SUMMERTON GROUP, LLC v. NESSALEE PRODUCTIONS, LLC

NOT FOR PUBLICATION WITHOUT THE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-0486-18T3

SUMMERTON GROUP, LLC,

          Plaintiff-Appellant,

v.

NESSALEE PRODUCTIONS, LLC,
JORDAN EPSTEIN and VANESSA
EPSTEIN, d/b/a NESSALEE
PRODUCTIONS, LLC,

     Defendants-Respondents.
_______________________________

                    Argued telephonically November 4, 2019 –
                    Decided November 19, 2019

                    Before Judges Koblitz, Whipple, and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-0135-16.

                    Kenneth Biedzynski argued the cause for appellant
                    (Goldzweig, Green, Eiger & Biedzynski, LLC,
                    attorneys; Kenneth Biedzynski, of counsel and on the
                    briefs).
            Dennis P. Uhlmann, Jr. argued the cause for
            respondents (Frank J. Martone, PC, attorneys; Dennis
            P. Uhlmann, Jr., on the brief).

PER CURIAM

      Plaintiff Summerton Group, LLC, appeals from a September 15, 2017

order dismissing with prejudice its claims against defendants Jordan Epstein and

Vanessa Antonelli.1 We affirm.

      In 2013, the parties entered into a commercial lease agreement for units

in defendant's building to use as a sales showroom and storage facility for baby

furniture, clothing, and accessories. The lease named Nessalee Productions,

LLC, (Nessalee) as the commercial tenant, but Epstein and Antonelli signed

their names to the lease and the "rider to lease agreement" as tenants and

initialed each page. Epstein also signed a document stating that he, as tenant

and owner of Nessa Lee Baby, agreed to indemnify and hold harmless plaintiff

from "any and all liabilities and claims for damages and/or suits for or by reason

of any injury from any cause whatsoever while in or upon [the leased] premises."




1
  According to defendants, plaintiff incorrectly named Vanessa Epstein, who is
actually Vanessa Antonelli. Our decision will utilize her actual surname of
Antonelli because she did not adopt the Epstein surname upon her marriage to
Jordan Epstein.
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      During the lease term, issues arose relating to the lease payment and other

additional charges under the lease. Plaintiff filed an eviction action asserting

claims for breach of contract, breach of the covenant of good faith and fair

dealing, and unjust enrichment against Nessalee, as well as Epstein and

Antonelli as guarantors under the lease. The complaint referenced the lease and

its rider.   Plaintiff also filed a motion to compel Epstein and Antonelli's

depositions, which the court granted.

      During the time between the order granting the depositions and the

scheduled date for the depositions, Epstein and Antonelli filed a motion to

dismiss all claims asserted against them individually for failure to state a claim.

Antonelli provided a certification in support of the motion, in which she

represented she was the sole member of Nessalee and provided a copy of the

marked-up lease, in which the personal guarantees plaintiff requested were

deleted from the lease agreement.

      Plaintiff's opposition to the motion to dismiss included a certification of

William Greenberg, plaintiff's representative, disputing Antonelli's claim that

there were no personal guarantees. Greenberg noted the handwriting, which

pertained to a lack of personal guarantee, was not his. He argued that because

defendants were adamant Epstein was not an owner of Nessalee, there could be


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no other explanation why he would sign the lease and rider, except as a

guarantor.    Greenberg referenced an email attachment sent to Epstein and

Antonelli's attorney prior to the lease execution, which conditioned the lease on

a personal guarantee.       Greenberg noted Epstein and Antonelli signed

individually as tenants.

      At oral argument on defendants' motion, their attorney noted, in addition

to the deletion of the guarantee language there could not be a guarantee because

plaintiff "didn't do a credit check, they didn't look into financials. They had no

way of actually knowing that [Epstein and Antonelli] could personally guarantee

the lease."

      In response, plaintiff's attorney conceded the lease contained no guarantee

language. However, he argued Epstein and Antonelli were sophisticated parties

and further discovery was necessary to determine their relationship to Nessalee ,

and the reasons Epstein would sign the lease if he had no interest in Nessalee.

      The motion judge stated finding a personal guarantee without a specific

clause creating one would "violate the whole purposes of . . . incorporation." He

added:

      [W]hen you have sophisticated business individuals, particularly
      dealing with business individuals, . . . the terms of the contract can
      control. And . . . my role in rewriting contracts is limited,
      particularly when we're dealing with sophisticated individuals. . . .

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      [W]hen you have commercial enterprises dealing with one another,
      the terms of the contract control.

            ....

            [Greenberg] is a sophisticated individual, there is no
      guarantee [in the] contract . . . I'm dismissing any claims for
      individual guarantees as to [Epstein and Antonelli] only. This has
      no [bearing on a] finding as to any tortious, fraudulent, or any other
      claims for wrongdoing that [plaintiff's counsel] may develop
      following depositions or during ongoing discovery.

      The judge dismissed all claims against Epstein and Antonelli with

prejudice. Nessalee withdrew its answer. Following a proof hearing, a judgment

was entered against Nessalee for $328,229.32.

                                        I.

      "A motion to dismiss under Rule 4:6-2(e) requires application of 'the test

for determining the adequacy of a pleading: whether a cause of action is

"suggested" by the facts.'" Gonzalez v. State Apportionment Comm'n,  428 N.J.

Super. 333, 349 (App. Div. 2012) (quoting Printing Mart–Morristown v. Sharp

Elecs. Corp.,  116 N.J. 739, 746 (1989)). "A complaint should be dismissed for

failure to state a claim pursuant to Rule 4:6-2(e) only if 'the factual allegations

are palpably insufficient to support a claim upon which relief can be granted.'"

Frederick v. Smith,  416 N.J. Super. 594, 597 (App. Div. 2010) (quoting Rieder

v. State Dep't of Transp.,  221 N.J. Super. 547, 552 (App. Div. 1987)).


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      "In evaluating motions to dismiss, courts consider 'allegations in the

complaint, exhibits attached to the complaint, matters of public record, and

documents that form the basis of a claim.'" Banco Popular N. Am. v. Gandi,

 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am.,  361 F.3d 217, 222 n. 3

(3d Cir. 2004). The inquiry is limited to examining the legal sufficiency of the

facts alleged only on the face of the complaint; neither trial nor appellate court

is concerned with the weight, worth, nature, or extent of the evidence. Dolson

v. Anastasia,  55 N.J. 2, 5-6 (1969).

      A "with-prejudice" dismissal of a plaintiff's complaint will be reversed if

it is "premature, overbroad[,] . . . [or] based on a mistaken application of the

law." Flinn v. Amboy Nat'l Bank,  436 N.J. Super. 274, 287 (App. Div. 2014).

When we review a trial court's ruling dismissing claims against a party under

Rule 4:6-2(e), we apply a plenary standard of review which owes no deference

to the trial court's conclusions. Bacon v. N.J. State Dep't of Educ.,  443 N.J.

Super. 24, 33 (App. Div. 2015).

      Plaintiff argues the motion judge violated Rule 4:6-2(e) because he

considered "documentation and representations which went well beyond the

pleadings[,]" and mandated conversion of the motion to dismiss to a motion for

summary judgment. It contends if the motion was adjudicated on a summary


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judgment basis, the judge would see there was a genuine issue of material fact and

deny the motion.    Plaintiff cites case law from other jurisdictions for the

proposition that a signature by a representative of a commercial tenant may

personally bind the representative. It asserts the motion judge engrafted a

requirement that it prove fraud onto its personal guarantee claims, which are

separate from and do not contain an element of fraud. Plaintiff argues the judge

improperly granted defendants' motion before discovery was complete.

                                       II.

      At the outset, we note the motion judge did not reference facts outside the

complaint. Therefore, Rule 4:6-2(e) governs our review.

      We apply "[t]he rules governing the construction of contracts . . . in

resolving a question as to the interpretation of a contract of guaranty." Garfield

Tr. Co. v. Teichmann,  24 N.J. Super 519, 526 (App. Div. 1953). "Guaranty

agreements are to be strictly construed." Id. at 527. In this regard, plaintiff's

claim that there was a personal guarantee warranted dismissal with prejudice

because the lease agreement is silent on the subject. Furthermore, the hold

harmless agreement, which pertained to a portion of the leased premises and was

referenced in the complaint, stated Epstein would "indemnify and hold harmless

[plaintiff] from any and all liabilities and claims for damages." It was not a


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promise to be personally responsible for the rents in the lease agreement. The

motion judge did not err when he dismissed the complaint.

      For the same reasons, the judge was not required to await completion of

discovery before granting defendants' motion and could dismiss plaintiff's

claims against Epstein and Antonelli with prejudice. The decision to dismiss

with prejudice and deny further amendment of a party's pleadings are matters

left to the discretion of the judge. Nostrame v. Santiago,  213 N.J. 109, 127-28

(2013); see also Hoffman v. Hampshire Labs, Inc.,  405 N.J. Super. 105, 116

(App. Div. 2009).     Dismissal with prejudice is appropriate when "further

opportunity to amend would not be fruitful." Johnson v. Glassman,  401 N.J.

Super. 222, 247 (App. Div. 2008).

      Because the four corners of the lease agreement contained no guarantee

language, and further discovery on the issue would not change the outcome, the

dismissal with prejudice was appropriate.       Plaintiff's remaining arguments

alleging the judge engrafted a fraud element onto its personal guarantee claim ,

and its reliance on out-of-state case law, are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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