Lombardi v. Masso

Justice RIVERA-SOTO,

dissenting.

In cobbling together a species of unwarranted relief for plaintiff Debra Ann Lombardi, the majority overlooks a core, fundamental precept: that summary judgment motions are to be gauged based exclusively on the summary judgment record adduced by the parties, and not with reference to supplementary proofs the opposing party had but nevertheless failed to produce in timely opposition. Basing its decision on facts plaintiff belatedly revealed to the trial court only after the trial court already (1) had granted summary judgment to defendants and (2) had denied a motion for reconsideration thereof, the majority encourages or, at the very least, condones the sloppy, unprofessional practices our detailed and quite specific summary judgment rules are designed to interdict. For that reason, I must dissent.

I.

All defendants — save for James Githens and Tara Construction Services, Inc. 1 — moved for summary judgment in respect of plaintiffs January 13, 2004 complaint. That procedural maneuver *546triggered certain non-delegable or non-waivable obligations from the parties.

Motions for summary judgment are distinctly unique under our Rules of Court. The Rules require a strict timetable for the filing of moving and opposing papers, and specifically provide that, other than the designated moving and opposition papers, “[n]o other papers may be filed without leave of court.” Rule 4:46-1. Standing apart from any other motion cognizable in our courts, the Rules specifically require that summary judgment motions be supported by a statement of material fact complying with the following:

The statement of material facts shall set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uneontroverted. The citation shall identify the document and shall specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on.
[R. 4:46-2.]

That requirement is not illusory; this Court has deemed that obligation so elementary to the proper exercise of the judiciary’s adjudicatory process that the Rules further command that “[a] motion for summary judgment may be denied without prejudice for failure to file the required statement of material facts.” Ibid.

Once a summary judgment motion is properly made and supported, its opponent cannot sit idly by. The Rules impose an affirmative obligation on the party adverse to a motion for summary judgment to squarely meet the assertions in the movant’s statement of material facts. R. 4:46-2(b) (“A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant’s statement.” (emphasis supplied)). A party opposing a motion for summary judgment ignores this requirement at its peril: “Subject to R. 4:46-5(a), all material facts in the movant’s statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of [Rule 4:46-2](a) demonstrating the existence of a genuine issue as to the fact.” Ibid. The adverse party is not *547limited by the scope of the movant’s statement of material facts; the opponent “may also include in the responding statement additional facts that the party contends are material and as to which there exists a genuine issue[,]” ibid., provided, of course, that those additional facts likewise are properly supported as required under the Rules. Ibid, (requiring that, in opposing statement of material facts, “[e]ach such fact shall be stated in separately numbered paragraphs together with citations to the motion record.”).

Facts tendered as material either in support or in opposition to a motion for summary judgment motion must be anchored to a proper basis. The Rules plainly provide that

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the pleading, but must respond by affidavits meeting the requirements of R. l:6-fi 2 or as otherwise provided in this rule and by R. 4:46-2(b), setting forth specific facts showing that there is a genuine issue for trial.
[R 4:46 — 5(a).]

Unless the party opposing summary judgment demonstrates that it in fact and in good faith is unable to respond by affidavit to the movant’s statement of material facts, the penalty for non-compliance is severe: “If the adverse party does not so respond, summary judgment, if appropriate, shall be entered[.]” Ibid. Further, if it appears to the court that

any of the affidavits submitted pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses resulting from the filing of the affidavits, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.
[R. 4:46 — 5(b).]

*548Once a summary judgment motion is properly presented, and “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law[,]” the court’s obligation is clear: “[t]he judgment or order sought shall be rendered forthwith[.]” R. 4:46 — 2(c); see also State v. Hupka, 203 N.J. 222, 241, 1 A.3d 640 (2010) (describing as “black letter law that where a material factual matter is contested, it cannot be relied on without a resolution of the disputed evidence” and citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995), as “setting forth standard for determining whether material factual dispute precludes grant of summary judgment”).

Even if a motion for summary judgment is not granted in full, see R. 4:46-3 (addressing partial judgment), the court retains considerable discretion, as “[ljeave to proceed may be given unconditionally, or upon such terms as to giving security, or time or mode of trial, or otherwise, as is deemed just.” R. 4:46-4. Also, the negative repercussions to a party adverse to a summary judgment motion arising from the failure to respond properly and with sufficient, verifiable facts do not end with the adjudication of the motion itself. As an exception to New Jersey’s overall adherence to the “American Rule,” see In re Estate of Vayda, 184 N.J. 115, 120, 875 A.2d 925 (2005) (reaffirming that “ ‘New Jersey has a strong public policy against the shifting of costs’ and that ‘[tjhis Court has embraced that policy by adopting the “American Rule,” which prohibits recovery of counsel fees by the prevailing party against the losing party’ ” (quoting In re Niles, 176 N.J. 282, 293-94, 823 A.2d 1 (2003))), Rule 4:46-6 specifically provides that

[i]n an action tried to conclusion in which the prevailing party had made a pretrial motion for summary judgment or partial summary judgment that was denied, the court may, on motion, award counsel fees to the prevailing party if it finds that the denial of the motion was based on a factual contention raised in bad faith by the party opposing the motion with knowledge that it was a palpable sham or predicated on facts known or which should have been known to be false. The motion shall be made to the trial court and shall be decided on the basis of the *549record made in the summary judgment motion and the trial of the cause. The award of counsel fees shall be limited to those legal services rendered on the motion for summary judgment and for such subsequent services as were compelled by its denial.

Based on the Rule-defined, specifically tailored summary judgment record before it, the trial court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A, 189 N.J. 436, 445-446, 916 A.2d 440 (2007) (citations and internal quotation marks omitted). That limitation— that a summary judgment determination is defined and limited by the summary judgment record — also applies on appeal. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 378 n. 3, 997 A.2d 954 (2010) (noting that “[i]n respect of a summary judgment motion, an appellate court is bound by the summary judgment factual record developed before the trial court and applies to that record the governing legal standards” (citation omitted)).

Those time-honored and jurisprudentially sound principles define our inquiry in this appeal. And, those are the very principles the majority eschews to reach its desired but wrongful result.

II.

As explicitly represented by plaintiff on her direct appeal, the original summary judgment record developed before the trial court consisted, in its entirety, of the following four items:

1. Certification of Counsel and Statement of Undisputed Material Facts and exhibits in support of [defendants] Jennifer Lynch and Prudential Fox & Roach Realtors’ motion for summary judgment!;]
2. Statement of Undisputed Material Facts and exhibits in support of [defendants] Christopher J. Masso, John M. Torrence, [and] MTG Properties, LLC’s motion for summary judgmentt;]
3. Certification of [plaintiffs counsel in opposition to defendants’ motion for summary judgment; and]
4. Plaintiffs [Counter-]Statement of Undisputed Material Facts.

Based on that party-generated summary judgment record, on December 1, 2006, the trial court granted defendants’ motion for *550summary judgment. Given that record — one developed by, presented by and informed by parties represented by experienced counsel — the trial court found the following facts, none of which are contested by the parties and which, given the majority’s reasoning and result, merit recitation in their entirety. The trial court found as undisputed facts that

[t]his case arises out of a sale for the contract of land. In the spring of 2003, [plaintiff] with the help of her real estate agent, Brenda Richmond (“Richmond”) [of Weichert Realtors], found a home located at 121 Nokomis Trail, Medford Lakes, New Jersey. The property had been purchased that winter by [defendant] MTG Properties, LLC (“MTG”), who hired [defendant Tara Construction Services, Inc. and its contractor [defendant] James Githens (“Githens”) to renovate it for resale. At the time [p]laintiff first saw the house, it was still being renovated and she alleges Githens told her the work would be completed by June 16, 2003. He also indicated if [p]laintiff was interested in purchasing the some, she could be included in choosing the colors.

On April 22, 2003, [pjlaintiff entered into a contract to purchase the property. Provisions in the contract included a right to inspect before closing, that the property was being sold “as is”[,] and [that] no oral representations were made by the seller.

On July 16, 2003, [p]laintiff and Githens signed an agreement to have a Punch List of items to be completed at the house. The Punch List was based on a joint inspection of the premises by [p]laintiff and Githens.

July 16, 2003 was also the scheduled closing date; however, the renovations were not completed. Plaintiff visited the house that morning and was aware of the uncompleted work. At the closing, [p]laintiff, Richmond, [defendant] Christopher J. Masso (“Masso”), a representative of MTG, and MTG’s real estate agent were present.

Richmond advised [plaintiff] not to close until the repairs were completed, yet [p]laintiff insisted on closing the property on that date. Richmond prepared a legal document for [p]laintiff to sign stating that she was advised not to proceed until the work was completed, that she should seek legal counsel before proceeding, and that [p]laintiff agrees “to hold Weichert Realtors and their representatives harmless from any legal action resulting from [her] decision to proceed.”

*551Richmond recommended that if [p]laintiff was going to close on her house that she should escrow a substantial portion of the purchase price. An Escrow Agreement was negotiated, drafted and signed. The original agreement was for $3,000 until Githens completed the punch list items on or before August 1, 2003, after which time all rights and obligations of the parties would terminate. During the closing, [defendant] Masso visited the property and when he returned he suggested the escrow agreement be increased to $10,000. This change was accepted and handwritten on the face of the Escrow Agreement.

On August 4, 2003, Githens asked [p]laintiff to sign an agreement releasing the $10,000 in escrow money to him. At this time, [p]laintiff and Githens knew the items on the punch list had not been completed. Plaintiff signed the agreement after Githens allegedly represented to her that he needed the money to finish the house and that [defendant] Masso was not paying him. Gith-ens then presented the release with [p]lainitffs signature to [defendant] Masso to sign on behalf of MTG, agreeing to release the escrow money to Githens. [Defendant] Masso was unaware that the work had not been completed. Plaintiff did not tell Masso until 30 days later that the work was not completed.

On January 13, 2004 Githens had still not completed the work. This is when [p]laintiff filed a [c]omplaint.

From those undisputed record facts developed by the parties purportedly in compliance with the obligations imposed by our summary judgment rules, the trial court entered summary judgment in favor of defendants. It primarily concluded that that there was no agency relationship — either express, implied or apparent — between Githens and Tara Construction Services, Inc., on the one side, and defendants, on the other; therefore, defendants could not be liable for the actions of Githens and Tara Construction Services, Inc. either in failing to complete the punch list items or in duping plaintiff out of the escrow funds. It also concluded that none of the defendants breached the real estate *552sales contract with plaintiff, particularly as that contract specifically provided that no liability would accrue thereunder after closing on the property had occurred and, more to the point, several of the named defendants were not even parties to the contract. The trial court appeared acutely aware that plaintiffs woes were self-inflicted; it noted that “[pjlaintiff went against her real estate agent, Richmond’s advice and chose to close on the property anyway. In doing so, [pjlaintiff voided any warranties and knowingly accepted the ‘as is’ property.”3 It further held that defendants had made no misrepresentations to plaintiff; and that plaintiff had presented no cognizable cause of action under the Consumer Fraud Act, N.J.S.A 56:8-2.4

Plaintiff sought reconsideration, which was denied on August 3, 2007. Procedurally, the trial court held that plaintiffs motion for reconsideration, having been filed “eight months” after the court had entered its summary judgment decision, was untimely. R. *5534:49-2 (“Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it.”). Noting further the limited scope of reconsideration motions, the trial court ruled that “plaintiffs motion for reconsideration must be denied since the plaintiff has not met the elements for reconsideration.” It noted:

The plaintiff seeks reconsideration relying upon “new information” which the plaintiff concedes is “uncovered facts of which were previously overlooked. These facts included the deposition answers provided by Masso and Githens.” [providing reference to plaintiffs reply brief in support of reconsideration motion]. The depositions of Masso and Githens were taken two years ago and hardly can be considered new information. The plaintiff has not shown that the Court’s reasoning was plainly incorrect. Plaintiffs failure to examine deposition transcripts for the December 1, 2006 summary judgment motion is not the Court’s error.

However, after hearing the one-sided evidence plaintiff presented at the uncontested proof hearing against Githens and Tara Construction Services, Inc., the trial court sua sponte reconsidered that decision, asked for more argument from the parties and, based on a new, expanded record that contained no facts that were not readily available to all parties at the time the summary judgment motion was first adjudicated, ultimately vacated the summary judgment it had entered in favor of defendants. Defendants sought interlocutory review and the Appellate Division reversed, ordering that the entry of summary judgment in defendants’ favor be reinstated. Once judgment was entered against Githens and Tara Construction Services, Inc., plaintiff appealed and the Appellate Division again reversed, this time concluding that, based on the entire record — that is, the record originally presented by the parties at the initial summary judgment motion as supplemented by the expanded record generated after the proof hearing triggered the trial court’s change-of-heart — summary judgment had been improvidently granted to defendants.

III.

Falling into the same trap the trial court did after the proof hearing against Githens and Tara Constructions Services, Inc. *554held eight months after summary judgment had been entered in defendants’ favor and after plaintiffs motion for reconsideration had been denied, a trap that also ensnared the Appellate Division, the majority imports facts clearly outside the summary judgment record originally framed and generated by the parties, essentially giving plaintiff an undeserved and entirely inappropriate “second bite of the apple.”5 Inserting that level of uncertainty into an already determined summary judgment determination — based solely on a litigant’s unexplained failure to put his/her best foot forward in opposing a summary judgment motion and based solely on proofs readily available at the time the motion originally was adjudicated — is both jurisprudentially wrong and needlessly damaging to our system of justice.

Tacitly acknowledging plaintiffs clear obligation to properly respond to defendants’ summary judgment motion, the majority concedes — as perforce it must — that the evidence plaintiff tendered at the post-summary judgment proof hearing and at the later reconvened summary judgment hearing was both more robust and more complete than what plaintiff first had offered in opposition to defendants’ summary judgment motion. Ante at *555529, 25 A.3d at 1086 (“Plaintiffs testimony at the proof hearing was a more detailed version of what was in the summary judgment record. Also, some of the excerpts from Githens’ deposition that were submitted were different from those that were provided at the summary judgment phase.”).

That concession provides the proper context for this appeal. So framed, the true question this appeal presents is simple: based on plaintiffs unequivocal obligation to oppose properly a summary judgment motion, what did plaintiff know, or in the exercise of proper diligence should have known, at that time in order to present her opposition to defendants’ motion for summary judgment? Here, summary judgment was reconsidered based on facts that were adduced at a deposition noticed and taken by plaintiff well before defendants’ summary judgment motion originally was determined. Plaintiff clearly was charged with timely knowledge thereof, and her failure to adduce those additional “new” facts as part of a timely opposition to defendants’ summary judgment motion requires that the consequences of that failure — the entry of summary judgment in favor of defendants — rest squarely at her feet, and nowhere else. It bears repeating: the rules governing summary judgment motions provide but one opportunity to oppose the motion, a precept that stresses that, in doing so, litigants must put their best foot forward. Concededly, plaintiff abjectly failed to do so. The consequences of that failure are hers and hers alone, and, most assuredly, cannot justify upending a properly entered summary judgment secured by the parties who — starkly unlike plaintiff — fully complied with their obligations.

IV.

There are no shades of gray in this appeal: plaintiff indisputably failed to comply with the most elementary requirements of summary judgment practice, and it is that failure that, in my view, must doom her subsequent efforts. It is, therefore, irrelevant whether we are confronted with “a procedural swamp,” ante at 522, 25 A.3d at 1082, an interlocutory appeal decision that, by an *556analogy to a twice-used canvas, “constitutes the pentimento6 in the case, painted over by other procedures but at the heart of things,” ante at 533, 25 A.3d at 1089, or, for that matter, any other construct that may bloom fully grown from overactive, clever minds. They are, each and every one, nothing more than red herrings. What is and remains singularly relevant and unmistakably dispositive is that every fact — every single, solitary fact— plaintiff adduced to justify vacating the summary judgment rightly earned by defendants was available and known to plaintiff well before she first responded to defendants’ summary judgment motion. In that very real and palpable sense, nothing has changed to justify a different outcome. Nothing.

Our Rules make abundantly, painstakingly clear that it is the unqualified affirmative burden of adverse parties to make a complete and comprehensive showing why summary judgment should not be entered; a summary judgment motion is not the time to play “hide the ball” or to take chances on just how much one discloses of one’s case. Yet, whether by either slovenly inadvertence or pinpointed intent, that is precisely what plaintiff did here, and that is what the majority today wrongfully rewards. Because plaintiff should be bound to the choices she made in either slovenly or intentionally responding to defendants’ motion for summary judgment; because the majority’s obsession with allowing this ill-starred plaintiff to proceed on her - original claim overwhelms its reason; and because the majority illogically rewards the sloppiness our Rules seek to eradicate and, in doing so, in a very real sense punishes the professional diligence our Rules are intended to foster, I dissent.

For affirmance — Chief Justice RABNER and Justices LONG, LaVECCHIA and ALBIN — 4.

*557For reversal — Justice RIVERA-SOTO — 1.

Not Participating — Justice HOENS.

All references to "defendants,” therefore, are to defendants Jennifer Lynch and Prudential Fox & Roach Realtors, and defendants Christopher J. Masso, John M. Torrence, and MTG Properties, LLC, specifically excluding defendants James Githens and Tara Construction Services, Inc.

Rule 1:6-6 defines the requirements for affidavits; it explicitly provides that

[i]f a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.

Not only did plaintiff settle on the unfinished property despite her realtor's strong opposition thereto — an opposition that ripened into the realtor’s insistence that plaintiff hold the realtor and her agency harmless from plaintiff proceeding to closing over the realtor's well-founded objections — plaintiff, without seeking anyone’s counsel or advice, also fell prey to one of the oldest scams around: Githens’s request that plaintiff release the $10,000 in escrow and hold as "security” Githens's own check for $10,000, a check later shown to be worthless.

No doubt, initially the trial court incorrectly noted, as a general proposition, that "[t]he Consumer Fraud Act does not apply to real estate agents and brokers." Although that conclusion was correct when the Consumer Fraud Act first was adopted, see L. 1960, c. 39, § 2 (limiting statute's reach to merchandise), it was amended in 1976 to extend its reach to real estate. L. 1975, c. 294, § 1 (eff. Jan. 16, 1976). That said, the trial court’s separate conclusions that the facts do not justify the application of the Consumer Fraud Act to defendants Masso, Torrence, or MTG Properties, LLC, or that, as a matter of law, the Consumer Fraud Act does not apply to defendants Lynch and Prudential Fox & Roach Realtors are unremarkable. See Macedo v. Dello Russo, 178 N.J. 340, 344-45, 840 A.2d 238 (2004); see also Real v. Radir Wheels, Inc., 198 N.J. 511, 522-24, 969 A.2d 1069 (2009) (describing exceptions to Consumer Fraud Act's reach). The application of the Consumer Fraud Act was raised by plaintiff both on reconsideration and the second reconsideration, and was disposed of then.

The majority denies it has "looked beyond [the original summary judgment] record,” ante at 542 n. 9, 25 A.3d at 1094 n. 9. That is simply disingenuous; to paraphrase Queen Gertrude, the majority "doth protest too much, methinks." William Shakespeare, Hamlet act 3, sc. 2,1. 230. If the basis for today’s decision is the original summary judgment record, then there is no basis — absolutely none — to upend the judgment originally entered by the trial court on that record. The majority would do well to recall that the only reason the trial court reopened the summary judgment it already had granted was because the expanded record developed in the proof hearing in which defendants were not participants raised questions in the trial court’s mind. Stripped bare of its rhetoric, the majority’s denial constitutes "a legal sleight-of-hand [that] is nothing more than the exercise of 'the false logic of " 'Post hoc, ergo propter hoc analysis!,]' ” Schulman v. Male, 70 N.J.Super. 234, 240, 175 A.2d 450 (App.Div.1961), and merits no additional response. See Black's Law Dictionary 1285 (9th ed. 2009) (translating 'post hoc, ergo propter hoc ’ as 'after this, therefore because of this' and defining phrase as '[o]f or relating to the fallacy of assuming causality from temporal sequence; confusing sequence with consequence’)”. Ryan v. Renny, 203 N.J. 37, 68 n. 7, 999 A.2d 427 (2010) (Rivera-Soto, J., dissenting).

The term "pentimento" means "[a]n underlying image in a painting, as an earlier painting, part of a painting, or original draft, that shows through, usu[ally] when the top layer of paint has become transparent with age." Webster's II New College Dictionary 814 (1995).