Opinion
DOCKET NO. A-5118-13T2
05-31-2016
KEVIN SCHMIDT and CHERI SCHMIDT, Plaintiffs-Appellants, and 370 INDIAN TRAIL DRIVE, L.L.C., 256 MADISON AVENUE, L.L.C., Plaintiffs, v. LAKELAND BANK CORP., A HOLDING COMPANY OF LAKELAND BANK, AN FDIC INSURED BANKING INSTITUTION KNOWN AS LAKELAND BANK, STEVEN NOVAK, SENIOR VICE PRESIDENT OF COMMERCIAL LENDING OF LAKELAND BANK, Individually and in his Capacity as an employee of LAKELAND BANK, CHRISTINA SACERDOTE, VICE PRESIDENT OF LAKELAND BANK, Individually and in her capacity as an employee of LAKELAND BANK, Defendants, v. HARVEY AUGER (SCRREA), Defendant-Respondent.
Richard S. Mazawey, attorney for appellants. Gordon & Rees, L.L.P., attorneys for respondent (Scott V. Heck, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5906-13. Richard S. Mazawey, attorney for appellants. Gordon & Rees, L.L.P., attorneys for respondent (Scott V. Heck, on the brief). PER CURIAM
Plaintiffs Kevin and Cheri Schmidt (plaintiffs or the Schmidts) appeal from a May 9, 2014 order, which denied their motion for reconsideration of a March 14, 2014 order dismissing their amended complaint as barred by res judicata, collateral estoppel, and the entire controversy doctrine. Based on the record presented to us, we affirm the order on appeal.
It appears that the procedural history of the case is largely undisputed. However, because plaintiffs have not presented us with the complete record, our summary of the procedural history relies in part on Judge Robert Wilson's written opinion stating the reasons for the March 14, 2014 order. The Schmidts defaulted on a commercial loan and a residential loan, both of which were secured by a mortgage on certain property in Franklin Lakes. The lender, Lakeland Bank Corp. (the Bank), foreclosed on the property, and also sued the Schmidts in the Law Division for damages based on their failure to pay the commercial loan. Judges Carroll and Steele, respectively, granted summary judgment for the Bank in both cases. The Bank then obtained a final judgment of foreclosure. The sheriff's sale was stayed when Cheri Schmidt filed for bankruptcy. However, the Bank obtained an order of the Bankruptcy Court lifting the automatic stay.
The Schmidts then filed a separate Law Division action claiming fraud, predatory lending, and other causes of action, and seeking a stay of the sheriff's sale. The trial court denied the stay, as did we. For reasons set forth in a comprehensive written opinion filed on March 14, 2014, Judge Wilson dismissed the complaint as barred by res judicata, collateral estoppel, and the entire controversy doctrine. He denied plaintiffs' reconsideration motion on May 12, 2014, in an order accompanied by a written statement of reasons.
The Bank filed the dismissal motion. Harvey Auger, another defendant, joined in the Bank's motion by filing a letter brief, and also filed a separate motion to dismiss which was returnable on a later date than the Bank's motion. Auger withdrew his separate motion, after the trial court dismissed the complaint against all parties on the Bank's motion.
The crux of plaintiffs' appeal is that Judge Wilson should not have dismissed their Law Division complaint against one of the defendants, Harvey Auger, a real estate appraiser. Auger provided the Bank with an appraisal of the real estate collateral, which the Bank used in litigating the bankruptcy case and later in opposing a stay in the foreclosure case. Thus, Auger was an expert witness for plaintiffs' adversary in those cases. Plaintiffs assert that Auger's appraisal inaccurately undervalued the property. However, plaintiffs fail to identify any legal duty which Auger owed to them to make an accurate appraisal. Their complaint is silent on the issue, and their appellate brief is devoid of legal citations to support their theory. Ordinarily, a dismissal for failure to state a cause of action is without prejudice. See Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 245-46 (1998). However, in this case, there is not so much as a suggestion that plaintiffs could amend their complaint to state a viable cause of action against Auger. See Johnson v. Glassman, 401 N.J. Super. 222, 246-47 (App. Div. 2008). Hence there is no basis to disturb the dismissal of their complaint with prejudice.
Further, plaintiffs' brief is largely unsupported by citations to the record, and their appendix has not provided us with documents necessary for appellate review of the other issues they seek to raise. See R. 2:6-1. For example, plaintiffs failed to provide us with copies of any of the record documents from the foreclosure and bankruptcy proceedings, which would permit us to review the merits of the trial judge's decision on the entire controversy and related doctrines, as those doctrines might apply to the complaint against Auger. On the record presented to us, there is no basis to disturb the trial court's decision dismissing the complaint against Auger. See Soc'y Hill Condo. Ass'n, Inc. v Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). Hence, we find no abuse of the trial court's discretion in denying plaintiffs' reconsideration motion. See Casser v. Twp. of Knowlton, 441 N.J. Super. 353, 364 (App. Div. 2015), certif. denied, 224 N.J. 123 (2016).
Those documents were listed as exhibits to a certification submitted in support of the Bank's dismissal motion. Plaintiffs did not provide us with the motion exhibits. --------
Plaintiffs' additional appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION