FRED GHEDINE v. DONALD RAINER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6464-03T56464-03T5

FRED GHEDINE, as Power of Attorney

for his mother, CECELIA GHEDINE,

Plaintiff-Appellant,

v.

DONALD RAINER,

Defendant-Respondent.

 

Argued February 16, 2006 - Decided March 9, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-311-03.

Richard F. Klineburger, III argued the cause for appellant (Klineburger & Nussey, attorneys; Mr. Klineburger, on the brief).

Theodore E. Baker argued the cause for respondent (Lummis, Krell & Baker, attorneys; Rebecca J. Bertram and Mr. Baker, on the brief).

PER CURIAM

Plaintiff appeals from a July 10, 2004 summary judgment dismissing his complaint. On appeal, he raises the following arguments:

A. THE TRIAL COURT IMPROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BECAUSE DISCOVERY WAS NOT COMPLETE AND THE MATTER WAS NOT RIPE FOR SUMMARY JUDGMENT.

B. THE COURT IMPROPERLY RULED THAT THE STATUTE OF LIMITATIONS BARRED PLAINTIFF'S CAUSE OF ACTION IN CONTRADICTION TO THE "DISCOVERY RULE."

C. THE TRIAL COURT IMPROPERLY RULED THAT THERE IS NO LEGAL MALPRACTICE DESPITE DEFENDANT, AN ATTORNEY, REPRESENTING PLAINTIFF BY PREPARING A DEMAND NOTE FOR HER WHEREIN DEFENDANT WAS THE DEBTOR.

We have carefully considered plaintiff's arguments in light of the facts and the existing law. We conclude that the arguments are without merit and affirm substantially for the reasons expressed by Judge Bowen in his comprehensive oral decision from the bench on July 9, 2004. R. 2:11-3(e)(1)(A)&(E). We add only the following.

Cecelia Ghedine is Fred Ghedine's mother. In 1982 she lent $10,000 to defendant, an attorney. Defendant executed a demand note on that date. He claims the loan was forgiven by Cecelia Ghedine. On March 17, 2003, Fred Ghedine, on behalf of his mother, who is incompetent, initiated this lawsuit for recovery of the loan, alleging multiple causes of action, including legal malpractice, conversion, common-law fraud, breach of fiduciary duty, breach of contract, violation of New Jersey Consumer Protection Act and bad faith. On March 12, 2004, Fred Ghedine was deposed. The court has barred Cecelia Ghedine's testimony because she is incompetent. On May 26, 2004, more than a year after the complaint was filed, defendant moved for summary judgment. Plaintiff cross-moved to compel discovery. Addressing the parties' arguments, Judge Bowen gave the following reasons for granting defendant's motion and denying plaintiff's cross-motion:

The defense motion for summary judgment is based upon a note dated August 20, 1982, it is a demand note which reads,
"I, Donald H. Rainer," who is the defendant in this matter, "residing at 158 West Commerce Street, Bridgeton, New Jersey, promise to pay on demand the sum of $10,000 to Cec[e]lia Ghedine with any accrued interest at the rate of 12 percent per annum for monies received."

It is uncontroverted that the demand for payment was made in on or after the year 2000, some 18 years after the making of the note and also after the note was assigned by the creditor under the note to her son, and after this Court has also -- or at this time after the inception of the litigation, this Court has issued an order barring the discovery of the creditor under the note as being no longer medically capable. The statute of limitations that applies to a demand note, the law is quite clear, is six years from the inception of the note or the making of the note. And the assignee of the note does not acquire any additional rights or any additional time under the statute of limitation from that effected and enjoyed by the original creditor or beneficiary under the note.

The plaintiff, however, says that the statute of limitation does not or should not run because discovery could not be had with respect to the rights of the creditor until demand was made on or about 2000 as stated about 18 years after the making of the note and after the assigning of the note by the beneficiary or creditor to her son.

That theory of discovery extending the statute of limitations is defective for several reasons, one of which is that either the initial beneficiary of the note or any assignee would have an equal obligation to obtain any information as to the statute of limitations prior to the eventual attempt to demand payment by one who was not the original creditor and who cannot testify at this time. This illustrates the very reason for statutes of limitation; to place matters at rest and require that they be litigated before events, whether it's incapacity or other evidential disappearance, occur before they can be utilized in the litigation.

That is one of the essential reasons for statutes of limitations. And the existence of the reason for the statute of limitations is critically present at this time, since at this juncture well after the lapse of the six-year period it cannot be defended because something has disappeared, and that is the ability to call as a witness or take discovery the creditor of the -- the beneficiary of the note.

The fact that one party was an attorney or had therefore the benefit of attorney expertise by virtue of that does not change the statute of limitations from the well established statute of six years from the making of a demand note. The absence of any attempt of any evidence, of any attempt by the beneficiary to make demand within a six-year period, further demonstrates the reason for and the need for the six-year statute of limitations. As was suggested in my earlier colloquy, the fact that one party was represented and another not does not change of itself the statute of limitations.

There's no evidence here that there was any rendering of attorney's services or advice by the defendant of the predecessor plaintiff and, therefore, not only must I grant the summary judgment as to the note under the statute that is applicable, but also grant it as to any claim for legal malpractice or negligence which is barred in the absence of any demonstration of any representation, legal representation, and which itself would also be subject to a statute of limitations unless there were some compelling reason of discovery. And that applies to all other claims in this matter as well.

And, therefore, I grant summary judgment to defendant on all counts and deny the motion of plaintiff for discovery as a result thereof. It is not based upon any need for completion of discovery. And I emphasize that this motion for dismissal may be made before the completion of discovery for this reason: if discovery were to move forward on any of these claims it is only the plaintiff who could take advantage of the discovery because the critical person to any defense is a person who now, after this lengthy period of time, is not available because of her incapacity and, therefore, the defendant is unable by that passage of time to defend this matter under any of the counts or any of the theories of claims. And it is for this very reason that a motion for dismissal and a statute of limitations motion is possible and that is because of the policy reason of not allowing litigation after such time has elapsed, that the matter may not be fairly litigated and evidence is no longer available. And it is for this reason that the motion to dismiss is granted on all counts and the motion to compel discovery is denied because discovery could only benefit one party in this matter and that is the plaintiff, and that is just the inequity that the statutes of limitations are designed to prevent. There's no inequity here since the party could have pursued these matters well within even the six years from the making of the note.

We agree with Judge Bowen's decision. Simply because defendant had not yet been deposed was not a reason to deny the summary judgment motion. A party cannot defeat a summary judgment motion by alleging incomplete discovery unless he or she can demonstrate with some degree of particularity the likelihood that the requested discovery will provide a factual conflict sufficient to deny the motion. Village Supermarket Inc. v. Mayfair Supermarkets Inc., 269 N.J. Super. 224, 239 (Law Div. 1993) (citing Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977)). Here, aside from plaintiff's unsupported allegations in the complaint, he did not present any admissible evidence to support his claims. He failed to establish a prima facie case on any of the alleged causes of action. He has not demonstrated with "any degree of particularity" what additional facts will be disclosed upon the taking of defendant's deposition. The statute of limitations has long since expired on the note, and, aside from plaintiff's unsupported allegations, he has not submitted any proof that defendant ever represented plaintiff's mother as her attorney. The evidence "is so one-sided" that defendant "must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

 
Affirmed.

The correct spelling of respondent's name is Donald Rainear. It was misspelled on plaintiff's complaint as Donald Rainer and misspelled on appellant's brief as Donald Reainear.

Judge Winkelstein was not present for oral argument, but has reviewed the tape recording of the session.

(continued)

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A-6464-03T5

March 9, 2006