Michael Bandler v. Rocco Melillo

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1315-14T2
MICHAEL BANDLER,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
December 15, 2015
v.
APPELLATE DIVISION
ROCCO MELILLO,
Defendant-Respondent.
________________________________
Argued December 2, 2015 – Decided December 15, 2015
Before Judges Alvarez, Haas and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-
2659-14.
Michael Bandler, appellant, argued the cause
pro se.
Ronald A. Rosa argued the cause for
respondent (Fuggi Law Firm, P.C., attorneys;
Robert R. Fuggi, Jr., of counsel and on the
brief).
The opinion of the court was delivered by
HAAS, J.A.D.
Plaintiff Michael Bandler appeals from the Law Division's
August 28, 2014 order granting summary judgment to defendant
Rocco Melillo and dismissing his complaint that sought damages
against defendant for failing to comply with discovery orders.
Plaintiff also appeals from the trial court's October 17, 2014
order denying his motion for reconsideration.
However, plaintiff does not challenge the propriety of the
dismissal of his action. Instead, plaintiff states that he is
dissatisfied with dictum in the trial judge's written decision
and has filed a notice of appeal for the sole purpose of asking
this court to redact the dictum from the trial court's opinion. 1
Because our jurisdiction is limited to appeals taken from
judgments and not from opinions or dicta of a trial court, we
dismiss plaintiff's appeal.
We derive the following facts and procedural history from
the record on appeal. In a separate action (the collection
action),2 plaintiff obtained an August 1, 2012 default judgment
in the sum of $54,159.13 against Evelyn Melillo, who is
defendant's former spouse.3 Plaintiff was unable to collect the
judgment from Evelyn. Asserting that defendant might have
information concerning Evelyn's financial assets, plaintiff
1
When the trial court denied plaintiff's motion for
reconsideration, it also denied his request to redact the dictum
from its earlier opinion.
2
Docket No. L-1859-12.
3
Defendant and Evelyn divorced in February 2005. Because they
share the same surname, we refer to Evelyn by her first name to
avoid confusion. We intend no disrespect.
2 A-1315-14T2
served a notice of deposition upon defendant in the collection
action. Defendant failed to appear for the deposition.
On January 6, 2014, the trial court granted plaintiff's
application for an order compelling defendant to appear at a
January 30, 2014 deposition and to produce documents requested
by plaintiff. Defendant did not appear at this deposition and
did not produce the requested documents. Plaintiff filed a
motion asserting that defendant had "violated plaintiff's rights
as a litigant" and demanding that he be arrested. On March 24,
2014, the court ordered defendant to attend a deposition
scheduled for April 21, 2014, and produce the requested
documents.
On April 17, 2014, however, Evelyn filed a voluntary
petition for bankruptcy under Chapter 7 of the United States
Bankruptcy Code. By this time, the collection action had been
reassigned to Judge Allen J. Littlefield, J.S.C. On April 21,
2014, Judge Littlefield issued an order stating that, because
Evelyn had filed a bankruptcy petition, plaintiff's claims
against her in the collection action were dismissed without
prejudice until the conclusion of the bankruptcy proceedings or
the entry of an order by the bankruptcy court granting relief
from the automatic stay under 11 U.S.C.A. § 362(d). Defendant
appeared for the deposition on April 21, 2014, but advised
3 A-1315-14T2
plaintiff that he would not respond to any questions or provide
any documents because all collection proceedings against Evelyn
had been stayed.
Rather than filing another enforcement motion against
defendant in the collection action or, if necessary, seeking
relief from the stay in the bankruptcy court, plaintiff
instituted a separate action against defendant on May 23, 2014. 4
In his complaint, plaintiff alleged defendant's failure to
comply with the discovery orders in the collection action made
his judgment against Evelyn "uncollectible." As a result,
plaintiff asserted that defendant was now responsible for paying
the entire judgment, together with other damages and costs.
Defendant filed an answer and a counterclaim. Plaintiff filed a
motion to strike defendant's pleadings, and defendant responded
by filing a cross-motion for summary judgment dismissing the
complaint.
Following oral argument, Judge Littlefield denied
plaintiff's motion to strike defendant's pleadings, re-
designated defendant's counterclaim as a defense, and granted
defendant's motion for summary judgment. In a thorough written
opinion, the judge ruled that when defendant failed to comply
with the discovery orders after Evelyn filed for bankruptcy,
4
Docket No. L-2659-14.
4 A-1315-14T2
plaintiff's sole recourse was to file an appropriate enforcement
motion in the collection action, rather than filing a new,
separate action seeking damages from defendant. Judge
Littlefield explained:
Regardless of whether [d]efendant was or was
not required to appear for the various
depositions, the failure of a non-party to
appear for a deposition, even a court[-]
ordered deposition, is not an independent
cause of action. The procedures set forth
by the Rules of Court provide an aggrieved
party sufficient avenues for relief
[through] means of motions to enforce
litigant's rights and various forms of
contempt of [c]ourt. In sum, New Jersey law
does not recognize an independent cause of
action for a [non-party's] non-compliance
with discovery requests aimed at collecting
a judgment as [pled] by . . . plaintiff.
Accordingly, Judge Littlefield entered an order on August
28, 2014 dismissing plaintiff's "claim" with prejudice. On
October 17, 2014, the judge partially granted plaintiff's motion
for reconsideration and issued a corrected order stating that
plaintiff's "complaint is [dismissed] with prejudice for the
reasons expressed in the [c]ourt's memorandum decision dated
August 28, 2014. This [o]rder is not intended to bar any party
from seeking any relief in the underlying matter of Bandler v.
[Evelyn] Melillo, [the collection action]."
On appeal, plaintiff does not challenge the August 28, 2014
and October 17, 2014 orders dismissing his complaint against
5 A-1315-14T2
defendant with prejudice. However, plaintiff complains that, in
the judge's written opinion addressing the contentions raised by
the parties concerning defendant's motion for summary judgment,
the judge discussed defendant's argument that the automatic stay
in the bankruptcy action excused his failure to comply with the
discovery orders.
In his decision, the judge initially observed that
defendant was not required to appear for the April 21, 2014
deposition because the filing of Evelyn's bankruptcy petition
"stayed the proceedings in that matter including any and all
efforts to collect the judgment against Evelyn Melillo.
Collection efforts included deposing [d]efendant[,] and thus,
the deposition was similarly stayed." Plaintiff alleged at oral
argument that he was not going to ask defendant any questions at
the deposition about Evelyn's assets but, rather, only planned
to seek information that might support plaintiff's "potential
claim" against defendant "for his failure to appear at the prior
depositions."
The judge rejected plaintiff's argument because
"[r]egardless of whether [d]efendant was or was not required to
appear for the various depositions," plaintiff could not bring
an independent cause of action against defendant for failure to
appear. Therefore, plaintiff's complaint against defendant had
6 A-1315-14T2
to be dismissed. Accordingly, the judge again stated that
plaintiff should have filed an enforcement motion against
defendant in the collection action. The judge noted that "there
still remains a question as to whether or not the filing of said
motion would violate the automatic stay." However, the judge
stated that he was not going to render an advisory opinion on
that issue.
Plaintiff filed a motion for reconsideration. He did not
contest the order dismissing his complaint. However, plaintiff
demanded that the judge redact the portion of his August 28,
2014 written opinion relating to the bankruptcy stay because
plaintiff believed it was dictum and not necessary to support
the judge's ultimate decision to dismiss the complaint.
Following oral argument on October 17, 2014, Judge
Littlefield denied this request. The judge found that, because
plaintiff had made arguments concerning the effects of the
automatic stay on his collection efforts, the court was
obligated to address them. The judge again stated that he was
not going to issue an advisory opinion as to the impact of the
automatic stay on any future motion by plaintiff to enforce the
discovery orders against defendant in the collection action. As
noted above, the judge also corrected the August 28, 2014 order
to make clear that no party was barred "from seeking any relief"
7 A-1315-14T2
in the collection action. The judge did not mention the
bankruptcy proceedings in the August 28, 2014 and October 17,
2014 orders.
This appeal followed. On appeal, plaintiff's only
arguments relate to his contention that the judge should not
have included a discussion of the automatic stay in his August
28, 2014 written decision. Plaintiff argues that "the trial
court's gratis dictum is unnecessary and may cloud future
proceedings" and that "the trial court's dictum is mistaken and
in contradiction to the trial court's own order." However,
plaintiff does not appeal from the August 28, 2014 and October
17, 2014 orders dismissing his complaint. Under these
circumstances, we are compelled to dismiss plaintiff's appeal
for want of jurisdiction.
It is well established that "because an appeal questions
the propriety of action [in the trial court], the rationale
underlying the action is not independently appealable." Price
v. Hudson Heights Dev., LLC, 417 N.J. Super. 462, 467 (App. Div.
2011) (citing Mandel, New Jersey Appellate Practice, ch. 2:4-2
(2010)). Therefore, a party may challenge only the propriety of
the judgment entered by the trial court, not the reasoning
underlying the court's decision. Do-Wop Corp. v. City of
Rahway, 168 N.J. 191, 199 (2001).
8 A-1315-14T2
In other words, "a party satisfied with or not aggrieved by
an action may not complain on appeal about the reasons cited for
the action." Mandel, New Jersey Appellate Practice, ch. 2:4-2
(2016). This rule applies even if the trial court's reasoning
is incorrect. See Isko v. Planning Bd. of Livingston, 51 N.J.
162, 175 (1968) ("It is a commonplace of appellate review that
if the order of the lower tribunal is valid, the fact that it
was predicated upon an incorrect basis will not stand in the way
of its affirmance."), abrogated on other grounds, Commercial
Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546
(1991). Thus, contrary to the arguments raised by appellant on
appeal, a party may not parse through the opinion of a trial
judge and take an appeal from words, sentences, or sections of
the opinion that he or she finds "objectionable" when the party
is not asserting that the order or judgment was made in error.
See Arons v. N.J. Network, 342 N.J. Super. 168, 181 (App. Div.)
(rejecting plaintiff's complaints concerning "the quality of the
letter opinion provided by the trial court" because "appeals are
taken from judgments, not opinions"), certif. denied, 170 N.J.
388 (2001).
This rule is particularly apt in a case where, as here, the
appellant is challenging dicta contained in the trial court's
opinion. See Glaser v. Downes, 126 N.J. Super. 10, 16 (App.
9 A-1315-14T2
Div. 1973) (holding that "appeals are taken from judgments and
not from opinions, let alone dicta"), certif. denied, 64 N.J.
513 (1974). Dictum is a statement by a judge "not necessary to
the decision then being made[,]" and "as such it is entitled to
due consideration but does not invoke the principle of stare
decisis." Jamouneau v. Div. of Tax Appeals, 2 N.J. 325, 332
(1949). "[P]ortions of an opinion that are dicta are not
binding." Nat'l Mortg. Co. v. Syriaque, 293 N.J. Super. 547,
554 (Ch. Div. 1994).
Because the parties both broached the subject of the impact
of the automatic stay on the pending proceedings, Judge
Littlefield prudently discussed the parties' respective
positions in his thorough opinion. However, as the judge made
clear, the issue of whether the automatic stay imposed as the
result of the Evelyn's bankruptcy action would prevent plaintiff
from filing an enforcement motion against defendant in the
collection action was not before him when he considered
defendant's motion for summary judgment. Therefore, the judge
properly concluded that he would not render an advisory opinion
on the issue. See State v. Rose, 206 N.J. 141, 189 (2011) ("The
notion that a court of appeals willy-nilly can decide issues
unnecessary to the outcome of the case results in the wholesale
10 A-1315-14T2
issuance of advisory opinions, a practice our judicial decision-
making system categorically rejects.").
Instead, the judge dismissed plaintiff's complaint against
defendant because, as we noted, he concluded that "the failure
of a non-party to appear for a deposition, even a court[-]ordered
deposition, is not an independent cause of action." Plaintiff
has not challenged that ruling on appeal. Thus, we have no
jurisdiction to consider plaintiff's complaints concerning the
dictum in the opinion related to the bankruptcy proceedings.
See Glaser, supra, 126 N.J. Super. at 16.
We also do not have jurisdiction to consider the October
17, 2014 order denying plaintiff's motion for reconsideration.
Again, plaintiff's arguments concerning that order are limited
to his assertion that the judge should have redacted the
discussion of the bankruptcy proceedings from his earlier
written opinion. However, "[t]his position as a basis for
reconsideration is completely unsupported by legal authority."
Amerada Hess Corp. v. Dir., Div. of Taxation, 7 N.J. Tax 275,
280-81 (Tax Ct. 1985) (concluding that a plaintiff's
"dissatisfaction with the [trial] judge's written opinion[,]"
but not with "the judge's conclusion and final judgment[,]" does
not warrant reconsideration of the judge's order).
11 A-1315-14T2
Accordingly, we dismiss plaintiff's appeal from the August
28, 2014 and October 17, 2014 orders for want of jurisdiction.5
5
In his brief, defendant asserts that he is "entitled to recover
attorneys' fees" on appeal. However, Rule 2:11-4 clearly
provides that "[a]n application for a fee for legal services
rendered on appeal shall be made by motion supported by
affidavits as prescribed by [Rule] 4:42-9(b) and (c), which
shall be served and filed within [ten] days after the
determination of the appeal." (emphasis added). Therefore, we
decline to consider defendant's contention in this opinion.
12 A-1315-14T2