SUMMERTON GROUP, LLC VS. NESSALEE PRODUCTIONS, LLC (L-0135-16, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-0486-18T3
    SUMMERTON GROUP, LLC,
    Plaintiff-Appellant,
    v.
    NESSALEE PRODUCTIONS, LLC,
    JORDAN EPSTEIN and VANESSA
    EPSTEIN, d/b/a NESSALEE
    PRODUCTIONS, LLC,
    Defendants-Respondents.
    _______________________________
    Argued telephonically November 4, 2019 –
    Decided November 19, 2019
    Before Judges Koblitz, Whipple, and Mawla.
    On appeal from the Superior Court of New Jersey, Law
    Division, Monmouth County, Docket No. L-0135-16.
    Kenneth Biedzynski argued the cause for appellant
    (Goldzweig, Green, Eiger & Biedzynski, LLC,
    attorneys; Kenneth Biedzynski, of counsel and on the
    briefs).
    Dennis P. Uhlmann, Jr. argued the cause for
    respondents (Frank J. Martone, PC, attorneys; Dennis
    P. Uhlmann, Jr., on the brief).
    PER CURIAM
    Plaintiff Summerton Group, LLC, appeals from a September 15, 2017
    order dismissing with prejudice its claims against defendants Jordan Epstein and
    Vanessa Antonelli.1 We affirm.
    In 2013, the parties entered into a commercial lease agreement for units
    in defendant's building to use as a sales showroom and storage facility for baby
    furniture, clothing, and accessories. The lease named Nessalee Productions,
    LLC, (Nessalee) as the commercial tenant, but Epstein and Antonelli signed
    their names to the lease and the "rider to lease agreement" as tenants and
    initialed each page. Epstein also signed a document stating that he, as tenant
    and owner of Nessa Lee Baby, agreed to indemnify and hold harmless plaintiff
    from "any and all liabilities and claims for damages and/or suits for or by reason
    of any injury from any cause whatsoever while in or upon [the leased] premises."
    1
    According to defendants, plaintiff incorrectly named Vanessa Epstein, who is
    actually Vanessa Antonelli. Our decision will utilize her actual surname of
    Antonelli because she did not adopt the Epstein surname upon her marriage to
    Jordan Epstein.
    A-0486-18T3
    2
    During the lease term, issues arose relating to the lease payment and other
    additional charges under the lease. Plaintiff filed an eviction action asserting
    claims for breach of contract, breach of the covenant of good faith and fair
    dealing, and unjust enrichment against Nessalee, as well as Epstein and
    Antonelli as guarantors under the lease. The complaint referenced the lease and
    its rider.   Plaintiff also filed a motion to compel Epstein and Antonelli's
    depositions, which the court granted.
    During the time between the order granting the depositions and the
    scheduled date for the depositions, Epstein and Antonelli filed a motion to
    dismiss all claims asserted against them individually for failure to state a claim.
    Antonelli provided a certification in support of the motion, in which she
    represented she was the sole member of Nessalee and provided a copy of the
    marked-up lease, in which the personal guarantees plaintiff requested were
    deleted from the lease agreement.
    Plaintiff's opposition to the motion to dismiss included a certification of
    William Greenberg, plaintiff's representative, disputing Antonelli's claim that
    there were no personal guarantees. Greenberg noted the handwriting, which
    pertained to a lack of personal guarantee, was not his. He argued that because
    defendants were adamant Epstein was not an owner of Nessalee, there could be
    A-0486-18T3
    3
    no other explanation why he would sign the lease and rider, except as a
    guarantor.    Greenberg referenced an email attachment sent to Epstein and
    Antonelli's attorney prior to the lease execution, which conditioned the lease on
    a personal guarantee.       Greenberg noted Epstein and Antonelli signed
    individually as tenants.
    At oral argument on defendants' motion, their attorney noted, in addition
    to the deletion of the guarantee language there could not be a guarantee because
    plaintiff "didn't do a credit check, they didn't look into financials. They had no
    way of actually knowing that [Epstein and Antonelli] could personally guarantee
    the lease."
    In response, plaintiff's attorney conceded the lease contained no guarantee
    language. However, he argued Epstein and Antonelli were sophisticated parties
    and further discovery was necessary to determine their relationship to Nessalee ,
    and the reasons Epstein would sign the lease if he had no interest in Nessalee.
    The motion judge stated finding a personal guarantee without a specific
    clause creating one would "violate the whole purposes of . . . incorporation." He
    added:
    [W]hen you have sophisticated business individuals, particularly
    dealing with business individuals, . . . the terms of the contract can
    control. And . . . my role in rewriting contracts is limited,
    particularly when we're dealing with sophisticated individuals. . . .
    A-0486-18T3
    4
    [W]hen you have commercial enterprises dealing with one another,
    the terms of the contract control.
    ....
    [Greenberg] is a sophisticated individual, there is no
    guarantee [in the] contract . . . I'm dismissing any claims for
    individual guarantees as to [Epstein and Antonelli] only. This has
    no [bearing on a] finding as to any tortious, fraudulent, or any other
    claims for wrongdoing that [plaintiff's counsel] may develop
    following depositions or during ongoing discovery.
    The judge dismissed all claims against Epstein and Antonelli with
    prejudice. Nessalee withdrew its answer. Following a proof hearing, a judgment
    was entered against Nessalee for $328,229.32.
    I.
    "A motion to dismiss under Rule 4:6-2(e) requires application of 'the test
    for determining the adequacy of a pleading: whether a cause of action is
    "suggested" by the facts.'" Gonzalez v. State Apportionment Comm'n, 428 N.J.
    Super. 333, 349 (App. Div. 2012) (quoting Printing Mart–Morristown v. Sharp
    Elecs. Corp., 
    116 N.J. 739
    , 746 (1989)). "A complaint should be dismissed for
    failure to state a claim pursuant to Rule 4:6-2(e) only if 'the factual allegations
    are palpably insufficient to support a claim upon which relief can be granted.'"
    Frederick v. Smith, 
    416 N.J. Super. 594
    , 597 (App. Div. 2010) (quoting Rieder
    v. State Dep't of Transp., 
    221 N.J. Super. 547
    , 552 (App. Div. 1987)).
    A-0486-18T3
    5
    "In evaluating motions to dismiss, courts consider 'allegations in the
    complaint, exhibits attached to the complaint, matters of public record, and
    documents that form the basis of a claim.'" Banco Popular N. Am. v. Gandi,
    
    184 N.J. 161
    , 183 (2005) (quoting Lum v. Bank of Am., 
    361 F.3d 217
    , 222 n. 3
    (3d Cir. 2004). The inquiry is limited to examining the legal sufficiency of the
    facts alleged only on the face of the complaint; neither trial nor appellate court
    is concerned with the weight, worth, nature, or extent of the evidence. Dolson
    v. Anastasia, 
    55 N.J. 2
    , 5-6 (1969).
    A "with-prejudice" dismissal of a plaintiff's complaint will be reversed if
    it is "premature, overbroad[,] . . . [or] based on a mistaken application of the
    law." Flinn v. Amboy Nat'l Bank, 
    436 N.J. Super. 274
    , 287 (App. Div. 2014).
    When we review a trial court's ruling dismissing claims against a party under
    Rule 4:6-2(e), we apply a plenary standard of review which owes no deference
    to the trial court's conclusions. Bacon v. N.J. State Dep't of Educ., 443 N.J.
    Super. 24, 33 (App. Div. 2015).
    Plaintiff argues the motion judge violated Rule 4:6-2(e) because he
    considered "documentation and representations which went well beyond the
    pleadings[,]" and mandated conversion of the motion to dismiss to a motion for
    summary judgment. It contends if the motion was adjudicated on a summary
    A-0486-18T3
    6
    judgment basis, the judge would see there was a genuine issue of material fact and
    deny the motion.    Plaintiff cites case law from other jurisdictions for the
    proposition that a signature by a representative of a commercial tenant may
    personally bind the representative. It asserts the motion judge engrafted a
    requirement that it prove fraud onto its personal guarantee claims, which are
    separate from and do not contain an element of fraud. Plaintiff argues the judge
    improperly granted defendants' motion before discovery was complete.
    II.
    At the outset, we note the motion judge did not reference facts outside the
    complaint. Therefore, Rule 4:6-2(e) governs our review.
    We apply "[t]he rules governing the construction of contracts . . . in
    resolving a question as to the interpretation of a contract of guaranty." Garfield
    Tr. Co. v. Teichmann, 24 N.J. Super 519, 526 (App. Div. 1953). "Guaranty
    agreements are to be strictly construed." 
    Id. at 527.
    In this regard, plaintiff's
    claim that there was a personal guarantee warranted dismissal with prejudice
    because the lease agreement is silent on the subject. Furthermore, the hold
    harmless agreement, which pertained to a portion of the leased premises and was
    referenced in the complaint, stated Epstein would "indemnify and hold harmless
    [plaintiff] from any and all liabilities and claims for damages." It was not a
    A-0486-18T3
    7
    promise to be personally responsible for the rents in the lease agreement. The
    motion judge did not err when he dismissed the complaint.
    For the same reasons, the judge was not required to await completion of
    discovery before granting defendants' motion and could dismiss plaintiff's
    claims against Epstein and Antonelli with prejudice. The decision to dismiss
    with prejudice and deny further amendment of a party's pleadings are matters
    left to the discretion of the judge. Nostrame v. Santiago, 
    213 N.J. 109
    , 127-28
    (2013); see also Hoffman v. Hampshire Labs, Inc., 
    405 N.J. Super. 105
    , 116
    (App. Div. 2009).     Dismissal with prejudice is appropriate when "further
    opportunity to amend would not be fruitful." Johnson v. Glassman, 401 N.J.
    Super. 222, 247 (App. Div. 2008).
    Because the four corners of the lease agreement contained no guarantee
    language, and further discovery on the issue would not change the outcome, the
    dismissal with prejudice was appropriate.       Plaintiff's remaining arguments
    alleging the judge engrafted a fraud element onto its personal guarantee claim ,
    and its reliance on out-of-state case law, are without sufficient merit to warrant
    discussion in a written opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
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    8