Opinion
DOCKET NO. A-3449-13T2
04-20-2016
ALI ABDI, Plaintiff-Appellant, v. JONATHAN R. MEHL and JONATHAN R. MEHL, P.C., Defendants-Respondents.
Ali Abdi, appellant pro se. Tompkins, McGuire, Wachenfeld & Barry, LLP, attorneys for respondents (Grant W. McGuire, of counsel; Mr. McGuire and Vincent J. Mehnert, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Bergen County Docket No. L-9786-11. Ali Abdi, appellant pro se. Tompkins, McGuire, Wachenfeld & Barry, LLP, attorneys for respondents (Grant W. McGuire, of counsel; Mr. McGuire and Vincent J. Mehnert, on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Plaintiff Ali Abdi appeals pro se from a January 17, 2014 Law Division order granting defendants Jonathan R. Mehl and Jonathan R. Mehl, P.C.'s (collectively defendants) unopposed summary judgment motion dismissing plaintiff's complaint with prejudice. For the reasons that follow, we are constrained to reverse and remand.
I
Following unsuccessful litigation, plaintiff filed a pro se complaint against defendants alleging legal malpractice and harassment. Near the end of the discovery end date of September 30, 2013, plaintiff filed a motion to extend discovery, contending that his expert needed additional time to review defendants' expert report, which was just received, and amend his expert report, if necessary. On October 25, the motion judge entered an order extending discovery by sixty days. On this same date, defendants filed a motion for summary judgment, contending that as a matter of law, plaintiff's allegations did not set forth a claim of professional malpractice and harassment. The motion was returnable on November 22.
On October 30, a judge, who was not the motion judge, conducted a settlement conference. However, no settlement was reached.
On November 15, plaintiff sent a letter to the motion judge via fax and regular mail requesting an adjournment of the November 22 return date for defendants' motion for summary judgment. Plaintiff stated he needed more time to review six-hundred pages of documents, which he claimed he had just received from defendants for the first time, and time to hire an attorney to help him respond to the motion. That same day, Civil Presiding Judge Robert L. Polifroni sent a letter to defendants' counsel, with a copy to plaintiff, changing the trial date from December 16, 2013 to March 3, 2014, and advising that the return date for the summary judgment motion would be set by the motion judge. It is unclear from the record whether Judge Polifroni's letter was sent in response to plaintiff's letter.
Thereafter, in a letter dated November 19, defendants' counsel wrote to the motion judge refuting plaintiff's assertion in his November 15 letter that documents were received for the first time. Counsel indicated that hard copies were delivered to plaintiff on October 8, after plaintiff complained that the documents could not be retrieved from the CD sent to him on September 9. The letter also requested that the motion for summary judgment, which counsel apparently determined from the court's public access website was returnable on January 17, 2014, remain returnable for that date. A copy of this letter was sent to plaintiff via fax, electronic mail and certified mail. Plaintiff contends, however, that he never received the letter. He asserts that he was waiting for the court to get back to him regarding the return date for the summary judgment motion, as provided for in Judge Polifroni's November 15, 2013 letter, and accordingly, did not retain counsel to oppose defendants' motion. Yet, the record reflects that while delivery of the letter via fax failed, the electronic mail was delivered to plaintiff and he signed for its receipt via certified mail.
Meanwhile, in a further effort to resolve the case, on or about December 20, plaintiff wrote to the settlement conference judge, requesting another settlement conference date. The judge replied to plaintiff in a January 2, 2014 letter, with a copy to defendants, scheduling a settlement conference for February 6, 2014. There was no indication in this letter, or thereafter, in any court documentation or correspondence by the parties, that the January 17 return date for defendants' pending summary judgment motion would be affected by the settlement conference.
Two weeks later, on January 17, the motion judge decided defendants' unopposed summary judgment motion without argument; thus, he entered a two-page order granting the motion and dismissing plaintiff's complaint with prejudice. The record includes a copy of the order, which does not indicate if the court issued a written decision or placed its decision on the record. Moreover, plaintiff maintains that there is no court transcript of the judge's reasoning for granting summary judgment.
On or about January 27, plaintiff filed a motion for reconsideration contending that he did not submit any opposition to the summary judgment motion because he "was never informed by any court officials or [d]efendants that the motion [] [would] be decided on January 17." Plaintiff did not set forth any arguments challenging the merits of the summary judgment decision.
On February 28, 2014, the motion judge denied plaintiff's request for reconsideration. In doing so, the judge attached a rider to the order setting forth his reasons for denying the motion pursuant to Rule 4:49-2. The rider stated that plaintiff's failure to submit opposition to a motion "that he was aware was pending is not grounds for reconsideration under" D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990). It further added that the motion's return date was posted on the court's public access website, which plaintiff could have viewed. There was no mention of the merits of the summary judgment decision. This appeal followed.
Plaintiff's notice of appeal filed March 6, 2014, seeks review only of the court's January 17, 2014 order granting defendant's motion for summary judgment, not the February 28, 2014 order denying plaintiff's motion for reconsideration. We therefore limit our review to that order alone. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review." (citing Sikes v. Township of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994))); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002). --------
II
Our review of plaintiff's initial brief indicates that his only argument in support of his appeal is that the "judge has made an error by deciding [the] summary judgment motion on January 17, 2014." In support, he contends that he was never informed that the motion would be heard on January 17; as such, he did not have time to hire an attorney. He maintains that with discovery being extended to December 30, 2013, he and his expert did not have sufficient time to prepare opposition to defendants' summary judgment motion. Moreover, he contends that discovery was still unresolved by the motion's return date. Plaintiff further argues that the trial judge should have realized that plaintiff was not aware of the motion's return date when no opposition was filed. We disagree.
Although the presiding judge notified the parties that the motion judge would set the return date of the summary judgment motion, there was no indication that they would be advised in writing or some other form of notification. Yet, as noted, plaintiff was notified by defense counsel's November 19, 2013 letter to the motion judge that the motion was given a new return date of January 17, 2014. Moreover, the court's public access website also provided the requisite notification to the parties.
Further, after successfully having the original return date adjourned, there is no indication in the record that plaintiff ever contacted the motion judge or the court's case management office to ascertain the return date or request an additional adjournment. In fact, plaintiff's failure to hire an attorney or submit any opposition to the motion prior to the January 17 return date, or in support of his reconsideration motion, belies the credibility of his assertions. Consequently, we are reluctant to conclude that the trial court should not have ruled on the summary judgment motion because plaintiff did not submit any opposition.
Nevertheless, plaintiff notes that the motion judge did not explain his decision, and that his complaint made claims that were not addressed by defendants' motion. On this point, we agree with plaintiff.
Our court's ability to resolve an appeal is largely dependent upon the trial judge's compliance with his or her obligation to state findings of fact and conclusions of law as required by Rule 1:7-4. To comply, the judge must articulate factual findings and correlate them with the principles of law. Curtis v. Finneran, 83 N.J. 563, 570 (1980). When that is not done, a reviewing court cannot know whether the ultimate decision is based on the facts and law or is the product of arbitrary action resting on an impermissible basis. See Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986) (discussing the necessity for an adequate explanation of a judge's reasons that correlates the facts and legal conclusions); see generally State v. Madan, 366 N.J. Super. 98, 109-10, (App. Div. 2004) (discussing "judicial discretion" as not arbitrary and unbounded).
Based upon the record before us, the motion judge issued a two-page order on January 17, 2014, granting summary judgment to defendants. The decision was made on the papers without oral argument. The order does not indicate the factual and legal basis for the decision. The order also does not reflect that the reasons for granting summary judgment were set forth on the record. Moreover, defendants do not dispute plaintiff's representation that there is no transcript of the court's reasons for granting the motion.
Further, with the February 28, 2014 reconsideration order, the judge attached a rider summarizing plaintiff's argument and the applicable law applied in denying reconsideration of summary judgment. Yet, there is no mention whatsoever of the reasons that supported the summary judgment decision.
Therefore, we reverse and remand to the trial court for specific factual findings and conclusions of law as required by Rule 1:7-4. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION