Opinion
DOCKET NO. A-4089-12T4
06-09-2015
1317 RIVER ROAD ASSOCIATES, INC., Plaintiff-Respondent, v. THE MOORINGS AT EDGEWATER, L.P., and MOORINGS DEVELOPMENT, LLC, Defendants, and JEROME BRENNER, Defendant-Appellant, and JOHN GARIPPA, HORIZON PARTNERS, ANTHONY J. RINALDI, JOAN BERK, EXECUTRIX OF THE ESTATE OF CHARLES BERK, and COMMONWEALTH LAND TITLE INSURANCE COMPANY OF NEW JERSEY, Defendants-Respondents, and MAIN STREET TITLE AND SETTLEMENT SERVICES, LLC, Defendant/Third-Party Plaintiff-Respondent, v. JOHN MAGIC ABSTRACTING, DECOTIIS, FITZPATRICK, COLE & WILSER, LLP and MICHAEL A. GALLO, JR., ESQ., Third-Party Defendants-Respondents.
Marc A. Raso, attorney for appellant (Mr. Raso and Kevin A. McDonald, on the brief). Respondents have not filed briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5766-09. Marc A. Raso, attorney for appellant (Mr. Raso and Kevin A. McDonald, on the brief). Respondents have not filed briefs. PER CURIAM
Defendant, Jerome Brenner (Brenner), appeals the order of November 7, 2012 denying his motion for leave to amend his pleadings and file a fourth-party complaint and the December 24, 2012 order denying his motion for reconsideration. We affirm.
This appeal arises out of a multi-party complaint filed in 2009 in Bergen County, against nine defendants including Brenner. One of the named defendants, Main Street Title and Settlement Services, LLC, filed a third-party plaintiff complaint against three additional third-party defendants. There were then thirteen different parties.
The litigation arose out of a failed development project to be constructed in Edgewater, New Jersey. Because of the proximity of the project to the Hudson River, part of the project required a riparian grant. The claim against Brenner and another defendant, John Garippa (Garippa), arose because at two different time periods or instances in the development process, these two individuals signed pledges of certain assets as collateral. The first pledge was made to Interchange Bank in 2005. Brenner and Garippa each pledged $500,000 in collateral. The first pledge contained language which stated that the pledge would be released as soon as the riparian grant was obtained.
By 2007, defendant Moorings Development Company was seeking additional funds from the bank. At that point in time, Interchange Bank had been acquired by TD Bank. Brenner and Garippa contend that they were asked to sign a new pledge document with the understanding that the reason they were signing a new pledge was that the name of the bank had changed. They asserted that it was their understanding that otherwise the second pledge was to be the same as the first. However, the second pledge did not contain the language stating that the collateral would be released when the riparian deed was granted. In 2008, the riparian deed was obtained, but the project had floundered, and the bank would not release Brenner and Garippa from their pledges. By 2009, this litigation was commenced with the complaint filed by 1317 River Rd. Associates, Inc., which had acquired TD Bank's claims.
In October 2011 the third-party defendants were added. This addition substantially delayed and complicated an already complex case. The records of the third-party defendants were produced in March 2012. Third-party defendant, Michael A. Gallo, Jr. (Gallo), was deposed in May 2012. By then, the case was three years old and needed individualized management, which the judge provided. He held a management conference with counsel on May 30, 2012, and ordered deadlines for expert reports and extended the discovery deadline to September 30, 2012.
At his deposition in June 2012, the attorney who had drafted the pledge documents testified that he made a mistake in the wording of the 2007 document. That admission resulted in motions to file a fourth-party complaint against the attorney. It was the denial of these requests to add an additional party, and new claims, years after the original complaint was filed, that is the subject of this appeal.
Judge Keith A. Bachmann determined that it was too late to add new parties, and that doing so would disrupt and delay the already-protracted litigation. Rule 4:8-1 allows for service of a third-party complaint for only ninety days after the original answer is filed. After that time, the decision is within the discretion of the court. Ibid. "The granting of a motion to file an amended complaint always rests in the court's sound discretion." Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998); Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994). While motions for leave to amend pleadings are to be liberally granted, the decision is best left to the sound discretion of the trial court taking into consideration the factual situation existing at the time each motion is made. A motion to amend is properly denied where allowing the amendment would unduly protract the litigation. Pressler, Current N.J. Court Rules, comment 2.2.1 on R. 4:9-1 (2015). Such a denial, for example, is appropriate when made on the eve of trial, or after years of litigation, particularly if the motion seeks to add new parties. In re Nov. 2, 2010 Gen Elections, 423 N.J. Super. 190, 209 (App. Div. 2011); Morales v. N.J. Acad. of Aquatic Sci., 302 N.J. Super. 50, 56 (App. Div. 1997); Globe Motor Car Co. v. First Fid. Bank, N.A., 291 N.J. Super. 428, 429 (App. Div. 1996).
On review, the trial judge's determination will not be disturbed unless it constitutes a "clear abuse of . . . discretion." Salitan v. Magnus, 28 N.J. 20, 26 (1958); Franklin Med. Assocs. v. Newark Pub. Schs., 362 N.J. Super. 494, 506 (App. Div. 2003). This court will reverse a trial court's exercise of discretion only "if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005) (citation omitted). Stated differently, a trial court abuses its discretion where its decision is arbitrary or capricious, is "made without a rational explanation, inexplicably depart[s] from established principles, or rest[s] on an impermissible basis." Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal citations omitted)).
On this appeal, Brenner contends that granting the motion would not have caused substantial delay, because depositions were complete and no one opposed the motion. We disagree. The new defendant would have to be served, would have to file an answer and then, almost certainly, would have requested additional discovery, time to submit an expert report, and so forth. The delay would undoubtedly have been substantial. The judge was well within his discretion to deny the amendment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION