FOLEY, INC. v. FEVCO, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6051-02T51961-05T5

FOLEY, INC.,

Plaintiff-Respondent,

v.

FEVCO, INC.,

Defendant,

and

ELISA RODRIGUEZ and MILITA

RODRIGUEZ,

Defendants-Appellants.

_____________________________

 

Argued April 26, 2006 - Decided May 9, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-11302-98.

Stephen M. Goldberg argued the cause for appellants.

Andrew R. Turner argued the cause for respondent (Turner Law Firm, attorneys; Mr. Turner, of counsel and on the brief).

PER CURIAM

Defendants Elisa Rodriguez and Milita Rodriguez appeal from a November 18, 2005 order disqualifying their attorney of record, Stephen M. Goldberg, and all members of his law firm, from continuing to represent defendants in this litigation. On December 2, 2005, on defendants' application for emergent relief, we granted leave to appeal the disqualification order and stayed the order pending disposition of this appeal.

The history of this case, including our two previous remands, is fully set forth in our published opinion and need not be repeated here. See Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574 (App. Div. 2005). In that decision, we remanded the matter for the Law Division judge to conduct a plenary hearing to determine whether defendants' conduct in connection with their debt to plaintiff constituted an "intentional tort" within the meaning of the Bankruptcy Code, 11 U.S.C.A. 523, such that it was non-dischargeable. Foley, 379 N.J. Super. at 585, 588-89. Plaintiff then moved to disqualify Mr. Goldberg from continuing to represent the individual defendants on the ground that he was a "necessary witness" in the pending hearing. Disqualification of counsel is a "drastic remedy" that is not to be granted lightly. J.G. Ries & Sons, Inc. v. Spectraserv, Inc., __ N.J. Super. __ (2006) (slip op. at 5). We there noted that "[i]n granting the motion" to disqualify counsel, the trial judge's only reference to counsel's likely role as a witness was "a representation that lawyers at the . . . firm would be called as witnesses. Such a mere representation, however, does not satisfy the threshold requirements of RPC 3.7, which specifies a likelihood that a lawyer will be a necessary witness." Id. at 20-21. RPC 3.7 provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

The judge clearly provided inadequate findings in support of disqualification when he ruled:

This is a matter in which -- and it's not yet clear that you [Mr. Goldberg] will, in fact, be needed as a witness, but to the extent that it may arise during the course of a hearing, I don't want to have a hearing adjourned in midstream in order to -- for your clients to obtain additional new counsel in this matter and be brought up to speed.

It is insufficient for a judge to disqualify counsel for a litigant merely to avoid the possibility that the need for counsel's testimony "may arise during the course of a hearing." Nonetheless, a disqualification order is subject to de novo review, J.G. Ries, supra, at 5, and we affirm or reverse an order, not the reasons given for that order. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) ("It is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance."), abrogated on other grounds, Commercial Realty & Resources Corp. v. First Atl. Props. Co., 122 N.J. 546, 565 (1991); Velazquez v. Jiminez, 336 N.J. Super. 10, 43 (App. Div. 2000) ("[A] correct result predicated upon an incorrect basis does not preclude an affirmance of that ruling."), aff'd, 172 N.J. 240 (2002); Lipman v. Rutgers, 329 N.J. Super. 433, 447 (App. Div. 2000) (affirming "on grounds different from below"; Walker v. Briarwood Condo Ass'n, 274 N.J. Super. 422, 426 (App. Div. 1994) ("[A]ppeals are taken from judgments and not from a judge's reasons. Thus, a judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it.").

Our review of the record as a whole, as described in detail in our earlier published opinion, satisfies us that Mr. Goldberg is indeed a necessary witness and therefore must be disqualified. We therefore affirm the order of disqualification. The Law Division judge shall complete the remand as previously ordered.

Affirmed.

 

The Law Division judge signed an amended order on November 28, 2005, extending the time within which defendants were to retain substitute counsel.

(continued)

(continued)

5

A-6051-02T5

May 9, 2006