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Robert Carril, Irene Carril, and M of New Brunswick, L.L.C., A Limited v. Robert Lyon

November 29, 2011

ROBERT CARRIL, IRENE CARRIL, AND M OF NEW BRUNSWICK, L.L.C., A LIMITED LIABILITY COMPANY, PLAINTIFFS-APPELLANTS,
v.
ROBERT LYON, SUZANNE LYON, ROBERT A. LYON, III, DOUBLE R EQUITY PARTNERS, L.L.C., Q OF NEW BRUNSWICK, L.L.C., Q AND MOOS MANAGEMENT, L.L.C., Q&M MANAGEMENT COMPANY, L.L.C., DEFENDANTS, AND ROBERT LYON AND Q OF NEW BRUNSWICK, L.L.C., SUZANNE LYON, DOUBLE R EQUITY PARTNERS, L.L.C., THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
MAGGIEMOO'S INTERNATIONAL, L.L.C.,*FN1 THIRD-PARTY DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2675-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2011

Before Judges Payne and Reisner.

Plaintiffs Robert and Irene Carril and their counsel, Sarmasti, P.L.L.C., appeal an order imposing sanctions of $2,500 on them pursuant to Rule 1:4-8, the frivolous pleading rule, for having filed a motion to join third-party defendants MaggieMoo's International, L.L.C. and its successor entities as direct defendants in violation of an oral ruling by the Civil Presiding Judge, on February 5, 2010. In that ruling, the judge granted the request of plaintiffs' counsel for a first adjournment of the trial, scheduled for March 9, 2010, as the result of personal and professional considerations, but barred further motions except "third party defendant's motion [for summary judgment] premised on the outcome of [the motion judge's*fn2 ]

rulings [on pending motions by plaintiffs and defendants for summary judgment] on February 19th, 2010" and any motions for reconsideration. In granting an adjournment to May 24, 2010, the Presiding Judge stated:

I'm preventing any new or additional motions because I granted an adjournment. The adjournment is granted solely for personal conflict of counsel. The adjournment is not intended to be a vehicle to a wholesale . . . opening of either discovery or motions. As far as this court is concerned, the discovery end date is past, and the summary judgment motions have been made. The only exception will be a summary judgment motion by third-party defendant.

I cannot preclude any counsel from ever filing a motion for reconsideration, or I can't prevent counsel from filing an interlocutory appeal. But I can prevent the review of motions that are made simply on the luxury of getting an adjournment, and that's my ruling today.

The judge's ruling was not memorialized in an order.

I.

The underlying dispute in this matter concerns allegations of fraud arising out of the sale of a MaggieMoo's ice cream franchise and sublease of a preapproved location for the operation of that franchise. In April 2009, defendants Robert Lyon and Q of New Brunswick, L.L.C. filed a third-party complaint against MaggieMoo's International, L.L.C. and successor entities seeking contribution and indemnity. After third-party defendants responded with a motion to dismiss the pleading, third-party plaintiffs sought, and by order dated September 25, 2009 were granted, the right to file amended pleadings. Amended third-party complaints for contribution were filed in October 2009 by defendants Robert Lyon and Q of New Brunswick, L.L.C. and by Suzanne Lyon and Double R Equity Partners, L.L.C. claiming that any nondisclosure or fraud was committed by third-party defendants. A motion to dismiss the third-party complaints was denied on November 20, 2009, and answers to the third-party complaints were filed on December 17, 2009, approximately one month after discovery had ended. There is no indication in the record that discovery was sought by third-party defendants or obtained from them.

On February 3, 2010, prior to the adjournment request and approximately one and one-half months after third-party defendants had answered the third-party complaints, plaintiffs filed a motion to bifurcate the trial of defendants from the trial of defendants' third-party claims or in the alternative to name MaggieMoo's International, L.L.C. as a direct defendant. The motion was denied by order dated March 18, 2010. The order also memorialized the motion judge's rulings on motions for summary judgment by plaintiffs and defendants, as well as its denial of defendants' application to remove plaintiffs' counsel as their attorney in the litigation.

On April 8, 2010, plaintiffs filed a motion seeking reconsideration of paragraph one of the court's March 18, 2010 order, denying plaintiffs' motion for summary judgment on Count One of the defendants' counterclaim, and paragraph two, granting defendants' motion for summary judgment on the second Count Eight*fn3 and Count Nine of plaintiffs' complaint. Additionally, in their motion, plaintiffs Robert and Irene Carril sought leave to amend their complaint to add third-party defendants as direct defendants. Prior to filing the motion, counsel called the motion judge's chambers to determine if the motion could be heard on short notice. The judge's law clerk informed counsel that he understood the Presiding Judge to have barred the filing of any further motions.

As a result of that conversation, in a letter to the motion judge in support of their motion, ...


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