July 24, 2008
THOMAS MESCE, PLAINTIFF-APPELLANT,
RALPH MESCE, TERRY MESCE, MICHAEL ILARIA, ANTHONY COSTANZA, JR., ANTHONY MESCE, JOSEPH PULEO, AND DENNIS CAMPANARO, DEFENDANTS-RESPONDENTS.
RALPH MESCE, MICHAEL ILARIA, ANTHONY MESCE, JOSEPH PULEO, DENNIS CAMPANARO, INDIVIDUALLY AND ON BEHALF OF 5000 PARK ASSOCIATES LIMITED PARTNERSHIP, PLAINTIFFS-RESPONDENTS,
THOMAS MESCE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket Nos. C-117-01 and C-126-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2008
Before Judges Stern, A.A. Rodríguez and Collester.
By an amended notice of appeal filed November 21, 2006, plaintiff, Thomas Mesce, appeals from a "final judgment" entered on October 14, 2005, resolving this business dispute between brothers.*fn1 The judgment awarded plaintiff "100% of the general and limited partnership interests" in 5000 Park Associates Limited Partnership which owned a residential apartment building in Weehawken, and First 5000 Capital Company LLC, a general partner thereof.*fn2 Prior thereto, the Chancery Division had ordered that both parties submit bids to purchase the other partner's interest, and on October 14, 2005, the court accepted plaintiff's bid "for a price of $9,502,000, not subject to any condition, due diligence or adjustment of any kind or variety."
The closing was to "take place on or before November 8, 2005." We subsequently remanded following the closing of November 8, 2005, in order to permit the adjustments which were not agreed upon thereat. The parties consented to allowing the remand proceedings to continue, and ultimately the Chancery Division made monetary adjustments in an order dated November 27, 2006. Plaintiff was awarded $71,781.52 in furtherance of the court's prior determination that "[a]djustments shall be allowed only to the extent that they are the ordinary adjustments that are customarily taken at the time of a closing on the sale of real property, including but not limited to utilities, mortgage payments, taxes, insurance, rents collected, fuel on hand, etc."
Plaintiff's appeal challenges the award of counsel fees against him which were imposed for discovery rule violations. He also asserts that, "as the prevailing party," he "was entitled to counsel fees" and that the trial court failed to consider certain adjustments and further credits due him including counsel fees.
Contrary to what plaintiff suggests in his brief, the amended notice of appeal (filed six days before the November 27, 2006, order was entered) refers only to the judgment of October 14, 2005, not to orders of August 16 and September 5, 2002, and November 27, 2006. The order of August 16, 2002, ordered that plaintiff pay defendant $8,895 in fees and costs in exchange for granting plaintiff an extension of the period of discovery. The September 5, 2002, order required the payment of an additional $9,090 in counsel fees for the period following July 19, 2002, during which the court found that plaintiff continued "throwing up some roadblocks in the guise of waiting until the last possible minute to take action, and then coming into the court and pointing a finger at the defendant." The September order was entered "as a condition of" a further extension of the discovery deadlines, as the court found plaintiff's conduct "unacceptable" for failing to comply with discovery deadlines and produce his expert's report.*fn3 However, the judge declined to dismiss the complaint or bar the expert report as too "drastic" a remedy.
Given the reference in the notice of appeal only to the October 14, 2005, order, we may decline to consider plaintiff's present contentions. See R. 2:5-1(f)(3); North Jersey Neurosurgical Assoc. v. Clarendon Nat. Ins. Co., __ N.J. Super. __, __ (App. Div. 2008). That is particularly so in this case as plaintiff never endeavored to further amend his notice of appeal to specifically include the November 27, 2006, order relating to adjustments. We nevertheless briefly respond to his assertions.
Plaintiff contends that "Rule 4:23[-]2 authorizes the award of only those attorney['s] fees that are reasonable and related to the legal costs caused by a discovery failure," and "the court's failure to address counsel fees and adjustments was erroneous." He claims that as a "prevailing party" he is entitled to counsel fees and that the award against him was "punitive" because he was required to pay counsel fees beyond the discovery violation, the orders were unrelated to "discovery violations," and the trial court "failed to make any specific factual findings concerning the line item charges contained in either attorney's certification of services or the relationship between these services and the discovery violations."
We find no abuse of discretion with respect to the July 29, August 16 and September 5, 2002, orders. Plaintiff clearly violated the April 5 and July 29, 2002, orders by failing to produce and serve an expert report. See R. 4:23-2(b); Rendine v. Pantzer, 141 N.J. 292, 317 (1995); Abtrax Pharm. Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995); Shore Orthopedic Group v. Equitable Life Ins. Soc., 397 N.J. Super. 614, 627-29 (App. Div.), certif. granted in part, __ N.J. __ (2008).*fn4
We find no application in support of plaintiff's request for fees as a "prevailing party." In any event, the Rules do not support such an award merely because a party prevailed. See R. 4:42-9(a); see also In re Niles Trust, 176 N.J. 282 (2003); Shore Orthopedic, supra, 397 N.J. Super. at 624. As to the claim for counsel fees based on "contract," see Satellite Gateway Communications, Inc. v. Music Dining Car Co., 110 N.J. 280, 285-86 (1988), paragraph 21 of the partnership agreement does not appear to apply to litigation between partners, but rather to litigation against the partnership. In any event, the claim and meaning of the provision was not developed before the trial judge. Moreover, plaintiff did not succeed in the litigation and was not a "prevailing party." His bid was accepted and the matter was settled on that basis. Neither brother contests the disposition or the way it was brought about.
Plaintiff no longer attacks the October 14, 2005, order, and now challenges the November 27, 2006, order as to the adjustments as well as to the discovery sanctions. We affirm that order.
Plaintiff was awarded $71,781.52 in adjustments. That Judge Olivieri previously indicated there would be no adjustment or credits and subsequently treated them separately from the bid acceptance does not mean they all had to be granted. To the contrary, plaintiff initially stated his bid to purchase the interest of all other partners was subject to credit for his "interest in the partnership and any other credits upon which this Court has reserved." On September 9, 2005, the judge denied defendant's "application to disqualify" plaintiff's bid, and in accepting plaintiff's bid, said:
Mr. Fielo, I want to make this clear: I took note of the wording in [plaintiff's] bid, as did Mr. Stern, and the bid that I have accepted, which I have determined to be the higher and better bid, does not contemplate any action by this court awarding Mr. Thomas Mesce or Ralph Mesce, for that matter, any credits for anything. Whatever I may decide regarding counsel fees or any other credits has nothing to do with this bid, and please tell me now, I took note of that language. But I do not want an application or some sort of a motion filed within the 60 day period, or worse, close to closing, where Thomas Mesce comes in here and says, oh, well, I expected and I want a credit of X for Y, I want a credit of A for B, and my bid anticipated that I would be getting X credit for Y and A credit for B, and since I have either not gotten those credits or I have not gotten the full credit that I expected, I can't close or I'm not paying the $9,502,000, that's not what I am determining here today.
And honestly, if there is any, and I don't want to use the word subterfuge because that's somewhat of a drastic term, but if there's any sleight of hand going on here with putting $9,502,000 on the table only to say, well, that's got to be reduced or compromised or in some other way affected or diminished by credits, I'm not playing that game.
I'll go one step further, because clarity I think is important. If I determine that Mr. Thomas Mesce is engaging in a sleight of hand . . . I will consider sanctions not only in the form of attorney's fees, but other types of sanctions. We have come too far and this court has taken too much time and has been as patient and as reasonable as it possibly can be, perhaps too patient and perhaps too reasonable, to get to the point where now Thomas Mesce is to buy out his brother and the limiteds at that price. I can't, I can't, my patience has run out, Mr. Fielo.
Plaintiff's attorney acknowledged what the judge stated, and as noted, his bid was accepted by the order of October 14, 2005, which expressly provided was "not subject to any condition, due diligence, or adjustment of any kind or variety." That the judge subsequently allowed adjustments "only to the extent they are the ordinary adjustments that are customarily taken at the time of closing on the sale of real property," does not mean the entire subject of credits was ripe for consideration or that the bid price was subject to adjustment.
The $71,781.52 ultimately awarded is just short of the $75,671.23 asked for on the remand application, and the $79,371.15 plaintiff ultimately requested "as of November 8, 2005."
We note that plaintiff made no request in the trial court for the prepayment penalty on the first mortgage in the trial court. In fact, at the September 9, 2005, hearing he advised the court that "responsibility shall be his alone." We are satisfied that there is no basis to grant further adjustments, and that by now expressly stating we will entertain no further fee application in this dispute which is essentially personal at this point, we intend to bring this litigation to a close.