WILLIAM MUNLEY v. BRIAN OPATOSKY

NOT FOR PUBLICATION WITHOUT THE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-2928-18T2

WILLIAM MUNLEY and
AMY MUNLEY,

          Plaintiffs-Appellants,

v.

BRIAN OPATOSKY and
DEANNE OPATOSKY,

          Defendants-Respondents,

and

HOME STAT
INSPECTIONS, INC.,
and GENE REAGAN,

          Defendants.


                   Argued telephonically February 27, 2020 –
                   Decided March 23, 2020

                   Before Judges Alvarez and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Docket No. L-3146-13.
              Stuart P. Schlem argued the cause for appellants.

              Keith J. Murphy argued the cause for respondents
              (Gordon & Rees Scully Mansukhani, LLP, attorneys;
              Keith J. Murphy, of counsel and on the brief).

PER CURIAM

        Plaintiffs William Munley and Amy Munley appeal the February 8, 2019

Law Division order denying their motion to reinstate their complaint against

defendants Brian Opatosky and Deanne Opatosky. We affirm.

        On August 12, 2013, the Munleys filed their complaint against defendants

Brian Opatosky, Deanne Opatosky, Home Stat Inspections, Inc., and Gene

Reagan; the Opatoskys' answer is dated August 30, 2013. 1 The dispute centered

on the Munleys' discovery, some months after closing, of alleged latent defects

in the home the Opatoskys sold them. The remaining defendants had conducted

a home inspection and prepared a home inspection report on the property.

        On November 13, 2013, the trial court dismissed the counts applicable to

the home inspection defendants so the matter could proceed to arbitration. The

court clerk mistakenly dismissed the entire complaint as to all defendants,

including the Opatoskys.




 1 Contrary to Rule 2:6-1(b), the filing date was not stamped on the answer.
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      By letter dated February 19, 2014, Munleys' counsel forwarded to

Opatoskys' counsel interrogatories and a notice to produce. Munleys' counsel

certified in support of the motion to reinstate the complaint that he and

Opatoskys' prior attorney agreed that the Munleys would not pursue the matter

against the Opatoskys pending resolution of the claim against the home

inspection defendants.        No writing memorializing the conversation was

produced. Because of the Munleys' inability to secure a satisfactory expert, the

arbitration never occurred.

      On July 23, 2017, more than three years later, Munleys' counsel wrote to

the Opatoskys' counsel, informing him that the claim against the home

inspection defendants had been abandoned, and that as a result they would be

pursuing their cause of action against the Opatoskys. Munleys' counsel further

certified he thereafter contacted the law firm representing the Opatoskys, only

to learn the attorney assigned to the matter with whom he had discussed the case,

had left the firm and moved out of state. Munleys' counsel then asked someone

to call the former attorney "to confirm our agreement." Receiving no reply from

the law firm, which later reformulated into two separate offices, on November

28, 2017, plaintiffs' counsel wrote again to Opatoskys' attorneys, this time

regarding outstanding discovery.


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      On July 31, 2018, the Munleys filed a motion to compel discovery. On

August 20, 2018, having for the first time been informed of the dismissal of the

complaint, counsel withdrew the motion. Munleys' counsel sent two emails to

Opatoskys' counsel asking if they would consent to the reinstatement of the

complaint. Those emails were dated August 20, 2018 and October 8, 2018. The

Opatoskys refused. On November 8, 2018, one month later, the Munleys filed

the motion to vacate the dismissal that resulted in the order now on appeal.

      The judge denied the motion because of the lengthy unexplained delay

between the filing of the complaint and the filing of the motion to reinstate.

Acknowledging the dismissal was a court-generated error, she considered the

Munleys' slow pursuit of the matter controlling. For example, the purported

agreement between counsel, to shelve the matter pending resolution of the home

inspection arbitration, could not have been intended to be "open ended."

Munleys' counsel waited three years after the conversation to notify his

adversary that the arbitration efforts had ended.

      Even after July 2017 when the Munleys were informed about the problems

with the missing attorney and the court's mistaken dismissal, no motion was

filed to reinstate until November 2018.      The judge found the delay to be

inexcusable and unexplained. The judge relied on the doctrine of laches, and


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the question of whether plaintiffs had met the standard of "whether [delay was]

inexcusable and unexplained" in the enforcement of a known right. She cited to

In re Kietur,  332 N.J. Super. 18, 28 (App. Div. 2000), in support of this

proposition.

      We review an order denying reinstatement of a complaint for abuse of

discretion. Baskett v. Kwokleung Cheung,  422 N.J. Super. 377, 382 (App. Div.

2011). We review the facts deferentially but "[a] trial court's interpretation of

the law and the legal consequences that flow from established facts are not

entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm.,  140 N.J. 366, 378 (1995).

      Presumably, although not expressly identified, the Munleys made the

motion in reliance on Rule 1:13-7(a), which provides that a motion to reinstate

"shall be granted only on a showing of exceptional circumstances." Those

circumstances do not exist here.

      The complaint was filed August 12, 2013, nearly seven years ago. The

Munleys need not have halted action against the Opatoskys to await the outcome

of arbitration against the home inspection defendants. That was a strategic

choice that resulted in an inordinate delay.




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      Over the course of the three years the Munleys waited, they obviously

received no notices from the court. The failure to receive notices because of the

erroneous dismissal should have been a warning that something was amiss.

      The discovery demands were served February 19, 2014. The Opatoskys

were not unreasonable in failing to respond to discovery having been assured

the Munleys were looking to be made whole by others. To have done so would

have saddled the Opatoskys with potentially unnecessary litigation expense and

inconvenience.

      But after the initial unexplained delay, four years during which the

Munleys did nothing to press their cause of action against the Opatoskys, a

second puzzling delay occurred. Munleys' counsel wrote regarding discovery in

July 2017. It was not until July 2018, a year later, however, that the Munleys

filed the withdrawn motion to compel discovery. Even after that, counsel did

not file the motion to reinstate until November 2018.

      Although motions for reinstatement are generally granted with great

liberality, the judge could not do so here where the delays were not attributable

to exceptional circumstances. See Ghandi v. Cespedes,  390 N.J. Super. 193,

195-98 (App. Div. 2007). The judge did not abuse her discretion in denying the

motion. We reach that conclusion employing a different analysis that supports


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the outcome. State v. Heisler,  422 N.J. Super. 399, 416 (App. Div. 2011) ("We

are free to affirm the trial court's decision on grounds different than those relied

upon by the trial court").

      As we recently reiterated, "[t]he Rules are to be construed so as to do

justice, and ordinarily an innocent plaintiff should not be penalized for his

attorney's mistakes." Giannakopoulos v. Mid State Mall,  438 N.J. Super. 595,

608 (App. Div. 2014) (citing Baskett,  422 N.J. Super. at 385).

      In this case, however, the Opatoskys were prejudiced by the delay. After

seven years, the defects in the house have no doubt been corrected, and there is

no possibility they might obtain any type of expert assessment regarding the

alleged defects. After seven years, reinstatement of the complaint would not do

them justice. Furthermore, there was clearly inattention to the matter on the

Munleys' behalf. This is true regardless of the court clerk's mistaken dismissal.

      Affirmed.




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