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Halbach v. Boyman

May 3, 2005

RUSSELL HALBACH, PLAINTIFF-RESPONDENT,
v.
CHRISTOPHER BOYMAN AND BOYMAN & ASSOCIATES, P.C., DEFENDANTS-APPELLANTS.
CHRISTOPHER BOYMAN AND BOYMAN & ASSOCIATES, P.C., DEFENDANTS-APPELLANTS/ THIRD-PARTY PLAINTIFFS,
v.
MARY THURBER, ESQ., THE LAW OFFICES OF MARY THURBER AND THURBER CAPPELL, LLC, THIRD-PARTY DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. BER-L-2041-01.

Before Judges Wefing, Payne and C.S. Fisher.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 9, 2005

We granted defendants Christopher Boyman and Boyman & Associates, P.C. ("Boyman") leave to appeal from a trial court order directing Boyman to answer certain questions posed in his deposition and rejecting his contention that the questions improperly sought material protected under the work product doctrine enunciated in R. 4:10-2(c). Having reviewed the record in light of the contentions advanced on appeal, we reverse.

This is the second time we have been called upon to rule on discovery disputes in this matter. In Halbach v. Boyman, 369 N.J. Super. 323 (App. Div. 2004), we reversed a trial court order directing the deposition of plaintiff's attorney and the production of her entire file.

It is necessary to set forth again some of the factual background of this matter to understand the context in which this second appeal has arisen. This litigation had its genesis in a dispute between shareholders of a close corporation. Plaintiff Halbach owned twenty-five percent of the stock of several corporations referred to collectively as DPS, or the Dependable Companies, while the remaining shares were owned by Lawrence P. Scalzo and his wife. Id. at 326. DPS needed funds, and Scalzo and Halbach borrowed the money for DPS from Michael Wilenta. Ibid. In conjunction with that loan, Scalzo and Halbach executed an agreement that conferred equal decision-making authority upon both of them. Ibid. Differences developed between them, however, and Scalzo, despite that agreement, eventually attempted to fire Halbach. Ibid.

Later, the two men tried to resolve their differences through negotiation. Ibid. Boyman had served as the attorney for DPS, and he had also represented both Halbach and Scalzo on certain personal matters, and he, thus, did not represent either man in the negotiation process. Ibid. Halbach did hire an attorney, Mary Thurber, Esq., to represent him in this process. Id. at 326. It was the production of her file and her deposition that were at issue in our earlier opinion.

Eventually, Halbach and Scalzo came to an agreement under which Scalzo would purchase all of Halbach's shares in DPS. Id. at 327. They also agreed that Boyman would act as scrivener and reduce their agreed-upon terms to writing. Ibid. In his capacity as scrivener, Boyman drafted an agreement that he submitted to Halbach's attorney, Thurber, for her review and approval. Ibid. The agreement, which went through several revisions in light of Thurber's comments and suggestions, was finalized and executed in December 1997. Ibid.

Halbach, however, refused to close the transaction, claiming the document he had executed did not, in fact, reflect the terms upon which he and Scalzo had agreed. Ibid. He contended that he was entitled to receive not only the purchase price for his stock but also his distributive share of the earnings of DPS through the time of closing. Ibid. Scalzo insisted Halbach was only to receive the price of his shares of stock. Id. at 327.

This dispute resulted in a Chancery Division suit, Scalzo v. Halbach, in which Scalzo sought to enforce the December 1997 document. Halbach, in addition to defending this suit, filed an action in the Law Division in April 1998, in which he named as defendants not only Scalzo but also Boyman and his firm. Included among Halbach's claims was the assertion that Boyman committed malpractice in his drafting of the redemption agreement. Boyman, in turn, filed a third-party action against Thurber.

Halbach filed a motion to consolidate the Chancery and Law Division actions. Although it is not entirely clear from the material submitted to us in connection with this appeal, we infer that the motion to consolidate was granted.

DPS was a party to the litigation, but was represented in the lawsuit by Michael Kasanoff, Esq., not Boyman. Boyman, who was also a party, initially represented himself. Acting pro se, he submitted a letter to the chancery judge dated July ...


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