Opinion
DOCKET NO. A-1943-14T1
05-31-2016
ISHRAT DURRANI, Plaintiff-Appellant, v. WIDE WORLD OF CARS, LLC, ROGERS MCCARRON & HABAS, P.C., and LAWRENCE B. MCCARRON, Defendants-Respondents.
Liam O'Brien (McCormick & O'Brien, LLP) of the New York bar, admitted pro hac vice, argued the cause for appellant (Jones, Wolf & Kapasi, LLC, and Mr. O'Brien, attorneys; Joseph K. Jones and Mr. O'Brien, on the briefs). Rogers McCarron & Habas, P.C., attorneys for respondents Rogers McCarron & Habas, P.C. and Lawrence B. McCarron (Gregg L. Verrilli, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1673-14. Liam O'Brien (McCormick & O'Brien, LLP) of the New York bar, admitted pro hac vice, argued the cause for appellant (Jones, Wolf & Kapasi, LLC, and Mr. O'Brien, attorneys; Joseph K. Jones and Mr. O'Brien, on the briefs). Rogers McCarron & Habas, P.C., attorneys for respondents Rogers McCarron & Habas, P.C. and Lawrence B. McCarron (Gregg L. Verrilli, on the brief). PER CURIAM
Plaintiff Ishrat Durrani's claims in this case arose from an order entered in her divorce action with her ex-husband Sikander Durrani (Sikander) that restrained them both from dissipating assets. Plaintiff's complaint in this action alleged that defendants Wide World Of Cars, LLC (W.W.C.), Rogers McCarron & Habas, P.C., and Lawrence B. McCarron (the McCarron defendants) caused her to suffer damages when they released to Sikander two Ferrari automobiles titled in his name in violation of the Family Part order.
We refer to Sikander Durrani by his first name to avoid confusion because of his shared last name. No disrespect is intended.
Sikander is believed to have left the United States and to be residing in Pakistan. In an unpublished opinion we issued in 2011 regarding the Durranis' divorce action, we described Sikander's success in business and the couple's lifestyle. We stated:
Plaintiff Ishrat Durrani and defendant were married in Pakistan in 1975 and moved to the United States in 1976. They are both United States citizens and have three emancipated children. During the course of the marriage, defendant formed several businesses, some in the United States and others in Pakistan, and the parties began to live an extravagant lifestyle. One business formed in the United States, Tecna USA, was named by Crain's magazine as the fifth largest minority-owned company in the New York area with $227,000,000 in revenue in 2007 and projected revenues of $244,499,000 for 2008. Defendant also formed several companies in Pakistan including A.T.E. International Limited (A.T.E.) and Tecna Corporation Limited. These companies engage in brokering the sale of arms, weapons and aircraft to the Pakistani government. The parties acquired many assets during the course of their marriage, including twenty-five luxury cars worth approximately one million dollars, boats and properties. Of these assets, plaintiff is only on the title of two cars.
[Durrani v. Durrani, A-0942-10 (App. Div. Apr. 14, 2011) (slip op. at 2-3).]
Plaintiff's notice of appeal (NOA) states she is appealing from the Law Division's order dismissing her complaint against the McCarron defendants, her ex-husband's divorce attorneys. According to plaintiff, the court dismissed those claims "on substantially the same grounds" as the court had earlier dismissed plaintiff's claims against W.W.C., which owned a facility where the automobiles were stored.
Plaintiff's arguments on appeal, however, only challenge the earlier order dismissing the complaint against W.W.C. The court found that W.W.C. was not subject to the Family Part's order and had not violated its terms by releasing the vehicles to Sikander. According to plaintiff, the court improperly failed to treat the injunction in her divorce action as also restraining W.W.C. from releasing the vehicles to Sikander. Further, she contends the court erred in determining that she did not have a viable cause of action against W.W.C. for fraud, conversion, unjust enrichment, or civil conspiracy. We affirm.
On August 13, 2015, we granted the McCarron defendants' unopposed motion to dismiss plaintiff's appeal as to those defendants.
W.W.C. did not respond to plaintiff's appeal and instead filed only a letter of non-participation, contending that because the NOA and case information statement (CIS) did not identify the order dismissing her claims against it, they were not a party to the appeal.
The facts developed in the motion record can be summarized as follows. Plaintiff filed for divorce in 2010. At that time, the Ferraris were titled and registered to Sikander and, with plaintiff's knowledge, had been stored at W.W.C.'s facilities since December 2009 pursuant to a contract for vehicle storage between W.W.C. and Sikander.
During the matrimonial proceeding, plaintiff "sought . . . the exclusive possession of the Ferraris." By letter dated July 20, 2010, her divorce counsel contacted W.W.C., advising:
[Y]ou, your company, and your employees are hereby requested not to release, transfer, sell, mortgage, lien, dispose or release possession of either automobile to anyone, including Sikander Durrani, without the expressed written consent of the undersigned. If any such action is taken in regard to either of the vehicles, my client will seek to hold your company responsible for the full value of either and/or both vehicles.At the conclusion of the letter, counsel asked W.W.C. to "please confirm your agreement to abide by this demand or we will immediately seek to serve you with a Court Order." There is no evidence of a response by W.W.C.
In July 2010, the Family Part entered a mutual restraining order (2010 Order) that provided:
Q) Both parties are restrained from dissipating, transferring, selling, encumbering, mortgaging, assigning, gifting and/or otherwise disposing of, and/or from causing and/or permitting anyone else to dissipate, transfer, sell, encumber, assign, gift and/or otherwise dispose of, any assets of the marriage . . . .The Ferraris stored at W.W.C. were specifically identified in the list of assets to which the restraint applied. At the time the order was entered, Sikander remained the title owner of the Ferraris, and he continued to store the vehicles with W.W.C.
On August 10, 2010, plaintiff's counsel sent an additional letter to W.W.C., providing a copy of the 2010 Order and stating:
You are hereby placed on notice that pursuant [to] Paragraph Q of the Court's Order . . . , the parties are restrained from dissipating, transferring, selling, encumbering, mortgaging, assigning, gifting and/or otherwise disposing of any assets of the marriage including but not being limited to any vehicles including any and all Ferrari vehicles presently stored at your facility, or ordered by you on behalf of Mr. Durrani.
W.W.C. continued to store the Ferraris pursuant to its agreement with Sikander. However, in January 2012, W.W.C. sent an email to Sikander, advising him that the credit cards W.W.C. had on file for him were being declined and, therefore, W.W.C. could no longer store the Ferraris. Sikander responded, stating that he would provide W.W.C. "with information on where to drop off the cars" and instructing that the vehicles were "NOT to be dropped off at [the] former [marital] residence."
Over the next several days, Sikander settled the outstanding balance with W.W.C. and finalized arrangements to have the Ferraris picked up from W.W.C.'s facilities. Initially, Sikander stated that the McCarron defendants might be able to store the Ferraris at their office. Ultimately, Sikander's representative picked up the Ferraris from W.W.C. on January 24, 2012, and brought them to a different, undisclosed location.
According to a certification filed by Lawrence B. McCarron, his firm represented Sikander only until the "fall of 2010" and he "had no involvement in relocating th[e] vehicles, nor was [he] ever in possession of them."
Plaintiff first learned the Ferraris were no longer being kept at W.W.C. nearly one year later, at which time her attorney received a letter from W.W.C.'s general corporate counsel. In the letter, W.W.C. advised that the Ferraris had been delivered to McCarron defendants' offices on January 23, 2012, "pursuant to Mr. Durrani's instructions, when the dealership was no longer able to continue to store the vehicles because the vehicles were no longer being registered or insured, and the credit card on file to pay for the storage of the vehicles was no longer valid." W.W.C. also claimed it had no record of the August 10, 2010 letter; it did not state that it had not received the first letter sent on July 20, 2010.
Notably, plaintiff's complaint alleged, "upon information and belief," that plaintiff went to W.W.C.'s location on June 15, 2011, to inspect the vehicles and was told by W.W.C.'s representative that it "would comply with the Restraining Order." Based on that alleged assurance, plaintiff "elected to continue to store the Ferraris at [W.W.C.'s] facilities." However, plaintiff, who was not a party to the storage agreement between Sikander and W.W.C., never confirmed these allegations in any certification.
Plaintiff's attorney responded in a letter to W.W.C. stating he had been advised by the McCarron defendants that the Ferraris had not been delivered to their offices and they were not in possession of the cars. In addition, he advised that plaintiff would be filing a suit against W.W.C. for its violation of the 2010 Order.
On April 30, 2013, the Family Part entered a judgment of divorce awarding plaintiff, "with [Sikander's] concurrence," the right "to retain all of the marital assets located in the United States." The location of the Ferraris was, however, unknown and remains undisclosed.
On February 18, 2014, plaintiff filed a complaint against W.W.C. alleging fraud, conversion, unjust enrichment, and civil conspiracy. She later filed an amended complaint to add claims against the McCarron defendants, alleging conversion, unjust enrichment, and civil conspiracy. In response to plaintiff's complaint, W.W.C. filed a motion to dismiss for failure to state a cause of action pursuant to Rule 4:6-2(e), and the McCarron defendants filed an answer and cross-claims against W.W.C. for contribution and indemnification.
Judge Rachelle Lea Harz considered W.W.C.'s motion on May 9 and July 9, 2014. After considering counsels' oral arguments, the judge found that the Family Part's restraining order did not "bind" W.W.C. and, in any event, there was no evidence that W.W.C. "assist[ed Sikander] in selling [the cars]." Judge Harz found that releasing the vehicles to Sikander was "not engaging in encumbering, mortgaging, disposal, transfer of ownership, assigning or gifting of the Ferraris to a third-party." The judge reviewed the standards the court was required to apply to a Rule 4:6-2 motion and determined that, by requiring additional submissions after May 9, she went beyond considering the allegations of the complaint, converting the motion into one for summary judgment. The judge then addressed the elements of each cause of action plaintiff alleged against W.W.C., and found that W.W.C.'s allowing Sikander to pick up the vehicles from W.W.C.'s location did not violate the Family Part's order. She also found that plaintiff putting W.W.C. on notice of the order did not "create a bailment contract between [plaintiff] and W.W.C," as argued by plaintiff. As a result, Judge Harz concluded that plaintiff's "claim for conversion [was] legally insufficient." She concluded plaintiff's claim of civil conspiracy was similarly insufficient because "W.W.C. did not commit an unlawful act [or] commit a lawful act by unlawful means."
The judge initially reserved decision on the motion and adjourned the matter for sixty days to allow plaintiff to submit a sur-reply brief and for the parties to complete expedited discovery. A case management order requiring W.W.C. to produce limited discovery regarding its possession of the Ferraris was subsequently entered on May 19, 2014, and plaintiff amended her complaint to add the McCarron defendants as discussed above.
In conclusion, Judge Harz addressed the case law relied upon by the parties. She found plaintiff's reliance on Horizon Health Center v. Felicissimo, 317 N.J. Super. 521 (App. Div. 1999), to be misplaced because the case was "not instructive," as it had nothing "to do with any of the issues and elements of the factual scenario before [the c]ourt." As to W.W.C.'s reliance on One Step Up, Ltd. v. Sam Logistic, Inc., 419 N.J. Super. 500 (App. Div. 2011), the judge agreed that its holding "support[ed] the position taken by [the c]ourt." The court entered an order dismissing the complaint against W.W.C. pursuant to Rule 4:6-2(e).
The McCarron defendants filed a Rule 4:6-2(e) motion to dismiss on September 29, 2014. Following oral argument on November 13, 2014, the court similarly decided the motion as a motion for summary judgment and dismissed the complaint as to those remaining defendants.
This appeal followed.
We begin our review by addressing the alleged procedural infirmities of plaintiff's appeal. Contrary to W.W.C.'s position, plaintiff properly waited to file her appeal until the matter had been concluded as to all defendants. "For a judgment to be final and therefore appealable as of right, it must dispose of all claims against all parties." Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 383 (App. Div.) (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)), certif. denied, 209 N.J. 96 (2011); see also Pressler & Verniero, Current N.J. Court Rules, comment 2.2.2 on R. 2:2-3 (2016).
Although plaintiff's appeal was timely filed after the last order, her NOA did not properly identify the order under appeal. An NOA must "designate the judgment, decision, action or rule, or part thereof appealed from." R. 2:5-1(f)(3)(A). "[I]t is clear that it is only the judgments or orders or parts thereof designated in the [NOA] which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5.1 (2016) (emphasis added).
When a party appeals from a final judgment, the party may seek review of interlocutory orders that have not been rendered moot or definitively ruled upon by an appellate court in a prior or separate appeal. An interlocutory order is preserved for appeal with the final judgment . . . if it is identified as a subject of the appeal. That may be done in the notice of appeal or the [CIS]. Failure to identify an interlocutory order may be considered a waiver of any objection to that order.
[Silviera-Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 140-41 (2016) (citations omitted).]
Generally, we will not consider issues raised by an order that had not been included in the NOA, see, e.g., Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004), unless a party's CIS "clearly" indicates the actual order sought to be reviewed. See Ahammed v. Logandro, 394 N.J. Super. 179, 187-88 (App. Div. 2007). We may also consider an order not identified in the NOA where "the basis for the motion judge's ruling on [a first order and a later order are] the same. In such cases, an appeal [from the later order] may be sufficient for an appellate review of the [earlier order], particularly where those issues are raised in the CIS," Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002), by "clearly indicat[ing]" the earlier order is "one of the primary issues presented by the appeal." Synnex Corp. v. ADT Sec. Servs., Inc., 394 N.J. Super. 577, 588 (App. Div. 2007). "An appellant . . . proceeds at his or her peril by insufficiently completing the [NOA] or CIS. The appellant should explicitly designate all judgments, orders and issues on appeal in order to assure preservation of their rights on appeal." Fusco, supra, 349 N.J. Super. at 461 n.1.
Applying these principles here, we read plaintiff's NOA to be inapplicable to the order dismissing her complaint against W.W.C. We discern from her CIS, however, an attempt to raise the issue of that dismissal by the CIS's reference to the court's dismissal as to McCarron defendants being "based primarily" on the same reasoning for the entry of the earlier order. For that reason, in this instance, we choose to consider plaintiff's appeal.
We review a ruling on summary judgment de novo, Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014), and apply the standard set forth in Rule 4:46-2(c). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Having considered plaintiff's arguments in that context and in light of our review of the record and applicable legal principles, we find them to be without merit. We affirm essentially for the reasons expressed by Judge Harz in her thoughtful oral decision. We add only the following brief comments.
We agree the Family Part's mutual restraints were not applicable to W.W.C., regardless of whether W.W.C. had notice of the court's order, and, in any event, we also agree it did not participate in any of the restraining order's prohibited sales or transfers of Sikander's automobiles. If we were to accept plaintiff's argument, W.W.C. would have remained obligated to continue to store the subject vehicles even if it was not being compensated in accordance with its agreement with Sikander. We find no legal basis for the court to have held W.W.C. to that obligation.
Moreover, contrary to plaintiff's assertions, the Family Part's restraining order applied only to plaintiff and Sikander by its express terms. Cf. Horizon, supra, 317 N.J. Super. at 527 (addressing a civil restraint that, by its express terms, was applicable to "the named defendants and/or persons or organizations affiliated, acting in concert or participation with, or on behalf of the named defendants"). Also, as a bailee of Sikander's automobiles, W.W.C. was "obliged to transfer possession of [the] bailed goods to [their] rightful claimant who [held] title." One Step Up, supra, 419 N.J. Super. at 509.
In fact, the restraints were entered as mutual restraints by consent. --------
Without any evidence that W.W.C. agreed to be bound by the provisions of the Family Part's order and then violated its terms, plaintiff's arguments were wholly unsupported by the facts.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION