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

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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. . . .
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[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)).
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"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
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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
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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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