CHRIS G. ALEVRAS v. GLENN L. CAVANAGH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHRIS G. ALEVRAS,

Plaintiff-Appellant,

v.

GLENN L. CAVANAGH, Individually,

and CAVANAGH & ASSOCIATES, P.C.,

Defendants-Respondents,

and

GOLD, ALBANESE & BARLETTI, LLC, Jointly,

Severally, and Individually,

Defendants.

____________________________________________

August 2, 2016

Before Judges St. John and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1214-14.

Chris G. Alevras, appellant pro se.

Gold, Albanese & Barletti, L.L.C., attorneys for respondents (James N. Barletti, on the brief).

PER CURIAM

Plaintiff Chris G. Alevras appeals a Law Division order granting summary judgment in favor of defendants Glenn L. Cavanagh and Cavanagh & Associates, P.C. (the firm). Having reviewed the arguments in light of the record and applicable law, we affirm.

I.

The following facts and procedural history are gleaned from the record. In 2006, plaintiff contracted with defendants to provide paralegal services to the firm.1 Plaintiff contends he was never paid for his work. On November 26, 2013, plaintiff filed a pro se civil complaint against defendants alleging breach of contract and equitable claims. Amended complaints were subsequently filed on May 30, 2014 and February 4, 2015.

On January 30, 2015, defendants filed a motion for summary judgment, arguing that plaintiff's claims were judicially estopped because he failed to disclose the claims in his prior 2 012 Chapter 7 bankruptcy proceeding. The motion was returnable March 6, 2015.

On February 17, 2015, plaintiff wrote a letter to the trial judge explaining that he would be unable to meet the March 6 return date because of a separate simultaneous lawsuit involving himself and defendants. He requested that the return date on defendants' summary judgment motion be adjourned. Consequently, the trial judge adjourned the return date to March 12, 2015.

Plaintiff did not appear on the return date. Instead, he sent another letter on the March 12 return date to the trial judge, stating,

I today received confirmation that plaintiff's request for entry of defendants' default as to the Third Amended Complaint has been filed and docketed.

Consequently, I submit that entry of this default divests defendants of standing to prosecute their motion for summary judgment and it should be dismissed (or deemed withdrawn); therefore, plaintiff will file no opposition or answer to the summary judgment motion absent being instructed by the court to the contrary.

The judge replied on March 16 with a letter order addressed to plaintiff and counsel for defendants. In the letter order, the judge noted that plaintiff failed to oppose defendants' summary judgment motion by the set return date. He also found that plaintiff's actions "are a blatant attempt at 'gaming the system,'" and that plaintiff "purposefully misrepresented to the [c]ourt his reasons for seeking an adjournment." The judge stated the court would "sua sponte vacate the [default], and [d]efendant's [s]ummary [j]udgment [m]otion will be considered as unopposed on the adjourned return date. Neither party need appear on the date . . . ."

Plaintiff wrote a reply letter to the judge requesting reconsideration "with respect to the extreme sanction[] of considering the summary judgment unopposed . . . ." The letter explained that plaintiff sought an adjournment because he was truly overwhelmed with litigation and, by the March 12 return date, he had already "essentially prepared" an opposition, and was prepared to answer. It does not appear from the record that the court responded to plaintiff's letter. However, plaintiff's contention is belied by the fact that he did not subsequently seek leave to file any opposition.

On March 20, 2015, the trial judge ordered that, "Plaintiff's cause of action is barred by the doctrine of judicial estoppel and Plaintiff lacks standing to pursue the claim. Plaintiff's Complaint is hereby dismissed with prejudice." Plaintiff appeals this order.

II.

On appeal, plaintiff contends the motion judge committed "plain error" and "a gross abuse of discretion" by dismissing plaintiff's complaint without a hearing.2 Plaintiff also contends that the court's finding of purposeful misrepre-

sentation was unsupported by the record, and the court's decision to regard the summary judgment motion as unopposed was a "draconian" and "Taliban-like" over-application of sanctions, constituting a denial of due process and abuse of discretion. We disagree.

Rule 4:46-1 governs the timeline for summary judgment motions. The rule states, "opposing affidavits, certifications, briefs, and cross-motions for summary judgment, if any, shall be served and filed not later than 10 days before the return date . . . ." Furthermore, when, "without just excuse[,]" a respondent fails to appear for a scheduled court proceeding, "the court may dismiss or grant the motion or application, continue the hearing to the next motion day or take such other action as it deems appropriate." Rule 1:2-4(b).

Our courts have expressed a strong preference for adjudication of causes on the merits. Kent Motor Cars, Inc. v. Reynolds & Reynolds Co., 207 N.J. 428, 447 (2011). Courts should dismiss a complaint or strike an answer only as a last resort, when no lesser sanction will suffice. See Wolfe v. Malberg, 334 N.J. Super. 630, 638 (App. Div. 2000) (citing Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 514 (1995)). Dismissal generally should not be ordered "except in those cases . . . where the refusal to comply is deliberate and contumacious." Abtrax Pharms., supra, 139 N.J. at 514 (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)).

With that standard in mind, we see no reason to disturb the trial judge's decision to consider defendants' summary judgment motion as unopposed. Here, plaintiff admitted in his March 12 letter that he did not file any opposition to the summary judgment motion, stating, "plaintiff will file no opposition or answer to the summary judgment motion absent being instructed by the court to the contrary." Thus, it is uncontested that plaintiff failed to file timely opposition to defendants' motion for summary judgment.

Furthermore, the court found that plaintiff purposefully misinformed the court by representing that he needed more time in which to prepare opposition, and then using that time to run the clock for purposes of obtaining entry of default. This finding is supported by the fact that plaintiff evidently used the extra time afforded him to pursue default against defendants, rather than prepare an opposition as he originally represented to the court. Thus, we see no reason to disturb the motion judge's decision to deem defendants' motion for summary judgment as unopposed.

III.

Even if we agreed that plaintiff should have been given an opportunity to submit late opposition, we would still affirm the Law Division's order of summary judgment because the essential facts underlying summary judgment are not in dispute. We review a grant of summary judgment de novo, meaning we apply the same summary judgment standard that governed the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995).

In performing this review, we must interpret the facts, and any inferences therefrom, in the light most favorable to the non-moving party. See Lippman v. Ethicon, Inc., 222 N.J. 362, 367 (2015) (citing Brill, supra, 142 N.J. at 523, 540). If there is a genuine issue as to any material fact, or credibility issues are presented, summary judgment should be denied. R. 4:46-2(c); Brill, supra, 142 N.J. at 540.

In his findings and conclusions, the trial judge held that the underlying dispute arose during the period between January 2002 and January 2012. The court also noted that plaintiff filed a bankruptcy petition in June 2012, "and did not disclose these claims against [defendants] as an asset, which he was required to do." As a result, the trial court held that plaintiff was judicially estopped from prosecuting his claims against defendants. In support of his conclusion, the judge cited Love v. Tyson Foods, Inc., 677 F.3d 258, 261 (5th Cir. 2012) (holding bankruptcy debtors have an ongoing duty to disclose all assets, including pending, contingent, and unliquidated claims).

Judicial estoppel "precludes a party from taking a position contrary to the position he has already successfully espoused in the same or prior litigation." McCurrie ex rel. Town of Kearny v. Town of Kearny, 174 N.J. 523, 533 (2002). It is "designed to protect the integrity of the judicial process by not permitting a litigant to prevail on an issue and then . . . seek the reversal of that favorable ruling." Id. at 534. As an equitable doctrine, judicial estoppel "should be invoked only 'when a party's inconsistent behavior will otherwise result in a miscarriage of justice.'" Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 608 (App. Div. 2000) (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996)); State Farm Fire & Cas. Co. v. Connolly, 371 N.J. Super. 119, 125 (App. Div. 2004).

It is undisputed that plaintiff failed to disclose the underlying claims against defendants as assets in his 2012 bankruptcy proceeding. Thus, in the absence of any dispute as to those essential facts, we see no reason to disturb the trial judge's holding.

Plaintiff's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).

Affirmed.

1 Plaintiff holds a J.D. degree, but is not licensed to practice law.

2 Plaintiff's notice of appeal lists only the Law Division's March 20, 2015 order of summary judgment as the decision being appealed. However, plaintiff's arguments only address the Law Division's March 16, 2015 letter stating that the motion for summary judgment would be deemed unopposed. On appeal, we generally limit our review to those judgments, decisions, or actions named in the notice of appeal. See, e.g., Rule 2:5-1(f)(3)(A); W.H. Industries v. Fundicao, 397 N.J. Super. 455, 458 (App. Div. 2008). Nevertheless, in the interests of justice, we consider both orders.