presented. Because it made exactly the same arguments in February 2019, the 

judge also opined that the only basis for the motion was to increase the cost and 

burden of litigation.

Here, defense counsel notified plaintiff's counsel via email of his intent to 

request sanctions under Rule 1:4-8 before the motion was heard. Although the 

record does not indicate precisely when notice was given, the judge noted the 

initial return date of the motion was in either May or early June, and the motion 

was decided on July 17, 2020. The twenty-eight-day deadline therefore had 

expired.

Rule 1:4-8(b)(1) authorizes sanctions if a party's pleading, motion, or 

other paper "violated [paragraph (a) of] this rule." Paragraph (a) requires that 

counsel ensure that

(1) the paper is not being presented for any improper 

purpose, such as to harass or to cause unnecessary delay 

or needless increase in the cost of litigation;
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(2) the claims, defenses, and other legal contentions 

therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or 

reversal of existing law or the establishment of new 

law;

(3) the factual allegations have evidentiary support or, 

as to specifically identified allegations, they are either 

likely to have evidentiary support or they will be 

withdrawn or corrected if reasonable opportunity for 

further investigation or discovery indicates insufficient 

evidentiary support[.]

[R. 1:4-8(a).]

A review of the motion transcript reveals that the judge sufficiently 

described how defendant filed a Rule 4:49-2 motion lacking any overlooked law 

or facts warranting reconsideration. See Kornbleuth v. Westover, 241 N.J. 289, 

301 (2020); Naik v. Naik, 399 N.J. Super. 390, 395 (App. Div. 2008). The judge 

therefore properly exercised her discretion in imposing fees under Rule 1:4-8.

Any points we have not reached lack sufficient merit to warrant discussion 

in a written opinion. See R. 2:11-3(e)(1)(E).

Affirmed.