THOMAS AND KIMBERLY DOLAN VS. 130 STAR PROPERTIES, LLC JOHN F. VASSALLO, JR. VS. THOMAS AND KIMBERLY DOLAN (L-0322-14, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 25, 2020
• Docket: A-2616-18T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2616-18T2

THOMAS and KIMBERLY DOLAN,

Plaintiffs,

v.

130 STAR PROPERTIES, LLC,

Defendant. ____________________________

JOHN F. VASSALLO, JR.,

Plaintiff,

THOMAS and KIMBERLY DOLAN, and DOLAN'S IRISH PUB & RESTAURANT, INC., f/k/a MIKE & NISSAN, INC.,

Defendants-Appellants,

and

JACOB SPIGELMAN, Defendant-Respondent,

130 STAR PROPERTIES, LLC, c/o THOMAS PATSAROS, and CITY OF BURLINGTON,

Defendants. ____________________________

Argued January 13, 2020 – Decided February 25, 2020

Before Judges Messano and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0322-14.

Mark J. Molz argued the cause for appellants.

John E. Shields argued the cause for respondent (Helmer, Conley & Kasselman, PA, attorneys; John E. Shields, of counsel and on the brief).

PER CURIAM

Plaintiffs Thomas Dolan, Kimberly Dolan, and Dolan's Irish Pub &

Restaurant, Inc. (Dolan's Irish Pub) appeal from a January 8, 2019 order granting

defendant Jacob Spigelman's motion to vacate a June 30, 2017 order that

effectively reversed an order granting Spigelman summary judgment. 1 Having

1 The court's January 8, 2019 order contains a typographical error. It states that it vacates a June 20, 2017 order, but the vacated order is dated June 30, 2017. A-2616-18T2 2 considered the record, and discerning no abuse of discretion in the court 's entry

of the January 8, 2019 order, we affirm.

I.

This matter arises out of a dispute over the purchase of a liquor license

and restaurant from defendants Thomas Patsaros and 130 Star Properties, LLC.

Defendant John F. Vassallo, Jr., a New Jersey attorney, represented plaintiffs in

the purchase.2 As part of the transaction, Thomas Dolan, Kimberly Dolan, and

Patsaros became shareholders in Dolan's Irish Pub, which became the purchaser

of the liquor license and restaurant. Kimberly Dolan held ninety-eight percent

of the shares in Dolan's Irish Pub stock. Thomas Dolan and Patsaros held one

percent each.

Plaintiffs required working capital to complete the transaction, so

Vassallo and Patsaros arranged for Spigelman to loan Dolan's Irish Pub fifty

thousand dollars. Although Thomas Dolan and Kimberly Dolan never met

Spigelman, they executed a fifty-thousand-dollar promissory note on behalf of

Dolan's Irish Pub in Spigelman's favor. Patsaros personally guaranteed

repayment of the note, and he, Thomas Dolan, Kimberly Dolan, and Spigelman

entered into an Escrow and Pledge Agreement (escrow agreement), which, in

2 Plaintiffs alleged Vassallo also represented Patsaros in the transaction. A-2616-18T2 3 pertinent part, pledged the stock in Dolan's Irish Pub to secure payment of the

note. With the authorization of Thomas Dolan and Kimberly Dolan, Spigelman

transferred fifty thousand dollars to Vassallo, who deposited the funds in his

attorney trust account. Vassallo disbursed the funds in a manner that became an

issue in the litigation.

Plaintiffs later filed a complaint against Vassallo, Patsaros, and 130 Star

Properties, LLC, asserting causes of action arising out of the transaction.

Vassallo filed a separate complaint against plaintiffs; 130 Star Properties, LLC;

Patsaros; the City of Burlington; and Spigelman. It appears Spigelman filed a

cross-claim against plaintiffs on the obligations under the promissory note and

escrow agreement. It further appears plaintiffs and Dolan's Irish Pub filed cross-

claims against Spigelman seeking nullification of the obligations under the

note.3 The court consolidated plaintiffs' and Vassallo's complaints, and the

various claims asserted were thereafter litigated in a single proceeding.

3 In their respective appendices, plaintiffs and Spigelman fail to include all of the pleadings filed by all of the participants in the Law Division proceedings. For example, and not by way of limitation, plaintiffs do not provide their complaint and amended complaint in the record on appeal. In any event, we generally summarize the respective claims based on what we glean from the record provided, and note there are clearly many claims we do not mention that were asserted by and among the numerous parties. It is unnecessary that we detail all of the claims asserted by the parties, even including those between

A-2616-18T2 4 Following the completion of discovery, and just prior to the scheduled

trial date, the court permitted the filing of dispositive motions in accordance

with an accelerated schedule. Spigelman moved for summary judgment on his

claims under the note and for dismissal of plaintiffs' cross-claims seeking

rescission of the note. 4 Plaintiffs cross-moved for summary judgment on their

claims against Spigelman and his claims against them.

On May 30, 2017, Judge Janet Z. Smith heard extensive argument on the

cross-motions and informed the parties Spigelman's summary judgment motion

was granted and plaintiffs' motion was denied. In plaintiffs' counsel's presence,

Judge Smith also advised Spigelman his appearance at future proceedings in the

case was no longer required. On June 12, 2017, Judge Smith entered an order

(summary judgment order) granting Spigelman summary judgment on his claims

under the note and for unjust enrichment against plaintiffs, dismissing plaintiffs'

claims against Spigelman, and denying plaintiffs' cross-motion. In her oral

plaintiffs and Spigelman, because we are required to decide only wheth er the court erred by entering its January 8, 2019 order vacating its June 30, 2017 order, and our resolution of that issue does not require an analysis of the merits of the causes of action asserted. 4 Plaintiffs also sought damages based on alleged fraud in obtaining the note and in the disbursement of the loan funds.

A-2616-18T2 5 opinion, Judge Smith found $50,000 was due to Spigelman under the note, but

the summary judgment order does not include an amount due. 5

The remaining claims involving plaintiffs, Vassallo, 130 Star Properties,

LLC, and Patsaros proceeded to trial before a different judge. The claims

against Vassallo settled, and the judge conducted a June 28, 2017 proof hearing

on plaintiffs' claims against Patsaros, 6 who did not appear for trial or the proof

hearing.7 Thomas Dolan and Kimberly Dolan appeared at the proof hearing with

their counsel. No other parties or counsel were present.

5 During the summary judgment proceeding, Judge Smith said "there is a judgment for $50,000 for . . . Spigelman against . . . plaintiffs," and "grant[ed] summary judgment, but only to the extent of $50,000." Plaintiffs correctly note the summary judgment order does not include the amount the court determined is due to Spigelman. See Taylor v. Int'l Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498 (App Div. 2002) ("Where there is a conflict between a judge's written or oral opinion and a subsequent written order, the former controls."). Plaintiffs do not appeal from the summary judgment order and Spigelman d id not cross-appeal from the order. We therefore do not address any alleged deficiency in the order. However, nothing in our opinion precludes the parties from moving before the trial court in accordance with Rule 1:13-1 for the correction of any clerical error "arising from oversight and omission" in the summary judgment order. 6 The court addresses 130 Star Properties, LLC in an order entered following the proof hearing. The order provides that 130 Star Properties, LLC is an "entity [that] has been utilized with a lack of corporate formality," is Patsaros's "alter- ego," and failed to appear for trial. 7 Plaintiffs have not provided transcripts of any trial proceedings. The record includes a transcript of the June 28, 2017 proof hearing. A-2616-18T2 6 During the proof hearing, there was no testimony concerning Spigelman,

and his name was not mentioned by the court, counsel, or plaintiffs. Plaintiffs '

counsel did not advise the court Judge Smith entered the summary judgment

order in Spigelman's favor two weeks earlier. The record is devoid of evidence

plaintiffs' counsel notified Spigelman or his counsel prior to the proof hearing

that plaintiffs intended to request that the court vacate or modify Judge Smith 's

summary judgment order. And, during the proof hearing, plaintiffs' counsel

never stated plaintiffs sought relief as to Spigelman or the promissory note and

never requested vacation or modification of the summary judgment order. In

addition, although Judge Smith issued the summary judgment order, plaintiffs

never moved before her for reconsideration of the order.

Nonetheless, following the proof hearing, plaintiffs' counsel submitted a

proposed order to the court entitled "ORDER REGARDING SPIGELMAN

LOAN."8 The order in part addressed the issue presented to the court during the

proof hearing—Patsaros's liability to plaintiffs—but it also effectively vacated

8 Plaintiffs' counsel submitted two orders to the court following the proof hearing. The court entered both orders. One of the orders, which is captioned "ORDER DISMISSING CROSSCLAIMS," dismissed Patsaros's and 130 Star Properties, LLC's crossclaims against plaintiffs, and dismissed the case as to Vassallo. We do not address that order because it was not vacated by the January 8, 2019 order that is the subject of this appeal.

A-2616-18T2 7 and reversed Judge Smith's summary judgment order. The order provided "it

would be inequitable to require [p]laintiffs to be responsible for [the Spigelman]

loan," found the loan documents were "part of a continuing [f]raud and are void

ab initio," and stated that Patsaros was "100% responsible for the loan

from . . . Spigelman."

There is no evidence plaintiffs' counsel served Spigelman or his counsel

with the proposed order when it was submitted to the court, see R. 4:42-1(c); or

that Spigelman or his counsel were served with the order following its entry ,9

see R. 1:5-1(a). Moreover, the proof hearing record does not include any

evidence or argument supporting the vacation of Judge Smith's summary

judgment order. The record is further bereft of any evidence plaintiffs or their

counsel notified Spigelman that they would seek the vacation of Judge Smith's

summary judgment order at either the trial or proof hearing.

The judge who held the proof hearing entered plaintiffs' proposed ORDER

REGARDING SPIGELMAN LOAN on June 30, 2017, without making any

findings of fact or conclusions of law. See R. 1:7-4. Thus, the court's reasoning

for its inexplicable entry of the order is unknown.

9 The order required that it be "served upon all parties that have not settled and who appear herein within [seven] days after receipt hereof." The record on appeal does not establish service of the order on Spigelman or his counsel. A-2616-18T2 8 Spigelman subsequently moved to vacate the ORDER REGARDING

SPIGELMAN LOAN pursuant to Rule 4:50-1(c), arguing it was obtained by

"fraud . . . , misrepresentation or other misconduct of an adverse party." More

particularly, Spigelman claimed plaintiffs' counsel never informed the court

about Judge Smith's summary judgment order and submitted the ORDER

REGARDING SPIGELMAN LOAN even though there was no evidence

presented during the proof hearing regarding Spigelman.

The court heard argument and entered a January 8, 2019 order granting

Spigelman's motion, vacating the ORDER REGARDING SPIGELMAN LOAN,

and providing that Judge Smith's "June 12, 2017 [order]

granting . . . Spigelman's [m]otion for [s]ummary [j]udgment remains in full

force and effect." Entry of the order is untethered to any findings of fact or

conclusions of law. See R. 1:7-4. This appeal followed.

Plaintiffs present the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED BY VIOLATING RULE 4:46-1 IN THE SCHEDULING OF DISPOSITIVE MOTIONS ON THE EVE OF TRIAL[.]

POINT II

ALTHOUGH JUDGE SMITH ENTERED SUMMARY JUDGMENT AS TO LIABILITY, THE TRIAL

A-2616-18T2 9 COURT NEVER ENTERED A JUDGMENT AGAINST THE PLAINTIFFS[.]

POINT III

ALTHOUGH JUDGE SMITH ENTERED SUMMARY JUDGMENT IN FAVOR OF MR. SPIGELMAN ON LIABILITY, THERE WERE MATERIAL ISSUES OF CONTESTED FACTS AND CROSSCLAIMS WHICH PRECLUDED SUMMARY DISPOSITION[.]

II.

Plaintiffs' arguments center solely on their claim Judge Smith erred by

granting Spigelman's summary judgment motion. They argue Judge Smith

incorrectly condensed the Rule 4:46 time frames for submission of the summary

judgment motion papers; 10 the summary judgment order was not final because it

did not include a monetary amount; and there were genuine issues of material

fact precluding a proper grant of summary judgment.

We reject plaintiffs' arguments because plaintiffs do not appeal from the

summary judgment order. Their notice of appeal lists only the January 8, 2019

10 The record reflects that despite the court's requirement that parties file dispositive motions on an accelerated basis prior to the impending trial date, plaintiffs filed opposition papers and a cross-motion for summary judgment. Plaintiffs' brief on appeal does not identify any evidence or facts demonstrating they were prejudiced by the accelerated schedule. They also do not make any showing that if the schedule had not been accelerated, they would have presented additional evidence affecting the disposition of the summary judgment motions. A-2616-18T2 10 order vacating the ORDER REGARDING SPIGELMAN LOAN. A notice of

appeal in a civil action must "designate the judgment, decision, action or rule,

or part thereof appealed from." R. 2:5-1(e)(3)(i). "[I]t is only the judgments or

orders or parts thereof designated in the notice of appeal which are subject to

the appeal process and review." Pressler & Verniero, Current N.J. Court Rules,

cmt. 6.1 on R. 2:5-1 (2020); see also 30 River Court E. Urban Renewal Co. v.

Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006) (refusing to review

orders dismissing the defendant's affirmative claims because they were not

included in her notice of appeal); Campagna ex rel. Greco v. Am. Cyanamid

Co., 337 N.J. Super. 530, 550 (App. Div. 2001) (refusing to consider an order

not listed in the notice of appeal). Thus, because plaintiffs appeal only from the

January 8, 2019 order, the arguments presented, which challenge only the

summary judgment order, are wholly inapposite to the order under review.

In fact, plaintiffs offer no arguments challenging the order that is the

subject of their appeal, and, for that reason alone, we affirm the court's January

8, 2019 order. Nonetheless, we also address the merits of the order.

Rule 4:50-1 is "'designed to reconcile the strong interests in finality of

judgments and judicial efficiency with the equitable notion that courts should

have authority to avoid an unjust result in any given case.'" Mancini v. EDS ex

A-2616-18T2 11 rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993) (quoting

Baumann v. Marinaro, 95 N.J. 380, 392 (1984)). A court's grant of relief under

the Rule "warrants substantial deference, and should not be reversed unless it

results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209

N.J. 449, 467 (2012). Plaintiffs make no showing the court abused its discretion

by entering the January 8, 2019 order, and the record does not support such a

finding.

The ORDER REGARDING SPIGELMAN LOAN was entered following

the summary judgment order that disposed of all of plaintiffs' claims against

Spigelman and granted Spigelman judgment against plaintiffs for their

obligations under the note. Plaintiffs and their counsel were aware of the

disposition and that Judge Smith appropriately advised Spigelman his further

participation in the proceedings in the case was unnecessary. Although they

were apparently dissatisfied with the summary judgment order, plaintiffs opted

not to seek reconsideration from Judge Smith in accordance with Rule 4:49-2.

Judge Smith's summary judgment order was interlocutory, and the new

judge was "empowered to revisit the prior ruling and right the proverbial ship"

if such relief was warranted. Lombardi v. Masso, 207 N.J. 517, 537 (2011).

However, "[p]rocedurally, where a judge is inclined to revisit a prior

A-2616-18T2 12 interlocutory order," it is "critical . . . that he [or she] provide the parties a fair

opportunity to be heard on the subject," so they "may argue against

reconsideration and advance claims of prejudice." Ibid. After a judge

determines to revisit a prior order, "he [or she] must apply the proper legal

standard to the facts and explain" the reasons reconsideration is appropriate.

Ibid. For example, where a court decides to reconsider an order granting

summary judgment, it "should apply Rule 4:46-2 and explain what genuine

issues of material fact require trial." Id. at 537-38.

In Lombardi, the Court affirmed a judge's decision to vacate an

interlocutory summary judgment order based on evidence produced during a

subsequent proof hearing. Id. at 523-24. The Court noted, however, that after

considering the evidence presented at the proof hearing, the judge first "advised

the parties of his concern that the case was more complex than he had originally

intuited and gave them the record of the proof hearing, ample time to prepare,

and an opportunity to weigh in on what he was considering." Id. at 538. The

Court concluded that under those circumstances, "the trial judge abided by all

of the relevant principles in determining to revisit his original summary

judgment order." Ibid.

A-2616-18T2 13 Here, plaintiffs settled their claims against Vassallo and participated in a

proof hearing against the only defendant remaining in the case, Patsaros.

Plaintiffs and their counsel never notified Spigelman they intended to seek relief

from the summary judgment order at the trial or proof hearing, never mentioned

Spigelman or the summary judgment order during the proof hearing, and never

advised the new judge they sought relief from Judge Smith's summary judgment

order. Thus, they not only deprived Spigelman of what the Supreme Court in

Lombardi described as the "critical . . . opportunity" to be heard on the

reconsideration of the summary judgment order, 207 N.J. at 537, they also

deprived the new judge of the knowledge that he was being asked to reconsider

and vacate a prior court order.

Following the hearing, plaintiffs submitted an order, without notice to

Spigelman, that effectively reversed the summary judgment order entered in his

favor. They indirectly accomplished what they failed to do directly; obtain

reconsideration of the summary judgment order without filing a motion for

reconsideration with Judge Smith or notifying the new judge about the summary

judgment order and expressly requesting he reverse it. Plaintiffs acted with the

apparent hope the unsuspecting new judge would simply enter their order

following a hearing at which Spigelman was not present and no opposition was

A-2616-18T2 14 presented. Their strategy worked. The judge entered plaintiffs' proposed

ORDER REGARDING SPIGELMAN LOAN.

The court's entry of the order violated Spigelman's basic due process right

to notice of the proceedings at which summary judgment entered in his favor

was reversed; was inconsistent with the principles espoused by the Supreme

Court in Lombardi, 207 N.J. 537-38; and in part it was the result of an

indefensible lack of disclosure to the new judge that judgment previously had

been entered in Spigelman's favor.11 Moreover, the testimony presented at the

proof hearing did not support the entry of the order reversing Spigelman 's

judgment.12

11 We prefer to attribute plaintiff's counsel's failure to advise the court about Judge Smith's summary judgment order to a lack of attention or inadequate preparation, and not to an intentional violation of his duty of candor to his adversary and the court. See R.P.C. 3.3(a)(1); McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 371 (2001) (noting "[l]awyers have an obligation of candor to each other and to the judicial system"). 12 The ORDER REGARDING SPIGELMAN LOAN refers to what appear to be two exhibits, "P33" and "Exhibit 35," as support for the court's findings. The proof hearing transcript, however, reflects that neither purported exhibit was marked for identification or admitted in evidence. Plaintiffs are responsible to provide the "parts of the record . . . as are essential to the proper consideration of the issues," R. 2:6-1(a)(1)(I), including all of the relevant transcripts of the proceedings, R. 2:5-3(a); see also Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (affirming the Appellate Division's refusal to address an issue because the appellant failed to provide the transcript from the proceedings from which

A-2616-18T2 15 Under these circumstances, we find no abuse of the court's discretion in

its January 8, 2019 order vacating the improvidently entered ORDER

REGARDING SPIGELMAN LOAN. See Guillaume, 209 N.J. at 467. The

record supports a finding Spigelman was entitled to relief from the order under

Rule 4:50-1(c) due to plaintiffs' misconduct in failing to provide notice to

Spigelman they intended to seek a reversal of the summary judgment order at

the proof hearing; failing to inform the new judge summary judgment had been

entered in Spigelman's favor; and submitting a proposed order, without notice

to Spigelman, on an issue not directly presented to the new judge and for which

there was no support in the proof hearing record. We also conclude relief from

the order was required under Rule 4:50-1(f). That is, Spigelman was entitled to

relief from the ORDER REGARDING SPIGELMAN LOAN based on the

totality of the exceptional circumstances presented and because enforcement of

the order would be unjust and inequitable. See id. at 484. As noted, plaintiffs

offer no arguments to the contrary.

Affirmed.

the appeal was taken); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002) (declining to address issues requiring review of portions of the trial record not included in the record on appeal). A-2616-18T2 16