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Schwarzwaelder v. Hoak

Superior Court of New Jersey, Appellate Division

September 19, 2013

DOUGLAS C. SCHWARZWAELDER, Individually and derivatively on behalf of GREENFIELD MARKET SOLUTIONS, LLC, Plaintiffs-Respondents,
v.
TYRONE CLARK, Defendant-Respondent, STEVEN R. HOAK and ELITE PRODUCERS GROUP, INC., Plaintiffs-Appellants, and PEAK PERFORMANCE MARKETING, INC., and STELLAR PERFORMANCE MARKETING, INC., Plaintiffs, BROKERS CHOICE OF AMERICA, INC., and LINDA LEWIS, Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 3, 2013

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4191-07.

Dennis E. Block, attorney for appellants.

Ladov Law Firm, P.C., attorneys for respondent Douglas C. Schwarzwaelder (Joshua B. Ladov, of counsel and on the brief).

Respondents Greenfield Market Solutions, LLC, and Tyrone Clark have not filed a brief.

Before Judges Alvarez and Maven.

PER CURIAM

Steven R. Hoak and Elite Producers Group, Inc. (Elite), appeal from a September 14, 2012 Law Division order denying reinstatement of a matter "dismissed without prejudice" approximately four years earlier. The dismissed action was one of at least two proceedings now pending involving Hoak, Elite, plaintiff Douglas C. Schwarzwaelder, Tyrone Clark, and Brokers Choice of America, Inc. Other plaintiffs in this proceeding, Peak Performance Marketing, Inc. and Stellar Performance Marketing, Inc., do not appear to be involved in opposing either the application or the appeal. We hesitate in making the assertion, because, as we discuss below, it is not entirely clear from the record that all the relevant parties were served with the application to reinstate, only Schwarzwaelder appeared in opposition to it, and only Schwarzwaelder has responded to the appeal. We vacate the order and remand for further proceedings in accordance with this opinion.

Because of the somewhat unusual nature of the application and the confused state of the record on appeal, we sketch out the procedural history with some trepidation.[1] All the named plaintiffs in this proceeding were originally represented by one attorney, who, in 2008, entered into a settlement and stipulation of dismissal with the named defendants: Tyrone Clark, Brokers Choice of America, Inc., and Linda Lewis. The stipulation, filed April 11, 2008, was signed only by plaintiffs' attorney and counsel for all the named defendants. We cannot discern from the record why the matter, if settled, was dismissed without prejudice. We cannot discern from the record why Linda Lewis was not included in the stipulation.[2]

Along with the motion to reinstate the action that resulted in the order now being appealed, counsel for Hoak and Elite submitted his own lengthy certification in violation of Rule 1:6-6. See Higgins v. Therber, 413 N.J.Super. 1, 21 n.19 (App. Div. 2010), aff'd, 205 N.J. 227 (2011); Gonzalez v. Ideal Tile Importing Co., 371 N.J.Super. 349, 358-59 (App. Div. 2004), aff'd, 184 N.J. 415 (2005). In Hoak's own lengthy supporting certification, he recounts an extensive history of litigation between the parties. He claims that hundreds of thousands of dollars in commissions may have been wrongfully paid to Schwarzwaelder, with the collusion and participation of Clark, and, possibly, the attorney who represented all the plaintiffs in the 2008 dismissed proceeding. Hoak states that he was not informed of the prospect of settlement by counsel, and, in fact, learned of the pertinent information giving rise to his claims related to the commissions only in 2012, when he obtained his file from the attorney. He also asserts that the attorney who settled the matter in 2008 filed suit against him five months later without any prior notice that he would not be representing him in the future.

Adding to the confusion, although the motion to reinstate was served on three attorneys, the certification of mailing does not indicate which attorneys represented each party. If nothing else, numerically it does not appear that all parties in interest, including at least the defendants involved in the initial litigation, were served. In any event, Schwarzwaelder's attorney, who was served, objected to reinstatement.

We are aware from the transcript of oral argument on the motion to reinstate that there is at least one other lawsuit pending between these parties but we do not know, for example, if Hoak has brought an action against the attorney handling the 2008 litigation. Furthermore, Schwarzwaelder's brief on appeal focuses on Hoak's factual allegations. To summarize, Schwarzwaelder's argument is that Hoak was well aware of potential claims long before the attorney's file was turned over in 2012. He contends that the judge fully and ...


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