JOSEPH GRUNFELD v. RICHARD SELTZER, ESQ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOSEPH GRUNFELD and MAJESTIC COMPANY,

Plaintiffs-Appellants,

v.

RICHARD SELTZER, ESQ.,

Defendant-Respondent.

________________________________

August 27, 2013

Argued January 8, 2013 Decided

Before Judges Ostrer and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L- 3092-10.

Giovanni De Pierro argued the cause for appellants (Ambrosio, De Pierro & Wernick, attorneys; Mr. De Pierro and Alberico De Pierro, on the brief).

Bradley M. Wilson argued the cause for respondent (Nowell Amoroso Klein Bierman, attorneys; Mr. Wilson, on the brief).

PER CURIAM

Plaintiffs appeal from an order of the Law Division denying reconsideration of an earlier order dismissing their complaint with prejudice and denying their cross-motion to reinstate their complaint. They argue that the court's order denying reconsideration is "erroneous based on legal precedent [and] is also predicated on erroneous factual grounds."1 Having considered these arguments in light of the record and applicable law, we affirm.

I.

On June 7, 2010, plaintiffs Joseph Grunfeld and Majestic Company (Majestic), a business entity located in Jersey City that was formed by Grunfeld's ex-wife and son-in-law, filed a complaint alleging legal malpractice claims against defendant. The complaint alleged that Majestic had been formed as a vehicle to invest in real estate and that in the course of Majestic's business, Grunfeld and others had "signed promissory notes with several lenders[.]" The lenders later sued "plaintiffs" on the notes and plaintiffs hired defendant as their attorney.

Plaintiffs alleged that defendant propounded no discovery on their behalf and failed to oppose a summary judgment motion which resulted in a judgment against plaintiffs in the amount of $2,446,464.03. Plaintiffs asserted they were damaged as a consequence of defendant's legal malpractice.

Defendant answered the complaint and averred he had never received notice of the motion for summary judgment. He also alleged he had moved to vacate summary judgment, but the motion was denied. He asserted that Grunfeld was aware of judgment and the steps defendant took to address the problem, but nonetheless "decided not to file an appeal." He also asserted a third-party complaint seeking various forms of relief against Grunfeld's ex-wife and son-in-law, as well as against the lenders and their attorney.

On December 1, 2010, the civil presiding judge entered an initial case management order that, among other things, required plaintiff to provide responses to defendant's "initial document/interrogatory requests within 30 days" and the parties to exchange "all additional paper discovery" within 90 days. Plaintiff's final expert report was due within 200 days. The discovery end date was December 3, 2011.

Defendant apparently2 filed a motion to compel plaintiffs to provide discovery that was heard on the record on February 18, 2011. At that time, defendant advised the court that he had agreed initially to adjourn the motion based upon a representation by plaintiffs' counsel that he would provide "more responsive" discovery answers. Plaintiffs' counsel responded that his clients provided discovery responses to "the best of [Grunfeld's] capability" and that most of the documents pertaining to the claim are not in "plaintiffs' possession" and are "nowhere here in this State." Counsel added they would identify fact witnesses "once we have decided which fact witnesses will be involved."

On that date, the motion judge entered an order stating she would dismiss plaintiffs' complaint pursuant to Rule 4:23-5(a)(1) unless "fully responsive" discovery was provided within fourteen days.

Defendant thereafter moved to dismiss plaintiffs' complaint without prejudice and alleged that plaintiffs breached the prior order by failing to provide responsive discovery. At a hearing on the motion on April 15, 2011, defendant stated he had not received specific information from plaintiffs on the amount of their claimed damages and that, further, plaintiff had not provided information about Majestic itself, but only about a Florida limited liability company with the same name. Again plaintiffs' counsel responded by stating that he had provided whatever was available to Grunfeld and that "everything else is in Florida." As to payments Grunfeld allegedly made on the promissory notes prior to the earlier suit, plaintiffs' counsel stated, "[Grunfeld] is looking over his records. He has to find all these paper[s] . . . He's still getting back to me." After considering the parties' papers and arguments, the motion judge on the same day entered an order dismissing plaintiffs' complaint without prejudice, finding that plaintiffs "failed to provide discovery demanded." On May 27, 2011, she also denied plaintiff's motion3 to reconsider the April 15 order, finding that plaintiffs failed to show that the court's earlier order was "palpably incorrect or irrational" or that she had "overlooked any controlling law."

In October 2011, defendant moved to dismiss plaintiffs' complaint with prejudice. Plaintiffs responded with a cross-motion to reinstate their complaint, and the motion judge heard argument on November 18, 2011. Defendant's counsel argued, among other things, that plaintiffs still had not provided an expert report, and had not provided most of the documents earlier required by court order.

Plaintiffs' counsel responded that following the earlier dismissal without prejudice, his office provided some additional discovery and that they had "been trying to contact every attorney [Grunfeld] dealt with in Florida . . . Everyone kept saying they're in storage, they're going to get back to us." He also stated, "Once the case was dismissed without prejudice, I don't understand how a forensic expert in accounting could be submitted when the case is currently inactive."

The motion judge placed his opinion on the record on November 28, 2012. He cited Rule 4:10-2A, and observed discovery rules should be "liberally construed" and then stated, in pertinent part:

[I]t is only after the defendant filed this motion to dismiss with prejudice that plaintiff[s] filed a cross motion to restore the complaint [that was dismissed without prejudice in April 2011]. However, to date, I find . . . plaintiff[s] still ha[ve] not provided the request[ed] discovery.

While the plaintiffs served defendant with documents on April 18th, 2011, defendant contends that the documents were basically the same documents that were forwarded to defendant's Counsel prior to the order of dismissal without prejudice. Additionally, the plaintiff[s] still ha[ve] not answered defendant's interrogatories. Plaintiffs also ha[ve] failed to serve a final expert report as was required by Judge Bariso's December 1, 2010, order.

Plaintiff[s] did not produce the documents requested in defendant's notice to produce served on January 11th, 2011. The plaintiff would have that burden shifted to the defendant, suggesting that all they have to do is file a subpoena. Well, it's not the defendant's burden to do that. It's plaintiff's burden to provide the documents that have been requested and, therefore, I find that the plaintiffs ha[ve] not complied or supplied defendant with fully responsive answers. Accordingly, the defendant's motion to dismiss with prejudice is granted and the plaintiff's cross-motion to restore the complaint is denied.

In a written order that same day, the motion judge dismissed plaintiffs' complaint with prejudice "for failure to provide discovery[.]"

Plaintiffs thereafter moved for reconsideration, and the motion judge heard argument and placed his decision on the record on February 9, 2012. Defendant argued the November 28 order dismissing the complaint was proper because "information is still missing" including "details of the Capital account, documents related to Majestic Organization, LLC, and documents that show plaintiffs paid in excess of what was owed on the promissory note." Defendant also asserted plaintiffs have not complied with the order requiring an expert report and waited six months to "reinstate" the case, and failed to provide "any exceptional circumstances" for the delay under Rule 4:23-5(a)(2).

The motion judge again found plaintiffs failed to comply with discovery requests, and did not provide any reasons to support their otherwise dilatory conduct:

In the case before me, the plaintiffs allege that they have fully complied with defendant Seltzer's discovery requests. However, . . . defendant alleges that plaintiffs still have not provided the . . . details of the capital account, documents related to Majestic, and documents that show that plaintiffs paid in excess of what was owed on the promissory note.

Plaintiffs' response to the documents related to Majestic was that, "This documentation is not in plaintiffs' possession." When asked about documentation related to plaintiffs' payment of the note, plaintiffs respond that, "Plaintiffs do not possess this information."

Furthermore, plaintiffs' response to defendant's request regarding how much plaintiffs believe they overpaid, plaintiffs rely on [the] statement of Shimon Russell, as he was in charge of the payoff.

Basically, I find that the plaintiff has not complied with the discovery requirements . . . plaintiffs have not provided any reason as to why no attempt was made to comply with the discovery requests until October 17, 2011, some six months after the case was dismissed without prejudice.

Therefore, I find that they've failed to prove any exceptional circumstances. For all those reasons, the motion for reconsideration is denied.

The motion judge issued a written order on February 9, 2012 denying plaintiffs' motion for reasons he placed on the record that day. On March 23, 2012, plaintiffs appealed the February 9, 2012 order only.

II.

Before discussing the merits of plaintiffs' legal arguments, we clarify what is cognizable on appeal and what is not. Defendant has specifically argued that our review is limited solely to the February 9, 2012 order that denied plaintiffs' motion for reconsideration. We largely agree.

Rule 2:5-1(f)(3)(A) provides that "[i]n civil actions the notice of appeal . . . shall designate the judgment, decision, action or rule, or part thereof appealed from . . . ." "[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2013); and see, e.g., 30 River Court East Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006) (refusing to review orders dismissing the defendant's affirmative claims because they were not included in the notice of appeal); Campagna ex rel. Greco v. American Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001).

"Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, supra, comment 6.1 on R. 2:5-1. We have so held in a number of cases. See, e.g., W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008) (considering only the order denying reconsideration because it was the only order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002).

As noted, plaintiffs' notice of appeal only listed the February 9, 2012 order; the earlier orders are not mentioned in either the notice of appeal or plaintiff's case information statement. Therefore, as to the substantive issues raised by plaintiffs on appeal, we limit our review to the provisions of the February 9, 2012 order.

Several points presented in plaintiffs' brief, therefore, are not properly before us. In Point I, plaintiffs argue that the November 28, 2011 order was improper because it was contrary to the "governing standard." In Point II, plaintiffs argue that they had, in fact, complied with the "incessant, improper [discovery] objections of [d]efendant[.]" In Point III, plaintiffs challenge the order denying reconsideration. We conclude this legal argument is properly before us, and we consider its merits below.

Plaintiffs' appeal from the denial of their motion for reconsideration is governed by Rule 4:49-2. Such a motion is addressed to the trial court's sound discretion. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). "Reconsideration should be utilized only for those cases [that] fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see also Fusco, supra, 349 N.J. Super. at 462. Trial courts should grant motions for reconsideration "only under very narrow circumstances." Ibid.

Guided by this these principles, we find that the judge did not abuse his discretion by denying plaintiffs' motion for reconsideration. The record clearly supports the finding that plaintiffs had not complied with prior discovery orders and that plaintiffs' arguments for reconsideration amounted to a re-hash of previous arguments already considered and rejected by the judge.

Moreover, even turning to plaintiffs' challenge to the entry of the original order of dismissal with prejudice entered on November 28, 2011, we reject plaintiffs' argument that the court erred. Cf. Fusco, supra, 349 N.J. Super. at 461 (holding that, "in some cases a motion for reconsideration may implicate the substantive issues in the case," and in such cases, an appeal from only the denial of reconsideration "may be sufficient for an appellate review of the merits of the case, particularly where those issues are raised in the CIS.").

Rule 4:23-5(a)(2) provides:

If an order of dismissal or suppression without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice . . . . The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

[Ibid. (emphasis added).]

"[W]hen the real discovery dispute is not a failure to answer but rather an alleged failure to answer in a 'fully responsive' manner, it is the dismissal with prejudice which is inappropriate unless the answering party has been ordered to answer more fully and fails to do so." Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 378 (App. Div. 1992).

Such is the case before us. Plaintiffs were ordered to provide responsive discovery on February 18, 2011, and their complaint was then dismissed without prejudice on April 15, 2011. Their motion for reconsideration of that order was denied on May 27, 2011. Defendant moved over 120 days later to dismiss with prejudice. The requirements for dismissal with prejudice were met and no extraordinary circumstances justifying non-compliance were shown. More than six months had passed since entry of the order of dismissal without prejudice; documents and evidence pertinent to damages and the status of Majestic were not provided simply because plaintiffs' attorney and Grunfeld failed to produce them; no expert report was provided; and no "exceptional" circumstance was shown.

Plaintiffs could have moved under Rule 4:10-3 for a protective order if production of the documents and information in question constituted an "undue burden or expense." They also could have moved to strike interrogatories under Rule 4:17-5(a). They did neither, and yet still complain that defendant's discovery demands were "overly burdensome." Such a complaint, in light of this record, is without substance.

"[T]he standard of review for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion, a standard that cautions appellate courts not to interfere unless an injustice appears to have been done." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). While dismissal with prejudice "is a drastic remedy," Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005), it is appropriate "in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious[,]" Abtrax, supra, 139 N.J. at 514. We are satisfied the trial court's findings are "supported by adequate, substantial, and credible evidence" and will not disturb them. Id. at 517

The remainder of plaintiffs' arguments on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 In their brief, plaintiffs also argue that the court's initial order dismissing their complaint with prejudice was contrary to the "governing standard" and that prior orders respecting discovery were based on defendant's "incessant improper
objections[.]" However, as we discuss later in this opinion, plaintiffs have only appealed the order denying reconsideration.

2
Neither party has provided a copy of this motion or plaintiffs' response to the motion.

3
Again, neither party has provided a copy of the motion or the response of defendant.