ANGELA WALTMAN v. FYI DIRECTORIES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5335-06T15335-06T1

ANGELA WALTMAN,

Plaintiff-Appellant/

Cross-Respondent,

v.

FYI DIRECTORIES, a New Jersey

Business Entity,

Defendant-Respondent/

Cross-Appellant.

_______________________________

 

Argued May 27, 2008 - Decided

Before Judges Parrillo, Gilroy and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-422-03.

William B. Hildebrand argued the cause for appellant/ cross-respondent.

Alan G. Giebner argued the cause for respondent/cross-appellant (Buonadonna, Benson & Parenti, P.C., attorneys; Mr. Giebner, on the briefs).

PER CURIAM

Plaintiff Angela Waltman appeals from orders of the Law Division: (1) granting defendant FYI Directories' (FYI) second summary judgment motion as unopposed and dismissing plaintiff's breach of contract claim; and (2) denying her motion for reconsideration. Defendant cross-appeals from an earlier order of the Law Division denying FYI's first summary judgment motion and extending discovery for an additional sixty days. For the following reasons, we affirm the denial of defendant's first summary judgment motion; affirm in part the grant of defendant's second summary judgment motion dismissing plaintiff's wage-disparity claim, pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and reverse and remand in part the grant of defendant's second summary judgment motion dismissing plaintiff's breach of contract claim.

From November 1996 to September 1998, plaintiff was employed as a sales representative for South Jersey Yellow Pages (SJYP). While employed there, plaintiff sold advertisements in an independent yellow page directory published by SJYP. In September 1998, while working at SJYP, plaintiff loaned $55,000 to Ernie Beaumont, SJYP's sole owner, to purchase two computers and pay the printer so the directory could be published. In exchange, Beaumont agreed to transfer 150 SJYP shares, representing a 15% ownership interest in the company, to plaintiff. Neither Beaumont, nor SJYP, however, ever fully paid her back. When plaintiff left the company in September 1998, about $50,000 of the money owed her remained unpaid.

According to plaintiff, during an October 16, 1998 meeting at which William Hallissey, Crosby Dougherty, Les Cook and plaintiff were present, Hallissey and Dougherty, as co-owners of defendant FYI, promised plaintiff a 15% ownership interest to induce her to work for FYI. In reliance on that promise, in late November 1998, plaintiff began working for FYI as a sales representative. At the end of 1998, FYI paid plaintiff the remaining $50,000 balance of her loan to SJYP. In 1999, a takeover ensued whereby FYI acquired SJYP's assets.

As further proof of her 15% ownership interest in FYI, plaintiff produced business cards listing plaintiff as a "principal," and FYI's "Statement of Principal Participation" which referred to plaintiff as an account executive. Moreover, Dougherty admitted that plaintiff's ownership participation was discussed in FYI's internal meetings during the "end of 1998 or beginning of 1999."

On April 21, 2003, plaintiff filed her original complaint against FYI alleging the company violated the LAD by paying her less than a male co-worker, Les Cook, who had the same job functions. On October 14, 2004, plaintiff amended her complaint to assert a breach of contract claim against FYI, alleging that defendant breached its oral promise to plaintiff of a 15% ownership interest in FYI.

After several discovery extensions and the Law Division's October 21, 2005 order compelling discovery from plaintiff, defendant filed its first motion for summary judgment with a return date of September 8, 2006 at 9:00 a.m. Plaintiff filed a late opposition to defendant's motion on the afternoon of September 8, 2006, without any explanation for her delay, and requested a two-week postponement to allow defendant to respond to her opposition. Accompanying her opposition was: (1) plaintiff's certification dated September 8, 2006, in which she represented that she had relied on Hallissey's and Dougherty's offer of a 15% interest in FYI; (2) defendant's business cards listing plaintiff as "Principal;" (3) defendant's "Statement of Principal Participation" referring to plaintiff as an account executive; and (4) a loan agreement, dated September 2, 1998, between SJYP and plaintiff, whereby plaintiff would receive 150 shares of SJYP stock on September 30, 1998.

In an order dated September 22, 2006, following a two week adjournment, the Law Division considered plaintiff's late opposition, denied defendant's first motion for summary judgment and extended discovery, which was the fifth extension, for an additional 60 days. Specifically, the judge stated:

The [disparity of the] draw issue, it has been acknowledged is . . . no longer an issue. . . . [T]here are two claims remaining. One is contractual which . . . [has] some questions. And the other is

. . . a differential in salary. . . .

There are many valid reasons why people make different amounts of money and just the fact that [plaintiff] is making a different amount of money still leaves [her] with a lot to prove to the Court, but [plaintiff] has survived the summary judgment motion

. . . .

[I]t wasn't [un]til I looked at the documentation about the previous transaction that at least caused me to wonder whether [plaintiff] should have received an ownership interest in this new company. It's factual . . . . But right now[,] the only thing I have in front of me is if there is a differential in salary, so I'm denying the motion for summary judgment.

. . . .

[I]n light of . . . a shift in [plaintiff's] theory[,] . . . I will . . . open discovery up . . . for 60 days to allow for the deposition of the plaintiff.

[(emphasis added).]

More discovery ensued, and, on January 3, 2007, Dougherty, for the first time, and plaintiff, for the second time, were deposed. In a February 9, 2007 certification attached to defendant's second summary judgment motion, Cook, plaintiff's co-worker and FYI sales representative, confirmed the possibility of defendant transferring a 15% interest to plaintiff if (1) defendant was profitable; and (2) Hallissey and Dougherty were fully reimbursed for their time and contributions. Neither plaintiff, nor Cook ever received an ownership interest in FYI.

On February 26, 2007, defendant filed its second motion for summary judgment with a return date of March 30, 2007. Defendant's second summary judgment motion identified statements of fact in paragraphs 71-90 that were unopposed. In particular, defendant's paragraph 88 stated that "all the persons who plaintiff has identified as being present when the [alleged ownership] offer was first made [at the October 16, 1998 meeting], deny that such an offer was made at that meeting or at any time subsequent." In addition, defendant's paragraph 89 asserted that

[o]ther than [plaintiff's] naked testimony, there is nothing to support her [breach of contract] claim. Not even the business cards . . . support her claim. The plaintiff admitted that the word "principal", which appears on the cards, meant something other than persons with an ownership interest in the business when used in the title of the Statement of Principal Participation.

Defendant's second summary judgment motion also contained plaintiff's September 8, 2006 certification stating that plaintiff relied upon defendant's offer of a 15% interest in the new company in deciding to work for defendant.

The Law Division granted plaintiff's second request for a two-week postponement. On April 12, 2007, at 4:30 p.m., after the two-week adjournment and on the afternoon before the return date of defendant's second summary judgment motion, plaintiff re-filed her first summary judgment opposition to defendant's second motion, without addressing paragraphs 71-90 of defendant's statement of facts. Defendant opposed the late filing of plaintiff's opposition brief, which was essentially an exact copy of her opposition to defendant's first motion.

In an order of April 13, 2007, the Law Division granted defendant's second motion for summary judgment as unopposed and dismissed plaintiff's complaint. Specifically, the judge stated:

[Plaintiff] did respond to . . . [defendant's second] [m]otion for [s]ummary [j]udgment and left papers off for the court at 4:30 [p.m.] on Thursday [the afternoon before defendant's second summary judgment motion return date].

I didn't consider them, because . . . I didn't even know that they existed. Now that I know that they exist, I still don't intend to consider them. I bent over backwards previously when [plaintiff's counsel] somehow determined that you could respond to a [m]otion for [s]ummary [j]udgment on the afternoon after the motion was heard in the morning, and I gave him the benefit of the doubt and the opportunity to proceed on those basis.

. . . .

Oh, and I had previously adjourned this motion in any event.

But after having done that, only because of the happenstance of my clerk contacting him, did he make any effort to provide the court something. . . . I can't possibly consider his papers in light of his previous conduct.

I believe that the moving papers, that:

One, they are unopposed;

Two, I concur with the analysis of [defendant]. I am treating the [second] summary judgment motion as unopposed by virtue of the failure of [plaintiff] on a continual basis to even at all follow the Rules of Court.

So . . . [defendant's second] [m]otion for [s]ummary [j]udgment is granted.

Plaintiff moved for reconsideration on May 10, 2007. In an order of June 8, 2007, the Law Division denied plaintiff's motion.

On cross-appeal, defendant asserts that the Law Division erred in denying its first summary judgment motion and in considering plaintiff's late opposition papers. We disagree and affirm the Law Division's denial of defendant's first summary judgment motion.

On appeal, plaintiff principally argues that the Law Division erred in granting defendant's second summary judgment motion because the court failed to properly consider a genuine issue of material fact regarding plaintiff's claim to a 15% ownership in FYI. Because genuine issues of material fact on the breach of contract claim remain, we reverse in part the granting of defendant's second summary judgment motion dismissing plaintiff's breach of contract claim, and affirm in part the dismissal of plaintiff's LAD claim.

I

We first review whether the Law Division properly considered plaintiff's late opposition papers to defendant's first summary judgment motion. Rule 4:46-1 "requires that papers in response to motions for summary judgment . . . must be filed and served not later than ten days before the return date of the motion for summary judgment." Shulas v. Estabrook, 385 N.J. Super. 91, 94 (App. Div. 2006) (citing R. 4:46-1). While "[n]o other papers may be filed without leave of court," R. 4:46-1, "a party may seek permission to file [opposition papers] . . . on short notice." Shulas, supra, 385 N.J. Super. at 94 n.1.

Rule 1:1-2 is a catch-all relaxation provision that provides that "any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." Moreover, "decisions should be made where possible on the merits." Tyler v. N.J. Auto. Full Ins. Underwriting Ass'n, 228 N.J. Super. 463, 468 (App. Div. 1988). Furthermore, "[i]t is a mistaken exercise of judgment to close the courtroom doors to a litigant whose opposition papers are late but are in the court's hands before the return day for a motion which determines the meritorious outcome of a consequential lawsuit." Ibid. In addition, "[l]ate filings of motion papers can be met with a variety of judicial responses afforded by existing court rules. Among them are sanctions designed to discourage late filings without determining the outcome of a case." Ibid. (citing Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., Inc., 206 N.J. Super. 405, 407 (App. Div. 1986); Automatic Washer Serv., Inc. v. Brunswick Burlington, Inc., 153 N.J. Super. 343 (App. Div. 1977)).

While we do not condone plaintiff counsel's dilatory conduct, and note that on remand, the court may consider appropriate sanctions therefor, we conclude that, in light of all the circumstances, the Law Division did not abuse its discretion in considering plaintiff's late opposition papers in resolving defendant's first summary judgment motion. As noted, in the interests of justice, "decisions should be made where possible on the merits," Tyler, supra, 228 N.J. Super. at 468, and we find no exception to this bedrock principle here. Thus, in relaxing the time constraints of Rule 4:46-1, pursuant to R. 1:1-2, the court properly exercised its discretion in considering plaintiff's late opposition.

We next consider whether there is a material factual dispute to warrant denial of defendant's first summary judgment motion. We review the trial court's grant of defendant's motion for summary judgment de novo, applying the same legal standard as the trial court under Rule 4:46-2(c). Antheunisse v. Tiffany, 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). A motion for summary judgment should be granted only when the moving party establishes the absence of any genuine issue as to a material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995). Plaintiff's version of defendant's conduct, if supported by competent evidence, is accepted as true and plaintiff is given the benefit of all reasonable inferences from the facts. Baliko v. Stecker, 275 N.J. Super. 182, 186 (App. Div. 1994). If there exists a genuine issue of material fact, summary judgment must be denied. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Indeed, even without submitting supporting affidavits, "a party may defeat a motion for summary judgment by demonstrating that the evidential materials relied upon by the moving party, considered in light of the applicable burden of proof, raise sufficient credibility issues 'to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" D'Amato v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill, supra, 142 N.J. at 523).

Based on the record amassed as of then, a genuine issue of material fact has been presented. Most significantly, plaintiff has certified that FYI's owners and representatives orally promised her a 15% ownership interest in the company as an inducement to work for FYI. Indeed, Dougherty acknowledged discussing plaintiff's and Cook's participating as owners during a business meeting at the "end of 1998 or beginning of 1999." Moreover, a loan agreement between plaintiff and SJYP evidences a putative 15% equitable interest in SJYP, a company later taken over by FYI. And FYI's business cards identified both plaintiff and Cook as "principals." Although contrary evidence was offered to dispute each of these "facts," the motion judge at this particular juncture quite properly declined to weigh the evidence and determine the outcome, but instead correctly determined that a material dispute of fact existed as to plaintiff's breach of contract claim. We are in full accord with this decision.

Given this factual dispute, we next consider whether the Law Division properly granted an order to extend discovery. Under Rule 4:24-1(c), courts may grant extensions of discovery for "good cause." See Ponden v. Ponden, 374 N.J. Super. 1, 9-11 (App. Div. 2004) (holding that the extension order must specify the new discovery end date and the nature of the additional discovery), certif. denied, 183 N.J. 212 (2005). However, "[a]bsent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed." R. 4:24-1(c); see also Bender v. Adelson, 187 N.J. 411, 427 (2006) (requiring a precise explanation of the cause of the delay and actions taken during elapsed time to satisfy "exceptional circumstances").

Here, again, the court properly exercised its discretion in granting an extension of discovery "for 60 days to allow for the deposition of the plaintiff," in light of plaintiff's amended complaint alleging a new cause of action of breach of contract. Moreover, there was no lack of due diligence since it was plaintiff's first adjournment request, R. 4:36-3(b), and defendant filed its first summary judgment motion on August 3, 2006 before the November 6, 2006 trial date was noticed to the parties on September 1, 2006. In any event, defendant suffered no prejudice from the extension of discovery and in fact voiced no objection at the time.

II

Because the additional discovery did not eliminate the factual dispute identified earlier, we discern no basis for the court's opposite conclusion in granting defendant's second summary judgment motion. To be sure, further evidence challenging plaintiff's ownership claim was produced by defendant on its second attempt, but even if considered unopposed, these additional proofs did not remove the factual issue created by plaintiff's September 8, 2006 certification and supporting evidence. Whatever the strength of defendant's new proofs, they were not sufficient to render plaintiff's contrary version so implausible or worthless so as to be disregarded. Yet that is essentially what the motion judge did, ignoring the very proof he relied on earlier in denying defendant's first summary judgment motion. In reaching a different conclusion now dismissing plaintiff's breach of contract claim, the judge simply stated:

I can't possibly consider his papers in light of his previous conduct.

I believe that the moving papers, that:

One, they are unopposed;

Two, I concur with the analysis of [defendant]. I am treating the [second] summary judgment motion as unopposed by virtue of the failure of [plaintiff] on a continual basis to even at all follow the Rules of Court.

No doubt frustrated by counsel's continually cavalier and inexcusable conduct, nevertheless the court, in its brief ruling, did not make the required findings of fact and conclusions of law in accordance with Rule 1:7-4. Kenney v. Meadowview Nursing & Convalescent Ctr., 308 N.J. Super. 565, 569 (App. Div. 1998) (citing R. 4:46-2(c)). Indeed, the court failed to reconcile its ostensibly inconsistent rulings and never explained why the factual dispute originally identified no longer pertains, or why the rationale underlying its initial denial of summary judgment relief is no longer valid. Under the circumstances, however, there is no need for a remand because we clearly discern from the summary judgment record a genuine issue of material fact pertaining to plaintiff's ownership claim. For this reason, we reverse the grant of summary judgment dismissing plaintiff's breach of contact claim and remand for further proceedings consistent with this opinion. As noted, on remand, the trial court may consider the imposition of sanctions short of outright dismissal for counsel's dilatory pre-trial conduct.

 
Affirmed on the cross-appeal. Affirmed in part and reversed in part and remanded on the appeal.

In July 2003, Yellow Book, another independent yellow page directory, purchased FYI and plaintiff then left her employment.

The wage-disparity claim is no longer at issue. In the first summary judgment hearing dated September 22, 2006, plaintiff admitted that she was no longer proceeding on the wage-disparity claim when her counsel stated, "[T]he discovery revealed that . . . the [wage] disparity . . . doesn't really matter. If you are generating commissions it doesn't really matter what your draw is if your commission is covering it at the end of the day."

In plaintiff's motion for reconsideration, she attached three new affidavits in support of her 15% ownership claim - (1) Les Cook; (2) Francis Grisoglio; (3) and Catherine Grisoglio. In his affidavit, Cook stated that, while he did not recall the October 1998 meeting, later on, plaintiff and himself "were promised an ownership interest in FYI Directories" and they "believed . . . [they] were 15% owners of the company, based on discussions . . . made to [them] by Crosby Dougherty and William Hallissey." Francis Grisoglio, as FYI production manager, stated that, in FYI's December 1998 meetings, Hallissey and Dougherty "repeatedly" referred to plaintiff and Cook as "partners" in FYI. Similarly, Catherine Grisoglio stated that, in Fall 1998, Hallissey introduced her to plaintiff and Cook by referring to them as "partners" in FYI.

Since we reverse and remand the Law Division's grant of defendant's second summary judgment motion as it relates to the breach of contract claim, we do not address the merits of plaintiff's reconsideration motion.

(continued)

(continued)

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A-5335-06T1

June 26, 2008