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W.H. Industries, Inc. v. Fundicao Balancins

January 10, 2008

W.H. INDUSTRIES, INC., PLAINTIFF-APPELLANT,
v.
FUNDICAO BALANCINS, LTDA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-2425-05.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 11, 2007

Before Judges Coburn, Fuentes and Chambers.

In April 2005, plaintiff, W.H. Industries, Inc., a corporation located in New Jersey, sued defendant, Fundicao Balancins, Ltda, a company located in Brazil, in the Law Division, Bergen County. The complaint alleged breach of contract. In August 2005, defendant filed a motion to dismiss the New Jersey complaint for lack of jurisdiction based on improper service of process, lack of personal jurisdiction, forum non conveniens, and comity. In the same month, defendant filed its own breach of contract complaint against plaintiff in Brazil. Plaintiff counterclaimed in Brazil. The actions in New Jersey and Brazil concern the same contract and the same set of facts. Plaintiff did not seek a stay of the action in Brazil, which we were advised at argument is at the discovery stage. In plaintiffs' appellate brief, it acknowledges that "both parties have submitted voluminous documents in support of their claims" and that a "settlement conference will be held in the coming months" in Brazil.

After plaintiff obtained proper service of process, defendant's motion for dismissal of the New Jersey complaint based on lack of personal jurisdiction, forum non conveniens and comity was renewed, and then argued and decided in favor of defendant on November 17, 2006, on which date the order was also entered. Plaintiffs moved for reconsideration, which was denied by an order dated February 20, 2007.

Plaintiff's notice of appeal states that it is appealing from the latter order. It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review. Sikes v. Township of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994). Therefore, plaintiff is not entitled to review of the earlier order. Nonetheless, since the orders resolved all issues as to all parties, the appeal, at least from the order denying reconsideration, was as of right. Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974); S.N. Golden Estates, Inc. v. Continental Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998) (citations omitted). Although we are not required to do so, we will address the propriety of the earlier order, particularly since defendant has not argued against our ruling on its validity.

The trial judge's decision on the jurisdictional issues recites that "[a]s the parties are fully familiar with the underlying facts of this matter, this Court will not expound upon those facts herein." That statement is contrary to Rule 1:7-4(a), which requires that "[t]he court shall . . . find the facts . . . on every motion decided by a written order that is appealable as of right . . . ."

Although either party could have moved for a temporary remand to the trial judge for the purpose of having him make the necessary findings of fact, R. 2:9-1(a), neither pursued that path. Of course, we have the authority to so order without a request, ibid., but we will not follow that path in the circumstances of this case.

Plaintiff's appendix contains no documents submitted for the November 17, 2006, hearing. Rather, its appendix includes the documents submitted for the reconsideration hearing. As the judge properly found, none of that material was based on newly discovered evidence and all of it could have been provided in opposition to the motion returnable on November 17.

The judge's refusal to consider those materials was clearly appropriate. See, e.g., Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (citations omitted). Defendant's appellate brief argues in support of that ruling, but plaintiff fails to address the issue in its appellate briefs. An issue not briefed is deemed waived. In re Freshwater Wetlands Permit, 379 N.J. Super. 331, 334 n.1 (App. Div. 2005). Thus, based on the procedural rule and on the merits, we affirm the trial judge's order denying reconsideration of plaintiff's belated certifications.

Defendant has included a certification submitted to the judge before the November 17 hearing. In the certification, defendant's president stated in detail that his company's only contact with New Jersey was its dealings with plaintiff. He stated that plaintiff came to defendant in Brazil, that plaintiff sent purchase orders to Brazil, that defendant made the parts in Brazil, and that plaintiff "always took possession of [the] parts in Brazil." If there were other facts before the judge, they do not appear in this record, and, of course, our consideration is generally limited to the record on appeal, namely the appendices and transcripts. State v. Harvey, 151 N.J. 117, 201-02 (1997).

Plaintiff does not contend that the concept of general jurisdiction applies here. Rather, it relies solely on the principles relating to specific jurisdiction arising out of the contractual relationship. See, e.g., ...


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