Opinion
DOCKET NO. A-2334-14T4
09-27-2016
ESTATE OF LOUIS R. BUSH, JR. and JOAN M. BUSH, Plaintiffs-Appellants, v. BATCHA & BATCHA, L.L.C., BATCHA & BATCHA, P.C., F. BRADFORD BATCHA, ESQ., Defendants-Respondents, and ELLIOT N. BAUER, DIXON & ASSOCIATES, ERIC GOLDSTEIN, MYLES D. HUBERS, MICHELLE HUBERS, MORTGAGE LOAN SPECIALISTS, INC., MORTGAGE LOAN SOLUTIONS, INC., THF CAPITAL, INC., TONI M .WALKER, and MARK ZAMKOFF, Defendants.
Peter A. Ouda argued the cause for appellants. Matthew S. Marrone argued the cause for respondents (Goldberg Segalla, LLP, attorneys; Mr. Marrone, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Haas and Currier. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7559-11. Peter A. Ouda argued the cause for appellants. Matthew S. Marrone argued the cause for respondents (Goldberg Segalla, LLP, attorneys; Mr. Marrone, on the brief). PER CURIAM
Plaintiffs, the Estate of Louis R. Bush, Jr. and Joan Bush, appeal from the Law Division's February 10, 2012 order granting defendants Batcha & Batcha, L.L.C., Batcha and Batcha, P.C., and F. Bradford Batcha, Esq.'s (collectively "the Batcha defendants") motion to dismiss their complaint. Plaintiffs also appeal from the court's May 14, 2014 order denying their motion for reconsideration. We are constrained to reverse and remand because the trial judge did not make any findings of fact or conclusions of law on the issues raised by the parties and did not permit oral argument on either motion.
These orders became appealable as of right after the trial court entered a final order on November 10, 2014, dismissing plaintiffs' claims against the last remaining defendant. --------
According to plaintiffs' complaint, Joan Bush and her late husband Louis (collectively "the Bushes") owned a home in Egg Harbor Township. In 2004, they fell behind in their mortgage payments and began "to look for other options" in order to retain their home. The Bushes contacted defendant Mark Zamkoff, a loan officer at Mortgage Loan Specialists, who agreed to purchase their home for $275,000, and then lease it back to them for a period of two years. Under their agreement, the Bushes could buy the home back from Zamkoff at any time during this two-year period.
Zamkoff retained the Batcha defendants to prepare the closing documents. Plaintiffs asserted that Zamkoff was required to "supply $55,257.77 at closing," but instead he only gave them a promissory note for this amount, which was then deducted from other payments the Bushes received.
Thereafter, Zamkoff refinanced the mortgage on the property without plaintiffs' knowledge, and then defaulted on the new loan. The Bushes continued to make monthly loan payments to Zamkoff. After the property went into foreclosure and they learned of the new loan, the Bushes were unable to obtain a mortgage of their own to save their home and Zamkoff's lender eventually evicted them from the property.
In their complaint, plaintiffs named Zamkoff, the Batcha defendants, and nine other individuals and entities as defendants. Plaintiffs asserted fraud, consumer fraud, attorney malpractice, civil conspiracy, negligent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages claims against the Batcha defendants. In response, the Batcha defendants filed a motion to dismiss the complaint under Rule 4:6-2(e) for failure to state a claim. They also asserted that plaintiffs failed to properly serve them with the complaint. Plaintiffs filed a brief in opposition to the motion and the Batcha defendants asked for oral argument.
However, the trial judge did not conduct oral argument. Instead, the judge issued an order on February 10, 2012, granting the Batcha defendants' motion and dismissing plaintiffs' complaint. The judge did not make any findings of fact and conclusions of law in support of this decision.
Plaintiffs' litigation then proceeded against the other defendants. In March 2014, plaintiffs filed a motion for reconsideration of the order dismissing their complaint against the Batcha defendants. Plaintiffs asserted they had received new information relevant to the Batcha's defendants' conduct, and they also asked the judge to provide his reasons for dismissing the complaint. Plaintiffs requested oral argument. However, the trial judge did not entertain the request and, on May 14, 2014, he denied plaintiffs' motion on the papers. Once again, the judge did not make any findings of fact or conclusions of law concerning his earlier dismissal of the complaint. This appeal followed.
On appeal, plaintiffs argue the trial judge erred in denying their motions because he failed to provide findings of fact and conclusions of law supporting his decisions. Plaintiffs also assert the judge should have granted oral argument on both motions. We agree.
Rule 1:7-4(a) clearly states that a trial "court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right." See Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of basis for court's action). "Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). The failure to provide findings of fact and conclusions of law "constitutes a disservice to the litigants, the attorneys, and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)).
Here, the trial judge provided no reasons for dismissing plaintiffs' complaint and thereafter denying their motion for reconsideration. The judge's complete failure to provide the findings of fact and conclusions of law required by Rule 1:7-4(a) necessitates a reversal and a remand for further proceedings.
We are also satisfied that the judge should have conducted oral argument on both motions. Under Rule 1:6-2(d), a request for oral argument "shall be granted as of right" for all motions not involving pretrial discovery or calendar control. Thus, litigants should be permitted oral argument on dispositive motions when requested "as a matter both of due process and the appearance of due process." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997). The motions in this case presented issues of law and fact that clearly could have benefited from further elucidation by way of oral argument. Therefore, the judge erred by failing to conduct oral argument on these important motions.
In sum, we reverse the trial judge's orders dismissing the complaint and denying plaintiffs' subsequent motion for reconsideration, and remand for further proceedings.
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