DEANNA CARLIN VS. JONATHAN FEUER (L-7738-17, BERGEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0373-20
DEANNA CARLIN and
ERICK RUBEL,
Plaintiffs-Appellants/
Cross-Respondents,
v.
JONATHAN FEUER and
LOUIS ANTOUN,
individuals,1
Defendants-Respondents/
Cross-Appellants,
and
SCOTT FEUER,
Defendant-Respondent.
___________________________
Submitted October 12, 2021 – Decided December 1, 2021
Before Judges Accurso, Rose, and Enright.
1
John Antoun is not a party to this appeal.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-7738-17.
Hegge & Confusione, LLC, attorneys for
appellants/cross-respondents (Michael Confusione, of
counsel and on the briefs).
Basile Birchwale & Pellino, LLP, attorneys for
respondent/cross-appellant Jonathan Feuer (Stephen F.
Pellino, on the brief).
Steve M. Kalebic, attorney for respondent/cross-
appellant Louis Antoun.
PER CURIAM
Plaintiffs Deanna Carlin and Erick Rubel appeal from: (1) a December 6,
2019 order denying their request for a "medical stay"; (2) a July 24, 2020 order
dismissing their complaint with prejudice; and (3) a September 11, 2020 order
denying their motion for reconsideration of the July 24 order. 2 Defendants
Jonathan Feuer and Louis Antoun cross-appeal, arguing the trial judge erred in
denying their motions for sanctions. We affirm all challenged orders.
In November 2017, plaintiffs filed a civil complaint alleging that Jonathan
Feuer, Rubel's longstanding patient, stole $400,000 in cash from a leather bag
located in plaintiffs' attic. The complaint was dismissed in May 2018 for lack
2
To the extent plaintiffs reference other orders which are not the subject of their
formal arguments, we do not address those orders.
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of prosecution. It was reinstated in June 2018 and amended two months later.
The amended complaint included allegations that Jonathan's father, respondent
Scott Feuer,3 and Antoun, Jonathan's uncle, were involved in the theft, and that
Jonathan owed Rubel $1,069,200 in compensation for Rubel's services.
In October 2018, Scott noticed plaintiffs for depositions in December
2018, but they failed to appear. Thereafter, Scott moved to dismiss plaintiffs'
complaint without prejudice for failure to provide discovery. The trial court
denied the motion, extended plaintiffs' deadline to answer interrogatories, and
deferred ruling on other disputed discovery issues.
In April 2019, Scott served plaintiffs with a second set of deposition
notices. Plaintiffs informed Scott two days before they were due to be deposed
that Carlin would not appear. In response, Scott moved to compel plaintiffs to
appear for their depositions and produce discovery, and to bar them from
testifying if they failed to comply with deposition notices and discovery
requests. Scott also sought an award of counsel fees and costs. The judge denied
the motion, noting plaintiffs were in the process of securing substitute counsel.
3
Because Jonathan and Scott share the same last name, we use their first names
for the convenience of the reader. We mean no disrespect.
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3
He allowed plaintiffs thirty days to obtain new counsel, and extended the
discovery end date to a date in September.
In June 2019, Scott issued a third set of deposition notices to plaintiffs.
Plaintiffs again failed to appear for their scheduled depositions. Antoun moved
to strike plaintiffs' complaint for failure to answer interrogatories or provide
discovery, and Scott moved to dismiss plaintiffs' complaint for failure to appear
for their depositions; alternatively, Scott sought to bar plaintiffs from testifying.
He also renewed his request for an award of counsel fees and costs. Jonathan
also filed a motion seeking dismissal of plaintiffs' complaint with prejudice,
suppression of Carlin's defense to his counterclaim, and an award of counsel
fees.
On August 16, 2019, the judge ordered plaintiffs to produce outstanding
discovery and appear for depositions the following month. The judge later
amended this order to permit defendants to seek dismissal of plaintiffs'
complaint if plaintiffs did not attend their court-ordered depositions.
Notwithstanding the judge's orders, plaintiffs did not appear for the court-
ordered depositions.
All three defendants moved to dismiss plaintiffs' complaint. Plaintiffs
cross moved to stay the litigation for medical reasons. Additionally, in
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November 2019, Carlin signed criminal complaints against defendants in the
Haworth Municipal Court, and Rubel signed criminal complaints against
defendants in the Waldwick Municipal Court.
On December 6, 2019, the judge denied plaintiffs' request for a medical
stay, noting "[t]he medical proofs [plaintiffs] present[ed] [we]re certainly not
certified or affidavits or letters" and "fall way short of this [c]ourt being abl e to
find that they rise to a level where a stay should be granted." The judge
dismissed plaintiffs' complaint without prejudice, noting they flouted his orders
to appear for depositions. He directed that "[r]estoration [would] only occur
after [p]laintiffs appear for deposition and provide all [outstanding] discovery."
In March 2020, defendants individually moved to dismiss plaintiffs'
complaint with prejudice. 4 Plaintiffs' successor counsel (the fourth attorney to
appear on plaintiffs' behalf) opposed the motion. On July 24, 2020, the judge
dismissed the complaint, explaining:
[T]he court has been remarkably patient in attempting
to afford the plaintiffs the opportunity to prosecute their
case. A review of this docket will demonstrate orders
on multiple occasions: March 25, 2019, April 2, 2019,
February 4, 2019, August 16, 2019, and December 6,
4
That same month, Carlin appeared in the Central Bergen Municipal Court to testify
regarding the Haworth criminal complaint she filed against Jonathan. She never
testified as the court adjourned the matter to consider defense motions to
dismiss. The complaint was subsequently dismissed.
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2019, all with regard to discovery issues, all with
concerns by the defen[dants] of the failures of the
plaintiffs to provide discovery. . . .
It's readily apparent to the court that this case has had
nothing but difficulties from the start and . . . four
firms . . . have all found that they were unable to
continue forward with the representation of the
plaintiffs for various reasons.
[O]n August 16, 2019, I ordered that [plaintiffs] appear
for depositions on September 18, 2019, and September
19, 2019 at the courthouse. That did not happen,
despite . . . that defense counsel was ready, willing and
able to proceed. That resulted in a further order by the
court on December 6, 2019, denying plaintiffs' motion
for a medical stay and dismissing the[ir] complaints
. . . without prejudice due to their violations of this
court's orders on August 16th and August 26, 2019—
for failure to appear and produce original documents
and personal property items for inspection.
The order indicated restoration only . . . after plaintiffs
appear for deposition and . . . provide all outstanding
discovery. There was absolutely no movement by the
plaintiffs at any time until, apparently, mid-June when
[their attorney] filed a notice for appearance.
It was then that . . . defendants filed a motion to strike
with prejudice. . . . [T]he matters that [transpired] by
and between attorneys . . . were fits and starts in trying
to work these things out. But at no point have the
plaintiffs produced the documents which were
requested on multiple occasions, or appear[ed] for
depositions. . . .
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This has gone on for well over a year-and-a-half and
I've afforded them every opportunity and they've had
four attorneys through that time . . . .
[W]hile there have been continued protestations by the
plaintiffs as to their inability to appear and do things,
the court takes judicial notice of . . . municipal court
criminal proceedings—other civil proceedings in which
the plaintiffs have undertaken to prosecute matters, but
have failed to do so here. . . . [T]he record is replete
with . . . a litany of failures on the part of the plaintiffs
to live up to their discovery obligations, yet to
prosecute matters in other places and obtain attorneys
to represent them in other cases . . . .
I've done everything I can to provide the plaintiffs with
their opportunity to prosecute this case, but the record
. . . now reflects that they've done everything to prevent
that from occurring and so I'm going to dismiss this
matter with prejudice.
In August 2020, Antoun moved for sanctions against plaintiffs, pursuant
to Rule 1:4-8 and N.J.S.A. 2A:15-59. That same month, plaintiffs filed a motion
for reconsideration of the dismissal with prejudice order, and Jonathan move d
for sanctions, pursuant to Rules 4:23-2(b) and 4:23-5.
The parties appeared for argument on September 11, 2020 to address their
cross-applications. At the hearing, the judge reiterated some of the reasons he
previously dismissed the complaint and found there was no basis to reconsider
the dismissal. He also denied defendants' requests for sanctions without
prejudice, finding that plaintiffs had a "good faith belief at the time they brought
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the . . . complaint as to the merits of it." The judge added, "whether they had
the ability and obligation to then re-analyze and reflect and consider proceeding
forward is another issue." (Emphasis added). The judge also determined that
awarding sanctions would likely not result in "monetary recoveries beyond what
the attorneys will then be forced to do to try to recover on them." Nonetheless,
the judge issued the stark warning that
[p]laintiffs and their attorneys are put on notice that the
court does find that there would be a basis for sanctions,
continuing this case going forward. . . .
So, I'm not going to award sanctions[,] but I don’t want
anyone to . . . be of the impression that that would . . .
not [be] considered as the appropriate remedy going
forward[.]
On appeal, plaintiffs argue the judge abused his discretion in "ordering
the ultimate sanction of dismissal of" their complaint, and that he should have
granted their request to stay the action. On cross-appeal, Jonathan and Antoun
contend the judge erred in denying their requests for sanctions against plaintiffs.
Antoun also argues plaintiffs' appeal is untimely. 5 We find these arguments
unavailing.
5
We acknowledge that plaintiffs filed their notice of appeal two days late.
Nonetheless, we exercise our discretion to consider plaintiffs' notice of appeal
as a motion for leave to file a notice of appeal out of time and grant the motion
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We review each issue raised in the parties' cross-appeals for an abuse of
discretion. See, e.g., Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517
(1995) (dismissal with prejudice for discovery misconduct); Kornbleuth v.
Westover, 241 N.J. 289, 301 (2020) (denial of motion for reconsideration);
McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011) (denial
of frivolous litigation sanctions); and State v. Maisonet, 245 N.J. 552, 566
(2021) (denial of a continuance).
An abuse of discretion "arises when a decision is made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)
(internal quotation marks omitted); see also State v. R.Y., 242 N.J. 48, 65
(2020). Reversal is warranted only if "the discretionary act was not premised
sua sponte under Rule 2:4-4(a). See Potomac Aviation, LLC v. Port Auth. of
N.Y. & N.J., 413 N.J. Super. 212, 221-22 (App. Div. 2010) (extending the time
for filing an appeal from a summary judgment order six days sua sponte under
Rule 2:4-4(a) where the appeal from the denial of a reconsideration motion was
timely, and the substantive issues presented and the judge's rulings and
reasoning on both motions were the same); Seltzer v. Isaacson, 147 N.J. Super.
308, 311-12 (App. Div. 1977) (extending the notice of appeal deadline pursuant
to Rule 2:4-4(a) sua sponte where the appeal was filed nine days late because
appellant "could have" obtained such relief by a timely application and because
"the issues have been fully briefed"). We therefore address the merits of
plaintiffs' arguments on appeal.
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upon consideration of all relevant factors, was based upon consideration of
irrelevant or inappropriate factors, or amounts to a clear error in judgment."
Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).
In support of their argument that the judge erred in dismissing their action,
plaintiffs contend the judge abused his discretion by disregarding their medical
documentation and denying their request to stay the action. They rely on
Rodriguez v. Luciano, 277 N.J. Super. 109 (App. Div. 1994) to support their
contention. We are not persuaded.
In Rodriguez, the appellate panel affirmed the order of the trial court
dismissing plaintiff's complaint with prejudice after finding the plaintiff in that
action failed to demonstrate the exceptional circumstances necessary to defeat a
motion to dismiss with prejudice. Id. at 112-13. As the Rodriguez court noted,
after a "with prejudice" motion is filed,
there can be no restoration unless the delinquent party
can demonstrate an entitlement to relief based on
"exceptional circumstances." To meet that standard,
there would have to be proved the existence of external
factors (such as poor health or emergency) which
substantially interfered with the party's ability to meet
the discovery obligations.
[Id. at 112 (quoting Suarez v. Sumitomo Chemical
Co., 256 N.J. Super. 683, 688-89 (Law Div. 1991)).]
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Here, the judge found no such exceptional circumstances existed to justify
restoration of the parties' complaint. Indeed, he determined, "[t]he medical
proofs [plaintiffs] present[ed] [we]re certainly not certified or affidavits or
letters" and "fall way short of this [c]ourt being able to find that they rise to a
level where a stay should be granted." Additionally, the judge took judicial
notice that, at the same time Rubel claimed he was "unable to medically
participate in any litigation," and Carlin alleged she was "psychologically and
medically unable to withstand further litigation pro se[,]" both parties were
actively participating in "both municipal court criminal proceedings . . . [and]
other civil proceedings." In fact, plaintiffs signed criminal complaints against
defendants in Haworth Municipal Court and Waldwick Municipal Court a few
weeks prior to moving for a medical stay. In October 2019, plaintiffs also filed
a civil suit in Superior Court against a third party unrelated to this matter.
A trial court has "an inherent and necessary right to control its own
calendar[.]" Maisonet, 245 N.J. at 566 (quoting State v. Hayes, 205 N.J. 522,
538 (2011)). Indeed, "broad discretion must be granted trial courts on matters
of continuances." Ibid. (quoting Morris v. Slappy, 461 U.S. 1, 11 (1983)).
Accordingly, we review a trial court's decision on a request for a continuance
for an abuse of discretion. Escobar-Barrera v. Kissin, 464 N.J. Super. 224, 233
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(App. Div. 2020). Given that plaintiffs' medical proofs were lacking, we are not
convinced the judge abused his discretion in denying plaintiffs' request to stay
their action.
Next, plaintiffs argue that before the judge dismissed their action and
denied their motion to reconsider the dismissal, he should have conducted an
evidentiary hearing to determine whether defendants were prejudiced by
plaintiffs' non-compliance with their discovery demands and the judge's orders
that plaintiffs appear for depositions. Again, we disagree.
Our "[d]iscovery rules are designed 'to further the public policies of
expeditious handling of cases, avoiding stale evidence, and providing
uniformity, predictability[,] and security in the conduct of litigation.'" Abtrax,
139 N.J. at 512 (quoting Zaccardi v. Becker, 88 N.J. 245, 252 (1982)). "It
necessarily follows, if such rules are to be effective, that the courts impose
appropriate sanctions for violations thereof." Oliviero v. Porter Hayden Co.,
241 N.J. Super. 381, 387 (App. Div. 1990) (quoting Evtush v. Hudson Bus
Transp. Co., 7 N.J. 167, 173 (1951)).
Under Rule 4:23-2, if a party fails to provide court-ordered discovery, the
court may issue "such orders in regard to the failure as are just," including orders
"striking [the] pleadings . . . or dismissing the action . . . with or without
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prejudice[.]" R. 4:23-2(b). Although the sanction of dismissal under
that Rule "is drastic and . . . generally not to be invoked[,]" a court may do so
"in those cases in which the order for discovery goes to the very foundation of
the cause of action, or where the refusal to comply is deliberate and
contumacious." Abtrax, 139 N.J. at 514 (quoting Lang v. Morgan's Home
Equip. Corp., 6 N.J. 333, 339 (1951)). A judge is not required to hold an
evidentiary hearing before dismissing a complaint for failure to comply with a
discovery order. Id. at 518-19.
Here, despite the many extensions granted by the judge to allow plaintiffs
sufficient time to respond to defendants' discovery demands, plaintiffs
repeatedly ignored defendants' requests to appear for depositions, and ultimately
violated the judge's order that they appear for court-ordered depositions. Still,
the judge waited until December 6, 2019 to dismiss plaintiffs' complaint without
prejudice, i.e., more than two years after plaintiffs filed their complaint and
months after they defied the judge's order to submit to depositions. Thereafter,
plaintiffs neither provided defendants with the outstanding discovery ordered
nor appeared for depositions. Further, they failed to show their recalcitrance
was due to exceptional circumstances. See Rodriguez, 277 N.J. Super. at 112.
Thus, we are satisfied the judge correctly determined at the July 24, 2020
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hearing that plaintiffs' dilatory tactics were "beyond the pale" and that even after
he provided plaintiffs with ample "opportunity to prosecute this case," they
"d[id] everything to prevent that from occurring."
Likewise, we perceive no reason to disturb the judge's September 11, 2020
denial of plaintiffs' motion for reconsideration. We have determined
[m]otions for reconsideration are granted only under
very narrow circumstances[.] Reconsideration should
be used only for those cases which fall into that narrow
corridor in which either (l) the [c]ourt has expressed its
decision based upon a palpably incorrect or irrational
basis, or (2) it is obvious that the [c]ourt either did not
consider, or failed to appreciate the significance of
probative, competent evidence.
[Fusco v. Bd. of Educ. of City of Newark, 349 N.J.
Super. 455, 462 (App. Div. 2002) (internal citations
omitted).]
Here, the judge denied plaintiffs' motion for reconsideration, noting:
I don't think there's a reason or a necessity – to more
fully place [the reasons for dismissal] on the record
except to say that there were multiple violations of
multiple [c]ourt orders over extended periods of time
with no attempt by the [p]laintiffs to correct those
things for . . . a period of time that just goes beyond
whatever could be accept[ed] by . . . a trial court.
The judge reiterated, too, that while plaintiffs "were undertaking other
proceedings" they "chose to ignore this one." He added that plaintiffs "chose to
not provide discovery . . . probably well over [eighteen] months, if not [twenty -
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four] months," and ignored the instant action at their "peril, particular ly when
there's been an order entered dismissing [the case] without prejudice."
Mindful of our deferential standard of review, and satisfied the judge's
findings are amply supported by the record, we perceive no basis to disturb
either his "with prejudice" dismissal of plaintiffs' complaint, or his denial of
plaintiffs' motion for reconsideration.
Finally, we address defendants' cross-appeals. Jonathan argues that his
motion for sanctions should have been granted because of plaintiffs' "history of
deliberate non-compliance with discovery obligations," and Antoun contends
that his motion for sanctions should have been granted because "[t]he allegations
against [him] seem to have been perpetuated . . . for the sole purpose of
tormenting [him]," and the "facts clearly show that [p]laintiffs . . . only filed
their complaint with the intent to frustrate [him]." We are not convinced.
We review a judge's decision to deny sanctions or fees for an abuse of
discretion. See Kolczycki v. City of East Orange, 317 N.J. Super. 505, 512
(App. Div. 1999) (standard of review of a trial court's decision not to impose
sanctions under Rule 4:23-2(b) is abuse of discretion); In re Estate of Ehrlic,
427 N.J. Super. 64, 76 (App. Div. 2012) (standard of review of a trial court's
decision not to impose sanctions under the Frivolous Litigation Statute is abuse
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of discretion). Trial courts are afforded "wide discretion in deciding the
appropriate sanctions for a breach of discovery rules" under Rule 4:23, but
"the sanction must be just and reasonable." Conrad v. Robbi, 341 N.J. Super.
424, 441 (App. Div. 2001) (quoting Mauro v. Owens-Corning Fiberglas Corp.,
225 N.J. Super. 196, 206 (App. Div. 1988)). Our Supreme Court has confirmed
that in addition to dismissing an action, a trial court may employ other sanctions
for discovery violations, "such as orders to compel, the award of reasonable
expenses incurred in obtaining the [discovery], and counsel fees." Casinelli v.
Manglapus, 181 N.J. 354, 365 (2004) (citing R. 4:23-1 to -5). Similarly,
sanctions imposed under Rule 1:4-8 and N.J.S.A. 2A:15-59.1 "are not to be
issued lightly; they are reserved for particular instances where a party's pleading
is found to be 'completely untenable,' or where 'no rational argument can be
advanced in its support[.]'" McDaniel, 419 N.J. Super. at 499 (quoting United
Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App. Div. 2009)).
Governed by these principles, we cannot conclude the judge abused his
discretion in denying defendants' requests to impose sanctions or fees after
having imposed the "ultimate sanction" of dismissal with prejudice. Zaccardi v.
Becker, 88 N.J. 245, 253 (1982). Here, the judge found plaintiffs initially
instituted their action with "a good faith belief" their claims were meritorious,
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but he questioned "whether they had the ability and obligation to then re-analyze
and reflect and consider proceeding forward." Accordingly, we are not
persuaded the judge abused his discretion in denying defendants' requests for
sanctions and counsel fees. See First Atl. Fed. Credit Union v. Perez, 391 N.J.
Super. 419, 432 (App. Div. 2017) ("Where a party has a reasonable and good
faith belief in the merit of the cause, attorney's fees will not be awarded.");
Ehrlic, 427 N.J. Super. at 77 (affirming a trial court's refusal to impose sanctions
under the Frivolous Litigation Statute when there was a good faith and
reasonable basis in law for the claim); see also Iannone v. McHale, 245 N.J.
Super. 17, 32 (App. Div. 1990) (citations omitted) (finding that the mere fact
"some of the allegations made at the outset of litigation later proved to be
unfounded does not render [the complaint] frivolous").
To the extent we have not addressed the parties' remaining arguments, we
are satisfied they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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