Opinion
DOCKET NO. A-0406-13T3
03-09-2015
GEORGE MACKANIN, Plaintiff-Appellant, v. RONALD D. BOWERS and JOHN ROBERTS, Defendants-Respondents.
Howard Z. Kanowitz argued the cause for appellant. Elton John Bozanian argued the cause for respondents (Mr. Bozanian, attorney; Robert Montecallo, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6135-11. Howard Z. Kanowitz argued the cause for appellant. Elton John Bozanian argued the cause for respondents (Mr. Bozanian, attorney; Robert Montecallo, on the brief). PER CURIAM
Plaintiff appeals from an August 12, 2013 order granting summary judgment to Ronald D. Bowers and John Roberts (hereinafter "defendants"). We reverse.
Plaintiff and defendants were members of the Most Ancient & Honorable Society of Free & Accepted Masons for the State of New Jersey (the "Masons"). Defendants were also members of Hiram Lodge No. 17 ("Hiram"), which leased property (the "leased premises") from Adoniram — Highland Wakefield — Rising Star Lodge No. 80 F. & A.M. ("Adoniram"). Plaintiff was the Grand Master for Adoniram, while defendants were officers for Hiram.
In February 2011, defendants filed a complaint (the "civil complaint") against plaintiff and other parties (the "other parties"), alleging that plaintiff removed defendants' property from the leased premises and left it on the street without first obtaining a warrant of removal. Defendants also alleged that they were then suspended as members of the Masons. Defendants sought compensation for their property damage and asserted that plaintiff defamed them. Defendants served the civil complaint against plaintiff on April 13, 2011.
The other parties included the Masons, Adoniram, and an individual member of Adoniram.
Plaintiff turned the civil complaint over to his insurance company, which assigned counsel ("insurance counsel") to defend plaintiff in defendants' lawsuit. Rather than file an answer to the civil complaint, insurance counsel filed a Rule 4:6-2(e) motion to dismiss. Insurance counsel contended that the civil complaint was barred by the one-year defamation statute of limitations contained in N.J.S.A. 2A:14-3.
On July 18, 2011, prior to the return date of the motion to dismiss, plaintiff's personal counsel ("plaintiff's counsel") filed this complaint ("plaintiff's complaint") against defendants alleging malicious prosecution. Plaintiff also sought damages contending that defendants defamed him. Plaintiff's counsel complied with Rule 4:5-1 by certifying in plaintiff's complaint that the matter in controversy was the subject of the civil complaint.
Defendants previously filed a criminal complaint against plaintiff charging him with third-degree theft, but a municipal court judge subsequently acquitted plaintiff of that charge.
Plaintiff's counsel also stated in his Rule 4:5-1 certification that he planned to consolidate plaintiff's complaint with the civil complaint. His intention was to do so if the court denied insurance counsel's pending motion to dismiss. On August 8, 2011, three weeks after plaintiff's complaint was filed, the court granted the motion and dismissed the civil complaint. Therefore, plaintiff's counsel had no reason to consolidate the two matters because the civil complaint had been dismissed.
Defendants have not suggested on appeal that the court erred by dismissing the civil complaint.
Defendants withdrew the property damage claim, and the order dismissed the rest of the civil complaint with prejudice.
In October 2011, defendants filed an answer to plaintiff's complaint and asserted the entire controversy doctrine (the "ECD") as an affirmative defense. Defendants did not move to dismiss plaintiff's complaint at that time. Rather, the parties proceeded to discovery on plaintiff's complaint and then to non-binding arbitration, where the arbitrator found defendants 100 percent liable for malicious prosecution and awarded plaintiff $15,000. In June 2013, defendants filed for a trial de novo, the court scheduled a July 2013 settlement conference, and a September 2013 trial date.
Defendants then filed their motion for summary judgment arguing that the ECD required dismissal of the complaint because insurance counsel failed to bring plaintiff's affirmative claims as a counterclaim to defendants' civil complaint. The judge conducted oral argument and reserved decision. Two weeks later, the judge entered an order granting summary judgment to defendants.
The judge also relieved defendants' then counsel (different than defendants' appellate counsel) from representing Ronald D. Bowers.
On appeal, plaintiff argues primarily that the judge misapplied the ECD. Plaintiff contends that by filing plaintiff's complaint, in which he expressed his intent to consolidate it with the civil complaint, he did not violate the fundamental principles of the ECD. Plaintiff also maintains that defendants waived their ECD contention because they litigated the case for almost two years.
We need not reach plaintiff's contention that defendants waived their rights because we conclude that dismissal of plaintiff's complaint incompatible with the purposes of the ECD.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governed the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Here, there are no disputed facts. Rather, the judge determined that the ECD barred plaintiff's complaint. We review the judge's legal conclusions on issues of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
At the outset, we note that the judge reserved decision after oral argument on defendants' summary judgment motion and never provided a statement of reasons and conclusions of law pursuant to Rule 1:7-4(a). "Failure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (citation and internal quotation marks omitted). It is clear, however, that the judge dismissed the complaint because he believed the ECD required that result. We reverse because the judge misapplied the ECD.
The ECD is codified in Rule 4:30A, which provides in pertinent part that "[n]on-joinder of claims required to be joined by the [ECD] shall result in the preclusion of the omitted claims to the extent required by the [ECD.]" The purposes of the ECD "are threefold: (1) the need for complete and final disposition through the avoidance of piecemeal decisions; (2) fairness to parties to the action and those with a material interest in the action; and (3) efficiency and the avoidance of waste and the reduction of delay." Wadeer v. N.J. Mfrs. Ins. Co., ___ N.J. ___, ___ (2015) (slip op. at 16-17) (citations and internal quotations omitted). In general, "the [ECD] requires whenever possible all phases of a legal dispute to be adjudicated in one action." Prevratil v. Mohr, 145 N.J. 180, 187 (1996).
The Supreme Court has stated repeatedly that the "polestar of the application of the [ECD] is judicial fairness." DiTrolio v. Antiles, 142 N.J. 253, 272 (1995) (citations and internal quotation marks omitted). In determining whether application of the ECD is fair, we consider fairness to the court system and to all the parties. Id. at 273-74. We focus on "the litigation posture of the respective parties and whether all of their claims and defenses could be most soundly and appropriately litigated and disposed of in a single comprehensive adjudication." Wadeer, supra, slip op. at 18 (citation and internal quotation marks omitted). The doctrine is an equitable rule that promotes judicial economy by preventing a party from strategically electing to hold back a component of the controversy in the first proceeding only to raise it in a subsequent proceeding. Hobart Bros. v. Nat'l Union Fire Ins. Co., 354 N.J. Super. 229, 240-41 (App. Div.), certif. denied, 175 N.J. 170 (2002).
Applying these well-recognized principles, we conclude under the facts of this case that plaintiff's complaint did not result in piecemeal litigation, unfairness to the parties, or unnecessary delay. The parties conducted no discovery on defendants' defamation allegations contained in the civil complaint because insurance counsel immediately made a Rule 4:6-2(e) motion. Plaintiff's counsel certified in plaintiff's complaint that plaintiff's affirmative allegations related to the civil complaint. Plaintiff's counsel also expressed his intention to consolidate both cases if the court denied insurance counsel's motion to dismiss, but the court granted the motion to dismiss three weeks after the filing of plaintiff's complaint. Therefore, there is no prejudice to defendants because there was nothing to consolidate and plaintiff gained no unfair advantage.
Defendants' counsel conceded at oral argument before us, that the ECD would have been an inappropriate basis to oppose the planned consolidation motion had the judge denied insurance counsel's Rule 4:6-2(e) motion.
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Furthermore, we are unpersuaded by defendants' reliance on the Court's decision in Pervratil, supra, 145 N.J. at 190-94, in which the Court found the ECD applicable to that plaintiff's claim. The plaintiff in that case waited almost twelve months from the date that the other party dismissed his personal injury lawsuit before the plaintiff filed his own suit. Id. at 183-85. Here, plaintiff's counsel did not strategically hold back from filing plaintiff's complaint. Instead, he filed the complaint before the dismissal, identified the civil complaint in his Rule 4:5-1 certification, and noted his intention to consolidate the cases. Under these facts, the ECD did not require dismissal of plaintiff's complaint.
Reversed and remanded for further proceedings consistent with this opinion. 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