On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7429-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Lihotz.
Plaintiff Emanuel Needle appeals from a series of orders granting summary judgment in favor of defendant Byram Cove, Inc. (Byram) and defendant Estate of Paul Burke. The genesis of this litigation arises from a claim made by Byram against plaintiff for the cost of removing a dangerous tree that threatened the safety of residents who resided in the Byram community as well as for the recovery of assessments and dues owed by plaintiff. While Byram's action in the Special Civil Part sought recovery in the amount of $3,795 including the tree removal costs as well as past-due assessments and dues, as a result of an action commenced by plaintiff*fn1 and the extensive litigation that followed as a result, fees and costs have been generated resulting in a judgment against plaintiff in the amount of $86,158.25. We affirm in part and reverse and remand in part.
We set forth the expansive procedural history and facts adduced from the record. Byram, a corporation, was created in 1947 as a community of summer homeowners. The community is currently comprised of a group of eight families owning individual lots, and who are entitled, by deed, to use certain property owned by Byram in Hopatcong. Plaintiff was the owner of a summer home located in the Byram community. He served as president of Byram for over thirty years until 2004. In 1977, while plaintiff was Byram's president, registered agent, and maintained the registered office, Byram's corporate charter was voided for non-payment of taxes. Barry M. Epstein, the current president and counsel to Byram, succeeded plaintiff as president in 2004.
Byram, from its inception, was and continues to be governed by written bylaws, which mandate that all owners shall be members of the association and authorize, among other things, the collection of annual assessments or dues. Under the bylaws, unpaid assessments and dues are subject to interest and fines. During the period relevant to this appeal, the annual dues were $1,500 per year. Additionally, the bylaws provide that the members are liable for any legal fees incurred by Byram if legal action is required to enforce the provisions of the bylaws. Pursuant to the bylaws, Byram is responsible for construction and maintenance of common sidewalks which provide access to the homes within the community and to the waterfront area which abuts the community. The members of the community are obligated to remediate any dangerous conditions on their property that create a danger to the common walkways.
In 2004, Byram notified plaintiff of a dangerous tree located on his property that threatened the safety of community members using a common walkway. Plaintiff failed to remove the tree, and Byram hired an outside contractor, on August 23, 2005, who determined the tree was dangerous and removed it. The cost was $795.
Plaintiff paid for neither his 2004 to 2006 assessments nor the removal of the tree. While Byram adopted new bylaws, they did not change the underlying obligation to pay dues and assessments. These new bylaws prompted plaintiff to refuse to make the appropriate payments and on June 20, 2005, he wrote "I also note your selective efforts to enforce the valid (pre-constitution) rules and regulations of the group" and "[a]ccordingly, I have deferred (and not refused) making a remittance until my concerns regarding the alleged Constitution are resolved." The record is devoid of the status of the new bylaws but as noted, according to Byram, they did not change the members' underlying payment obligation.
On September 16, 2005, plaintiff sued Byram and Paul Burke*fn2 , a former co-president and member of Byram, in the Law Division alleging Burke and various John Does who "belong to and associate as officers, directors and members of the defendant, Byram Cove" trespassed onto his property and "maliciously and willfully caused a tree on plaintiff's property to be destroyed and removed." In addition to plaintiff's allegations of trespass and property damage, his complaint alleged defendants "wrongfully attempted to impose restrictions on plaintiff's property rights without plaintiff's consent," maliciously prosecuted the plaintiff, defamed him, and invaded his right of privacy. Plaintiff did not serve Byram with this complaint until 2006. Byram filed its complaint against plaintiff in the Special Civil Part on December 1, 2005, seeking to collect dues owed by plaintiff and the costs of removing the tree from plaintiff's property. After the filing of answers and counterclaims, on plaintiff's motion, the two actions were consolidated in the Law Division on March 3, 2006.
On September 26, 2006, defendants served plaintiff with interrogatories and document requests. When plaintiff finally responded in January 2007, he declined to produce any documents, repeatedly objecting to such requests as vague, overly broad, and unduly burdensome. On July 25, 2007, Wilentz Goldman & Spitzer (Wilentz) substituted in as counsel for Byram. Byram was and continued to be represented by Epstein who brought the case with him from his former law firm.
On September 6, 2007, the Law Division judge ordered specific discovery and extended the discovery period until November 9, 2007. After being noticed for a deposition, plaintiff failed to appear. These scheduled depositions presaged a series of events that gave rise to many of the issues raised on this appeal.
On November 20, 2007, Byram and the Estate filed a joint motion to suppress plaintiff's testimony based on his failure to appear at his scheduled deposition. By a December 7, 2007 order, the judge granted plaintiff thirty days to submit to a deposition, stating: "plaintiff Needle's deposition [will] be taken within thirty days or his testimony will be suppressed at trial." His written order barred plaintiff not only from offering testimony at trial but "by way of certification or affidavit in connection with any motion for summary judgment." The parties scheduled plaintiff's deposition for December 17, 2007. On December 14, 2007, plaintiff received by fax a "supplemental subpoena" from counsel for the Estate of Paul Burke asking for records including those concerning plaintiff's disbarrment proceedings.*fn3 On December 17, 2007, plaintiff appeared for his deposition, refused to be sworn and then left without testifying. According to the deposition transcript, plaintiff contended there was a conflict of interest with Epstein representing Byram as the Wilentz firm previously represented plaintiff in his disbarrment proceedings, therefore the deposition must be conducted solely by the attorney for the Estate, and Estate's counsel would also be tainted if Mr. Epstein discussed the disbarrment proceedings with him. The parties attempted to contact the judge, but he was unavailable. Rather than participate in the deposition with discovery conducted by the Estate, plaintiff refused to participate, and no deposition was taken that day.
On December 18, 2007, counsel for Byram wrote to plaintiff and offered to reschedule the aborted deposition, noting that plaintiff still had nearly two weeks to comply with the December 7, 2007 order. On January 14, 2008, plaintiff filed a motion to vacate the December 7, 2007 order and to disqualify Wilentz as counsel for Byram. Byram cross-moved to estop plaintiff from disclaiming ownership of the subject property as he had transferred title of the property to his children in July 2006. The judge granted Byram's motion and denied plaintiff's motion, concluding that there was no conflict in Epstein continuing to represent Byram. In granting defendants' motion, the judge noted that plaintiff had not only failed to disclose the transfer, but in his various pleadings, he alleged that he owned the property. Plaintiff moved before us for interlocutory relief from this order, which we denied.
The procedural morass escalated as on June 20, 2008, Byram and the Estate moved for summary judgment. Plaintiff claims that he was not served with the motion papers until he received them on July 25, 2008. Defendant contends plaintiff was served with the motion on June 20, 2008, and plaintiff acknowledged actual receipt of the motion on July 1, 2008. In fact, the motion was served upon plaintiff by courier, to which he responded by email on July 1, 2008, stating that he was on a cruise in the North Sea and would not return until "7/24" and requested that opposing counsel "consent to adjourn this motion until 8/1 or later so I can have the opportunity to review and appear in Court for oral argument. I would appreciate your contacting the Court and arranging for this adjournment." The Law Division subsequently granted the adjournment of defendants' pending motion for summary judgment to August 15, 2008. On August 15, 2008, after a four-week adjournment (sought by the defendants at plaintiff's request), both summary judgment motions were heard and granted in full by the judge. Plaintiff failed to appear. The judge noted that plaintiff "has not appeared" and the "matter was previously adjourned to this date at plaintiff's request and that his latest request for an adjournment has been denied since the original trial date in this matter was, is Monday, this coming Monday." The judge adopted the "defendant's Statement of Facts and Conclusions of Law" and noted:
The fact of the matter is that Mr. Needle's testimony has been suppressed by the Court for failure to submit to depositions. So that at this point in time at trial he cannot testify as to any of the facts he asserts, and that it appears that beyond any of his testimony that he has not presented any documentation in support of his position and that, therefore, there are no contrary facts existing in this matter and, therefore, I'm going to grant the Motion for Summary Judgment on behalf of the Estate of Paul Burke and the Motion for Summary Judgment on behalf of the defendant Byram Cove, Inc., and I believe that that closes it.
The order granting summary judgment in favor of Byram awarded it damages totaling $72,481.75 plus additional costs and legal fees to be submitted via an updated supplemental affidavit. On August 21, 2008, after submission of the supplemental affidavit,*fn4 the court entered an amended order in the amount of $86,158.25.
Plaintiff filed a motion pursuant to Rule 4:49-2 for reconsideration of the orders granting summary judgment. The motion was denied on September 26, 2008. On October 20, 2008, plaintiff filed a motion pursuant to Rule 4:50-1 to vacate the judgment entered in favor of Byram on new grounds - Byram's corporate status. On October 31, 2008, while plaintiff's motion to vacate was pending, ...