Opinion
DOCKET NO. A-2888-11T3 DOCKET NO. A-4201-11T3
02-24-2014
R.V. BURIC ARCHITECTURE, ENGINEERING and PLANNING, LLC, Plaintiff-Appellant, v. SUN VIEW, LLC and PATRICK SPINA, ESQ., previously a partner of Sodini & Spina, LLC, Defendants-Respondents. R.V. BURIC ARCHITECTURE, ENGINEERING and PLANNING, LLC, Plaintiff-Appellant, v. SATEK, INC., DANIEL BRANOVER, SUNVIEW MOTEL TANNERSVILLE and ELSI LATORRE, Defendants-Respondents.
John F. Kwasnik argued the cause for appellant (Mezzacca & Kwasnik, LLC, attorneys; Mr. Kwasnik, on the briefs). Respondents have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Submitted (A-2888-11T3) and Argued (A-4201-11T3) July 23, 2013 - Decided February 24, 2014
Before Judges Espinosa and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket Nos. L-188-11 and L-1517-08.
John F. Kwasnik argued the cause for appellant (Mezzacca & Kwasnik, LLC, attorneys; Mr. Kwasnik, on the briefs).
Respondents have not filed a brief.
The opinion of the court was delivered by ESPINOSA, J.A.D.
These two back-to-back appeals, which have been consolidated for purposes of opinion, arise from a tortured procedural history related to plaintiff's claims against defendants for their alleged failure to pay for services rendered pursuant to an agreement.
By order dated August 20, 2012, the appeals in Docket Nos. A-2888-11 and A-4201-11 were docketed as back-to-back matters.
Plaintiff filed a complaint in October 2008, captioned RV Buric Architecture, Engineering & Planning, LLC, v. Satek, Inc., Daniel Branover, Sunview Motel Tannersville, Elsi LaTorre, Docket No. L-1517-08. In April 2009, the complaint was administratively dismissed for failure to prosecute pursuant to Rule 1:13-7. In June 2009, plaintiff filed a motion to reinstate the complaint, which was granted in July 2009.
The complaint was administratively dismissed by the court a second time in February 2010. Plaintiff filed a second motion to reinstate the complaint. By order dated April 1, 2010, the court denied the motion, stating the motion had not been "served in accordance with Court Rule 1:5-2 and 1:5-3." Plaintiff did not appeal from this order.
In May 2010, plaintiff filed a third motion to reinstate the complaint. Defendants filed a cross-motion for an order vacating any defaults and dismissing any claims against them. Prior to the return date, counsel had a discussion in which plaintiff's counsel was advised that several defendants were misnamed. Plaintiff's counsel sent a letter to the court, dated July 8, 2010, which stated:
The above matter is scheduled for a Motion in front of Your Honor on July 9, 2010.
Please be advised that after discussing the matter with our adversary the decision was made to withdraw the motion.
Kindly remove same from the Motion calendar for tomorrow.
Thank you.
No further action was taken regarding the dismissed complaint. Instead, plaintiff filed a second complaint in January 2011. As amended in April 2011, the complaint was captioned R.V. Buric Architecture, Engineering and Planning, LLC v. Sun View LLC, Patrick Spina Esq., previously a partner of Sodini & Spina LLC, individually, Docket No. L-188-11. Defendants did not file answers to the complaint. Plaintiff applied for default to be entered against defendants and for a proof hearing. Defendants filed a cross-motion, seeking to vacate default and/or default judgment, contending that the complaint had not been served upon defendants.
The trial court denied plaintiff's request for a proof hearing by order dated November 23, 2011. In a written statement of reasons, the court stated that, because plaintiff did not appeal from the July 9, 2010 order that denied its motion to reinstate the first complaint (Docket No. L-1517-08), the doctrine of res judicata applied to bar re-litigation of the matter "as it has already been decided on the merits."
Plaintiff filed a motion for reconsideration of the November 23, 2011 order. At oral argument, the court questioned plaintiff's counsel why he did not "resurrect" the first lawsuit and plaintiff's counsel replied that he thought it was easier to file a second complaint. Defense counsel stated that plaintiff had to make a motion pursuant to Rule 4:50-1 to obtain relief from the earlier judgment dismissing the first complaint, but noted that, because plaintiff failed to file such a motion within one year of the dismissal, it would have to seek relief pursuant to Rule 4:50-1(f). By order dated January 6, 2012, the court denied plaintiff's motion for reconsideration. Neither the November 23, 2011 order nor the January 6, 2012 order explicitly dismissed the complaint in Docket No. L-188-11. However, the ACMS records provided by plaintiff show the complaint as dismissed.
Plaintiff filed a notice of appeal on February 15, 2012, which states plaintiff appeals from orders entered on November 23, 2011, and January 6, 2012, in Docket No. L-188-11. These orders denied plaintiff's motion for a proof hearing and reconsideration regarding the second complaint. This appeal bears Docket No. A-2888-11.
Plaintiff then attempted to resurrect the first complaint, as the first judge suggested, by filing a motion to reinstate the complaint in Docket No. L-1517-08, which had been dismissed since April 2010. Defendants filed a cross-motion, seeking costs and fees on frivolous litigation grounds. A different trial judge denied both the motion and cross-motion. In a written opinion, the judge identified what was and was not before him. He noted that the decisions made by the earlier judge to deny plaintiff's efforts to file a second action with the same allegations as those in the first complaint were not before him. The judge identified the issue before him as "whether the first complaint, bearing the docket number of L-1517-08, may be reinstated." The judge noted that, because the subject motion to reinstate was filed more than one year after the dismissal, plaintiff was required to show exceptional circumstances pursuant to Rule 1:13-7 to obtain the requested relief. The court observed that it was unclear why plaintiff had "allowed such extended periods of time to elapse before moving to reinstate its complaint" and found no evidence of exceptional circumstances to warrant reinstatement of the first complaint.
Plaintiff filed a timely notice of appeal, challenging the March 16, 2012 order in Docket No. L-1517-08 (Docket No. A-4201-11). In this appeal, plaintiff argues that the trial court erred as a matter of law in denying its motion to vacate the administrative dismissal of its complaint. Plaintiff's motion to reinstate the first complaint was governed by Rule 1:13-7(a), which provides that a motion filed more than ninety days after dismissal "shall be granted only on a showing of exceptional circumstances." As the trial judge observed, no evidence of exceptional circumstances has been presented to the court regarding plaintiff's inexplicable delays in seeking reinstatement of this complaint. We therefore conclude that plaintiff's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
As noted, the orders entered on November 23, 2011, and January 6, 2012, in Docket No. L-188-11 denied plaintiff's motion for a proof hearing and reconsideration regarding the second complaint. In its appeal from these orders, plaintiff does not argue that the court erred in denying its motion for a proof hearing. Rather, plaintiff argues that the trial court erred as a matter of law in dismissing its claims because it had the right to file a second complaint after its first complaint was administratively dismissed. In J. Roberts And Son, Inc. v. Hillcrest Memorial Co., 363 N.J. Super. 485 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004), we held that the administrative dismissal of a complaint under Rule 1:13-7 "does not prevent the filing of a second complaint with the same allegations." Id. at 487-88. Therefore, the trial court erred in dismissing plaintiff's complaint in Docket No. L-188-11.
The March 16, 2012 order denying plaintiff's motion to reinstate the first complaint is affirmed. The dismissal of plaintiff's second complaint is reversed and the complaint, Docket No. L-188-11, is reinstated.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION