KEVIN M. WRIGHT v. TOWNSHIP OF CHERRY HILL NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE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-0

KEVIN M. WRIGHT,

Plaintiff-Appellant,

v.

TOWNSHIP OF CHERRY HILL,

NEW JERSEY,

Defendant-Respondent.

____________________________

November 28, 2016

Argued October 13, 2016 Decided

Before Judges Lihotz and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4769-12.

Matthew S. Wolf argued the cause for appellant.

Christine P. O'Hearn argued the cause for respondent (Brown & Connery, L.L.P., attorneys; Ms. O'Hearn, of counsel and on the brief; Michael J. Miles, on the brief).

PER CURIAM

Plaintiff appeals from a January 23, 2015 order denying his motion for reconsideration of a November 21, 2014 order granting defendant's motion for summary judgment. We reverse.

Plaintiff was a Cherry Hill police officer for nineteen years. After an automobile accident while on duty in 1995, plaintiff suffered a brain injury and later suffered from major depression, headaches, and numerous personal and psychological problems. He was terminated from the Cherry Hill Police Department after an internal affairs investigation uncovered plaintiff had abandoned numerous police items. These items were found after Cherry Hill Police searched plaintiff's home without a warrant or consent.

Plaintiff filed suit on November 7, 2012, under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq., and the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-2. The first count of the complaint alleged plaintiff suffered a disability under the NJLAD and had suffered adverse employment consequences as a result thereof. The second count asserted plaintiff's constitutional rights had been violated as a result of the illegal search of his home and the use of the illegally seized items. On October 4, 2013, prior to the completion of discovery, defendant moved for partial summary judgment dismissing the claim under the NJCRA because the claims alleged were barred by the two-year statute of limitations. Through counsel, plaintiff submitted a certification stating he had been unaware Cherry Hill police searched his home without a warrant until September 17, 2012, because the police had previously lied to him, telling him they had been responding to a burglary report. The court rejected plaintiff's assertion and granted defendant's motion on November 22, 2013.

Plaintiff, was thereafter represented by a series of lawyers, and after his fourth lawyer was dismissed, plaintiff became self-represented. He was advised by the court in June of 2014 to retain a new lawyer. No lawyer entered an appearance. In August of 2014, Stuart Alterman, Esq. wrote to the court and indicated he had been retained by plaintiff and his family to "wind down the pending litigation and resolve [the litigation] . . . [and had] been retained to assist with the prosecution of Kevin M. Wright's disability pension through the Police and Fireman's Retirement System." Although he had not entered an appearance in this case, Alterman wished to schedule a phone conference to "effectuate a winding down and resolution of the matter." Alterman also wrote to defense counsel indicating he had been retained to represent plaintiff to resolve all pending litigation. Defendant's counsel immediately opposed the request, by letter dated August 25, 2014, because Alterman had not entered an appearance in the matter. On September 16, 2014, defendant's counsel advised the court and Alterman she intended to move for summary judgment after preliminary discussions with Alterman and stated

Unfortunately, at this time, we have not made any progress in those discussions, we have not received any response from Mr. Alterman to recent inquiries regarding the status of this matter, and no entry of appearance has been filed on behalf of plaintiff. Discovery in this matter ends imminently and we are prepared to move for summary judgement on the final count which remains pending. Mr. Wright was given extensive time by [the court] to find alternate counsel after his counsel was disqualified and while that was on appeal, which was subsequently affirmed by the Appellate Division. The Township was prejudiced by the continuing delays in this matter as this case is almost two years old and plaintiff has had four different attorneys. If Mr. Alterman is not going to enter an appearance in this matter and Mr. Wright intends to appear pro se, then we will complete discovery and move for summary judgement on the remaining claim without any further delay.

Alterman was copied on both of defense counsel's letters to the court, but plaintiff was not.

On September 23, 2014, defense counsel sent the Camden Trial Court Administrator a letter advising the judge had extended discovery to October 30, 2014, beyond the scheduled October 6, 2014 trial date. Pro se plaintiff was copied on that letter, as was Alterman. The trial date was thereafter rescheduled to December 8, 2014.

On October 24, 2014, defendant moved for summary judgment returnable before the scheduled trial date of December 8, 2014. Defense counsel sent copies of the motion to plaintiff directly, as well as to Alterman. On November 3, 2014, Alterman sent a letter to the trial judge stating he had not been retained in the litigation, would not litigate the case, nor would he respond to the summary judgment motion or enter an appearance to litigate the case.1 Plaintiff was copied on the November 3, 2014 letter. The trial judge responded in a letter to both attorneys on November 6, 2014, that "Mr. Alterman will have to make a decision as to whether or not he wishes to actually file a substitution of attorney, and the court would then possibly reconsider his request" for a conference.

On November 17, 2014, Alterman again wrote to the court and confirmed he had only been retained to represent plaintiff in pursuing his pension "with the understanding that that the litigation before the court would be settled on a global basis with a full release of all claims." Alterman asked the court to carry the motion so his client would not be prejudiced and enclosed a letter from plaintiff's family members who confirmed Alterman had been in settlement negotiations with defense counsel and objected to the matter going forward. Members of plaintiff's family, who had been involved in the discussions with Mr. Alterman, also wrote to the court on November 17, 2014, requesting an adjournment in order to retain new litigation counsel and defend the summary judgment motion.

On November 20, 2014, plaintiff faxed an ex parte request for a postponement of the hearing in order to find new counsel. In his letter plaintiff stated Alterman had only recently informed him that he was not going to handle the matter in litigation. On November 21, 2014, the trial judge sent a letter to defense counsel and plaintiff, enclosing the order granting defendant's motion as unopposed and denying plaintiff's request for adjournment as ex parte, because Alterman had unambiguously communicated in his November 3, 2014 letter he was not representing plaintiff. Final judgment was granted and plaintiff was advised of his appeal rights.

Plaintiff retained counsel and moved for reconsideration. Plaintiff argued his medical condition prevented him from retaining counsel or responding to the summary judgement motion, the judge made no findings as required by Rule 1:7-4, and material facts were in dispute. The trial judge rejected that argument indicating there had been "an unacceptable lack of effort by plaintiff to obtain counsel in the interim period after his attorney had been disqualified" and denied the motion for reconsideration. This appeal followed.

On appeal, plaintiff argues he should have been allowed additional time to secure another attorney to successfully oppose defendant's motion and the trial judge erred in granting summary judgment on count one, before the completion of discovery, and count two, without making findings of fact and conclusions of law. Turning to the first argument, a request for adjournment is "addressed to the discretion of the court, and its denial will not lead to reversal" except for an abuse of discretion. State v. Hayes, 205 N.J. 522, 537 (2011). "Ordinarily, we do not interfere with a motion judge's denial of a request for an adjournment unless an injustice has been done." Rocco v. N.J. Transit Rail Operations, 330 N.J. Super. 320, 343 (App. Div. 2000). The judge found Alterman was not representing plaintiff as per the November 3, 2014 letter rather than, as plaintiff represents, on the eve of the motion. Considering the record and previous orders directing plaintiff to secure counsel, we do not consider the judge's determination to be an abuse of his discretion.

Plaintiff also argues the trial judge erred in ordering summary judgment in the absence of findings of fact or conclusions of law. Plaintiff contends the judgment of November 21, 2014, and the order of January 23, 2015, must be reversed because the court did not provide any written or oral opinion setting forth the findings of fact and conclusions of law supporting the judgment, as required by Rule 1:7-4.

Defendant argues omission of the two previous orders granting summary judgment from the notice of appeal precludes plaintiff from challenging their merits and because the notice of appeal only designates the January 15, 2015 order denying reconsideration, plaintiff is foreclosed from any discussion other than denial of plaintiff's request for an adjournment.2 We disagree.

Summary judgment is appropriate where the evidence fails to show a genuine issue as to any material fact challenged and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). In support of an order granting summary judgment, a judge is required to detail the findings of fact and conclusions of law in a written or oral opinion. R. 1:7-4(a); R. 4:46-2(c). A motion judge is obligated "to set forth factual findings and correlate them to legal conclusions measured against the standards set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 498 (App. Div. 2000). Rule 4:46-2(b) provides all sufficiently supported material facts will be deemed admitted for purposes of the motion unless "specifically disputed" by the party opposing the motion. Pursuant to Rule 1:7-4(a), however, the trial judge must still correlate those facts to legal conclusions. The court rules do not provide any exception from this obligation when the motion is unopposed. R. 1:7-4(a); R. 4:46-2(c). Here, the judge did not provide any written decision in support of the November 21, 2014 order granting summary judgment in favor of defendants and did not address plaintiff's Rule 1:7-4 argument upon reconsideration.

Litigants are entitled to an explanation of the trial court's reasoning for a grant or denial of relief, even if the litigant has not challenged a motion for summary judgment or any other relief. Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 302, (App. Div. 2009). Even when a motion goes uncontested, the judge must consider the undisputed facts to determine if they entitle a party to relief. Ibid. The trial court's lack of reasoning requires either a remand for a statement of reasons or a reversal and remand for consideration of the motion for summary judgment anew. Id. at 303. A remand for a statement of reasons is appropriate here because the judge was within his discretion to treat the matter as unopposed.

Reversed and remanded for additional findings consistent with this opinion within forty-five days. We retain jurisdiction.

1 Alterman stated he would only enter an appearance in order to globally resolve the matter in conjunction with efforts to secure plaintiff's pension.

2 We note, however, the November 21, 2014 order was attached to the Notice of Appeal. The November 22, 2013 order dismissing the first count was not and is not subject to our consideration.

It is clear only the orders designated in the notice of appeal that are subject to the appeal process and review. Sikes v. Township of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994). Because the November 21, 2014 order was attached to the notice of appeal and resolved all issues as to all parties, we possess the discretion to overlook "a party's failure to designate an order in the notice of appeal." Ridge at Back Brook, LLC v. Klenart, 437 N.J. Super. 90, 97 n.3 (App. Div. 2014).