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T. Michael Struss v. Allen Hilly and Impraxxa Executive Search

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 12, 2012

T. MICHAEL STRUSS,
PLAINTIFF-APPELLANT,
v.
ALLEN HILLY AND IMPRAXXA EXECUTIVE SEARCH, INC., DEFENDANTS-RESPONDENTS,
AND MICHAEL WARD, AMERICAN ACQUISITIONS, INC., INTEGRATED STRATEGIES, LLC, IMPRAXXA CORPORATION, IMPRAXXA OUTSOURCING SOLUTIONS, INC., IMPRAXXA BUSINESS SERVICES, INC., CARNEGIE EXECUTIVE SEARCH, INC., EG HOLDINGS CORPORATION, EMPLOYER GROUP CORPORATION, PROFESSIONAL EMPLOYER HOLDING, LLC, THE ADMINISTRATIVE EMPLOYER GROUP, PERSONNEL MANAGEMENT SOLUTIONS, INC., EMPLOYER'S CONSORTIUM V, INC., CAREER MOVES, LLC, BUYOUT CAPITAL, LP, LEADING EDGE GROUP HOLDING CORPORATION, LEADING EDGE INSURANCE GROUP, IX CAPITAL, LP, VO CAPITAL, LP, DBL HEALTHCARE SERVICES, LLC VO PAYROLL, INC., VO TOBACCO, INC., 02 HR, LLC., DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1722-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 20, 2012

Before Judges Simonelli and Hayden.

Plaintiff T. Michael Struss appeals from the August 3, 2011 Law Division order denying his motion to substitute a party. The trial judge denied the motion on the grounds that a final judgment had been entered and the litigation had been concluded for many months. We affirm.

We discern from the record that in 2007 plaintiff filed a complaint with several employment-related claims - including breach of contract and Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, claims - against his former employer, Impraxxa Executive Search, Inc. (Impraxxa), Allen Hilly, the former Chairman of Impraxxa, and various other related corporate entities and John Doe defendants. After the entry of defaults against several corporate entities, the trial judge held a proof hearing on May 8, 2009. As a result, on June 2, 2009, the judge entered a judgment against Impraxxa for $75,764 on plaintiff's breach of contract claim.

On June 18, 2010, Judge Stephan C. Hansbury held a proof hearing as to all remaining claims and defendants. The judge issued an opinion and order on August 27, 2010, which held Impraxxa liable on the CEPA claim but did not award additional damages. He dismissed all remaining claims and defendants with prejudice. Although the order was denoted as a final judgment by default, the judge allowed plaintiff to submit an affidavit of services for attorneys fees within fourteen days.

On September 15, 2010, plaintiff filed a motion for reconsideration requesting that the judge reconsider his ruling that Hilly was not individually liable under CEPA and the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38. While the motion was pending, Hilly committed suicide in jail, and plaintiff withdrew his motion. On September 23, 2010, the judge issued an order allowing plaintiff to withdraw his reconsideration motion without prejudice. However, the judge refused to sign plaintiff's proposed provision in the order allowing him to refile the motion after the appointment of an administrator or executor and the substitution of Hilly's estate for defendant Hilly. Instead, the judge wrote in the order, "Plaintiff should take what action it deems appropriate and the court will respond."

On November 3, 2010, the judge issued an Amended Final Judgment, incorporating the August 27 Final Judgment and an order for Impraxxa to pay plaintiff's counsel attorneys fees of $49,500. Plaintiff did not file an appeal. On March 15, 2011, plaintiff recorded the amended final judgment as a lien.

On June 16, 2011, plaintiff filed a motion to substitute a party, the estate of Allen Hilly, for defendant Hilly. Plaintiff maintained that he delayed filing the motion because he was waiting for a representative to file with the Surrogate's office on behalf of Hilly's estate. As no one had filed in the nine months since Hilly's death and no representative had been appointed, plaintiff served his motion on Hilly's widow. Without contesting the motion, the widow submitted a certification stating that her husband died intestate with no assets subject to probate.

On August 3, 2011, Judge Hansbury denied the motion, noting that he did not provide plaintiff permission to file a motion for reconsideration without regard to the applicable time limits. He explained, "The Court views [this] matter as having been concluded some time ago. Since the matter is no longer an active matter [with the Court], the Court declines to grant any further relief to the plaintiff." This appeal followed.

On appeal, plaintiff raises the following contentions for our consideration.

I. THE STANDARD OF REVIEW FOR THE ISSUE ON APPEAL IS DE NOVO.

II. THE AUGUST 3, 2011 ORDER IS A FINAL, APPEALABLE ORDER REQUIRED BY R. 2:2-3.

III. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO SUBSTITUTE PARTIES.

A. [Rule] 4:34-1(b) is mandatory and does not divest the trial court with the discretion to deny an application.

1. The remaining claims were not extinguished upon Defendant Hilly's death.

2. The court rule required the trial court to grant the motion if the claims survived Defendant Hilly's death.

3. Plaintiff met the remaining elements of R. 4:34-1(b).

B. Plaintiff will be unduly prejudiced if the trial court's ruling is affirmed.

C. In the event Plaintiff becomes a creditor of the estate, he may pursue a cause of action against Hilly's heirs.

We have considered the above arguments and find they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm based upon the reasons expressed by Judge Hansbury in his August 3, 2011 opinion, adding only the following brief comments.

Plaintiff's fundamental argument is that the Amended Final Judgment was not final as the court had not decided the withdrawn motion for reconsideration of the judge's August 27, 2010 ruling. A judgment is final if it disposes of all issues as to all parties. Scalza v. Shop Rite Supermarkets, Inc., 304 N.J. Super. 636, 638 (App. Div. 1997) (citing Hudson v. Hudson, 36 N.J. 549, 553 (1962)). On November 3, 2010, the judge issued the Amended Final Judgment providing for plaintiff to receive damages and attorney's fees from Impraxxa and again dismissing all other claims as to all parties. Plaintiff did not file a motion for reconsideration, which must be filed within twenty days of the entry of the judgment. R. 4:49-2. The time for filing a motion for reconsideration may not be extended. R. 1:3-4(c). Thus, following the November 3 order, there were no claims or parties pending before the court in this matter. We reject plaintiff's claim, unsupported by any legal authority, that, because he intended to file a motion for reconsideration after substituting the estate as a defendant, the Amended Final Judgment was not final. Consequently, we agree with the trial judge that, on June 16, 2011, when plaintiff filed the motion to substitute a party, there was no litigation pending in which to substitute a party.

Affirmed.

20121012

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