On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2525-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Carchman, Parrillo and Lihotz.
Plaintiffs Myron E. Fuhrmann and Perri L. Fuhrmann*fn2 appeal from a March 28, 2008 order of the Law Division dismissing their assault and malicious abuse of process action against defendants Nathan P. Wolf, Rosenblum, Wolf & Lloyd, PA, and a June 23, 2008 order dismissing the complaint as against defendants Sam and Ida Fox. In addition, plaintiffs appeal from an order denying their application to remove the court-appointed discovery master. As to all orders, we affirm.
The various causes of action asserted in this action arose as a result of events that transpired in another unrelated Law Division action - Fox v. Grinbaum, Superior Court, Law Division, Union County, Docket Number: UNN-L-0320-03 (the Fox action). To fully understand the context of the relevant facts here, we describe, in part, the facts of that case as well.
On January 28, 2003, defendants Ida Fox and Sam Fox filed a collection action in Union County against their daughter, Galina Grinbaum, and her husband Zinovy Grinbaum, seeking repayment of a $30,000 loan they had made to Galina. The Grinbaums filed a counterclaim seeking the repayment of approximately $13,000 from the Foxes. Defendant Wolf, then of Rosenbaum, Wolf & Lloyd, represented the Foxes. Fuhrmann represented the Grinbaums.
Prior to the filing of this action, on July 2, 2002, Fuhrmann and Galina visited Ida's mother, Asya Chatskaya, a ninety-one-year-old nursing home resident, who was partially blind and deaf. They left the visit with a newly-executed will from Chatskaya naming Galina as her sole beneficiary and granting Galina authority to make all of her funeral arrangements. Fuhrmann's wife, Perri, served as a witness to this will as did an individual identified as Maria Zakharenko.
Not surprisingly, on July 8, 2003, Wolf sent a letter to Fuhrmann advising that he wanted to take Perri's deposition unless she was willing to prepare a statement detailing what had occurred at the nursing home. Wolf believed that Chatskaya's new will had been improperly procured and that Galina's conduct on July 2, 2002, would reflect poorly on her credibility with respect to both the complaint and counterclaim. Perri never produced any statement.
At a hearing on July 18, 2003, before Judge Beglin, Wolf reiterated his representation that he might need to take Perri's deposition, but he was willing to accept the statement he had previously requested. Wolf had secured a certification from Ida Fox stating that the circumstances surrounding the signing of the will were material to the Fox action. Judge Beglin agreed, ruling that Perri was a fact witness, and Wolf was entitled to depose her if he so chose. Wolf subsequently asked Fuhrmann if he would voluntarily produce Perri for deposition, but Fuhrmann refused.
On August 18, 2003, Wolf hired a subpoena delivery service to serve a subpoena requiring Perri to appear for a deposition on August 29, 2003. Unbeknownst to Wolf, the service improperly served the subpoena on Fuhrmann rather than Perri. On August 27, 2003, the day before the scheduled deposition, Fuhrmann advised Wolf that proper service had not been effectuated, and Perri would not appear at the deposition. According to Wolf, Fuhrmann took "glee" in transmitting that information.
Because of the September 2003 discovery deadlines in the Fox case, Wolf decided to personally serve Perri himself. At approximately noon the next day, following an aborted deposition of a heavily-medicated Galina, Wolf waited outside the Fuhrmann residence and then followed the couple when they drove off in a convertible with the top down. When Fuhrmann stopped at a traffic light on River Road in East Hanover, Wolf got out of his car, approached the vehicle and called out "Myron." Both Fuhrmann and Perri heard someone call out "Myron," but Fuhrmann claimed that he did not recognize Wolf and drove off when the light turned green. Perri later indicated that she was confused at this time, and her heart was pounding.
Wolf re-entered his car and followed as Fuhrmann turned into a cul-de-sac. Fuhrmann admitted that, at this point, he realized that it was Wolf who was following him, but he refused to stop because he was afraid of Wolf. Fuhrmann pulled into a second cul-de-sac and, rather than simply continuing to follow, Wolf stopped his car in the entrance to the cul-de-sac, got out and stood in the other lane blocking the road. Fuhrmann drove forward toward Wolf until Perri told him to "stop" before he "kill[ed] this guy."
According to Wolf, Fuhrmann stopped and asked Wolf what he was doing. Wolf approached the passenger side of the Fuhrmann vehicle and announced that he was "serving the subpoena for the deposition." Neither Fuhrmann nor Perri recalled any such conversation. Wolf then served Perri by reaching over the top of her rolled up-window and touching her on the head with the two- or three-page subpoena while stating, "The joke's on you.
Tag." Wolf claimed that he made this statement because of Fuhrmann's earlier amusement when telling Wolf that Perri had not been properly served. Wolf dropped the subpoena into Perri's lap and then departed, leaving Perri frightened and crying. After a few minutes, Fuhrmann and Perri drove to the East Hanover police station to file a disorderly persons complaint against Wolf.*fn3
According to Fuhrmann, Wolf had looked "menacing" as he approached the car and had "slammed" the two-page subpoena on Perri's head. Wolf denied striking Perri. Perri felt a "thump" and maintained that both the subpoena and Wolf's hand made contact with her head. Perri denied any injury when questioned by police but claimed that she began to feel pain in her neck one or two months later. She admitted that she had experienced similar pain "on and off throughout [her] life." Perri finally consulted a doctor regarding this pain approximately eighteen months later. She also consulted a psychiatrist on two occasions after the incident.
Plaintiffs then filed a complaint on August 26, 2005, in the Superior Court of New Jersey, against defendants Wolf, his former firm Rosenblum, Wolf & Lloyd, PA*fn4 and his former clients Sam and Ida Fox, alleging that: (1) Wolf committed malicious abuse of process while acting under the color of state law and deprived plaintiffs of their state and federal civil rights; (2) Wolf's actions were undertaken to terrorize plaintiffs; (3) Wolf assaulted Perri Fuhrmann; (4) Wolf intentionally and maliciously touched Perri Fuhrmann; (5) Wolf falsely imprisoned plaintiffs; (6) Wolf intentionally inflicted emotional distress on plaintiffs; (7) Wolf's conduct was negligent and/or grossly negligent; and (8) Wolf's conduct violated 42 U.S.C.A. § 1983.
Following the filing of responsive pleadings, the trial judge, on December 11, 2006, entered a consent order appointing Kenneth Javerbaum, Esq. as discovery master and authorizing Javerbaum to resolve all discovery disputes between the parties. The order further provided that "all decisions of the discovery master shall be without prejudice, with the right of any party to appeal said decision by timely motion to this court within fifteen (15) days of the date of any such decision[.]" (Emphasis added).
Javerbaum entered an order on January 2, 2008, requiring plaintiffs to provide executed HIPAA authorizations and answers to supplemental interrogatories. He denied their requests for a complete copy of the file in the Fox action, more responsive answers to interrogatories propounded on Wolf and the Foxes, a list of Chatskaya's nursing home visitors and a re-deposition of Wolf's wife, Francine. Javerbaum granted plaintiffs' request for copies of any correspondence with one of Chatskaya's treating physicians, a copy of Wolf's insurance policies, a re-deposition of Ida Fox and a copy of any statement from Zakharenko.
Plaintiffs advised the judge by a January 16, 2008 letter that they were appealing the order, but they never filed a notice of motion or in any way formalized their appeal with certifications or other supporting documents. As a result, no motion was ever calendared, and the letter was placed in the court file.
The Wolf defendants moved for summary judgment, and a similar motion was forthcoming from the Fox defendants. Just prior to the filing of the Fox motion, plaintiffs deposed Wolf in the presence of Javerbaum. Following a short recess, Javerbaum placed the following on the record:
We just took a break for ten or fifteen minutes and I mentioned to Mr. Wolf something about looking at his letterhead that was marked before and seeing that he had a Springfield address on it and commented about that. And I indicated, I thought his office was in Jersey City in earlier letterhead of his, when going through his file. . . .
He told me he's no longer practicing in . . . Jersey City, but he's now with the firm of WolfBlock.
Now, I mentioned to him, and I want to put on the record, the lawyer who incorporated and did the partnership agreement for my law firm some years ago is a partner in WolfBlock. His name is Stuart Pachman. I didn't know at the time I took this assignment and I did not know and had no reason to know that Mr. Wolf was with WolfBlock until 10 or 15 minutes ago.
Mr. Pachman's representation of me and my firm is not a continuing one. It was a transactional one for the purpose of putting together a ...