NOT FOR PUBLICATION WITHOUT THE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-1107-15T3
BC COMPLIANCE GROUP, LLC,
Plaintiff-Respondent,
v.
ROSEN SEYMOUR SHAPSS MARTIN
& COMPANY, LLP,
Defendant-Appellant.
______________________________________________
Argued January 24, 2017 – Decided October 3, 2017
Before Judges Messano and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Docket No. L-2675-13.
James J. Curry, Jr., argued the cause for
appellant (The Law Offices of James J.
Curry, Jr., LLM, attorneys; Mr. Curry and
Timothy J. Petrin, on the briefs).
Jerome F. Gallagher, Jr., argued the cause
for respondent (Norris, McLaughlin & Marcus,
PA, attorneys; Mr. Gallagher, of counsel and
on the brief; Bradford W. Muller, on the
brief).
PER CURIAM
Following a three-day trial, a jury returned a verdict in
favor of plaintiff BC Compliance Group, LLC (BCCG), against
defendant Rosen Seymour Shapss Martin & Company, LLP, (RSSM) in
the amount of $182,238.77. RSSM now appeals, not from the final
judgment, but from an order entered on February 6, 2015, denying
its motion for summary judgment and from an order entered on
April 24, 2015, denying reconsideration of the earlier order.
In 2006, RSSM, a certified public accounting firm, retained
BCCG, a consulting firm specializing in contract compliance, to
examine RSSM's real estate lease expenses to identify and
eliminate overcharges in its leased facilities. Pursuant to a
"Real Estate Accounting Agreement," RSSM agreed to compensate
BCCG with fifty percent of all benefits recovered.
In July 2007, BCCG completed its audit which concluded that
RSSM had overpaid $364,000 to its landlord, RFR Realty LLC
(RFR). BCCG forwarded the analysis to RFR seeking an audit
credit. In August 2007 and again in November 2007, RFR rejected
BCCG's audit findings. In July 2008, RSSM and BCCG proposed a
settlement of the audit credit to RFR but received no response.
In 2010, RSSM began negotiations with RFR to renew its
lease and entered into a formal lease extension in June 2011.
BCCG maintains that the lease extension includes $2.1 million in
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renovations to be paid by RFR; an eleven month rent abatement
valued at $2.1 million; and a new base year which resulted in
annual savings of more than $100,000 in additional rent
expenses. The lease extension also granted RFR a general
release of all prior claims RSSM may have against RFR.
In October 2011, BCCG advised RSSM that its audit findings
had been utilized by RSSM to obtain benefits under the lease
extension and demanded $182,238.77, which it calculated as half
of the overcharges identified in its audit. RSSM refused to
pay. In July 2013, BCCG filed a complaint in the Law Division
Monmouth County seeking $182,238.77.
RSSM filed a motion for summary judgment seeking dismissal
of BCCG's complaint. In support of its motion, RSSM submitted
affidavits by Donald Leavy, RSSM's director of human resources,
and Steven P. Morrows, a representative of RFR.
Morrows asserted that RFR and RSSM did not take into
account the auditing work by BCCG in negotiations for the
amended lease agreement. He claimed that the agreement was
based on market conditions only and not the work conducted by
BCCG.
Leavy asserted that after the initial meeting with RFR, it
was clear to him that the "landlord was not going to voluntarily
acquiesce in any escalation adjustment as a result of the audit
3 A-1107-15T3
prepared by [BCCG]." Leavy also maintained that the issue as to
lease adjustments was on hold and not pursued or mentioned
during the lease amendment negotiations.
Plaintiff provided a certification from Edward Botti, co-
managing member of BCCG, who was involved with the audit
proceedings with defendant. Botti attached redacted RFR lease
amendments that plaintiff had reviewed in other cases where it
audited RFR leases, and none of those other leases contained
general release provisions similar to those contained in
defendant and RFR's amended lease.
Botti certified that RSSM never expressed any disagreement
with BCCG's audit findings and provided emails from Leavy
indicating RSSM wanted to pursue an action, but kept pushing the
matter due to the lease negotiations. Leavy in his affidavit
claimed RSSM did a cost-benefit's analysis and determined that
"it would not make economic sense to pursue arbitration or
litigation."
After hearing oral argument on February 6, 2015, Judge
Katie A. Gummer denied RSSM's motion for summary judgment.
After thoroughly reviewing the submissions of both parties,
Judge Gummer found there was no dispute as to the existence of a
contract, but there was an issue whether RSSM breached that
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contract by failing to compensate BCCG pursuant to the terms of
the contract:
It's not in dispute that someone at least
at the landlord's, in the landlord's group,
someone at the landlords was aware of the
audit. I understand that was three years
before, I understand all of the testimony
that's before the Court that any negotiations
specifically about the audit had been
rejected.
But a reasonable fact finder could
conclude that the existence of that audit and
the alleged overcharges were well within the
mind of the person who ultimately signed the
lease on behalf of the landlord. And I think
that's enough to put the issue before the
jury.
I think that's a genuine issue of
material fact that, although a person who is
the lead negotiator may not have known about
it, may not have argued about it, the landlord
could well, the person who ultimately made the
decision to sign the lease could have
concluded that, could have taken into
consideration the information provided in that
audit.
RSSM than moved for reconsideration based on an affidavit
by Aby Rosen, co-founder of RFR who signed the 2011 lease
amendment. Rosen certified that he was not aware of BCCG's
audit or RSSM's claim for overcharges when he signed the lease.
RSSM argued that Rosen's affidavit proved that it did not
receive any benefit from RFR as a result of BCCG's audit.
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On April 24, 2015, Judge Gummer denied the motion for
reconsideration finding that genuine issues of material fact
remained that a reasonable fact finder could resolve in favor of
BCCG. The judge found that the jury should determine "whether
or not those beneficial results . . . in the new lease came from
anything that plaintiff did or were wholly unrelated to anything
that plaintiff did . . . to determine credibility issues on that
front."
The judge also rejected RSSM's argument that the lack of
expert testimony required dismissal, concluding that BCCG did
not need an expert because "under the language of the agreement
there is effectively a presumption or a recognition that the
benefits came as a direct result of BCCG's efforts and that
there's no dispute as to the amount of benefits at issue here."
The matter proceeded to trial before another judge and a
jury returned a verdict in favor of BCCG on October 14, 2015.
On appeal, RSSM argues its motion for summary judgment
should have been granted, as no evidence established that RSSM
received a benefit from RFR as a result of BCCG's audit; the
motion judge failed to make rulings on evidential objections
raised by RSSM; and the judge relied on inadmissible and
irrelevant evidence in denying RSSM's motions.
6 A-1107-15T3
"[A] denial of summary judgment is always interlocutory[.]"
Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div.
1998). "[A]n order denying summary judgment . . . decides
nothing and merely reserves issues for future disposition."
Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349,
356 (App. Div. 2004) aff'd, 184 N.J. 415 (2005), cert. denied,
546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006).
An interlocutory order is preserved for appeal with the
final judgment or final agency decision if it is identified as a
subject of the appeal. In re Carton, 48 N.J. 9, 15 (1966). That
may be done in the notice of appeal or the case information
statement. Synnex Corp. v. ADT Sec. Servs. Inc., 394 N.J. Super.
577, 588 (App. Div. 2007) (permitting consideration of order
granting partial summary judgment identified in case information
statement); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-
66 (App. Div.) (declining to review trial ruling not identified
in notice of appeal), aff'd o.b., 138 N.J. 41 (1994). However,
where there is no appeal from a final judgment, a court lacks
jurisdiction and may dismiss the appeal.
As we raise this jurisdictional issue sua sponte without
prior notice to plaintiff or an opportunity to respond, we
consider the merits of RSSM's claim that summary judgment should
have been granted. See N.J. Office of Emp. Relations v. Commc'n
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Workers of Am., 154 N.J. 98, 108 (1998) (a court that recognizes
a jurisdictional defect should notify the parties and permit
them to address the issue of the court's jurisdiction).
The undisputed facts of BCCG's audit, which discovered
RSSM's overpayment to RFR; the favorable lease extension
subsequently negotiated by RSSM and RFR; and the release of RFR
from liability for prior claims by RSSM; raise a significant
question of fact of whether RSSM secured benefits from RFR and
was thus obligated to pay a fee to BCCG.
We are satisfied that Judge Gummer correctly denied RSSM's
motion for summary judgment as her determination that there were
genuine issues of material fact which could only be resolved by
a jury finds ample support in the record.
Affirmed.
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