VESSELIN DITTRICH v. CITY OF HOBOKEN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3505-07T23505-07T2

VESSELIN DITTRICH,

Plaintiff-Appellant,

v.

CITY OF HOBOKEN and

JAMES FARINA, CITY CLERK OF THE

CITY OF HOBOKEN, in his professional

capacity as City Clerk,

Defendants-Respondents.

______________________________

 

Submitted March 24, 2009 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5338-05.

Vesselin Dittrich, appellant pro se.

Florio & Kenny, L.L.P., attorneys for respondents (Christopher K. Harriott, of counsel and on the brief).

PER CURIAM

Plaintiff Vesselin Dittrich appeals from the February 1, 2008, order that denied his motion to vacate the prior dismissal of his complaint. We affirm.

On March 16, 2006, plaintiff filed a second-amended complaint in lieu of prerogative writs against defendants, the City of Hoboken (City) and its Clerk, James Farina, seeking, among other matters, to compel defendants to produce certain documents under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common-law right of access; and to discontinue the use of an internal unofficial OPRA request form. Specifically, Counts One, Three, Five and Seven demanded access to documents under OPRA; Counts Two, Four, Six and Eight demanded access to documents under the common-law right of access; Counts Nine through Twelve and Fourteen sought to compel City agencies to conduct inspections of certain properties, and to enforce the City's ordinances; Count Thirteen sought an order directing the City's agencies to cease and desist from using an unofficial OPRA "Records Review Request Form"; and Count Fifteen sought a declaratory judgment determining that a report of the City's plumbing inspector be deemed null and void.

On May 17, 2006, the trial court granted defendants' motion seeking to dismiss Counts Nine through Twelve, Fourteen and Fifteen; but denied defendants' motion to dismiss the remaining counts. On June 27, 2006, the court entered an order denying plaintiff's motion for reconsideration.

The matter was tried to the court on October 12, 2006. On January 18, 2007, the court rendered an oral decision dismissing the remaining counts of the second-amended complaint with prejudice. A confirming order was entered the following day. Plaintiff did not appeal from the order of dismissal.

On December 19, 2007, plaintiff filed a motion seeking to vacate the order of January 19, 2007, pursuant to Rule 4:50-1, contending that the April 25, 2007 interim order of the Government Records Council (GRC), in the matter of Vesselin Dittrich v. City of Hoboken, Complaint No. 2006-145, constituted newly-discovered evidence that could not have been discovered in time for him to move for a new trial pursuant to Rule 4:49-1. On February 1, 2008, the court entered an order, supported by an oral decision, denying plaintiff's motion for relief from judgment. It is from this order that plaintiff appeals.

On appeal, plaintiff argues:

POINT I.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT BARRED THE NEW FACTS PRESENTED IN THE PLAINTIFF'S REPLY. PLAINTIFF'S MOTION'S CERTIFICATION WAS BASED ON THE ENTIRE RULE R. 4:50-1 INCLUDING ALL ITS SUBSECTIONS AND THEREFORE THE NEW FACTS IN THE REPLY SHOULD NOT HAVE BEEN BARRED.

POINT II.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION. THE "DAILY/WEEKLY INSPECTOR'S REPORTS" ARE NEWLY DISCOVERED EVIDENCE UNDER R. 4:50-1B WHICH WOULD PROBABLY ALTER THE JUDGMENT AND WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME TO MOVE FOR A NEW TRIAL.

POINT III.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION. THE HOBOKEN CORPORATION COUNSEL['S] LETTER OF DECEMBER 17, 2007[,] [] SHOWS THAT THE LETTERS TO MAYOR AND HIS RESPONSES ARE NEWLY DISCOVERED EVIDENCE UNDER R. 4:50-1B WHICH WOULD PROBABLY ALTER THE JUDGMENT AND WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME TO MOVE FOR A NEW TRIAL.

POINT IV.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION. THE GRC ORDER 2006- 145 OF APRIL 18, 2007 IS [] NEWLY DISCOVERED EVIDENCE UNDER R. 4:50-1B WHICH WOULD PROBABLY ALTER THE JUDGMENT AND WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME TO MOVE FOR A NEW TRIAL.

POINT V.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION. THE GRC ORDER 2006- 73 OF DECEMBER 19, 2007 IS [] NEWLY DISCOVERED EVIDENCE UNDER R. 4:50-1B WHICH WOULD PROBABLY ALTER THE JUDGMENT AND WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME TO MOVE FOR A NEW TRIAL.

POINT VI.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION. THE PLAINTIFF'S MOTION MEETS THE REQUIREMENTS OF R. 4:50-1B AND THE RULE'S INTERPRETATION IN [QUICK CHEK FOOD STORES V. TWP. OF SPRINGIELD, 83 N.J. 438 (1980).]

POINT VII.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION. THE ADVERSE PARTY HOBOKEN REPEATEDLY ENGAGED IN MISCONDUCT AS PER R. 4:50-1C BY DENYING PLAINTIFF ACCESS TO THE PUBLIC RECORDS IN VIOLATION OF OPRA.

POINT VIII.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION. IT IS NO LONGER EQUITABLE THAT THE JUDGMENT OR ORDER SHOULD HAVE PROSPECTIVE APPLICATION AS PER R. 4:50-1E.

POINT IX.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION. THERE IS OTHER REASON JUSTIFYING RELIEF FROM THE OPERATION OF THE JUDGMENT PURSUANT TO R. 4:50-1F.

We have considered plaintiff's arguments in light of the record and applicable law and conclude that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Plaintiff argues that the trial court improperly barred him from asserting that the January 19, 2007 judgment should have been vacated pursuant to Rule 4:50-1(c), (e) and (f), and for other reasons stated in his reply brief but not contained in his original brief filed in support of his motion. We disagree.

Plaintiff filed his Rule 4:50-1 motion on December 19, 2007, supported by his certification of the same date. Although the certification indicates that it was "in support of motion for relief from judgment pursuant to R. 4:50-1," the only facts asserted in the certification in support of the motion are that "[t]he Interim [GRC Order of April 25, 2007] in [C]ase 2006-145 is newly discovered evidence which would probably alter the judgment and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49." The certification is devoid of any indication that plaintiff moved to vacate judgment under subsections (c), (e) and (f) of the rule, or for any reason under subsection (b), other than stated supra.

Accordingly, defendants filed a brief in opposition to the motion, addressing plaintiff's argument under subsection (b) of the rule that the April 25, 2007 GRC decision constituted newly-discovered evidence. In response to defendants' opposition, plaintiff filed a reply brief, not only addressing defendants' counter-argument as to why the GRC decision in Case 2006-145 did not constitute newly-discovered evidence under subsection (b) of the rule, but also presenting for the first time additional arguments under subsections (c), (e) and (f) of the rule; additional arguments under subsection (b); and questioning whether the same judge who entered the judgment should decide the motion to vacate it.

Agreeing with defendants that the court should not consider arguments not presented in plaintiff's original brief, the court rejected the additional arguments stating: "Thus, it is absolutely improper to raise new arguments in a reply brief and, as such, these arguments, raised by plaintiff, are barred and do not warrant any further analysis." We conclude that the trial judge properly rejected plaintiff's additional arguments. State v. Smith, 55 N.J. 476, 488 (1970) (stating that a party is not permitted to use a reply brief to enlarge his or her main argument); Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.) ("Raising an issue for the first time in a reply brief is improper."), certif. denied, 168 N.J. 294 (2001).

Plaintiff argues that the trial judge erred in not granting his motion to vacate judgment under Rule 4:50-1(b), contending that the GRC's decision of April 25, 2007, and other records he received from the City pursuant to that decision, constituted newly-discovered evidence otherwise not available at time of trial. Plaintiff asserts that the GRC's decision of April 25, 2007, and the documents he subsequently received from the City pursuant to that decision support his allegation that defendants had "unreasonably denied [him] access" to the requested records "under the totality of the circumstances." N.J.S.A. 47:1A-11a. We again disagree.

Relief from a final judgment is to be granted sparingly and "[t]he decision whether to vacate a judgment on one of the six specified grounds is a determination left to the sound discretion of the trial court, guided by principles of equity." F.B. v. A.L.G., 176 N.J. 201, 207 (2003). The trial "court's judgment will be left undisturbed 'unless it represents a clear abuse of discretion.'" Ibid. (quoting Hous. Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994)). A motion for a new trial made pursuant to Rule 4:50-1(b) due to newly-discovered evidence should be granted where it "appear[s] that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative." Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 445-46 (1980).

We discern from the record that after plaintiff filed his second amended complaint in the Law Division on March 16, 2006, he submitted three separate OPRA requests to the City for access to construction files for three different properties in Hoboken. On July 17, 2006, after the City failed to provide the records, plaintiff filed a denial of access complaint with the GRC, No. 2006-145, seeking an order compelling production of the records by the City, and directing the City to cease and desist from using its own internal OPRA tracking system form.

On April 25, 2007, the GRC considered and adopted the findings and recommendations of its Executive Director on April 18, 2007. In so doing, the GRC entered an interim order directing that:

1) The Custodian shall provide access to the requested records, or give a lawful basis for denial. N.J.S.A. [47:1A-5g.]

. . . .

3) The Custodian's actions, most notably requiring the Complainant to deliver the OPRA request to another department, at which time the Complainant was required to complete additional request forms, appears to be negligent and heedless, but the evidence of record does not support a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11[a].

We agree with the trial court's determination that the GRC's decision of April 25, 2007, does not constitute newly-discovered evidence warranting vacating the judgment. Nor do the records subsequently received by plaintiff from the City pursuant to the GRC decision, because plaintiff failed to prove how such "evidence would probably have changed the result." Quick Chek Food Stores, supra, 83 N.J. 445. A public entity's subsequent production of records does not establish that the initial failure to provide access to the records was a knowing and willful act. Bart v. City of Patterson Hous. Auth., 403 N.J. Super. 609, 618 (App. Div. 2008) (finding that even if a public entity should have provided records on a citizen's initial request, that the subsequent production of those records does not by itself constitute a "knowing and willful violation, justifying the imposition of a civil penalty"). In addition, we fail to understand how the GRC's interim order, determining that the custodian's actions "did not support a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances," supports plaintiff's argument that defendants had denied access to requested documents "knowingly and willfully."

Affirmed.

A copy of plaintiff's original complaint filed on October 24, 2005, is not contained in the appellate appendix.

A copy of the January 19, 2007 order is not contained in the appendix.

Plaintiff also argues that the GRC's "Supplemental Findings and Recommendations of [its] Executive Director" in the matter of Vesselin Dittrich v. City of Hoboken, Complaint No. 2007-73, constitutes newly-discovered evidence that the trial court should have considered. The GRC's Supplemental Findings and Recommendations reference an access complaint filed on February 23, 2007, and the GRC's interim order in that matter of October 31, 2007, adopting the findings and recommendations of its Executive Director of October 24, 2007. From the Appendix, we cannot discern the records at issue in that matter. The Supplemental Findings and Recommendations of the Executive Director indicate that plaintiff had requested certain records from the City, and the City made the records available for inspection on the condition that he "sign[] a receipt for records provided in response to previous OPRA requests." The GRC concluded that OPRA does not permit custodians of records to require a signed receipt in order to provide access to records and directed that all records responsive to the January 18, 2007 OPRA request be disclosed to plaintiff. In doing so, the GRC concluded that the custodian's actions did not rise to the level of a "knowing and willful violation of OPRA."

Between the date of the GRC decision of April 25, 2007, and the date of oral argument on plaintiff's motion to vacate judgment, plaintiff received all requested records sought in the Law Division action, and the City ceased using its unofficial OPRA request form.

To the extent that the relief requested before the GRC is identical to the relief requested in the Law Division, the denial of access complaint was improperly filed. OPRA provides a requestor who is denied access to a government record "the option" of either filing a complaint in the Superior Court, "or in lieu of filing an action in Superior Court, file a complaint with the [GRC]." N.J.S.A. 47:1A-6. Simply stated, OPRA requires that an aggrieved requestor make an election of remedies; OPRA does not permit an aggrieved requestor to file and proceed simultaneously with parallel actions before the Superior Court and the GRC.

(continued)

(continued)

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A-3505-07T2

June 11, 2009