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Lombardi v. Masso


January 28, 2009


On appeal from Superior Court of New Jersey, Law Division, Burlington County, No. L-110-04.

Per curiam.


Argued November 5, 2008

Before Judges Wefing, Parker and Yannotti.

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.*fn1 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 projects. Mr. Githens operated a contracting business through defendant Tara Construction Services, Inc.*fn2

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.

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 defendants.*fn3 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.

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 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 defendants.*fn4 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 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 of Githens to decide that it had incorrectly granted summary judgment months earlier.*fn5

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. Id. at 541. 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 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 were found liable. Ibid. Plaintiff appealed the earlier grant of summary judgment in favor of Wilf, and defendants cross-appealed. 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 to seek participation in the trial, to cross-examine 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.


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