SIETE URBAN ASSOCIATES LLC v. PITNEY, HARDIN, KIPP & SZUCH

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5900-08T3

SIETE URBAN ASSOCIATES, LLC,

Plaintiff-Appellant/

Cross-Respondent,

v.

PITNEY, HARDIN, KIPP & SZUCH,

Attorneys at Law of the State

of New Jersey; PETER A. FORGOSH ,

ESQ., an Attorney at Law of the

State of New Jersey; JONATHAN S.

BRISTOL, ESQ., an Attorney at

Law of the State of New Jersey;

JOEL ROSEN, ESQ., an Attorney at

Law of the State of New Jersey;

and DOUGLAS A. KENT, ESQ., an

Attorney at Law of the State of

New Jersey,

Defendants-Respondents/

Cross-Appellants.

_______________________________________________________

October 25, 2010

 

Argued September 29, 2010 - Decided

 

Before Judges Fisher, Sapp-Peterson and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2680-03.

 

Andrew J. Kyreakakis argued the cause for appellant/cross-respondent.

 

Brian J. Molloy argued the cause for respondents/cross-appellants (Wilentz, Gold-man & Spitzer, attorneys; Mr. Molloy and Willard C. Shih, of counsel and on the brief).

 

PER CURIAM

In this appeal, plaintiff Siete Urban Associates, LLC (Siete), which succeeded to the interests of One Washington Park Urban Renewal Association (OWPURA), claims the right to commence and pursue a legal malpractice action against defendants -- based on defendants' alleged malpractice in representing OWPURA during a complex financial closing in 1996 -- when it filed an amended complaint in this action in 2009. We find no merit in Siete's contention that its amended complaint should relate back to when an action was first filed by Charles W. Geyer, a partner in OWPURA, who was subsequently found by this court to lack standing, or that the equities otherwise favor the tolling of the statute of limitations. Indeed, we conclude it would be unfair to defendants and injurious to the administration of justice to excuse Siete's thirteen-year slumber in the face of defendants' constant and prolonged insistence in prior proceedings that Geyer lacked standing. Accordingly, we affirm the dismissal of Siete's amended complaint.

Siete's claim, which, as noted, was previously asserted and pursued by Geyer, arises from defendants' representation of OWPURA during the refinancing of property OWPURA owned in Newark. The relevant circumstances were thoroughly outlined in our opinion regarding Geyer's prior appeal in this matter. Geyer v. Pitney, Hardin, Kipp & Szuch, No. A-4818-05 (App. Div. Apr. 15, 2008), certif. denied, 196 N.J. 466 (2008). It suffices to say for present purposes that the malpractice claim first asserted by Geyer, and now by Siete, focuses primarily on defendants' failure to submit a consent order to the bankruptcy court that had jurisdiction over OWPURA's assets and financial affairs. The lender in the financial transaction, which was closed over the course of a few days in August 1996, deemed the consent order critical because of its intention to transfer the new loan to a third party, and remoteness from the bankruptcy proceeding was deemed important in gaining the expected profit from the resale. As a result, the consent order was a document prepared for and exchanged at the closing; it called not only for the dismissal of the bankruptcy action but also expressed the parties' agreement to submit any future disputes to state court. However, as acknowledged at his deposition, defendant Bristol "mucked up" by failing to quickly submit the consent order for the bankruptcy judge's signature. By the time it was submitted, the order's execution was precluded by the interim filing of motions.

The claim of malpractice is based, in large part, on the contention that, had the consent order been submitted expeditiously, the bankruptcy action would have been dismissed and the lender would have achieved the desired remoteness from the bankruptcy proceeding. Due to defendants' failure to obtain a rapid dismissal of the bankruptcy proceeding, the original lender could not "flip the loan" and remained the holder of the mortgage. According to Geyer and now Siete, the lender thereafter manipulated matters in order to generate a default on the loan. Geyer, supra, slip op. at 34-35. At about the same time, a state court action was commenced by the other OWPURA partner against Geyer, and the lender filed a foreclosure action against OWPURA. These two actions were consolidated, and the judge appointed a receiver to dissolve OWPURA.

On July 31, 1997, while the consolidated actions were still pending and OWPURA not yet dissolved, Geyer filed an action in the trial court alleging defendants' malpractice. The action, however, was quickly dismissed without prejudice because, as the judge at that time concluded, OWPURA was "in receivership and the receiver alone ha[d] the sole authority to institute a legal action . . . and ha[d] not yet chosen to do so." Later, after Geyer and his partner resolved their disputes, the receiver expressed his intention to the judge in the consolidated actions "to abandon these claims in favor of Mr. Geyer, who would then be free, if he chooses, to proceed to litigate same as successor to OWPURA." An order memorializing that abandonment was entered on May 22, 1999.

Geyer filed a legal malpractice action against defendants on July 22, 1999. Defendants moved for summary judgment, arguing Geyer lacked standing, which prompted an evidentiary hearing as to the receiver's intentions. The receiver testified there were sufficient assets for the payment of OWPURA's debts and that he did not need to pursue the malpractice action in order to successfully complete the receivership; he further asserted that his purpose in abandoning the claim was to allow Geyer to pursue it, reasoning that Geyer would be the eventual sole owner of OWPURA since his former partner no longer possessed an interest in OWPURA. As the receiver testified, the abandonment of the claim to Geyer was "just [the means of] facilitating that [outcome] in advance." The judge thus permitted Geyer to pursue the malpractice action "on behalf of" OWPURA.

Discovery was completed, but the suit was dismissed without prejudice by way of a consent order entered on July 16, 2002, due to Geyer's inability to proceed to trial based on his former attorney's incapacity. The order also contained defendants' agreement not to assert the statute of limitations as a defense when Geyer later refiled his action.

As permitted by the consent order, Geyer filed a new legal malpractice action against defendants on July 15, 2003. In again seeking dismissal based on standing grounds, defendants argued that the receiver's abandonment of the claim constituted an impermissible assignment of a tort claim and that ownership of the claim devolved to the entity that obtained OWPURA's assets. That successor was Siete. The trial judge disagreed with defendants' standing argument but ultimately granted summary judgment in their favor.

Geyer appealed, and defendants cross-appealed, arguing again that Geyer lacked standing to pursue what had been OWPURA's legal malpractice action. By way of our unpublished April 15, 2008 decision, we agreed that Geyer lacked standing because the process by which the receiver "abandoned" the claim to Geyer was in reality an impermissible assignment and that the claim resided with the entity that succeeded to OWPURA's remaining post-receivership assets, which appeared to us at the time to be Siete. Geyer, supra, slip op. at 24-28. In holding that Geyer lacked standing, we directed the dismissal without prejudice of his legal malpractice action. Id. at 29. In the same breath, we also declared that we had "not foreclose[d] the substitution of the proper plaintiff or the amendment of the complaint to permit the action to be further pursued by the true party in interest, but we also intimate[d] no view as to how such an application should be decided if ever presented." Id. at 29-30.

Following that disposition, Siete successfully moved in the trial court for leave to file an amended complaint, which was filed on March 12, 2009. Defendants filed an answer, asserting the defense of the statute of limitations on which ground, as well as others, they soon thereafter moved for summary judgment. Defendants' motion for summary judgment was granted on June 26, 2009, on statute of limitations grounds.

Siete appealed, arguing that: (1) summary judgment was precluded because of material issues of fact as to whether the statute of limitations had run; (2) defendants' failure to raise the statute of limitations during Geyer's earlier appeal required that the argument be deemed abandoned; (3) the statute of limitations was tolled during the period of time when the trial court determined that Geyer had standing to pursue the action; (4) the July 16, 2002 consent order contained defendants' waiver of the statute of limitations defense; and (5) Rule 4:9-3 should apply and permit the filing of Siete's amended complaint to relate back to the filing of Geyer's 1999 complaint. We find insufficient merit in Siete's first three arguments to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), and reject the remaining arguments substantially for the reasons set forth by Judge Marianne Espinosa in her oral decision granting summary judgment.1 We add only the following brief comments.

Siete's argument in Point IV that the July 16, 2002 consent order precludes the application of the statute of limitations to its amended complaint is utterly without merit. The agreement that the statute of limitations would not apply when Geyer refiled his claim was limited to just that -- Geyer's future complaint. The filing of any other suit against defendants by any other party was not encompassed by the consent order. Indeed, Siete was not a party to the suit at that time and was not a party to the agreement memorialized in the consent order; defendants' promise not to assert the statute of limitations was extended only to the future refiling of Geyer's complaint. Indeed, the consent order not only fails to include any language that would suggest the broad application now urged by Siete, but the circumstances that led to the entry of the consent order strongly counsel against anything but its narrow interpretation. As the record demonstrates, by 2002, Geyer was unable to proceed with his 1999 suit because of the incapacity of his former attorney. As a courtesy, defendants consented to a dismissal without prejudice. It would be incongruous, in light of the parties' obvious intent at the time, to now construe the consent order to apply to an entity which was not a party to it.

We also reject Point V, wherein Siete argues Rule 4:9-3 requires that the filing date of Siete's amended complaint relates back to Geyer's original filing date. In considering this argument, we recognize that Siete mixes multiple concepts. Because the running of the limitations period starts with the accrual of the action, we must commence our analysis of Siete's argument by pinpointing the moment when defendants' malpractice became known or should have become known by the injured party. See Grunwald v. Bronkesh, 131 N.J. 483, 493 (1993). There is no doubt that the triggering event was defendants' alleged failure in or about August 1996 to timely submit the consent order to the bankruptcy judge. OWPURA was well aware at the time of defendants' alleged failure; accordingly, the action accrued in August 1996, and N.J.S.A. 2A:14-1 required that the legal malpractice action be commenced no later than August 2002. Geyer was well aware that the cause of action had accrued before the six-year limitation period ended as demonstrated by his initial attempt to prosecute the claim in 1997 and his later action in 1999, both of which were timely.2 Siete, which succeeded to OWPURA's interests,3 should also have then known or certainly had reason to know of the circumstances that now form its malpractice claim.

Notwithstanding, Siete contends the limitations period did not commence until this court concluded in the earlier appeal that Siete and not Geyer had standing to pursue the action. That contention has no merit. Although OWPURA's malpractice claim may have been transformed -- from its own hands to its receiver and, ultimately, to Siete -- the limitations period did not reset with each exchange. Each new owner received the chose in action with whatever time was left in the six-year limitations period.4 Here, Siete assumed ownership of the claim in 1998; at that time, it had ample time to commence suit and yet deliberately delayed until Geyer's prosecution of the identical claim was precluded by his lack of standing. By consciously pursuing this mistaken course, Siete cannot now claim equitable grounds for avoiding application of the time-bar created by the Legislature.

We lastly reject the other aspect of Point V, in which Siete contends that Rule 4:9-3 should apply in this instance and, as a result, the filing of Siete's amended complaint should relate back to the date of the filing of Geyer's complaint.

We agree with the motion judge that Rule 4:9-3 does not apply in the absence of a mistake on the pleader's part in naming an adverse party or in the pleader's justifiable misunderstanding of the need for the joinder of the new party. See Viviano v. CBS, Inc., 101 N.J. 538, 552 (1986). We find no mistake of the type contemplated by the Rule to have occurred here. Indeed, it is doubtful that the Rule has application when a plaintiff misnames the entity he controls in his complaint. A plaintiff should know or be able to readily ascertain the correct name or correct entity in whose name suit should be commenced; Rule 4:9-3 presupposes that uncertainty may exist only with regard to the naming of an adverse party. Moreover, even if it could be said that Siete's amended complaint should relate back to the original filing date, this action was filed in 2003, after the limitations period had already run. Siete, of course, asserts that the amendment should relate back to the filing of Geyer's 1999 complaint. The Rule, however, does not remotely suggest that an amendment may relate back to the filing of any suit other than the suit in which the amendment was sought or permitted.5 Accordingly, Rule 4:9-3, whether or not applicable, offers no relief to Siete.

A

ffirmed.

1In light of our disposition of the appeal, we need not reach the issues raised in defendants' cross-appeal, which asserts other grounds for a dismissal of Siete's amended complaint.

2As we observed in our earlier opinion, "Geyer repeatedly urged [Bristol] to submit the consent order" soon after the August 1996 closing. Geyer, supra, slip op. at 15.

3Although the specifics regarding Siete's interest were not clearly revealed in the record before us on Geyer's appeal, the record on appeal in this matter contains a certification executed by the receiver, who explained that Siete was formed by his law firm and consisted of two members: Irob, Inc., which owned 99% of Siete, and Bori, Inc., which held the remaining portion; Geyer was the sole shareholder of Irob.

4Were it otherwise, the statute of limitations could be avoided indefinitely by repeated transfers of a claim.

5We would be remiss not to mention the disconcerting circumstances that result from a judicially-authorized second sequential lawsuit involving the same disputes between and among the same parties. Our court rules do not countenance dismissals without prejudice entered for the sole reason of making an old case new again as occurred here. When Geyer was unable to proceed with his 1999 suit, the trial court should have determined whether the matter should have been dismissed for lack of prosecution or postponed until Geyer was ready. The gimmick of dismissing an action without prejudice coupled with the waiver of the statute of limitations defense, as here, or a dismissal without prejudice coupled with relief from the future application of the entire controversy doctrine, as in Grow Co. v. Chokshi, 403 N.J. Super. 443, 454 (App. Div. 2008), or the closing and reopening of a suit with a new docket number, as in Fischer v. Fischer, 375 N.J. Super. 278, 281 n.1 (App. Div.), certif. denied, 183 N.J. 590 (2005), tends to unnecessarily confound proceedings that follow and mocks the considerable efforts expended by the judiciary in analyzing the speed at which cases are or should be adjudicated in our courts.