July 24, 2007
R.J. OLDS, INC., PLAINTIFF-APPELLANT,
DENNIS RIORDAN, DEFENDANT-RESPONDENT, AND KOSH CONSTRUCTION CORP., DEFENDANT-RESPONDENT/ THIRD-PARTY PLAINTIFF,
ROBERT OLDS, THIRD-PARY DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hunterdon County, L-127-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 17, 2007
Before Judges Kestin and Payne.
In this matter, arising from the single surviving count of an amended complaint--as that count was amended--and a "supplemental complaint," together alleging breach of contract, waste, and related causes of action, Plaintiff, R.J. Olds, Inc. appeals from four orders. We affirm.
On June 23, 2004, following a mistrial consequent upon the filing of a petition for bankruptcy by defendant Dennis Riordan during trial, and shortly before the scheduled date for retrial, Judge Marino denied plaintiff's motion for leave to file an amendment to the "supplemental complaint." For reasons that are not apparent in the record on appeal, the retrial did not occur on that scheduled date.
The trial court, on February 3, 2006, denied another motion by plaintiff for leave to file an amendment to the "supplemental complaint." As had occurred previously, this motion was returnable only a few days before the rescheduled date for retrial. In a written opinion of the same date, Judge Buchsbaum expressed the reasons why this motion was denied.
An order entered on February 10, 2006, provided: "Plaintiff's case involuntarily dismissed under R. 4:37-2(b) at the close of plaintiff's case. The counterclaim and third-party complaint also dismissed at the close of defendant's case pursuant to R. 4:37-2(b) and R. 4:37-3. All dismissals are with prejudice and without costs." Judge Buchsbaum expressed the reasons underlying that order in an oral opinion on February 9, 2006.
On April 7, 2006, the trial court denied plaintiff's motions for reconsideration of the February 10, 2006 order, for a new trial, for return of the matter to the trial list, and for leave "to amend the pleadings to allege consumer fraud[.]" Judge Buchsbaum expressed the reasons for that order in a written opinion of the same date.
On appeal, plaintiff argues that the trial court erred in dismissing the complaint pursuant to R. 4:37-2. Plaintiff also argues that the trial court erred in its denials of plaintiff's motions to amend the "supplemental complaint."
We have reviewed the record in the light of the arguments advanced by the parties and prevailing legal standards. We discern no misapplication of discretion in any of the trial court rulings made. We affirm substantially for the reasons expressed by Judge Buchsbaum in his several opinions.
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