JAMES KING v. NIDIA R. LOPEZ

 
(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NOT FOR PUBLICATION WITHOUT THE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-2514-09T1

JAMES KING,

Plaintiff,

and

NORRICE RAYMAKER,

Plaintiff/Intervenor-

Appellant/Cross-Respondent,

v.

NIDIA R. LOPEZ,

Defendant-Respondent/

Cross-Appellant.

________________________________

December 7, 2010

 

Argued: July 13, 2010 Decided:

 

Before Judges R.B. Coleman and C.L. Miniman.

 

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3303-09.

 

Howard Z. Myerowitz argued the cause for appellant/cross-respondent(Myerowitz Jeffrey & Glidden, attorneys; Mr. Myerowitz and Diana H. Jeffrey, on the brief).

 

William W. Northgrave argued the cause for respondent/cross-appellant(McManimon& Scotland, L.L.C., attorneys;Mr. Northgraveand Jaime R. Placek, on the brief).

 

 

The opinion of the court was delivered by

MINIMAN, J.A.D.

Plaintiff-Intervenor Norrice Raymaker (Raymaker) appeals from a December 4, 2009, judgment dismissing her N.J.S.A. 19:29-1 petition to annul the certification of election issued to defendant Nidia R. Lopez (Lopez) and to remove Lopez from office. Lopez cross-appeals from an October 16, 2009, order denying her motion for summary judgment on the ground that this action was time-barred under N.J.S.A. 19:29-3. We affirm but do so on other grounds, namely that the action was not filed within thirty days of the election in question.

The following facts are drawn from the judge's opinion and the pleadings in the case. Lopez was elected on May 12, 2009, as the Ward C councilperson in Jersey City by a very significant majority, more than all other candidates combined. One of those candidates, plaintiff James King, who placed second in the election, instituted this action on June 26, 2009, contesting the results of the election on the ground that Lopez was not registered to vote in and was not a resident of Ward C for the year preceding the election. He alleged that Lopez had consistently declared that Orlando, Florida was her permanent residence for the past ten years. He further alleged that she was known as Nidia Boehringer in Florida, where she was registered to vote and had a driver's license.

Additionally, King asserted that Lopez affirmed that her Florida home was her permanent address for each of the past ten years to secure a homestead tax exemption; further, she affirmed that she was a licensed Florida driver and registered voter. He contended that Lopez was ineligible to hold office, a ground for setting aside the election pursuant to N.J.S.A. 19:29-1(b). Finally, he alleged that Raymaker was the third-place candidate out of six candidates. He sought a judgment setting aside the certificate of election and declaring the office vacant. Raymaker subsequently petitioned to intervene after she heard that King was considering dismissal of his action.

On September 18, 2009, Lopez prepared a notice of motion for summary judgment dismissing plaintiffs' petitions. Lopez argued that the action had not been brought within thirty days of the election as required by N.J.S.A. 19:29-3, and no extenuating circumstances had been shown for the late filing. Raymaker responded that the action was brought in a timely manner by King and that Raymaker could intervene in an already timely action without having to separately satisfy the time limitation of the statute.

The judge found that the election was held on May 12, 2009, and King filed his complaint on June 26, 2009. He noted that in entering the initial order to show cause on July 2, 2009, he had found that the late filing fell within an exception to the thirty-day requirement of the statute. This was because King asserted that he only became suspicious after the election when Lopez filed some papers indicating a campaign contribution from a Florida donor. The judge also found that when Raymaker moved to intervene and then filed her intervening petition on August 17, 2009, King had not yet dismissed his complaint. He determined that the filing deadline was tolled by the pendency of King's complaint. As such, the action was timely filed, and he denied summary judgment on October 16, 2009. The matter was reached for trial on October 26, 2009.

After hearing the proofs, the judge determined as a threshold issue that Raymaker had the burden to prove by a preponderance of the evidence that Lopez was ineligible for elected office,1 rejecting case law calling for proof by clear and convincing evidence.2 The judge found that the following facts were undisputed.

1. Prior to 1996, Lopez and Karl Boehringer were married and she was domiciled in New Jersey and she registered to vote here.

 

2. Between 1996 and 2000, Lopez was domiciled in Florida and she registered to vote there.

 

3. Starting in 1996, before Lopez and Boehringer were divorced, Lopez stayed with Ben Lopez at his Corbin Avenue house when she was in New Jersey.

 

4. In2000, Lopezdivorced KarlBoehringer.

 

5. Ms. Lopez married Ben Lopez on July 4, 2001, and since then has lived with Mr. Lopez at the Corbin Avenue address. She travels to Florida about seven times a year, and spends 7-10 days there on each trip. She has always returned to her Corbin Avenue address.

 

6. Upon her return to New Jersey in 2001, Ms. Lopez re-registered to vote in with [sic] the Hudson County Board of Elections and has been and remains so registered to the present.

 

7. From 2001, inclusive to 2009, Ms. Lopez has voted in municipal, primary and general elections using a voter address of . . . Corbin Avenue, Jersey City, New Jersey.

 

8. . . . Corbin Avenue, Jersey City, New Jersey is located in Ward C.

 

9. In June 2003, Ms. Lopez was a candidate for "County Committee" in the primary election.

 

10. In 2007, Ms. Lopez held the position of Commissioner for the Jersey City Parking Authority.

 

11. From 2001, inclusive to date, Ms. Lopez has been a member of the Nueva Esperanza Presbyterian Church, Jersey City, and has been/is the Treasurer and an Elder of that congregation.

 

From these facts and from legal principles governing concepts of domicile and election law, the judge found that Lopez was a resident of Ward C as of May 12, 2008, and eligible for election as a Ward C councilperson. She resided there, registered to vote there, had her church affiliation there, and was involved in political matters there. He found the proven undisputed facts were sufficient to establish domicile. As to the evidence brought forth by Raymaker, the judge observed:

To be sure, [p]laintiff has produced much evidence in an effort to support a contrary result, which evidence, at first blush, would seem to call into question [d]efendant's residence in Ward C. However, when examined more closely, the evidence so produced is not entirely relevant to the issue at hand and in my opinion does not satisfy [p]laintiff's required burden of persuasion. While such evidence may become relevant in any subsequent election involving Ms. Lopez wherein her opponent might call into question her qualifications to hold elective office, it does not suffice to sustain the present challenge to her election and justify her removal from the office to which she was elected. While the many things Lopez did or failed to do since her return to New Jersey in 2001 are inexplicable and may implicate possible violations of civil and/or criminal law here and/or in Florida, they are "things" that are done unfortunately, day in and day out, by any number of people for any number of reasons, running the gamut from the dumb to the negligent to the criminal, regardless of residence. In short, while I was admittedly mystified myself on occasions during the trial by the [d]efendant's apparent lack of attention to many details of her personal and financial affairs, such mystification on my part does not convert what here was done or not done by Lopez into relevant evidence which sustains the [p]laintiff's challenge as to [d]efendant's residency. Such evidence does not make Lopez a resident of Florida as of May 12, 2008.

 

Whether intentionally or otherwise, Lopez did not pay New Jersey taxes, either personal or business, between 2001-2009. She did not reinstate her corporation in New Jersey after her return in 2001. She did not apply for a New Jersey drivers' license. She may or may not have voted by absentee ballot in a Florida election after she moved back to New Jersey in 2001. She represented her Florida house to be her permanent home for the purpose of multiple refinancing and to obtain yearly homestead exemptions. None of these actions, whatever the motivation for them, is excused or condoned by this decision. My decision simply is that these actions or inactions by Lopez are not "resident" specific and, even if they were, they would not tip the scale in [p]laintiff's favor when weighed beside those factors which I previously found to show that, at least as of May 12, 2008, Ms. Lopez intended her residence to be . . . Corbin Avenue, Jersey City and that intention was objectively confirmed.

The judge thus dismissed Raymaker's petition on the merits. This appeal followed.

Raymaker contends in this appeal that the judge erred in failing to shift the burden of persuasion to Lopez; failed to determine whether Lopez abandoned her Florida domicile, undermining the judge's domicile determination; ignored undisputed evidence that Lopez was ineligible for public office in New Jersey; improperly relied on Lopez's history of running for office; and ignored his own finding that Lopez's testimony was not credible.

Lopez, on the other hand, contends that the burdens of proof, both production and persuasion, remained on Raymaker at all times. She further contends that her residence and domicile were at all relevant times in Ward C of Jersey City. Finally, she urges on her cross-appeal that this action was not timely filed.

Raymaker responds that King's action and her intervention were timely under the exceptions to the thirty-day time limit of N.J.S.A. 19:29-3.

Our appellate review of a trial judge's findings of fact and conclusions of law is limited by well-settled, controlling principles. Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002). "We are not to review the record from the point of view of how we would have decided the matter if we were the court of first instance." Ibid. (citation omitted). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted); see also Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004).

"[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.) (citation omitted), certif. denied, 40 N.J. 221 (1963); see also Metuchen Sav. Bank v. Pierini, 377 N.J. Super. 154, 161 (App. Div. 2005) (stating same). It is not our function to weigh the evidence. Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434, 440 (1965). Neither do we "determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein." Penpac, Inc. v. Passaic Cnty. Utils. Auth., 367 N.J. Super. 487, 507 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 180 N.J. 457 (2004). This is so because we are not in a good position to judge credibility and ordinarily should not make new credibility findings. Dolson v. Anastasia, 55 N.J. 2, 7 (1969); see also Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (App. Div. 1952). "Rather, our aim is to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Sebring Assocs., supra, 347 N.J. Super. at 424 (citations and internal quotation marks omitted). Indeed, we "exercise our original fact-finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.) (citations omitted), aff'd o.b., 33 N.J. 78 (1960).

"While we will defer to the trial court's factual findings so long as they are supported by sufficient, credible evidence in the record, our review of the trial court's legal conclusions is de novo." 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84; Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We begin with the statutory limitation period of N.J.S.A. 19:29-3, which provides in pertinent part as follows:

 

The petition contesting any election to public office or approval or disapproval of any proposition shall be filed not later than 30 days after such election, unless the ground of action is discovered from the statements, deposit slips or vouchers filed under this Title, subsequent to such primary or other election, in which event such petition may be filed 10 or 30 days respectively after such statements, deposit slips or vouchers are filed.

 

Under this statute, the cause of action accrues, and the thirty-day period begins to run, on the date of the election. See Davis v. City of Plainfield, 389 N.J. Super. 424, 434 (Ch. Div. 2006).

In his verified petition, King did not assert any ground for the late filing, but in his certification dated July 15, 2009, he described his investigation into Lopez's qualifications for the election. Several times prior to the election, he was told by persons living across the street from Lopez's home on Corbin Avenue that they never saw Lopez at that address. During the week after the election, a number of people told King that Lopez did not live in Ward C. Then, a woman who was very familiar with Corbin Avenue told King that Lopez lived on Harrison Avenue in Ward B. This all happened within about a week of the election. At about the same time, a neighbor of Lopez gave King the license plates for three cars connected to Lopez's home on Corbin Avenue, including one with a Florida license plate. He felt at this point that he needed professional help.

On May 28, 2009, King met with Target Investigations. The following day, King mailed a signed agreement and a retainer check to its investigator. On June 2, 2009, Target Investigations said that it would work on King's requested investigation. On June 6, 2009, the investigator left a message for King that he was preparing a report and would mail a copy to him. King received that report on June 10, 2009, and learned that Lopez was known as Nidia Boehringer in Florida, where she owned a home and received tax exemptions as a permanent Florida resident. She had a current Florida driver's license and a listed telephone number for her Orlando home. King "then began to search for an attorney." King also alleged:

After I reviewed the report concerning Ms. Lopez's connection to Orlando[,] her final ELEC report was called to my attention. When I reviewed it I noted that she had received a substantial contribution from an Orlando businessman. Because of my new knowledge of the name Boehringer and the connection to Orlando, this became significant. It was further corroboration of her presence in Florida and might lead to evidence of domicile. It added to my growing belief that Lopez was not a permanent resident of Jersey City.

 

Only a handful of cases have considered the timeliness of an action contesting an election. See Lynch v. Acquilone, 32 N.J. Super. 513 (App. Div. 1954); Jones v. Mitchell, 194 N.J. Super. 387 (Law Div. 1983), aff'd o.b., 194 N.J. Super. 337 (App. Div. 1984); In re Tyler, 167 N.J. Super. 115 (Law Div. 1979).

In Tyler, supra, 167 N.J. Super. at 117-18, a mayor-and-council election took place on November 7, 1978; a ballot contest over fifty-one mayoral ballots took place; and an order voiding the fifty-one mayoral ballots was entered on December 20, 1978. Thereafter, a certificate of election was issued to the successful mayoral candidate. Id. at 118. The pending action was instituted on January 11, 1979, seeking to apply the December 20, 1978, mayoral order to the council election. Ibid. The judge stated that the issue under N.J.S.A. 19:29-3 was whether the December 20, 1978, order and the election certificate were "statements" subsequent to the election "from which the ground of action asserted ha[d] been discovered." Ibid. The judge opined,

It seems doubtful that the Legislature intended to use the word "statement" in a technical sense; its concern was centered upon knowledge of an election violation constituting a "ground of action," and the vehicle by which that knowledge was conveyed, namely a writing filed in accordance with a provision of the election statutes.

 

[Id. at 119.]

The judge observed that the December 20, 1978, order had to be filed with the office of the clerk of the municipality where the election took place, N.J.S.A. 19:28-5, as did the election certificate, N.J.S.A. 19:20-8, leaving only the issue of whether those two "statements" provided the "'ground of action'"; he concluded that they did. Ibid.

In Jones, supra, 194 N.J. Super. at 389, the incumbent plaintiff wrote to the city clerk on April 8, 1982, contesting the defendant's residence after defendant filed a request for designation on the ballot. The plaintiff claimed that the defendant was actually a resident of another town within the prior twelve months, making him in violation of N.J.S.A. 40A:9-1.13. Ibid. The city investigated and determined that there was insufficient documentation to remove defendant from the ballot, and he was subsequently elected on May 11, 1982. Id. at 390.

The plaintiff filed his petition pursuant to N.J.S.A. 19:29-1 on October 22, 1982, more than five months after the election. Ibid. The defendant raised the bar of N.J.S.A. 19:29-3. Ibid.

An eligibility challenge must be brought within 30 days of an election. N.J.S.A. 19:29-3. Indeed, it is the firmly established policy of this State that the "public interest manifestly requires that election contests be promptly tried." Lynch[, supra, 32 N.J. Super. at 518], citing In re Smock, 5 N.J. Super. 495, 504 (Law Div. 1949). [The p]laintiff has not asserted any of the grounds provided in N.J.S.A. 19:29-3 which permit an election challenge later than 30 days after election day. Neither has he established grounds for tolling the 30-day period.

 

[Id. at 391.]

 

As a result, the judge dismissed the petition. Id. at 392.

Here, King and Raymaker relied on the filing of Lopez's "final ELEC report" to secure an extension of time under N.J.S.A. 19:29-3. They do not specify the statutory citation on which they rely for a requirement that such a report be filed. However, we presume from the information they derived from that report that they rely on N.J.S.A. 19:44A-16. That statute requires campaign treasurers to file reports of all contributions and loans on the twenty-ninth and eleventh days preceding the election and on the twentieth day after the election. N.J.S.A. 19:44A-16(b). The latter report would contain information respecting campaign contributions and loans made from the thirteenth day prior to the election to the eighteenth day after the election. N.J.S.A. 19:44A-16(a). We assume from the use of the word "final" that King was referring to this latter report.

We need not actually decide here whether this report is a "statement" under N.J.S.A. 19:29-3, as the court in Tyler decided, Tyler, supra, 167 N.J. Super. at 119, because we are satisfied that the "ground of action" here was not "discovered from" the information in the report as it was described by King. N.J.S.A. 19:29-3.

Before we reach that issue, we note that where a litigant seeks to secure an extension of time under N.J.S.A. 19:29-3, the litigant must establish that the action was filed within thirty days of the date of filing of the statement, deposit slip, or voucher. We presume that the N.J.S.A. 19:44A-16(a) report was timely filed on or before June 11, 2009, and King's June 26, 2009, complaint was filed within the statutorily extended thirty-day time period.

However, King plainly did not discover the ground of action from the information derived from that final campaign finance report because that report disclosed only that Lopez received a substantial contribution from an Orlando businessman. Such information establishes the fact of a contribution from an out-of-state contributor, but it does not suggest that Lopez was not a bona fide resident of Ward C in Jersey City as required by N.J.S.A. 40A:9-1.13.3 Although that information might, to some slight extent, have corroborated the information learned from Target Investigations, it did not establish the ground for this action. As such, we affirm the dismissal of the petition with prejudice, but on other grounds.

Nevertheless, had we considered this appeal on the merits, we would have affirmed substantially for the reasons expressed in the thorough opinion of Judge Maurice J. Gallipoli dated December 4, 2009. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms, supra, 65 N.J. at 484.

Affirmed.

1 See In re Gen. Election of Maplewood, 255 N.J. Super. 690 (Law Div. 1992); Michaud v. Yeomans, 115 N.J. Super. 200 (Law Div. 1971).

2 See In re Evans, 227 N.J. Super. 339 (Law Div. 1988); Lepre v. Caputo, 131 N.J. Super. 118 (Law Div. 1974).

3 That statute provides in pertinent part as follows:

Except as provided in section 9 of this act, no person shall, on or after the effective date of this act, be eligible to become a candidate for any local elective office, or to be appointed to any local elective office, unless he is registered to vote in the local unit to which the office pertains, and has been a resident of that local unit for at least 1 year immediately prior to the date upon which the election for the office is to be held, or prior to the date upon which the appointment is made, as the case may be.

 

[N.J.S.A. 40A:9-1.13 (footnote omitted).]