Opinion
DOCKET NO. A-3818-13T2
02-10-2016
BROOKVIEW TERRACE CONDOMINIUM ASSOCIATION, INC., Plaintiff-Respondent, v. ANTONIO PEREIRA, BARBARA FRIEDMAN and KRYSTINA MENDEZ, Defendants-Appellants.
Mendel White argued the cause for appellants. Walter F. Kawalec, III, argued the cause for respondent (Marshall Dennehey Warner Coleman & Goggin, attorneys; Mr. Kawalec, III, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-7421-13, L-7422-13 and L-7423-13. Mendel White argued the cause for appellants. Walter F. Kawalec, III, argued the cause for respondent (Marshall Dennehey Warner Coleman & Goggin, attorneys; Mr. Kawalec, III, on the brief). PER CURIAM
Krystina Mendez, Antonio Pereira, and Barbara Friedman (defendants) appeal from March 10, 2014 orders denying their motion to amend their counterclaim and dismissing their counterclaim subject to arbitration proceedings. We reverse and remand.
This matter stems from a dispute between Brookview Terrace Condominium Association, Inc. (Brookview) and defendants. Brookview initially filed three complaints in the Special Civil Part against defendants for association fees and assessments. Defendants' answers included a counterclaim for negligence and breach of fiduciary duty, alleging Brookview failed to maintain common elements of the condominium. In Count Three of their counterclaim, defendants also requested "turnover of association records."
Defendants subsequently filed a motion to dismiss the complaint which was granted because of Brookview's failure to provide discovery. The cases were consolidated and transferred from the Special Civil Part to the Law Division for resolution of the counterclaim. On January 29, 2014, defendants filed a motion for leave to amend the counterclaim. In addition to seeking joinder of multiple parties, defendants sought to add eight counts.
Defendants initially filed three substantively identical counterclaims in the Special Civil Part. We refer to them as "counterclaim" throughout the opinion because they were consolidated. --------
Brookview opposed the motion to amend the counterclaim, and asked the court to dismiss defendants' original, and proposed counterclaim with prejudice. Defendants were not served with opposition papers until Friday afternoon, February 21, 2014, one week prior to the scheduled hearing date for the motion to amend. By way of letter dated Monday, February 24, 2014, defendants requested an adjournment "due to the complexity" of the responsive papers filed, which included a new motion to dismiss defendants' original counterclaim. The judge either ignored or denied the request without entering an order or providing an explanation.
Argument was heard on February 28, 2014, as scheduled. On March 10, 2014, the court issued its decision whereby defendants' counterclaim and proposed amended counterclaim were dismissed with prejudice, pursuant to Rule 4:6-2(e) and N.J.S.A. 46:8B-14(k), and the matter was simultaneously referred to arbitration.
In making his decision, the trial judge reasoned "all counterclaims, existing and proposed, arise out of allegations that Brookview failed to maintain the common areas appropriately." The judge found the "[t]wo counterclaims presently pending allege negligence in the maintenance of the common areas and a breach of fiduciary duty." The judge also found the proposed additional claims for diminution of value in the condominium units, improper accounting, removal of the condominium board, fines previously paid, intentional infliction of emotional distress, and production of association records, to be "housing-related dispute[s]." Despite finding the entire case should be transferred to arbitration for resolution the judge then made rulings dismissing the proposed counterclaim for intentional infliction of emotional distress on the merits.
Defendants appeal, and argue: (1) that Brookview lacked standing to move for dismissal of the counterclaim; (2) that the trial court abused its discretion by not granting defendants' adjournment request; (3) that the trial court improperly granted Brookview's motion to dismiss the counterclaim and proposed amended counterclaim, or alternatively, that the pleadings were improperly dismissed with prejudice; (4) that Brookview waived its right to arbitration under N.J.S.A. 46:8B-14; (5) that "this court should add to the list of exceptions to the ADR process, when one of the parties has been dismissed for failure to provide discovery, and the dismissal is outstanding[;]" (6) that "[t]he order appealed from does not set forth what is subject to arbitration[;]" and (7) that Brookview is "judicially estopped from asserting that the entire action was not terminated by the dismissal without prejudice[.]"
Following our review, we conclude the judge abused his discretion in denying defendants' requested adjournment to respond to the newly filed motion to dismiss. We review a trial court's decision to deny an adjournment request under an abuse of discretion standard. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 343 (App. Div. 2000). We will not reverse a trial court's denial of an adjournment request "unless it appears that an injustice has been done." Ibid.
Defendants were served with Brookview's opposition to their motion and a new motion for dismissal late in the afternoon on Friday, February 21, 2014, only one week before the February 28, 2014 hearing date. Defendants were provided less than four and one-half business days to furnish both a reply to the opposition to their motion and an opposition to the new motion to dismiss. See R. 1:6-3(a) ("[A] notice of motion shall be filed and served not later than [sixteen] days before the specified return date.
Four days would have been sufficient time to furnish a reply to Brookview's opposition to defendants' motion, but Brookview's motion to dismiss raised new issues that included a request to dismiss the original counterclaim and transfer the entire matter to arbitration. Since Brookview raised different and new issues which resulted in dismissal of the pending action, as well as the denial of defendants' motion to amend their counterclaim, defendants should have been granted an adjournment providing them with sufficient time to prepare a response.
We therefore reverse and vacate the order, remanding the matter to be rescheduled to allow defendants to have time to provide a brief in response to both the opposition papers and the new motion. Because we are remanding the matter to develop the record, we need not address defendants' other claims.
Reversed and remanded. 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