Michael Bandler v. Rocco Melillo

128 A.3d 695, 443 N.J. Super. 203

• Court: New Jersey Superior Court Appellate Division
• Decided: December 15, 2015
• Docket: A-1315-14T2
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1315-14T2

MICHAEL BANDLER, APPROVED FOR PUBLICATION Plaintiff-Appellant, December 15, 2015 v. APPELLATE DIVISION ROCCO MELILLO,

Defendant-Respondent. ________________________________

Argued December 2, 2015 – Decided December 15, 2015

Before Judges Alvarez, Haas and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L- 2659-14.

Michael Bandler, appellant, argued the cause pro se.

Ronald A. Rosa argued the cause for respondent (Fuggi Law Firm, P.C., attorneys; Robert R. Fuggi, Jr., of counsel and on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.

Plaintiff Michael Bandler appeals from the Law Division's

August 28, 2014 order granting summary judgment to defendant

Rocco Melillo and dismissing his complaint that sought damages

against defendant for failing to comply with discovery orders. Plaintiff also appeals from the trial court's October 17, 2014

order denying his motion for reconsideration.

However, plaintiff does not challenge the propriety of the

dismissal of his action. Instead, plaintiff states that he is

dissatisfied with dictum in the trial judge's written decision

and has filed a notice of appeal for the sole purpose of asking

this court to redact the dictum from the trial court's opinion. 1

Because our jurisdiction is limited to appeals taken from

judgments and not from opinions or dicta of a trial court, we

dismiss plaintiff's appeal.

We derive the following facts and procedural history from

the record on appeal. In a separate action (the collection

action),2 plaintiff obtained an August 1, 2012 default judgment

in the sum of $54,159.13 against Evelyn Melillo, who is

defendant's former spouse.3 Plaintiff was unable to collect the

judgment from Evelyn. Asserting that defendant might have

information concerning Evelyn's financial assets, plaintiff

1 When the trial court denied plaintiff's motion for reconsideration, it also denied his request to redact the dictum from its earlier opinion. 2 Docket No. L-1859-12. 3 Defendant and Evelyn divorced in February 2005. Because they share the same surname, we refer to Evelyn by her first name to avoid confusion. We intend no disrespect.

2 A-1315-14T2 served a notice of deposition upon defendant in the collection

action. Defendant failed to appear for the deposition.

On January 6, 2014, the trial court granted plaintiff's

application for an order compelling defendant to appear at a

January 30, 2014 deposition and to produce documents requested

by plaintiff. Defendant did not appear at this deposition and

did not produce the requested documents. Plaintiff filed a

motion asserting that defendant had "violated plaintiff's rights

as a litigant" and demanding that he be arrested. On March 24,

2014, the court ordered defendant to attend a deposition

scheduled for April 21, 2014, and produce the requested

documents.

On April 17, 2014, however, Evelyn filed a voluntary

petition for bankruptcy under Chapter 7 of the United States

Bankruptcy Code. By this time, the collection action had been

reassigned to Judge Allen J. Littlefield, J.S.C. On April 21,

2014, Judge Littlefield issued an order stating that, because

Evelyn had filed a bankruptcy petition, plaintiff's claims

against her in the collection action were dismissed without

prejudice until the conclusion of the bankruptcy proceedings or

the entry of an order by the bankruptcy court granting relief

from the automatic stay under 11 U.S.C.A. § 362(d). Defendant

appeared for the deposition on April 21, 2014, but advised

3 A-1315-14T2 plaintiff that he would not respond to any questions or provide

any documents because all collection proceedings against Evelyn

had been stayed.

Rather than filing another enforcement motion against

defendant in the collection action or, if necessary, seeking

relief from the stay in the bankruptcy court, plaintiff

instituted a separate action against defendant on May 23, 2014. 4

In his complaint, plaintiff alleged defendant's failure to

comply with the discovery orders in the collection action made

his judgment against Evelyn "uncollectible." As a result,

plaintiff asserted that defendant was now responsible for paying

the entire judgment, together with other damages and costs.

Defendant filed an answer and a counterclaim. Plaintiff filed a

motion to strike defendant's pleadings, and defendant responded

by filing a cross-motion for summary judgment dismissing the

complaint.

Following oral argument, Judge Littlefield denied

plaintiff's motion to strike defendant's pleadings, re-

designated defendant's counterclaim as a defense, and granted

defendant's motion for summary judgment. In a thorough written

opinion, the judge ruled that when defendant failed to comply

with the discovery orders after Evelyn filed for bankruptcy,

4 Docket No. L-2659-14.

4 A-1315-14T2 plaintiff's sole recourse was to file an appropriate enforcement

motion in the collection action, rather than filing a new,

separate action seeking damages from defendant. Judge

Littlefield explained:

Regardless of whether [d]efendant was or was not required to appear for the various depositions, the failure of a non-party to appear for a deposition, even a court[-] ordered deposition, is not an independent cause of action. The procedures set forth by the Rules of Court provide an aggrieved party sufficient avenues for relief [through] means of motions to enforce litigant's rights and various forms of contempt of [c]ourt. In sum, New Jersey law does not recognize an independent cause of action for a [non-party's] non-compliance with discovery requests aimed at collecting a judgment as [pled] by . . . plaintiff.

Accordingly, Judge Littlefield entered an order on August

28, 2014 dismissing plaintiff's "claim" with prejudice. On

October 17, 2014, the judge partially granted plaintiff's motion

for reconsideration and issued a corrected order stating that

plaintiff's "complaint is [dismissed] with prejudice for the

reasons expressed in the [c]ourt's memorandum decision dated

August 28, 2014. This [o]rder is not intended to bar any party

from seeking any relief in the underlying matter of Bandler v.

[Evelyn] Melillo, [the collection action]."

On appeal, plaintiff does not challenge the August 28, 2014

and October 17, 2014 orders dismissing his complaint against

5 A-1315-14T2 defendant with prejudice. However, plaintiff complains that, in

the judge's written opinion addressing the contentions raised by

the parties concerning defendant's motion for summary judgment,

the judge discussed defendant's argument that the automatic stay

in the bankruptcy action excused his failure to comply with the

discovery orders.

In his decision, the judge initially observed that

defendant was not required to appear for the April 21, 2014

deposition because the filing of Evelyn's bankruptcy petition

"stayed the proceedings in that matter including any and all

efforts to collect the judgment against Evelyn Melillo.

Collection efforts included deposing [d]efendant[,] and thus,

the deposition was similarly stayed." Plaintiff alleged at oral

argument that he was not going to ask defendant any questions at

the deposition about Evelyn's assets but, rather, only planned

to seek information that might support plaintiff's "potential

claim" against defendant "for his failure to appear at the prior

depositions."

The judge rejected plaintiff's argument because

"[r]egardless of whether [d]efendant was or was not required to

appear for the various depositions," plaintiff could not bring

an independent cause of action against defendant for failure to

appear. Therefore, plaintiff's complaint against defendant had

6 A-1315-14T2 to be dismissed. Accordingly, the judge again stated that

plaintiff should have filed an enforcement motion against

defendant in the collection action. The judge noted that "there

still remains a question as to whether or not the filing of said

motion would violate the automatic stay." However, the judge

stated that he was not going to render an advisory opinion on

that issue.

Plaintiff filed a motion for reconsideration. He did not

contest the order dismissing his complaint. However, plaintiff

demanded that the judge redact the portion of his August 28,

2014 written opinion relating to the bankruptcy stay because

plaintiff believed it was dictum and not necessary to support

the judge's ultimate decision to dismiss the complaint.

Following oral argument on October 17, 2014, Judge

Littlefield denied this request. The judge found that, because

plaintiff had made arguments concerning the effects of the

automatic stay on his collection efforts, the court was

obligated to address them. The judge again stated that he was

not going to issue an advisory opinion as to the impact of the

automatic stay on any future motion by plaintiff to enforce the

discovery orders against defendant in the collection action. As

noted above, the judge also corrected the August 28, 2014 order

to make clear that no party was barred "from seeking any relief"

7 A-1315-14T2 in the collection action. The judge did not mention the

bankruptcy proceedings in the August 28, 2014 and October 17,

2014 orders.

This appeal followed. On appeal, plaintiff's only

arguments relate to his contention that the judge should not

have included a discussion of the automatic stay in his August

28, 2014 written decision. Plaintiff argues that "the trial

court's gratis dictum is unnecessary and may cloud future

proceedings" and that "the trial court's dictum is mistaken and

in contradiction to the trial court's own order." However,

plaintiff does not appeal from the August 28, 2014 and October

17, 2014 orders dismissing his complaint. Under these

circumstances, we are compelled to dismiss plaintiff's appeal

for want of jurisdiction.

It is well established that "because an appeal questions

the propriety of action [in the trial court], the rationale

underlying the action is not independently appealable." Price

v. Hudson Heights Dev., LLC, 417 N.J. Super. 462, 467 (App. Div.

2011) (citing Mandel, New Jersey Appellate Practice, ch. 2:4-2

(2010)). Therefore, a party may challenge only the propriety of

the judgment entered by the trial court, not the reasoning

underlying the court's decision. Do-Wop Corp. v. City of

Rahway, 168 N.J. 191, 199 (2001).

8 A-1315-14T2 In other words, "a party satisfied with or not aggrieved by

an action may not complain on appeal about the reasons cited for

the action." Mandel, New Jersey Appellate Practice, ch. 2:4-2

(2016). This rule applies even if the trial court's reasoning

is incorrect. See Isko v. Planning Bd. of Livingston, 51 N.J.

162, 175 (1968) ("It is a commonplace of appellate review that

if the order of the lower tribunal is valid, the fact that it

was predicated upon an incorrect basis will not stand in the way

of its affirmance."), abrogated on other grounds, Commercial

Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546

(1991). Thus, contrary to the arguments raised by appellant on

appeal, a party may not parse through the opinion of a trial

judge and take an appeal from words, sentences, or sections of

the opinion that he or she finds "objectionable" when the party

is not asserting that the order or judgment was made in error.

See Arons v. N.J. Network, 342 N.J. Super. 168, 181 (App. Div.)

(rejecting plaintiff's complaints concerning "the quality of the

letter opinion provided by the trial court" because "appeals are

taken from judgments, not opinions"), certif. denied, 170 N.J.

388 (2001).

This rule is particularly apt in a case where, as here, the

appellant is challenging dicta contained in the trial court's

opinion. See Glaser v. Downes, 126 N.J. Super. 10, 16 (App.

9 A-1315-14T2 Div. 1973) (holding that "appeals are taken from judgments and

not from opinions, let alone dicta"), certif. denied, 64 N.J.

513 (1974). Dictum is a statement by a judge "not necessary to

the decision then being made[,]" and "as such it is entitled to

due consideration but does not invoke the principle of stare

decisis." Jamouneau v. Div. of Tax Appeals, 2 N.J. 325, 332

(1949). "[P]ortions of an opinion that are dicta are not

binding." Nat'l Mortg. Co. v. Syriaque, 293 N.J. Super. 547,

554 (Ch. Div. 1994).

Because the parties both broached the subject of the impact

of the automatic stay on the pending proceedings, Judge

Littlefield prudently discussed the parties' respective

positions in his thorough opinion. However, as the judge made

clear, the issue of whether the automatic stay imposed as the

result of the Evelyn's bankruptcy action would prevent plaintiff

from filing an enforcement motion against defendant in the

collection action was not before him when he considered

defendant's motion for summary judgment. Therefore, the judge

properly concluded that he would not render an advisory opinion

on the issue. See State v. Rose, 206 N.J. 141, 189 (2011) ("The

notion that a court of appeals willy-nilly can decide issues

unnecessary to the outcome of the case results in the wholesale

10 A-1315-14T2 issuance of advisory opinions, a practice our judicial decision-

making system categorically rejects.").

Instead, the judge dismissed plaintiff's complaint against

defendant because, as we noted, he concluded that "the failure

of a non-party to appear for a deposition, even a court[-]ordered

deposition, is not an independent cause of action." Plaintiff

has not challenged that ruling on appeal. Thus, we have no

jurisdiction to consider plaintiff's complaints concerning the

dictum in the opinion related to the bankruptcy proceedings.

See Glaser, supra, 126 N.J. Super. at 16.

We also do not have jurisdiction to consider the October

17, 2014 order denying plaintiff's motion for reconsideration.

Again, plaintiff's arguments concerning that order are limited

to his assertion that the judge should have redacted the

discussion of the bankruptcy proceedings from his earlier

written opinion. However, "[t]his position as a basis for

reconsideration is completely unsupported by legal authority."

Amerada Hess Corp. v. Dir., Div. of Taxation, 7 N.J. Tax 275,

280-81 (Tax Ct. 1985) (concluding that a plaintiff's

"dissatisfaction with the [trial] judge's written opinion[,]"

but not with "the judge's conclusion and final judgment[,]" does

not warrant reconsideration of the judge's order).

11 A-1315-14T2 Accordingly, we dismiss plaintiff's appeal from the August

28, 2014 and October 17, 2014 orders for want of jurisdiction.5

5 In his brief, defendant asserts that he is "entitled to recover attorneys' fees" on appeal. However, Rule 2:11-4 clearly provides that "[a]n application for a fee for legal services rendered on appeal shall be made by motion supported by affidavits as prescribed by [Rule] 4:42-9(b) and (c), which shall be served and filed within [ten] days after the determination of the appeal." (emphasis added). Therefore, we decline to consider defendant's contention in this opinion.

12 A-1315-14T2