H. JAMES RIPPON, Plaintiff-Appellant,
LEROY SMIGEL, ESQ., SMIGEL, ANDERSON & SACKS, and CAYLENE RIPPON, Defendants-Respondents.
March 13, 2017
appeal from Superior Court of New Jersey, Law Division, Cape
May County, Docket No. L-455-15.
Adrienne C. Rogove argued the cause for appellant (Blank
Rome, LLP, attorneys; Ms. Rogove and Ethan M. Simon, of
counsel and on the brief).
A. Carbon argued the cause for respondents Leroy Smigel, Esq.
and Smigel, Anderson & Sacks (Margolis Edelstein,
attorneys; Mr. Carbon, of counsel and on the brief; Sara E.
Hoffman, on the brief).
M. Hardy argued the cause for respondent Caylene Rippon.
Judges Nugent, Haas, and Currier.
H. James Rippon appeals from the January 20, 2016 Law
Division order granting motions by defendants Leroy Smigel,
Esq. ("Smigel"), Smigel's law firm, Smigel,
Anderson & Sacks ("firm"), and Caylene
Rippon to dismiss plaintiff's complaint on
jurisdictional and other grounds. After reviewing the record
in light of the contentions advanced on appeal, we reverse
and remand for further proceedings.
derive the following facts from the sparse record presented
on appeal. During the relevant time periods involving the
matters on appeal, Smigel and his firm represented Caylene in
three separate actions against plaintiff that were pending in
Pennsylvania: (1) a divorce proceeding filed by plaintiff
against Caylene; (2) a petition Caylene filed against
plaintiff to have him declared incompetent; and (3) a
protection from abuse proceeding that Caylene instituted
against plaintiff. All three proceedings were highly
contentious. Pursuant to a May 23, 2012 order entered in
Pennsylvania, plaintiff and Caylene were directed not to have
any contact with each other.
same time that Smigel and his firm were representing Caylene
in these matters, plaintiff alleged that these two defendants
were also representing a business that plaintiff and Caylene
jointly owned and that in the course of that representation,
they were improperly protecting only Caylene's
interests. On September 12, 2013, plaintiff filed
suit against Smigel and his firm in Pennsylvania for breach
of their fiduciary duty to him. Caylene was not a party to
"background facts" section of plaintiff's
complaint, he listed nine examples of instances where Smigel
and his firm allegedly had taken "positions adverse
to" him on behalf of Caylene. As one of these examples,
plaintiff stated that "Smigel and his firm, on behalf of
Caylene, have attempted to thwart the purchase of a property
in Stone Harbor, " New Jersey by
6, 2014, plaintiff and Caylene entered into an "Interim
Joint Stipulation" in their divorce proceeding. Among
other things, plaintiff agreed to convey all of his interest
in KLE to Caylene. Plaintiff also agreed to "withdraw
with prejudice" the lawsuit he had filed against Smigel
and his firm for breach of fiduciary duty. In return,
Caylene agreed to withdraw her petition to have plaintiff
declared incompetent and the protection from abuse proceeding
she had previously instituted against him.
the terms of the stipulation, plaintiff was also required to
transfer ownership of a house the parties owned in Stone
Harbor to Caylene. Caylene had been living in this house, at
least part-time, during the pendency of the parties'
divorce action. However, Caylene allegedly used the Stone
Harbor house as her primary residence after June 2014.
September 16, 2015, plaintiff filed a five-count complaint in
the Law Division, Cape May County, against Smigel,
Smigel's firm, and Caylene for tortious interference with
contractual relations (count one); interference with
prospective contractual relations (count two); defamation
(count three); and violation of the New Jersey Consumer Fraud
Act, N.J.S.A. 56:8-1 to -20 (count four). In addition,
plaintiff alleged in count five that Smigel had engaged in
the unauthorized practice of law in New Jersey.
complaint, plaintiff asserted that on July 31, 2013, he
entered into an agreement to purchase a property in Stone
Harbor for himself. He paid a $500, 000 deposit to the
seller, which was a New Jersey limited liability company, and
planned to finance the balance of the purchase price. The
agreement did not contain a mortgage contingency.
the agreement was contingent upon plaintiff "be[ing]
able to obtain title insurance on the [p]roperty from a title
insurance company authorized to do business in the State of
New Jersey." The agreement also provided that "in
the event [b]uyer fails to close as set forth herein, the
amount of damages sustained by [s]eller will be substantial
but hard to calculate. Therefore, the parties agree that the
deposit represents a fair and true calculation of damages and
same shall be forfeited as set forth herein."
complaint asserts that on September 19, 2013, seven days
after plaintiff had filed his breach of fiduciary
duty action in Pennsylvania against Smigel and his firm,
Smigel faxed a letter on Caylene's behalf to RBS
Citizens, N.A., of Providence, Rhode Island; Sturdy Savings
Bank of Stone Harbor; and Title Alliance of Cape May County,
a Stone Harbor title company. The letter stated:
Please be advised that our firm represents Caylene Rippon in
her divorce action against [plaintiff]. It has recently come
to our attention that [plaintiff] is attempting to obtain a
mortgage to finance a home in Stone Harbor, NJ. It is
important that all the entities connected with this
transaction be aware of the following:
1. There is currently pending in the Court of Common Pleas of
Dauphin County, PA, an action for support against [plaintiff]
which will drastically change the income that [plaintiff]
listed in his loan documents.... [Plaintiff] indicates that
his income is only $207, 360 after taxes. (Please see the
enclosed income statement submitted by [plaintiff]).
2. The funds being used to secure this mortgage and establish
credit are marital assets in which [Caylene] has an equitable
interest. Therefore, [Caylene] would have an equitable
interest in the title of the house that [plaintiff] is
attempting to purchase. Should [plaintiff] go default,
[Caylene] will not be held liable and will seek to enforce
her equitable interest. . . . There is also a Protection from
Abuse action filed against [plaintiff] . . . This Order
requires [plaintiff] to stay [100 feet] away from [Caylene]
who resides in Stone Harbor, NJ.
3. [Caylene] objects to the use of the joint marital assets
to secure the mortgage financed by Sturdy Savings Bank. It
would further be noted that [Caylene] will use all equitable
means at her disposal to protect the joint marital assets
until the conclusion of the divorce.
We understand fully that it is possible that [plaintiff] did
not disclose these items to you when attempting to secure his
mortgage; however, you are now on notice and we urge you to
take the appropriate action as [Caylene] will use all legal
and equitable means at her disposal to protect the joint
If you have any questions or comments, please do not hesitate
to contact me.
September 16, 2015 complaint in the Law Division, plaintiff
alleged that Smigel's statements on Caylene's behalf
were "untrue" and defamatory. Plaintiff asserted
that after the three companies received Smigel's letter,
the banks refused to finance plaintiff's proposed
purchase of the home and he was unable to obtain other
financing. Plaintiff contacted the seller to advise that he
could not purchase the home and the seller replied that it
was going to keep the $500, 000 deposit based on
plaintiff's breach of the agreement. The seller later
agreed to return, and plaintiff agreed to accept, $250, 000
of the deposit in order to settle the dispute.
responded to plaintiff's complaint by filing a motion to
dismiss for failure to state a claim and for lack of
jurisdiction. Smigel and his firm filed a motion to dismiss
for failure to state a claim, lack of jurisdiction, and on
grounds of forum non conveniens. Smigel and his firm also
asserted that plaintiff's claims against them were barred
by the doctrine of res judicata based upon plaintiff's
prior voluntary dismissal of his breach of fiduciary duty
complaint in Pennsylvania.
support of Smigel and his firm's claim that New Jersey
lacked jurisdiction over them, Smigel submitted a
certification stating that: (1) his firm was "located in
Pennsylvania and does not have any offices in New
Jersey"; (2) he did not live in New Jersey and did not
own any property in this state; (3) the firm did not
advertise in New Jersey; and (4) the firm did "not
regularly provide legal services or perform other
transactions in New Jersey." (emphasis added).
oral argument, the trial judge rendered a written decision on
January 20, 2016, dismissing plaintiff's complaint
against all three defendants with prejudice. With regard to
the question of jurisdiction, the judge stated that Caylene
was a New Jersey resident. Although the judge did not
specifically make a finding that Caylene's resident
status meant that New Jersey had jurisdiction over her, we
have assumed he meant to do so for purposes of this opinion.
the trial judge found that New Jersey had "neither
general nor personal jurisdiction" over Smigel or ...