NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2226-21
SIMON COULL,
Plaintiff-Appellant,
v.
EISNER AMPER and HUBERT KLEIN,
Defendants-Respondents. ___________________________
Argued November 6, 2023 – Decided December 4, 2023
Before Judges Marczyk and Chase.
On appeal from the Superior Court, Law Division, Hudson County, Docket No. L-3671-21.
Simon Coull, appellant, argued the cause pro se.
Charles William Mondora argued the cause for respondents (Landman Corsi Ballaine & Ford PC, attorneys; Charles William Mondora, on the brief).
PER CURIAM Plaintiff Simon Coull appeals pro se from the trial court's December 17,
2021 order granting defendants EisnerAmper LLP ("EisnerAmper"), Hubert
Klein ("Klein"), and Charles Weinstein's ("Weinstein") motion to dismiss.
Plaintiff further appeals the court's February 18, 2022 order denying his motion
for reconsideration. Based on our review of the record and the controlling legal
principles, we affirm.
I.
Plaintiff and his ex-wife entered into a marital settlement agreement
("MSA") in October 2011, requiring plaintiff to pay child and spousal support,
and the court entered a judgment of divorce in January 2012. In 2014, plaintiff
moved to reduce his child and spousal support obligations. Plaintiff's ex-wife
retained defendants' accounting firm to serve as experts and to perform an
income and cash-flow analysis in relation to plaintiff's motion. Klein generated
reports addressing these issues.
Plaintiff retained his own accounting expert who prepared reports on his
behalf. On December 22, 2015, plaintiff and his ex-wife entered into a consent
order resolving plaintiff's 2014 motion. 1 The December 22, 2015 order was
1 Plaintiff alleges in his statement of facts that "the day before the tr[ia]l [he] found out a senior partner for[] the defendant[s] had contacted [his] then [-]
A-2226-21 2 drafted by plaintiff's then-attorney, Jamie K. Von Ellen, 2 and executed by both
parties and their attorneys. The December 22, 2015 order specifically
recognized that the parties were "unable to agree to [p]laintiff's income but were
willing to agree to the support amounts" set forth in the order.
In April 2021, plaintiff filed a complaint against defendants EisnerAmper
and Klein.3 Plaintiff alleged accountant malpractice, fraud, breach of fiduciary
duty, gross negligence, and other claims. Defendants moved to dismiss the
complaint in July 2021 for improper service and failure to state a claim. The
court heard oral argument and dismissed plaintiff's claims without prejudice for
improper service and failure to state a claim.
In September 2021, plaintiff attempted to amend his complaint to cure the
defects leading to the dismissal of his first complaint but instead filed a new
attorney asking her to settle the case before tr[ia]l and to get [him] to accept the offer . . . ." He further states he "refused and realized that something was going on behind the scenes he had not been [privy] to." He then alleges that when he refused to settle, his then-attorney threatened him by stating "listen I can do all sorts of bad things to you" and claims he recorded this conversation. 2 Plaintiff's claims against his former attorney are the subject of a separate appeal. Coull v. Von Ellen, No. A-3858-21. 3 Prior to filing the civil claim, plaintiff moved in October 2020, for "declaratory relief," seeking to join Klein and Von Ellen as defendants in the family matter. The family judge denied plaintiff's application.
A-2226-21 3 complaint under a different docket number. This time, in addition to defendants
Klein and EisnerAmper, he sued Weinstein. The new complaint alleged many
of the same claims, including accountant "malpractice," the "New Jersey
2A:53A-25 accountant liability act," "privity," "fraud," "Restatement of
[T]ort[s] 552," and "Fiduciary duty."
Defendants moved to dismiss plaintiff's second complaint in October 2021
based on the statute of limitations, improper service, and failure to state a claim.
Defendants argued the statute of limitations for malpractice claims is six years .
However, the claim was time-barred because plaintiff filed this new complaint
under a new docket number on September 15, 2021, which was more than six
years after Klein generated his last report on July 16, 2015.
Plaintiff opposed defendant's motion, arguing, with respect to the statute
of limitations, that "[t]he date of accrual of loss is when the loss occurred which
would be when the contract [4] came into effect which . . . is December 22[,]
2015."
Following oral argument, the court dismissed plaintiff's complaint with
prejudice on December 17, 2021. Regarding plaintiff's claim that there was
4 When plaintiff says "contract" he is referring to the December 22, 2015 consent order arising out of the family matter. A-2226-21 4 malpractice, the court stated, "[t]his is the same argument that this court has
reviewed in the past motion and decided . . . it was the ex-wife . . . who sought
the services and therefore the duty was owed to the ex-wife as opposed to the
plaintiff here." As to the statute of limitations, the court found plaintiff's claim
time-barred because the clock starts "when the reports were generated . . . not
when [plaintiff] entered into . . . the [consent] [a]greement with the ex-wife."
Additionally, the court addressed the question of whether defendants had
litigation immunity. The judge found there was immunity for defendants
because "they made their reports in the course of litigation as part of the judicial
proceedings. . . . And that's because . . . this immunity privilege [has] a strong
public policy to [allow] experts [to] speak freely and rightfully without fear of
litigation."
In January 2022, plaintiff then moved for reconsideration and for leave to
amend his complaint. The court denied both motions on February 18, 2022. The
court concluded plaintiff:
did not provide any new arguments nor has he provided any information that shows that this [c]ourt has erred in dismissing the complaint. Rather, movant merely reemphasizes the arguments that he previously made. . . . Further, the request to amend is denied on procedural as well as substantive reasons. Procedurally, [plaintiff] failed to provide the [c]ourt with a proposed amended complaint, which is in
A-2226-21 5 violation of [Rule] 4:9-1. Substantively, [plaintiff] does not demonstrate why the amendment should be granted given that this [c]ourt has determined . . . defendants did not owe a duty to plaintiff Coull.
This appeal followed.
II.
We use a de novo standard to review the dismissal of a complaint for
failure to state a claim. Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,
Hyman and Stahl, P.C., 237 N.J. 91, 108 (2019). We apply the same standard
under Rule 4:6-2(e) that governed the motion judge and look to "the legal
sufficiency of the facts alleged on the face of the complaint." Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). We are limited to
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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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2226-21
SIMON COULL,
Plaintiff-Appellant,
v.
EISNER AMPER and HUBERT KLEIN,
Defendants-Respondents. ___________________________
Argued November 6, 2023 – Decided December 4, 2023
Before Judges Marczyk and Chase.
On appeal from the Superior Court, Law Division, Hudson County, Docket No. L-3671-21.
Simon Coull, appellant, argued the cause pro se.
Charles William Mondora argued the cause for respondents (Landman Corsi Ballaine & Ford PC, attorneys; Charles William Mondora, on the brief).
PER CURIAM Plaintiff Simon Coull appeals pro se from the trial court's December 17,
2021 order granting defendants EisnerAmper LLP ("EisnerAmper"), Hubert
Klein ("Klein"), and Charles Weinstein's ("Weinstein") motion to dismiss.
Plaintiff further appeals the court's February 18, 2022 order denying his motion
for reconsideration. Based on our review of the record and the controlling legal
principles, we affirm.
I.
Plaintiff and his ex-wife entered into a marital settlement agreement
("MSA") in October 2011, requiring plaintiff to pay child and spousal support,
and the court entered a judgment of divorce in January 2012. In 2014, plaintiff
moved to reduce his child and spousal support obligations. Plaintiff's ex-wife
retained defendants' accounting firm to serve as experts and to perform an
income and cash-flow analysis in relation to plaintiff's motion. Klein generated
reports addressing these issues.
Plaintiff retained his own accounting expert who prepared reports on his
behalf. On December 22, 2015, plaintiff and his ex-wife entered into a consent
order resolving plaintiff's 2014 motion. 1 The December 22, 2015 order was
1 Plaintiff alleges in his statement of facts that "the day before the tr[ia]l [he] found out a senior partner for[] the defendant[s] had contacted [his] then [-]
A-2226-21 2 drafted by plaintiff's then-attorney, Jamie K. Von Ellen, 2 and executed by both
parties and their attorneys. The December 22, 2015 order specifically
recognized that the parties were "unable to agree to [p]laintiff's income but were
willing to agree to the support amounts" set forth in the order.
In April 2021, plaintiff filed a complaint against defendants EisnerAmper
and Klein.3 Plaintiff alleged accountant malpractice, fraud, breach of fiduciary
duty, gross negligence, and other claims. Defendants moved to dismiss the
complaint in July 2021 for improper service and failure to state a claim. The
court heard oral argument and dismissed plaintiff's claims without prejudice for
improper service and failure to state a claim.
In September 2021, plaintiff attempted to amend his complaint to cure the
defects leading to the dismissal of his first complaint but instead filed a new
attorney asking her to settle the case before tr[ia]l and to get [him] to accept the offer . . . ." He further states he "refused and realized that something was going on behind the scenes he had not been [privy] to." He then alleges that when he refused to settle, his then-attorney threatened him by stating "listen I can do all sorts of bad things to you" and claims he recorded this conversation. 2 Plaintiff's claims against his former attorney are the subject of a separate appeal. Coull v. Von Ellen, No. A-3858-21. 3 Prior to filing the civil claim, plaintiff moved in October 2020, for "declaratory relief," seeking to join Klein and Von Ellen as defendants in the family matter. The family judge denied plaintiff's application.
A-2226-21 3 complaint under a different docket number. This time, in addition to defendants
Klein and EisnerAmper, he sued Weinstein. The new complaint alleged many
of the same claims, including accountant "malpractice," the "New Jersey
2A:53A-25 accountant liability act," "privity," "fraud," "Restatement of
[T]ort[s] 552," and "Fiduciary duty."
Defendants moved to dismiss plaintiff's second complaint in October 2021
based on the statute of limitations, improper service, and failure to state a claim.
Defendants argued the statute of limitations for malpractice claims is six years .
However, the claim was time-barred because plaintiff filed this new complaint
under a new docket number on September 15, 2021, which was more than six
years after Klein generated his last report on July 16, 2015.
Plaintiff opposed defendant's motion, arguing, with respect to the statute
of limitations, that "[t]he date of accrual of loss is when the loss occurred which
would be when the contract [4] came into effect which . . . is December 22[,]
2015."
Following oral argument, the court dismissed plaintiff's complaint with
prejudice on December 17, 2021. Regarding plaintiff's claim that there was
4 When plaintiff says "contract" he is referring to the December 22, 2015 consent order arising out of the family matter. A-2226-21 4 malpractice, the court stated, "[t]his is the same argument that this court has
reviewed in the past motion and decided . . . it was the ex-wife . . . who sought
the services and therefore the duty was owed to the ex-wife as opposed to the
plaintiff here." As to the statute of limitations, the court found plaintiff's claim
time-barred because the clock starts "when the reports were generated . . . not
when [plaintiff] entered into . . . the [consent] [a]greement with the ex-wife."
Additionally, the court addressed the question of whether defendants had
litigation immunity. The judge found there was immunity for defendants
because "they made their reports in the course of litigation as part of the judicial
proceedings. . . . And that's because . . . this immunity privilege [has] a strong
public policy to [allow] experts [to] speak freely and rightfully without fear of
litigation."
In January 2022, plaintiff then moved for reconsideration and for leave to
amend his complaint. The court denied both motions on February 18, 2022. The
court concluded plaintiff:
did not provide any new arguments nor has he provided any information that shows that this [c]ourt has erred in dismissing the complaint. Rather, movant merely reemphasizes the arguments that he previously made. . . . Further, the request to amend is denied on procedural as well as substantive reasons. Procedurally, [plaintiff] failed to provide the [c]ourt with a proposed amended complaint, which is in
A-2226-21 5 violation of [Rule] 4:9-1. Substantively, [plaintiff] does not demonstrate why the amendment should be granted given that this [c]ourt has determined . . . defendants did not owe a duty to plaintiff Coull.
This appeal followed.
II.
We use a de novo standard to review the dismissal of a complaint for
failure to state a claim. Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,
Hyman and Stahl, P.C., 237 N.J. 91, 108 (2019). We apply the same standard
under Rule 4:6-2(e) that governed the motion judge and look to "the legal
sufficiency of the facts alleged on the face of the complaint." Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). We are limited to
reviewing "the pleadings themselves." Roa v. Roa, 200 N.J. 555, 562 (2010).
"'At this preliminary stage of the litigation the [judge] is not concerned with the
ability of plaintiffs to prove the allegation contained in the complaint ,' and the
plaintiff is 'entitled to every reasonable inference of fact.'" Dimitrakopoulos,
237 N.J. at 107 (quoting Printing Mart, 116 N.J. at 746). However, "if the
complaint states no claim that supports relief, and discovery will not give rise
to such a claim, the action should be dismissed." Ibid.
"Motions for reconsideration are governed by Rule 4:49-2, which provides
. . . the decision to grant or deny a motion for reconsideration rests within the
A-2226-21 6 sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "Reconsideration
should be used only where '1) the [c]ourt has expressed its decision based upon
a palpably incorrect or irrational basis, or 2) it is obvious . . . the [c]ourt either
did not consider, or failed to appreciate the significance of probative, competent
evidence.'" Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990)). Therefore, we will not disturb a trial court's decision on a motion for
reconsideration unless there is a clear abuse of discretion. Ibid.
Plaintiff advances several arguments in support of his appeal: the statute
of limitations is tolled under the extraordinary circumstance doctrine;
defendants owed plaintiff a duty under the Accountants Liability Act, N.J.S.A.
2A:53A-25; defendants supplied reports with the knowledge that they were
inaccurate contrary to Restatement of Torts § 552; fraud was pled with sufficient
specificity in plaintiff's complaint under New Jersey's liberal pleading
standards; and the trial court erred in dismissing the complaint based on
litigation immunity.
We confine our discussion to the issue of litigation immunity as the court
properly dismissed plaintiff's complaint pursuant to that doctrine. The thrust of
plaintiff's argument regarding the litigation immunity issue is that his complaint
A-2226-21 7 is based on Klein's preparation of a report "and not any testimony presented in
court," and, therefore, the privilege is not applicable. We are unpersuaded by
plaintiff's arguments.
"It is well-settled that a witness in a judicial or quasi-judicial proceeding
enjoys an absolute immunity from civil suit for his words and actions relevant
to the judicial proceedings." Durand Equip. Co., Inc. v. Superior Carbon Prods.,
Inc., 248 N.J. Super. 581, 583 (App. Div. 1991). "This absolute immunity is
afforded even if 'the words are written or spoken maliciously, without any
justification or excuse, and from personal ill will or anger against the party
. . . .'" Id. at 583-84 (quoting DeVivo v. Ascher, 228 N.J. Super. 453, 457 (App.
Div. 1988)).
Furthermore, the immunity "is not limited to what a person may say under
oath while on the witness stand. It extends to statements or communications in
connection with a judicial proceeding." Id. at 584 (quoting DeVivo, 228 N.J.
Super. at 457). "The absolute immunity granted to witnesses is not designed to
benefit the dishonest witness but to further the broad public interest in having
witnesses who are unafraid to testify fully and openly." Id. at 585.
In Commercial Insurance Co. of Newark v. Steiger, 395 N.J. Super. 109
(App. Div. 2007), we concluded that an expert—who provided a report in
A-2226-21 8 support of a claim for uninsured motorist (UM) benefits—was immune from
liability pursuant to the absolute litigation privilege. The UM insurance
company sued the expert for material misrepresentation regarding his report. Id.
at 113-14. The expert opined a phantom vehicle was a contributing cause of the
accident, and we determined that the report was "clearly pertinent and relevant
to the litigation" and therefore was "immune from liability pursuant to the
litigation privilege." Id. at 119.
The litigation privilege is implicated in this matter. Klein's report was
clearly prepared for the purposes of the underlying litigation. The privilege
"extends to statements or communications in connection with a judicial
proceeding." Durand, 248 N.J. Super. at 584 (quoting DeVivo, 228 N.J. Super.
at 457). Klein's report falls squarely within the privilege. Accordingly, the trial
court properly dismissed plaintiff's complaint with prejudice.
To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2226-21 9