NOT FOR PUBLICATION WITHOUT THE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-4445-14T3
FALGUN DHARIA and MANTIFF
MANAGEMENT, INC.,
Plaintiffs-Appellants/
Cross-Respondents,
v.
OM RIDDHI SIDDHI, LLC and
SAMIR SHAH,
Defendants-Respondents/
Cross-Appellants.
____________________________________
Submitted November 7, 2016 – Decided August 11, 2017
Before Judges Sabatino, Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-320-
14.
Genova Burns LLC, attorneys for appellants
/cross-respondents (Jennifer Borek, of
counsel; Jenna M. Beatrice, on the briefs).
Bendit Weinstock, PA, attorneys for
respondents/cross-appellants (James F. Keegan
and Sherri D. Fowler, on the briefs).
PER CURIAM
Plaintiffs Falgun Dharia and Mantiff Management, Inc., appeal
from three Law Division orders, one dated December 5, 2014, two
dated February 6, 2015. The first order denied, in part,
plaintiffs' motion to compel discovery. The second order granted
summary judgment to defendants Om Riddhi Siddhi, LLC, and Samir
Shah, and dismissed the complaint with prejudice. The third order
denied plaintiffs' second motion to compel discovery. Defendants
cross-appeal from an April 24, 2015 order denying their motion for
sanctions. For the reasons that follow, we reverse the discovery
and summary judgment orders and affirm the order denying
sanctions.1
In the complaint filed January 16, 2014, plaintiff alleged
five causes of action stemming from defendant's alleged breach of
an oral contract. According to the complaint, plaintiff agreed
to provide consulting services and start-up capital to defendant,
who sought to own and operate various Dunkin' Donuts franchises.
In exchange, defendant agreed to compensate plaintiff with a one-
third equity ownership interest in each of the franchised stores
and periodic distributions equal to one-third of the stores'
profits.
1
Plaintiff Falgun Dharia is the principal of Mantiff Management
Inc. For ease of reference, we refer to Falgun Dharia as
"plaintiff." For similar reasons, we refer to Samir Shah as
"defendant."
2 A-4445-14T3
During discovery, plaintiff served defendant with
interrogatories and document demands. Plaintiff sought, among
other documents, business and bank records, e-mails discussing
profit distributions, Dunkin' Donuts audits, profit and loss
statements, QuickBook files, and corporate and personal tax
returns dating back to 2006. Defendant objected to most of the
discovery demands, contending the requests were overbroad, sought
privileged information, or otherwise sought non-existent
information.
In the first discovery motion, plaintiff sought to compel
defendant to provide more specific answers to interrogatories and
document demands. The trial court issued a December 5, 2014 order
granting the motion in part. The order permitted plaintiff to
inspect documents defendant identified as being in his office, but
struck plaintiff's request to compel more specific answers to
interrogatories. In denying most of plaintiff's requests, the
court wrote on the order that plaintiff had "failed to establish
[the] items sought will have a tendency in reason to prove or
disprove any fact of consequence to the determination of the
action."
On December 19, 2014, defendant filed a summary judgment
motion, which plaintiff opposed. Meanwhile, plaintiff filed a
second motion to compel discovery on December 24, 2014, alleging
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defendant failed to comply with the previous discovery order and
withheld relevant documents. The trial court denied plaintiff's
discovery motion in an order dated February 6, 2015. The court
wrote on the order, "see order of December 5, 2014." On the same
day, the court granted defendant's motion for summary judgment.
The court determined plaintiff did not come forward with any
documentary evidence tending to show the existence of the alleged
oral agreement.2 The court concluded that no trier of fact could
rule in plaintiff's favor. The court granted summary judgment
notwithstanding that the discovery end date was April 1, 2015.
Following the court's grant of summary judgment to defendant,
he filed a motion seeking fees from plaintiffs under Rule 1:4-8
and N.J.S.A. 2A:15-59.1 for filing frivolous claims. The court
denied the motion.
The parties developed the following facts on the summary
judgment motion record. Sometime in 2003, defendant and Atul
Rajguru (Rajguru) learned plaintiff was attempting to sell his
interest in several Dunkin' Donuts franchised stores. Defendant
claimed he and Rajguru met with plaintiff to discuss the purchase
of one of his stores, but were unable to reach an agreement.
2
On the same day, the court entered a third order granting
defendant's motion to compel the deposition of plaintiff,
notwithstanding the dismissal of the matter with prejudice.
4 A-4445-14T3
Plaintiff nonetheless invited him and Rajguru to contact him in
the event they needed assistance in starting a new business.
According to defendant, in December 2003, his wife and Rajguru
formed Om Riddhi Siddhi, LLC (the "West Orange LLC"), in which
each held a fifty percent interest. In January 2004, the West
Orange LLC entered into a Multiple Unit Store Development Agreement
(the Store Development Agreement) with Baskin-Robbins USA Co. and
Dunkin' Donuts. In July 2005, the LLC opened a Dunkin' Donuts
store in West Orange.
Several years later, defendant and Rajguru formed a separate
LLC named Om Shree Riddhi Siddhi LLC ("the Livingston LLC"), which
acquired a franchise and opened a Dunkin' Donuts in Livingston in
August 2007. In the same year, defendant purchased Rajguru's
fifty percent interest in the West Orange LLC. In 2008, Rajguru
purchased defendant's interest in the Livingston LLC.
In support of his summary judgment motion, defendant averred
plaintiff had no involvement in the application for the Store
Development Agreement. Defendant also asserted he and Rajguru
never sought or received any consulting services or investment
capital from plaintiff and never made any payments or profit
distributions to plaintiff. Plaintiff was not listed as a partner
on either the West Orange LLC's or the Livingston LLC's Schedule
K-1s between 2004 and 2013.
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Plaintiff largely disputed defendant's statement of material
facts. According to plaintiff, he, defendant, and Rajguru were
partnering to develop new Dunkin' Donuts franchises in West Orange,
Livingston, and Montville. To facilitate their business
development, plaintiff entered into an oral consulting agreement
with defendant and Rajguru, whereby he would provide consulting
services and startup capital in exchange for a one-third equity
interest in the LLCs and certain profit distributions. Plaintiff
claimed to have owned an equity interest in the West Orange LLC
since 2003 and received profit distributions from the West Orange
store until November 2007. Although plaintiff did not produce any
documentary evidence that defendant paid him any profit
distributions, he contended during oral argument that defendant
has such proof, necessitating further discovery.
Plaintiff also averred that he, Rajguru, and defendant's wife
opened a joint bank account in late 2003. In support of this
claim, plaintiff submitted a bank statement listing himself,
Rajguru, and defendant's wife as the account's owners.3 The bank
statement listed various transactions between November 28, 2003
and December 8, 2003. Plaintiff also provided a copy of a $30,000
3
Defendant contended plaintiff opened this account without his
wife's or Rajguru's knowledge.
6 A-4445-14T3
check dated January 20, 2004, which he wrote to the West Orange
LLC. The memo line of the check read, "West Orange – SDA." It
is unclear whether the check was cashed.
In addition to the bank statement and check, plaintiff
submitted an e-mail he received from defendant in May 2007
discussing after-tax profit distributions. He also submitted a
December 2007 e-mail from defendant with the subject line: "West
Orange – Profit." A balance spreadsheet was attached to the email
stating plaintiff and defendant each had a one-third interest in
an unidentified business.
The motion record also includes two e-mails from defendant
to plaintiff in April 2007. In these e-mails, defendant discusses
profit sharing with plaintiff and how plaintiff "need[s] to figure
out how to take [his] money. . . ."
Plaintiff also produced evidence concerning the Livingston
LLC. He submitted a document purporting to be a copy of meeting
minutes from March 2007 memorializing that plaintiff and
defendant, as well as other individuals, each held a twenty-two
percent interest in the Livingston Dunkin' Donuts.
On October 28, 2010, plaintiff filed a complaint against
Rajguru and the Livingston LLC, alleging substantially similar
allegations. Plaintiff did not name defendant in that lawsuit.
According to plaintiff's counsel, the matter was settled via a
7 A-4445-14T3
confidential settlement where "Rajguru was forced to sell his
stores, because Dunkin' found out there was an undisclosed owner[,
plaintiff]."
Based on the foregoing record, the trial court granted summary
judgment in favor of defendant and denied plaintiff's motion to
compel further discovery.
On appeal, plaintiff contends the trial court erred by
prematurely granting summary judgment when discovery was
incomplete. Plaintiff also contends the court erred in granting
the motion because there were genuine issues of material fact in
dispute. Lastly, plaintiff contends the trial court applied the
wrong standard of review when denying his discovery motions.
Defendant argues the trial court did not err in granting
summary judgment, because no rationale fact finder could find in
favor of plaintiff. Defendant also argues the alleged oral
consulting agreement was not supported by consideration, and in
any event, was barred by the statute of limitations and the entire
controversy doctrine. Lastly, in opposition to plaintiff's
appeal, defendant argues the court properly denied plaintiff's
motions to compel more specific discovery responses.
On the cross-appeal, defendant contends the court erred in
denying his motion for sanctions.
8 A-4445-14T3
We review "an order granting summary judgment in accordance
with the same standard as the motion judge." Bhagat v. Bhagat,
217 N.J. 22, 38 (2014) (citations omitted). "That standard compels
the grant of summary judgment '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.'" Globe Motor Co. v.
Igdalev, 225 N.J. 469, 479 (2016) (quoting R. 4:46-2(c)).
To establish a genuine issue of material fact, the opposing
party must "do more than 'point[] to any fact in dispute' in order
to defeat summary judgment." Ibid. (alteration in original)
(citation omitted). Rather, "once the moving party presents
sufficient evidence in support of the motion, the opposing party
must 'demonstrate by competent evidential material that a genuine
issue of fact exists[.]'" Id. at 479-80 (alteration in original)
(quoting Robbins v. Jersey City, 23 N.J. 229, 241 (1957)).
Ultimately, a reviewing court must determine "whether the
competent evidential materials presented, when viewed in the light
most favorable to the non-moving party, are sufficient to permit
a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 406 (2014) (citation omitted).
9 A-4445-14T3
Here, plaintiff established numerous genuinely disputed
material facts that precluded summary judgment. In addition to
his certification asserting the formation and terms of the oral
agreement, he produced a $30,000 check payable to defendant with
a notation "West Orange – SDA"; a bank statement listing himself,
defendant's wife, and Rajgur as owners; emails discussing profit
distributions; and meeting minutes concerning his alleged interest
in the Livingston Dunkin' Donuts. When viewed in the light most
favorable to plaintiff, his certified statements, corroborated by
documentary evidence, establish a triable issue as to whether he
and defendant had entered into an oral agreement under the terms
alleged by plaintiff. Moreover, to the extent plaintiff's
documentary evidence was either ambiguous or in dispute, discovery
remained open and the court should have permitted discovery as to
these and any other outstanding issues before granting the summary
judgment motion.
The record concerning plaintiff's discovery motions is scant.
Nonetheless, because additional discovery was warranted before
summary judgment was granted, and in view of our disposition of
this appeal, we vacate the orders denying plaintiff's discovery
motion.
On remand, the trial court shall conduct a management
conference within forty-five days. During the conference, the
10 A-4445-14T3
parties and the court can resolve any issues concerning outstanding
discovery. To the extent either party opposes discovery based
upon a privilege or a claim concerning relevance, a clear record
should be made concerning the precise discovery requested and the
specific grounds upon which it is opposed. The trial court should
make a record with respect to each discovery request opposed,
stating the legal basis for denying the discovery request if it
is denied. If necessary, the court shall conduct an in-camera
document review to facilitate the disposition of discovery
disputes.
In view of our disposition of the summary judgment motion,
the issue raised on the cross-appeal is moot. We have determined
that arguments not specifically addressed in this opinion are
without sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E). We note the parties have raised issues and factual
allegations on appeal that were either not addressed by the trial
court or not presented to the trial court. These issues can be
properly developed on remand and decided on an amply developed and
adequate record.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
11 A-4445-14T3