Opinion
DOCKET NO. A-5549-14T1
11-23-2016
ADNAN SAADEH, Plaintiff-Appellant, v. BADIH O. ALKHALIL, Defendant, and JOUNG HWA LEE KIM, LLC, d/b/a DR. KIM'S JEWELRY, JOUNG HWA LEE KIM, and BEON EUI LEE, Defendants-Respondents.
Rajeh A. Saadeh, attorney for appellant. Law Offices of Jae Y. Kim, L.L.C., attorneys for respondents Joung Hwa Lee Kim, LLC, d/b/a Dr. Kim's Jewelry, Joung Hwa Kim and Beon Eui Lee, improperly pled as spouse of Joung Hwa Lee Kim (Raymond Marelic, of counsel; Mr. Marelic and Jae Y. Kim, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Manahan. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-733-14. Rajeh A. Saadeh, attorney for appellant. Law Offices of Jae Y. Kim, L.L.C., attorneys for respondents Joung Hwa Lee Kim, LLC, d/b/a Dr. Kim's Jewelry, Joung Hwa Kim and Beon Eui Lee, improperly pled as spouse of Joung Hwa Lee Kim (Raymond Marelic, of counsel; Mr. Marelic and Jae Y. Kim, on the brief). PER CURIAM
Plaintiff Adnan Saadeh appeals from an order denying his motion to reinstate two counts of his verified complaint. We reverse and remand.
We recite the factual and procedural history relevant to our determination. Saadeh was a subtenant of commercial property located on Broad Street in Newark. Dr. Kim's Jewelry and Joung Hwa Lee Kim, LLC (the Kims) were tenants. The subleased agreement was for a one-year term commencing on August 1, 2013. Pursuant to the terms of the sublease, Saadeh paid a security deposit to the Kims.
Thereafter, Saadeh entered into an oral agreement with Badih O. Alkhalil to purchase Saadeh's business then located at the subleased premises. Alkhalil took possession of the premises and property Saadeh claimed to own. A dispute arose between Saadeh and Alkhalil which resulted in Saadeh demanding the Kims to provide him with the exclusive use and occupancy of the subleased premises. When that demand was not satisfied, Saadeh filed a verified complaint naming Alkhalil and the Kims as defendants. In the seven-count complaint, only counts one and four sought relief from both Alkhalil and the Kims. The remaining counts sought relief solely from Alkhalil.
The Kims filed a motion in lieu of an answer to dismiss the first and fourth counts for failure to state a claim upon which relief may be granted, which Saadeh opposed. Alkhalil filed a motion to dismiss counts five, six, and seven on the same grounds. The motion was also opposed by Saadeh. During oral argument, the motion judge, after denying Alkhalil's motion, addressed the Kims' motion:
There is another motion by the Kims to dismiss [c]ounts [one and four]. And [c]ount [one] alleges refusal by the Kims to grant exclusive use and occupancy to the plaintiff. And [c]ount [four] is for failure to return the security deposit.
In my understanding of the Kims' position there is that they are, in a sense, almost an innocent stake holder. And that this is a battle between the plaintiff and defendant Alkhalil. And that they cannot be placed in the position of making a determination who is the proper subtenant.
And as far as the security deposit is concerned[,] the claim is not ripe because the rental period started on [July 12, 2013,] and the rental period has not ended. And the party to whom any security deposit should be returned cannot be determined until there is a resolution of the dispute between the plaintiff and Mr. Alkhalil.
Although the sublease agreement was dated July 12, 2013, the lease term commenced on August 1, 2013 through July 31, 2014.
After engaging in a colloquy with counsel, the judge held:
All right. What I am going to do at this point is dismiss the Kim defendants without
prejudice pending resolution of the dispute between the plaintiff and Mr. Alkhalil.The judge dismissed counts one and four without prejudice by order of March 28, 2014.
Once that is resolved then it would be, perhaps, appropriate to pursue remedies against the Kims, but until they know what the status of the tenancy is, I think, any action against them is premature.
After a bench trial, on April 20, 2015, judgment was entered in favor of Saadeh and against Alkhalil, declaring that Saadeh was the sole subtenant of the premises. In June 2015, Saadeh filed a motion seeking to reinstate the first and fourth counts. The Kims filed opposition. Saadeh filed a reply. Although Saadeh requested oral argument, another judge, without oral argument, denied the motion to reinstate. The reasons for the denial were handwritten on the order, "This case has been disposed."
On appeal, Saadeh argues that the judge erred by not reinstating the first and fourth counts. The Kims argue in opposition that the issue of evicting Alkhalil is moot and that neither the security deposit issue nor the March proceedings or resultant order were ever raised before the motion judge. The Kims also argue that, in any event, the plaintiff would be required to file a new complaint rather than seek reinstatement of the original complaint. The arguments raised by the Kims lack merit.
We commence our decision by addressing the underlying order of dismissal which formed the basis for the order under review. As noted, the Kims' motion sought an involuntary dismissal of counts one and four of the complaint for "failure to state a claim upon which relief may be granted." R. 4:6-2(e). Relief by the motion may be had as to the entire complaint or as to specific counts. See Jenkins v. Region Nine Hous. Corp., 306 N.J. Super. 258, 263-66 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998).
During oral argument, the motion judge did not address the merits of the "failure to state a claim" basis for dismissal. Rather, the judge, sua sponte, addressed the issue of ripeness as the rationale to grant the dismissal. The judge found that, given the factual and procedural scenario presented, the Kims should not be exposed to unnecessary time and expense associated with a determination of the matters in dispute between Saadeh and Alkhalil. Employing that rationale, the judge dismissed counts one and four of the complaint without prejudice.
Challenges to a plaintiff's standing and to the ripeness of claims are often considered within the motion to dismiss framework. See In re Ass'n of Trial Lawyers of Am., 228 N.J. Super. 180, 185 (App. Div.), certif. denied, 113 N.J. 660 (1988). A dismissal when the matter is deemed premature is not an adjudication on the merits. See Citizens Voices Ass'n v. Collings Lakes Civic Ass'n, 396 N.J. Super. 432, 445-47 (App. Div. 2007). As such, the dismissal of a complaint or specific counts thereof on that basis will be without prejudice. When a complaint's dismissal is without prejudice it "adjudicates nothing" and may be reinstated. Malhame v. Borough of Demarest, 174 N.J. Super. 28, 30-31 (App. Div. 1980) (citation omitted).
In consideration of these precepts and the above-stated procedural history, we hold the July 24, 2015 order denying the motion to reinstate count one and count four of the complaint was entered in error. Therefore, we reverse.
We next address whether Saadeh should be required to file a new complaint or to move, as he did, to reinstate counts one and four. As noted, the Kims argue that filing a new complaint is required. We disagree.
First, although later determined to be premature, the allegations contained in those counts were properly joined in the complaint per Rule 4:27-1 (joinder of claims) and per Rule 4:28-1 (joinder of parties). Second, the initial motion judge appropriately noted the inequity of requiring that the Kims incur unnecessary time and expense associated with their participation in the case until the issue of the subtenant was resolved. We perceive it similarly inequitable to require that Saadeh incur unnecessary time and expense associated with refiling the complaint. As such, on remand Saadeh may proceed by motion.
Reinstatement of the complaint by motion finds support in dismissals based upon other reasons. See R. 4:23-5(a)(1) (failure to make discovery). --------
Finally, we do not need to address the mootness argument raised by the Kims based upon the termination of the lease agreement. That argument may be raised before the Law Division.
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