ERIC WEISS v. THE RICHTER ORGANIZATION LLC
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5004-14T2
ERIC WEISS,
Plaintiff-Appellant,
v.
THE RICHTER ORGANIZATION,
LLC, GERALD RICHTER, and
DOUGLAS RICHTER,
Defendants-Respondents.
Argued February 27, 2018 - Decided May 23, 2018
Before Judges Reisner, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
C-000185-06.
Eric Weiss, appellant pro se.
James A. Paone, II, and Matthew K. Blaine
argued the cause for respondents The Richter
Organization, LLC, Gerald Richter, and Douglas
Richter (Davison, Eastman & Muñoz, PA,
attorneys; James A. Paone, II, and Matthew K.
Blaine, on the brief).
James E. Tonrey, Jr., argued the cause for pro
se respondent Wilentz, Goldman & Spitzer, PA.
PER CURIAM
This appeal arises out of plaintiff's claims for real estate
sales commissions. Plaintiff, Eric Weiss, appeals from six court
orders: (1) an October 3, 2013 order allowing his former attorneys,
Wilentz, Goldman & Spitzer, P.A. (the Wilentz firm), to withdraw
from representing him; (2) a June 6, 2014 order denying his
application for sanctions against defendants and their former
counsel; (3) a November 21, 2014 order dismissing with prejudice
plaintiff's claims against defendants Gerald Richter and the
Richter Organization, LLP; (4) a May 8, 2015 order granting summary
judgment to defendant Douglas Richter; (5) a June 22, 2015 order
denying plaintiff's motion for sanctions; and (6) a June 22, 2015
order releasing funds held in escrow. We affirm.
I.
The underlying facts are not particularly complex. The
procedural history, however, is convoluted because there were
numerous discovery disputes, defendants filed for bankruptcy
protection, and plaintiff had difficulty getting along with his
own attorneys, which resulted in a series of motions by the Wilentz
firm to withdraw as plaintiff's counsel.
Plaintiff is a licensed real estate salesperson. He alleges
that in 2000, he and his then co-worker, Gerald Richter, entered
into an oral agreement to establish a brokerage firm. At the
2 A-5004-14T2
time, plaintiff and Gerald Richter were working as real estate
brokers at another firm. In 2001, they left that firm and
established the Richter Organization. Plaintiff contends that he
was entitled to twenty-five percent of the profits of the Richter
Organization. Plaintiff also alleges that he entered into a
separate oral agreement with Douglas Richter, Gerald's son, who
was also a salesperson at the Richter Organization. Under that
agreement, plaintiff claims that he was entitled to fifty percent
of the commissions for certain real estate sales.
Plaintiff was terminated from the Richter Organization in
March 2006. In June 2006, he filed a complaint in the Chancery
Division against the Richter Organization, Gerald Richter, and
Douglas Richter. Thereafter, he amended his complaint. He
asserted various causes of action based on alleged contracts and
torts. In terms of damages, plaintiff sought compensation for his
claimed ownership interest in the Richter Organization,
commissions, and other damages.
At the beginning of the case, plaintiff sought an order
compelling payment of his claimed commissions. That application
was denied, but the Richter Organization did deposit funds into
an escrow account to cover the commissions to which plaintiff
claimed he was entitled.
3 A-5004-14T2
The parties then engaged in discovery and disputes arose. In
November 2009, Gerald Richter and the Richter Organization filed
separately for bankruptcy protection. Plaintiff was listed as an
unsecured creditor and this state court litigation was
automatically stayed. Plaintiff then filed adversarial
proceedings in the bankruptcy court seeking to pursue the same
claims that he asserted in the Chancery Division. In 2011 and
2012, the bankruptcy court issued orders lifting the stays and
allowing plaintiff to pursue his claims against defendants in
state court.
Accordingly, the parties resumed discovery in the Chancery
Division and more disputes arose.1 In 2012, plaintiff moved for
sanctions against defendants arguing, among other things, that
defendants had failed to produce a client list and sales
information that had previously been ordered to be turned over.
On November 8, 2012, the trial court entered an order (1) denying
without prejudice plaintiff's request to suppress defendants'
pleadings; (2) directing defendants to comply with their discovery
obligations; (3) awarding plaintiff certain attorney's fees,
1
When the action was stayed by the bankruptcy filing, the Chancery
Court administratively dismissed the state court action without
prejudice. When the stay was lifted, the court reinstated the
action.
4 A-5004-14T2
conditioned on plaintiff filing an appropriate analysis of the
legal fees incurred; and (4) directing the Richter Organization
to maintain an escrow to cover the commissions allegedly due to
plaintiff.2
Thereafter, in a February 12, 2013 order, the trial court
granted plaintiff additional fees, but iterated that any award of
attorney's fees to plaintiff was conditioned on plaintiff
submitting a detailed analysis of the legal fees incurred,
supported by billing records. The court also made it clear that
any fee award would be subject to the court's analysis of the
reasonableness of the fees requested. Finally, the court set time
frames for the submission of those analyses and responses. Those
deadlines, however, were extended due to motions filed by
plaintiff's attorneys to withdraw as his counsel.
While the parties were disputing discovery issues, separate
disputes arose between plaintiff and his counsel, the Wilentz
firm. The Wilentz firm filed a motion to be relieved as
plaintiff's counsel. That motion was denied without prejudice in
a November 8, 2012 order. The Wilentz firm then filed a motion
for partial reconsideration, with four supporting certifications
2
At the time that order was entered, defendants had depleted the
escrow. Thereafter, however, monies were placed back into the
escrow.
5 A-5004-14T2
of counsel. Eventually, that motion was assigned to a separate
judge. On October 3, 2013, the court entered an order allowing
the Wilentz firm to withdraw as counsel for plaintiff. The court
issued a written opinion explaining the reasons for that order.
The court also directed plaintiff to retain new counsel within
thirty days. Plaintiff, however, never retained new counsel and,
thereafter, he represented himself.3
In May 2014, plaintiff filed a motion seeking to suppress
defendants' pleadings and award him counsel fees. Plaintiff also
sought partial summary judgment. By that time, the judge who had
issued the discovery-related orders in 2012 and 2013 had retired.
Thus, a new judge heard oral argument on June 6, 2014. The court
denied plaintiff's motion in its entirety and explained the reasons
on the record. The court found that plaintiff had made no showing
warranting the suppression of defendants' pleadings as a sanction.
The court also found that plaintiff had not established a basis
for partial summary judgment. Finally, the court denied
plaintiff's request for attorney's fees because he failed to comply
with the procedures set forth in the February 12, 2013 order.
3
At oral argument on June 12, 2015, the trial court permitted
Brian F. Curley, Esq., to argue against defendants' motion to
release funds held in escrow. Mr. Curley, however, was never
listed as attorney of record, and never filed a substitution of
attorney as directed by the court.
6 A-5004-14T2
In the meantime, while plaintiff pursued his claims in the
Chancery Division, the bankruptcy court proceedings continued and
ultimately were resolved. In April 2014, the bankruptcy court
entered a final decree confirming that the bankruptcy of the
Richter Organization had been fully administered and the trustees
were discharged. Thereafter, in July 2014, the bankruptcy court
dismissed plaintiff's adversarial proceedings against Gerald
Richter for lack of prosecution. Gerald Richter was then granted
a decree discharging him from bankruptcy.
In September 2014, the Richter Organization and Gerald
Richter moved to dismiss with prejudice the claims against them
based on the resolution of the bankruptcy proceedings. Plaintiff
was granted an adjournment to try to obtain counsel, but a
subsequent adjournment request made on the eve of the return date
was denied. On November 21, 2014, the trial court dismissed with
prejudice the claims against the Richter Organization and Gerald
Richter. The order stated that the reasons for that order were
placed on the record on November 21, 2014. Plaintiff, however,
did not provide us with the transcript of the November 21, 2014
proceedings.
Plaintiff did, however, file a motion in the bankruptcy court
to reopen the bankruptcy proceedings and pursue his adversarial
claim against Gerald Richter. That motion was denied. Plaintiff
7 A-5004-14T2
appealed that denial, but the United States District Court
dismissed plaintiff's appeal.
Thereafter, Douglas Richter moved for summary judgment.
After hearing oral argument on May 8, 2015, the trial court entered
an order granting summary judgment to Douglas Richter and explained
its reasons for that ruling on the record. The court first focused
on plaintiff's main claim, which involved claims for unpaid
commissions. The court held that those claims were precluded
under
N.J.S.A. 45:15-3, -16, and -17(m). Specifically, the court
found that because the claims depended on Douglas Richter's alleged
failure to abide by a verbal agreement to share commissions, those
claims could only be brought against the broker of record, Gerald
Richter. The court then held that plaintiff's other claims against
Douglas Richter were barred under the economic loss doctrine or
because they were inadequately pled or without a legal basis.
While Douglas Richter's motion for summary judgment was
pending, plaintiff filed another motion seeking sanctions against
defendants. Specifically, plaintiff, relying on the court's
orders entered on November 8, 2012 and February 12, 2013, sought
an award of attorney's fees. The trial court heard oral arguments
on that application on June 12, 2015. At that time, the court
also considered defendants' application to release the escrow
funds. In an oral decision on June 19, 2015, the court explained
8 A-5004-14T2
its reasons for denying plaintiff's request for sanctions and
attorney's fees.
The court found that plaintiff had not complied with the
requirements of the orders entered on November 8, 2012, and
February 12, 2013. The court also found that plaintiff could not
show any prejudice because the case had proceeded after the alleged
discovery violations and the claims against defendants had been
dismissed on grounds unrelated to the alleged discovery
violations. The court also pointed out that the motion was, in
essence, a motion for reconsideration since the court had
previously denied the same application in an order entered on June
6, 2014. The court then found that plaintiff had showed no basis
for reconsideration. That ruling was memorialized in an order
dated June 22, 2015.
In a separate June 22, 2015 order, the court also granted
Gerald Richter's request to release the escrow funds to him.
Again, the court explained its reasons for that ruling on the
record on June 19, 2015. The court found that the escrow had been
set up in the event that plaintiff prevailed on his commission
claims. As all claims against defendants had been dismissed by
June 2015, the court reasoned that there was no longer a need for
the escrow funds and that the funds properly belonged to Gerald
Richter. The court did stay the release of the escrow funds for
9 A-5004-14T2
seventeen days to allow plaintiff to seek a further stay from us.
Eventually, we directed plaintiff to submit a bond in order to
maintain the stay, but when he failed to submit that bond, the
escrow funds were released to Gerald Richter.
II.
Plaintiff appeals from six orders and makes six arguments.
He contends that the trial court abused its discretion or erred
in: (1) not striking defendants' pleadings as a sanction for
failing to produce discovery; (2) dismissing the claims against
the Richter Organization and Gerald Richter; (3) granting summary
judgment to Douglas Richter; (4) not awarding plaintiff attorney's
fees for defendants' failure to produce discovery; (5) releasing
the escrow funds to Gerald Richter; and (6) permitting the Wilentz
firm to withdraw from representing him. Plaintiff also contends
that if the case is remanded, it should be assigned to a different
trial judge. As part of his arguments, plaintiff also raises
numerous contentions concerning alleged procedural errors that
arose during the course of this protracted litigation.
We find no merit in any of plaintiff's arguments and affirm
all six orders. We will analyze plaintiff's arguments concerning
the sanctions and attorney's fees in one discussion and then
address the remainder of his arguments.
10 A-5004-14T2
A. Plaintiff's Contentions That Defendants Should Have Been
Sanctioned and He Should Have Been Awarded Attorney's
Fees
Plaintiff argues that the trial court should have stricken
defendants' pleadings as a sanction for failing to produce
discovery, and the court should have awarded him attorney's fees
that he incurred in compelling discovery. Those arguments are
premised on orders entered on November 8, 2012 and February 12,
2013. In orders entered on June 6, 2014 and June 22, 2015, the
court denied plaintiff's requests to sanction defendants and to
award attorney's fees.
The sanction of striking a pleading for discovery violations
is a "drastic" remedy that "should be imposed only sparingly."
Georgis v. Scarpa,
226 N.J. Super. 244, 250 (App. Div. 1988). A
court should impose that sanction only when a lesser sanction
would not suffice either to punish the non-complying party or to
alleviate the prejudice caused by the non-compliance. Abtrax
Pharms. v. Elkins-Sinn,
139 N.J. 499, 514 (1995). Attorney's fees
can be awarded as a sanction if a party fails to comply with
discovery obligations. Ibid.; R. 4:23-2(b).
We review decisions to impose discovery sanctions for an
abuse of discretion. Innes v. Carrascosa,
391 N.J. Super 452,
495-96 (App. Div. 2007). Similarly, we review decisions to award
attorney's fees as a discovery sanction under an abuse of
11 A-5004-14T2
discretion standard. Shore Orthopaedic Grp. v. Equitable Life
Assurance Soc'y of U.S.,
397 N.J. Super. 614, 629-30 (App. Div.
2008).
A review of the record here establishes that initially
defendants did not comply with their discovery obligations and
disregarded several court orders directing that discovery be
produced. Those disputes were presented to the court and were
addressed in orders entered on November 8, 2012 and February 12,
2013. In both those orders, the court denied, without prejudice,
plaintiff's motion to strike defendants' pleadings. The court
went on, however, to warn that if defendants continued to fail to
comply with their discovery obligations, plaintiff could renew the
motion and the court would consider imposing that sanction.
In both orders, the court also found that plaintiff was
entitled to attorney's fees in connection with his efforts to
obtain discovery. The court, however, conditioned the award of
any fees on plaintiff filing an appropriate analysis to justify
the fees and the amount of fees sought. No such analysis was ever
filed.
In 2014, and again in 2015, plaintiff filed motions to
sanction defendants by striking their pleadings. Plaintiff also
renewed his requests for attorney's fees. By that time, the judge
12 A-5004-14T2
who had issued the orders in November 2012 and February 2013, was
retired. Thus, the motions were heard by a new judge.
In orders entered on June 6, 2014 and June 22, 2015, the
court found that there was no basis to strike defendants'
pleadings. The court noted that plaintiff contended that
defendants had not produced the required discovery, but also noted
that defendants had certified that they had produced the discovery.
Ultimately, the court did not find that defendants had continued
to violate their discovery obligations after February 2013.
Accordingly, the court found that there was no basis to impose the
drastic remedy of striking a party's pleadings and, therefore,
denied plaintiff's request for that sanction. The court also
found that plaintiff had failed to submit the analysis required
by the November 8, 2012 and February 12, 2013 orders, to support
and justify an award of attorney's fees.
We discern no abuse of discretion in the trial court's
decision not to sanction defendants by striking their pleadings.
We also discern no abuse of discretion in the court deciding not
to award plaintiff a specific amount of attorney's fees. The
record does not reflect favorably on any party. Initially,
defendants failed to comply with their discovery obligation and
court orders directing their compliance. Plaintiff, however,
never established a basis for the harsh sanction of striking
13 A-5004-14T2
defendants' pleadings. Plaintiff also failed to provide the trial
court with the analysis that would have allowed the court to
determine what fees plaintiff actually incurred in seeking and
compelling the discovery.
On appeal, plaintiff argues that the trial court abused its
discretion because the November 8, 2012 and February 12, 2013
orders decided the issues and were law of the case. Plaintiff is
misreading those orders. As pointed out, neither order imposed
the sanction of striking defendants' pleadings. Instead, they
denied that relief without prejudice. When plaintiff renewed his
motion, the court found that there was no showing justifying such
a harsh sanction. While the orders issued in November 2012 and
February 2013 did state that plaintiff would be awarded attorney's
fees, the orders also conditioned that award on plaintiff
submitting an appropriate analysis of the legal fees incurred.
When plaintiff later sought the attorney's fees, he did not provide
the court with the required analysis.
B. The Dismissal of the Claims against the Richter
Organization and Gerald Richter
Plaintiff next argues that the trial court erred in dismissing
the claims against the Richter Organization and Gerald Richter.
That dismissal was memorialized in an order entered on November
21, 2014. The order states that the reasons for the decision were
14 A-5004-14T2
placed on the record on November 21, 2014. Plaintiff, however,
failed to provide the transcript of November 21, 2014.
The rules of court require an appellant to provide the
relevant portions of the record so that the appeal can be
appropriately reviewed. R. 2:5-3(a). With regard to transcripts
of decisions, the rule states: "if a verbatim record was made of
the proceedings before the court . . . from which the appeal was
taken, the appellant shall no later than the time of the filing
and service of a notice of appeal, serve a request for preparation
of an original and copy of the transcript . . . ." Ibid. The
rules further state that a failure to properly prosecute an appeal,
can be grounds for dismissal. R. 2:9-9.
When plaintiff filed his notice of appeal, he was informed
that he had failed to provide the transcript of November 21, 2014.
Plaintiff took the position, however, that the transcript was not
necessary and, thus, he assumed the risk that when we considered
his appeal on its merits, we would be unable to conduct a full
review. We find that without the transcript a full and fair review
cannot be conducted. Accordingly, we dismiss the portion of his
appeal that seeks to challenge the November 21, 2014 order granting
a dismissal to the Richter Organization and Gerald Richter.
Although we are dismissing that portion of the appeal, we
note that the record does not support that plaintiff has been
15 A-5004-14T2
prejudiced. The Richter Organization and Gerald Richter both
filed for bankruptcy. Plaintiff filed adversarial proceedings
seeking to pursue the claims that he asserted in the Chancery
Division in the bankruptcy action. In 2011 and 2012, the
bankruptcy court lifted the automatic stay, allowed plaintiff to
pursue his claims in the Chancery Division, except for execution
of any judgment if it was obtained, and stayed the adversarial
proceedings in the bankruptcy court.
Thereafter, however, in 2014, the bankruptcy court discharged
the Richter Organization from bankruptcy. The bankruptcy court
also dismissed plaintiff's adversarial proceedings against Gerald
Richter. On the record before us, we can only presume that the
bankruptcy court effectively lifted the stay on the adversarial
proceedings in the bankruptcy court, concluded that plaintiff had
failed to prosecute the claims and, therefore, dismissed the
adversarial claims. After the Chancery Court had dismissed the
claims against the Richter Organization and Gerald Richter,
plaintiff filed a motion in the bankruptcy court to reopen the
adversarial bankruptcy proceeding. That motion was denied and the
appeal of the order denying the motion to reopen the bankruptcy
proceeding was dismissed by the United States District Court.
On this appeal, plaintiff complains that his right to be
heard on the motion seeking to dismiss the claims against the
16 A-5004-14T2
Richter Organization and Gerald Richter was denied. In that
regard, he contends that he asked for adjournments to obtain
counsel, but the adjournments were not granted. The record shows
that his first request for an adjournment was granted. It was
only the second request, made on the eve of the return date of the
motion, which was denied. Moreover, at the time that plaintiff
made his request for an adjournment to obtain counsel, he had been
representing himself for over a year and had failed to comply with
an earlier order directing him to retain counsel within thirty
days.
Plaintiff also alleges that defendants have misrepresented
what took place in the bankruptcy court and the effect of the
discharges of the bankruptcy proceedings. In making that argument,
however, plaintiff puts his own characterizations on the
bankruptcy orders, which are not supported by the face of the
orders themselves. Here again, we are unable to conduct a full
review because we do not have all of the record from the bankruptcy
action. Nevertheless, as already pointed out, the orders issued
by the bankruptcy court on their face support the construction
that plaintiff's claims against the Richter Organization and
Gerald Richter were discharged.
17 A-5004-14T2
C. Summary Judgment In Favor of Douglas Richter
Plaintiff next argues that the trial court erred in granting
summary judgment to Douglas Richter. Specifically, he contends
that (1) the motion was procedurally deficient because he was not
given sufficient notice under Rule 4:46-1; (2) the court had
previously denied summary judgment to Douglas Richter and there
were disputed issues of material fact precluding summary judgment;
and (3) the court erred in granting summary judgment based on the
Real Estate Brokers and Salesmen Act,
N.J.S.A. 45:15-1 to -29.5.
We disagree and affirm.
Rule 4:46-1 requires that a motion be made returnable at
least thirty days before trial except for good cause shown, that
it be filed at least twenty-eight days prior to the return date,
and that replies to any opposition be served no later than four
days prior to the return date.
Plaintiff complains that the court heard the motion outside
the appropriate time frames. The record, however, shows that
plaintiff received the motion by email within the time frame and
received a physical copy twenty-seven days prior to the return
date. Just as significantly, the court adjourned the return date.
Most critically, plaintiff has shown no prejudice from any slight
deviations from the time frames. The record demonstrates that
18 A-5004-14T2
plaintiff had a full and fair opportunity to present his arguments,
which the trial court carefully considered.
Plaintiff also argues that the court had previously denied
Douglas Richter's motion for summary judgment and there were
disputed issues of material facts precluding summary judgment.
The trial court carefully considered these arguments and found
that the prior motions had been denied on other grounds and that
there were no material issues of fact precluding summary judgment.
Having reviewed the record, we agree with the trial court.
The trial court granted summary judgment to Douglas Richter
based on certain provisions of the Real Estate Brokers and Salesmen
Act. Specifically, the trial court held that
N.J.S.A. 45:15-3,
-16, and -17(m), precluded plaintiff from seeking real estate
sales commissions from Douglas Richter, because Douglas Richter
was not the licensed broker.
In reviewing a summary judgment order, we use a de novo
standard of review and apply the same standard employed by the
trial court. Davis v. Brickman Landscaping, Ltd.,
219 N.J. 395,
405 (2014). Accordingly, we determine whether the moving party
has demonstrated that there were no genuine disputes as to any
material facts and, if not, whether the moving party was entitled
to judgment as a matter of law. R. 4:46; Davis,
219 N.J. at 405-
19 A-5004-14T2
06; Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540
(1995).
N.J.S.A. 45:15-3 defines real estate salespersons and
broker-salespersons and then provides in relevant part:
No person claiming to be entitled to
compensation as a . . . salesperson or
broker-salesperson for the performance of any
of the acts mentioned in [the Real Estate
Brokers and Salesmen Act] shall bring or
maintain any action in the courts of this
State for the collection of compensation
against any person, firm, partnership or
corporation other than the licensed broker
with whom the . . . salesperson or
broker-salesperson was employed at the time
the alleged cause of action arose . . . .
N.J.S.A. 45:15-16 states that "[n]o real estate salesperson,
[or] broker-salesperson . . . shall accept a commission or valuable
consideration for the performance of any of the acts herein
specified, from any person except his employer, who must be a
licensed real estate broker."
N.J.S.A. 45:15-17(m) authorizes the
Real Estate Commission to discipline a real estate salesperson for
"[a]ccepting a commission or valuable consideration as a real
estate broker-salesperson, [or] salesperson . . . for the
performance of any of the acts specified in this act, from any
person, except his employing broker, who must be a licensed
broker[.]"
20 A-5004-14T2
Here, plaintiff was making claims as a salesperson or broker-
salesperson for real estate commissions. Douglas Richter was not
a licensed broker for those sales; rather, he was another
salesperson and the licensed broker was Gerald Richter. The
critical fact was that the commissions were being paid to Gerald
Richter as the licensed broker and to the extent that plaintiff
had a claim for a share of those commissions, that claim needed
to be asserted against Gerald Richter. As already pointed out,
plaintiff's claims against Gerald Richter were discharged in the
bankruptcy proceeding, and were thereafter dismissed with
prejudice in the Chancery court. Accordingly, given the facts of
this case, summary judgment was properly granted to Douglas Richter
and we affirm the May 8, 2015 order.4
This is not a situation where one broker sued another for a
share of a commission based on an agreement between the brokers.
Instead, the material facts establish that plaintiff and Douglas
Richter were salesmen or brokers working for the Richter
4
Plaintiff relies on a May 15, 2015 letter from the New Jersey
Real Estate Commission to contend that he has a right to pursue
his contractual claim against Douglas Richter. That letter was
received after the trial court's May 2015 summary judgment order
was entered and, therefore, we do not consider it because it was
not part of the record. R. 2:5-4; Cipala v. Lincoln Tech. Inst.,
179 N.J. 45, 52 (2004). Moreover, even if we were to consider the
letter, the Commission expressly stated that it was not giving any
guidance on the issues raised by plaintiff.
21 A-5004-14T2
Organization and that Gerald Richter was the licensed real estate
broker. Consequently, all commissions came through the Richter
Organization and Gerald Richter. See DeBenedictis v. Gerechoff,
134 N.J. Super. 238, 242-45 (App. Div. 1975) (discussing when one
broker can sue another broker for a share of commissions).
D. The Release of the Escrow Funds
Plaintiff next argues that the court abused its discretion
by releasing the funds held in escrow. The short answer to
plaintiff's contention is that the escrow funds would only be
available to plaintiff if he prevailed on his claims. Since we
have affirmed the dismissals with prejudice and summary judgment
in favor of defendants, plaintiff has no legitimate claim to the
funds held in escrow and they were properly released to Gerald
Richter.
E. The Withdrawal of the Wilentz Firm
The decision to grant a motion to be relieved as counsel "is
generally in the discretion of the [trial] court and depends on
such considerations as proximity of the trial date and possibility
for the client to obtain other representation." In re Simon,
206 N.J. 306, 320-21 n.8 (2011) (quoting Jacobs v. Pendel,
98 N.J.
Super. 252, 255 (App. Div. 1967)). We review a trial court's
determination on whether to allow the withdrawal of counsel under
22 A-5004-14T2
an abuse of discretion standard. See Jacobs,
98 N.J. Super. at
255.
Unless the client consents, counsel must give notice to the
client and obtain leave of court to withdraw from a representation.
R. 1:11-2(a)(2); see also RPC 1.16(c) ("A lawyer must comply with
applicable law requiring notice to or permission of a tribunal
when terminating a representation.") One recognized basis for
permitting counsel to withdraw is if "the client insists upon
taking action that the lawyer considers repugnant or with which
the lawyer has a fundamental disagreement[.]" RPC 1.16(b)(4).
The Wilentz firm filed several motions to withdraw as counsel
for plaintiff. Initially, the motion was denied without prejudice.
Based on new developments, the Wilentz firm moved again and that
motion was heard by a separate judge who had not been involved in
handling the underlying litigation. The judge considered fairly
extensive materials submitted by plaintiff and the Wilentz firm,
including numerous certifications from attorneys at the Wilentz
firm. The judge also sealed those materials because they related
to attorney-client communications. The judge then heard oral
argument and granted the motion in an order and written opinion,
both of which were dated October 3, 2013.
The judge found that there had been an irretrievable breakdown
in the attorney-client relationship between plaintiff and the
23 A-5004-14T2
Wilentz firm. That finding was well-supported by the record,
which included demonstrated friction between plaintiff and the
Wilentz firm, examples of plaintiff taking action independent of
the advice of the Wilentz firm, and the Wilentz firm's legitimate
belief that it could not continue to represent plaintiff because
of ongoing conflicts and a strong difference with plaintiff
concerning the strategy for the litigation.
The judge also considered the potential hardship to plaintiff
of having to replace his counsel at that point in the litigation.
In that regard, the judge found that the Wilentz firm could
withdraw without adverse effect on plaintiff's interest because
no trial date had been set and plaintiff had a reasonable period
of time to find new counsel. Those findings are also well-
supported by the record.
Finally, the judge considered, but rejected, plaintiff's
argument that the prior ruling on the motion to withdraw was law
of the case. Specifically, the judge found that there were new
developments in the deterioration of the relationship between
plaintiff and the Wilentz firm. Moreover, the court correctly
noted that the prior ruling had been without prejudice and was not
law of the case. See Pressler & Verniero, Current N.J. Court
Rules, cmt. 4 to R. 1:36-3 ("Obviously, the 'law of the case'
doctrine is not implicated at all by a judge's reconsideration of
24 A-5004-14T2
a prior interlocutory order. This principle remains true even if
a different judge is reconsidering the prior interlocutory
order.") (citations omitted).
Having reviewed the law and the record, which included sealed
portions of the record related to the Wilentz firm's motions to
withdraw as counsel, we find no abuse of discretion in the trial
court's decision to allow the Wilentz firm to withdraw from
representing plaintiff. Accordingly, we affirm the October 3,
2013 order allowing that withdrawal.
In summary, we affirm each of the six orders from which
plaintiff appealed. To the extent that we have not addressed
certain of plaintiff's arguments, we do so because we concluded
that they are without sufficient merit to warrant discussion in a
written opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
25 A-5004-14T2
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