WILLIAM MUNLEY VS. BRIAN OPATOSKY (L-3146-13, 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NOT FOR PUBLICATION WITHOUT THE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-2928-18T2
WILLIAM MUNLEY and
AMY MUNLEY,
Plaintiffs-Appellants,
v.
BRIAN OPATOSKY and
DEANNE OPATOSKY,
Defendants-Respondents,
and
HOME STAT
INSPECTIONS, INC.,
and GENE REAGAN,
Defendants.
Argued telephonically February 27, 2020 –
Decided March 23, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-3146-13.
Stuart P. Schlem argued the cause for appellants.
Keith J. Murphy argued the cause for respondents
(Gordon & Rees Scully Mansukhani, LLP, attorneys;
Keith J. Murphy, of counsel and on the brief).
PER CURIAM
Plaintiffs William Munley and Amy Munley appeal the February 8, 2019
Law Division order denying their motion to reinstate their complaint against
defendants Brian Opatosky and Deanne Opatosky. We affirm.
On August 12, 2013, the Munleys filed their complaint against defendants
Brian Opatosky, Deanne Opatosky, Home Stat Inspections, Inc., and Gene
Reagan; the Opatoskys' answer is dated August 30, 2013. 1 The dispute centered
on the Munleys' discovery, some months after closing, of alleged latent defects
in the home the Opatoskys sold them. The remaining defendants had conducted
a home inspection and prepared a home inspection report on the property.
On November 13, 2013, the trial court dismissed the counts applicable to
the home inspection defendants so the matter could proceed to arbitration. The
court clerk mistakenly dismissed the entire complaint as to all defendants,
including the Opatoskys.
1
Contrary to Rule 2:6-1(b), the filing date was not stamped on the answer.
A-2928-18T2
2
By letter dated February 19, 2014, Munleys' counsel forwarded to
Opatoskys' counsel interrogatories and a notice to produce. Munleys' counsel
certified in support of the motion to reinstate the complaint that he and
Opatoskys' prior attorney agreed that the Munleys would not pursue the matter
against the Opatoskys pending resolution of the claim against the home
inspection defendants. No writing memorializing the conversation was
produced. Because of the Munleys' inability to secure a satisfactory expert, the
arbitration never occurred.
On July 23, 2017, more than three years later, Munleys' counsel wrote to
the Opatoskys' counsel, informing him that the claim against the home
inspection defendants had been abandoned, and that as a result they would be
pursuing their cause of action against the Opatoskys. Munleys' counsel further
certified he thereafter contacted the law firm representing the Opatoskys, only
to learn the attorney assigned to the matter with whom he had discussed the case,
had left the firm and moved out of state. Munleys' counsel then asked someone
to call the former attorney "to confirm our agreement." Receiving no reply from
the law firm, which later reformulated into two separate offices, on November
28, 2017, plaintiffs' counsel wrote again to Opatoskys' attorneys, this time
regarding outstanding discovery.
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On July 31, 2018, the Munleys filed a motion to compel discovery. On
August 20, 2018, having for the first time been informed of the dismissal of the
complaint, counsel withdrew the motion. Munleys' counsel sent two emails to
Opatoskys' counsel asking if they would consent to the reinstatement of the
complaint. Those emails were dated August 20, 2018 and October 8, 2018. The
Opatoskys refused. On November 8, 2018, one month later, the Munleys filed
the motion to vacate the dismissal that resulted in the order now on appeal.
The judge denied the motion because of the lengthy unexplained delay
between the filing of the complaint and the filing of the motion to reinstate.
Acknowledging the dismissal was a court-generated error, she considered the
Munleys' slow pursuit of the matter controlling. For example, the purported
agreement between counsel, to shelve the matter pending resolution of the home
inspection arbitration, could not have been intended to be "open ended."
Munleys' counsel waited three years after the conversation to notify his
adversary that the arbitration efforts had ended.
Even after July 2017 when the Munleys were informed about the problems
with the missing attorney and the court's mistaken dismissal, no motion was
filed to reinstate until November 2018. The judge found the delay to be
inexcusable and unexplained. The judge relied on the doctrine of laches, and
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the question of whether plaintiffs had met the standard of "whether [delay was]
inexcusable and unexplained" in the enforcement of a known right. She cited to
In re Kietur, 332 N.J. Super. 18, 28 (App. Div. 2000), in support of this
proposition.
We review an order denying reinstatement of a complaint for abuse of
discretion. Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382 (App. Div.
2011). We review the facts deferentially but "[a] trial court's interpretation of
the law and the legal consequences that flow from established facts are not
entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140
N.J. 366, 378 (1995).
Presumably, although not expressly identified, the Munleys made the
motion in reliance on Rule 1:13-7(a), which provides that a motion to reinstate
"shall be granted only on a showing of exceptional circumstances." Those
circumstances do not exist here.
The complaint was filed August 12, 2013, nearly seven years ago. The
Munleys need not have halted action against the Opatoskys to await the outcome
of arbitration against the home inspection defendants. That was a strategic
choice that resulted in an inordinate delay.
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Over the course of the three years the Munleys waited, they obviously
received no notices from the court. The failure to receive notices because of the
erroneous dismissal should have been a warning that something was amiss.
The discovery demands were served February 19, 2014. The Opatoskys
were not unreasonable in failing to respond to discovery having been assured
the Munleys were looking to be made whole by others. To have done so would
have saddled the Opatoskys with potentially unnecessary litigation expense and
inconvenience.
But after the initial unexplained delay, four years during which the
Munleys did nothing to press their cause of action against the Opatoskys, a
second puzzling delay occurred. Munleys' counsel wrote regarding discovery in
July 2017. It was not until July 2018, a year later, however, that the Munleys
filed the withdrawn motion to compel discovery. Even after that, counsel did
not file the motion to reinstate until November 2018.
Although motions for reinstatement are generally granted with great
liberality, the judge could not do so here where the delays were not attributable
to exceptional circumstances. See Ghandi v. Cespedes, 390 N.J. Super. 193,
195-98 (App. Div. 2007). The judge did not abuse her discretion in denying the
motion. We reach that conclusion employing a different analysis that supports
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the outcome. State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) ("We
are free to affirm the trial court's decision on grounds different than those relied
upon by the trial court").
As we recently reiterated, "[t]he Rules are to be construed so as to do
justice, and ordinarily an innocent plaintiff should not be penalized for his
attorney's mistakes." Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595,
608 (App. Div. 2014) (citing Baskett, 422 N.J. Super. at 385).
In this case, however, the Opatoskys were prejudiced by the delay. After
seven years, the defects in the house have no doubt been corrected, and there is
no possibility they might obtain any type of expert assessment regarding the
alleged defects. After seven years, reinstatement of the complaint would not do
them justice. Furthermore, there was clearly inattention to the matter on the
Munleys' behalf. This is true regardless of the court clerk's mistaken dismissal.
Affirmed.
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