NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3514-07T3
DEBRA ANN LOMBARDI,
Plaintiff-Respondent,
v.
CHRISTOPHER J. MASSO, JOHN M.
TORRENCE, MTG PROPERTIES LLC,
JENNIFER LYNCH, and PRUDENTIAL FOX
& ROACH REALTORS,
Defendants-Appellants,
and
JAMES GITHENS and
TARA CONSTRUCTION SERVICES, INC.,
Defendants.
_______________________________________
Argued November 5, 2008 - Decided
January 28, 2009
Before Judges Wefing, Parker and Yannotti.
On appeal from Superior Court of New
Jersey, Law Division, Burlington County,
No. L-110-04.
Jeffrey P. Resnick argued the cause for
appellants Christopher J. Masso, John M.
Torrence and MTG Properties, LLC (Sherman,
Silverstein, Kohl, Rose & Podolsky, attorneys;
Mr. Resnick, Alan C. Milstein, and Leily
Schoenhaus, on the brief).
Andrew J. Luca argued the cause for appellants
Fox and Roach, L.P. t/a Prudential Fox &
Roach Realtors and Jennifer Lynch (Reger
Rizzo & Darnall, attorneys; Mr. Luca and
Justin P. Harrison, on the brief).
Walter T. Wolf argued the cause for respondent.
PER CURIAM
Plaintiff filed suit seeking damages in connection with a
contract she signed to purchase a home at 121 Nokomis Trail in
Medford Lakes.
The original contract, executed in April 2003,
listed defendants Christopher Masso and John Torrence as the
sellers, defendant Prudential Fox & Roach Realtors as the
listing broker, and defendant Jennifer Lynch as the agent with
Prudential Fox & Roach who handled this transaction.1
In May
2003, the parties executed an addendum to the contract
substituting defendant MTG Properties, LLC ("MTG") for Masso and
Torrence as the seller and listing the work to be performed on
the property prior to closing.
MTG was a limited liability
company formed by Masso, Torrence and Meg Githens (wife of
defendant James Githens) for the purpose of purchasing,
rehabilitating and selling real properties.
Meg Githens made no
capital contribution to MTG; instead, MTG retained defendant
James Githens to perform the contracting work on its various
1
For the balance of this opinion we shall refer to these
defendants as Prudential Fox unless the context requires any
further distinction.
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projects.
Mr. Githens operated a contracting business through
defendant Tara Construction Services, Inc.2
By the time of the closing in July 2003, however, Githens
had not completed the repairs and renovations to the property.
Plaintiff, nonetheless, decided to go ahead with the closing and
$10,000 of the purchase price was placed in escrow with Fidelity
Title Abstract Co. pending completion of the work listed on an
agreed-upon punch list.
The real estate agent who represented
plaintiff in connection with this transaction, Brenda Richmond,
affiliated with Weichert Realtors, advised her against
proceeding with the closing in this fashion.
Indeed, Ms.
Richmond prepared a letter, which plaintiff signed,
memorializing that she had advised plaintiff not to close the
transaction, had advised plaintiff that she should seek the
advice of an attorney and that plaintiff had nonetheless decided
to proceed in the face of that advice.
The escrow agreement provided that the work set forth on
the punch list was to be completed by August 1, 2003, and that
the escrow agent could release the funds when it was notified by
plaintiff and MTG that the work had been completed.
The work
was not completed by that date, however.
2
For the balance of this opinion we shall refer to defendants
Githens and Tara as "Githens."
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In early August, Githens approached plaintiff and told her
that Masso was not paying him and that he required the money
held in escrow in order to complete the scheduled work.
Githens
gave plaintiff a check for ten thousand dollars drawn on a Tara
Construction account to hold as security.
On August 4, 2003,
plaintiff, without consulting anyone, and without questioning
why Githens needed the money if Tara could issue a check for ten
thousand dollars, signed a letter authorizing Fidelity to
release the ten thousand dollars.
Githens then took the letter,
already signed by plaintiff, to Masso, who signed on behalf of
MTG.
Masso was wholly unaware when he signed the letter that
Githens had in fact not completed the promised work.
He did not
learn of this until plaintiff told him some thirty days later,
when the work still had not been done.
Githens took the money
held in escrow but performed no further work.
When plaintiff
attempted to cash the check Githens had given her, the bank
informed her there were no funds in the account.
Plaintiff filed her complaint in January 2004, naming as
defendants Masso, Torrence, MTG, Prudential Fox and its agent
Lynch, and Githens.
All defendants with the exception of
Githens, against whom a default was eventually entered, filed an
answer and discovery proceeded.
In December 2006, after the completion of discovery, the
trial court entertained summary judgment motions brought by
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defendants.3
Defendants submitted various items in support of
their motions, including plaintiff's deposition in which she
admitted she had never met defendant Torrence and had never
received any communications from him and that she only met
defendant Masso at the July 16 closing.
When asked at her
deposition what misrepresentations Masso had made to her,
plaintiff replied that he had promised her at the closing that
he "would take care of everything."
The trial court issued an extensive written opinion,
setting forth its reasons for concluding that defendants were
entitled to summary judgment.
It found that Githens was not the
agent for any of the defendants and that plaintiff did not have
a cause of action for breach of contract against any of the
moving defendants.
It found that plaintiff had not presented
any basis to support individual liability on the part of
Torrence and Masso and that there were no facts which would
support a cause of action for fraud against any of the moving
defendants.
Further, the trial court ruled that plaintiff's
claims under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184,
had to be dismissed as a matter of law.
3
The trial court had earlier granted summary judgment to
defendants Torrence and Masso and then granted plaintiff's
motion for reconsideration and reinstated the complaint against
the two individuals. The propriety of that disposition is not
questioned on appeal.
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Plaintiff filed a motion for reconsideration, which the
trial court denied on August 3, 2007, again issuing a detailed
statement of reasons.
The trial court found no reason to
revisit the analysis it had previously set forth.
It
specifically noted that plaintiff had supplied as part of her
motion for reconsideration deposition testimony of defendants
Masso and Githens but that this testimony could not serve as a
basis for reconsideration because it had been available to
plaintiff at the time of the summary judgment motions.
A proof hearing with respect to plaintiff's claims against
defendant Githens was coincidentally scheduled for August 3
before the trial court.
Defendants and their attorneys did not
attend the proof hearing, there being no reason for them to do
so in light of the fact that the trial court had indicated at
the conclusion of the argument on plaintiff's motion for
reconsideration that the motion was denied.
At the August 3 proof hearing, plaintiff testified in
support of her claim for damages, as did her expert, who
catalogued the work remaining to be done.
The proof hearing
resumed on August 6, at which point plaintiff's counsel read
into the record certain portions of the deposition of defendant
Githens.
At the conclusion of that proof hearing, without
plaintiff having formally sought any further relief, the trial
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court sent a letter to defendants' attorneys that stated in
pertinent part
The plaintiff testified, as did her
expert and portions of Mr. Githens'
deposition were read into the record.
Numerous exhibits were marked into evidence
(most if not all of the exhibits have been
previously provided [to] the Court in prior
motions).
Recognizing the testimony was not cross
examined, but still under oath, as well as
rereading my previous decisions in this
case, I have concluded that the summary
judgment motion should be re-argued, so that
I can determine whether my decision from the
bench was appropriate.
The dynamics of this case appears [sic]
to be far more complicated th[a]n the
various briefs, certification and perhaps my
prior decisions may demonstrate. Thus, in
the interest of justice, a second argument
will be very important.
Pursuant to this letter, a hearing was held on November 16,
2007, which the trial court treated as a continuation of
plaintiff's reconsideration motion.
Defendants indicated their
confusion at such a procedure and their inability to respond,
since they had not been present at the proof hearing and did not
know what had led the court to such a change of mind,
particularly in light of the fact that the proof hearing was
presumably addressed solely to the question of damages, not
liability, and certainly not liability on the part of these
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defendants.4
The trial court's statement that defendants had
been provided with a copy of the transcript of the proof hearing
contained no substantive explanation to defendants of what led
the court to this result.
The trial court thereafter issued another extensive written
opinion, concluding that plaintiff's motion for reconsideration
should be granted and defendants' previously-granted motions for
summary judgment should be denied.
Although the court's letter
opinion contained an extensive discussion of various legal
principles, it did not identify the disputed questions of
material fact, particularly with respect to defendants
Prudential Fox, which led it to conclude that summary judgment
was inappropriate.
Prudential Fox moved for leave to appeal.
We granted that motion and remanded the matter to the trial
court with directions that it prepare supplemental findings of
fact and conclusions of law in support of its conclusion that
reconsideration should be granted with respect to the earlier
summary judgment granted to Prudential Fox.
The trial court
complied with this directive and issued another extensive
written opinion, after which Prudential Fox again sought leave
4
We note as an aside the confusion created between considering
the hearing in November a continuation of the August
reconsideration motion and the order in the record executed and
filed by the trial court on August 3 denying the reconsideration
motion.
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to appeal.
We granted that motion, as well as the subsequent
motion of MTG to join as appellants.
Having reviewed the record
in light of the contentions advanced on appeal, we are satisfied
that the trial court erred when it set aside the summary
judgments previously granted these defendants.
We thus reverse
the order of November 16, 2007.
In doing so, we do not consider the various analyses set
forth by the trial court in its several written opinions for we
are satisfied that the procedure it employed was unauthorized
and unwarranted.
At the time of defendants' summary judgment
motions, all discovery in this matter had been completed,
including the depositions of plaintiff and defendant Githens.
If there was material within those depositions which would
create a question of material fact sufficient to defeat
defendants' motions, plaintiff should have presented it then.
We cannot help but note that the trial court, in denying
plaintiff's motion for reconsideration in August 2007, declined
to consider the deposition testimony of Githens vis-à-vis these
defendants.
That position was correct.
There was no basis for
the trial court to retreat from that position following the
proof hearing and utilize portions of the deposition testimony
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of Githens to decide that it had incorrectly granted summary
judgment months earlier.5
Several factors inform our analysis.
Summary judgment
serves an important purpose by affording "protection . . .
against groundless claims and frivolous defenses, not only to
save antagonists the expense of protracted litigation but also
to reserve judicial manpower and facilities to cases which
meritoriously command attention."
Brill v. Guardian Life Ins.
Co., 142 N.J. 520, 541-42 (1965) (quoting Robbins v. Jersey
City, 23 N.J. 229, 241 (1957)).
Parties must present their best
case on a motion for summary judgment so that a court can
perform a "searching review" of the record to determine whether
there is indeed a disputed question of material fact.
541.
Id. at
We do not consider it appropriate for a party, having lost
a motion for summary judgment, to return to the court and seek a
different result on the basis of material that was available to
it at the time of the original motion.
We also consider Zeiger v. Wilf, 333 N.J. Super. 258 (App.
Div. 2000) to be instructive.
The plaintiff in that case sued
for periodic payments he contended were due under a contract to
5
Further, it is not clear to us what legal significance that
testimony, which noted that defendant Lynch is a sister of
defendant Githens and that defendant Masso is married to a
cousin of defendant Githens, carries in the context of claims
for breach of contract and fraud.
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purchase real estate.
The defendants included Joseph Wilf,
individually, as well as a corporation and a limited partnership
in which Wilf held an interest.
As the litigation progressed,
Wilf was granted summary judgment as to his individual
liability.
Id. at 266.
Eventually, the plaintiff's claims
against the other entities proceeded to trial, and they
found liable.
Ibid.
were
Plaintiff appealed the earlier grant of
summary judgment in favor of Wilf, and defendants crossappealed.
As part of his argument in favor of reversing Wilf's
summary judgment, plaintiff pointed to certain evidence
presented during the trial.
We refused to permit him to do so,
however.
[O]nce a party successfully dismisses a
complaint against him by winning summary
judgment, he need not participate in a
subsequent trial against other defendants.
While reversal on appeal is of course
possible, the trial proceeding is otherwise
successfully completed for one such as Wilf,
who obtained summary judgment.
The concept of employing trial evidence
produced against certain defendants to undo a
pretrial summary judgment dismissing the
complaint as to a different defendant would
undercut much of the benefit of the summary
judgment practice. It would mean that a
defendant who procured dismissal of the
complaint against him might nevertheless be
required to appear, perhaps participate in,
and certainly stay aware of what was
happening in the trial from which the summary
judgment should have liberated him. Indeed,
if evidence produced at that trial could be
used against him, he might well be required
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to seek participation in the trial, to crossexamine witnesses, and perhaps even present
witnesses of his own in order to avoid having
the victory he obtained set aside
retroactively. Plaintiff submits no
authority to sustain that extraordinary
proposition, and we know of none, neither in
precedent nor in policy.
[Id. at 270.]
We consider that analysis fully applicable here.
If
plaintiff considered that the trial court was incorrect in
granting summary judgment to these defendants, her recourse was
to appeal to this court at the end of the proceedings at the
trial court level.
If the trial court was found to be correct,
the judgments would be affirmed; if it was found to be
incorrect, the judgments would be reversed.
Plaintiff could
not, however, seek to have the trial court vacate its earlier
decision on the basis of evidence presented against another
party in a later hearing.
Reversed.
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