TOWNSHIP OF HOLMDEL v. R.C.G. DEVELOPMENT CORPORATION OF HOLMDEL V, INC., ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 6072-04T56072-04T5

TOWNSHIP OF HOLMDEL, a

Municipal Corporation of

the State of New Jersey,

Plaintiff-Respondent,

v.

R.C.G. DEVELOPMENT CORPORATION OF

HOLMDEL V, INC., RONALD ACQUAVIVA,

FRANCINE ACQUAVIVA, and THE FIRST

INDEMNITY OF AMERICA INSURANCE

COMPANY,

Defendants-Appellants.

______________________________________

 

Submitted June 21, 2006 - Decided July 14, 2006

Before Judges Wefing and Coburn.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

No. L-4118-98.

Maybruch & Zapcic, attorneys for

appellants (Douglas J. Olcott, of

counsel and on the brief).

Lomurro, Davison, Eastman & Munoz,

attorneys for respondent (Duane O.

Davison, of counsel; Loren Rosenberg

Lightman, on the brief).

PER CURIAM

Defendants appeal from trial court orders granting plaintiff's motion in aid of litigant's rights and subsequently denying defendants' motion for reconsideration. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Defendants were involved in the development and construction of a large-scale residential development in Holmdel. The project was constructed in several phases and included both units intended for sale at the market rate and units intended to qualify as affordable housing units. The present dispute revolves around that portion of the project referred to as "Palmer Square."

The present dispute is not of recent origin. Indeed, its genesis may be traced back to at least May 2000 when the parties entered a consent order of settlement detailing what work remained to be completed in order for certificates of occupancy to issue. Unfortunately, further disputes developed, and in August 2001 the trial court entered an order denying plaintiff's motion to enforce litigant's rights. The trial court appended to the order a handwritten schedule for the completion of certain items.

Plaintiff filed another motion to enforce litigant's rights that was heard in June 2002. Again, the trial court declined to enter an order enforcing litigant's rights but appended to its order of June 7, 2002, a handwritten directive, portions of which are not legible in the copy included in appellants' brief. We are informed that plaintiff appealed from certain aspects of that order, but we are not informed of the disposition of that appeal.

In any event, plaintiff filed yet another motion in aid of litigant's rights. In its moving papers, plaintiff noted that it requested oral argument in the event opposition was received. Defendants included in their opposition an explicit request for oral argument.

The trial court, however, did not grant this request. It granted plaintiff's motion. The order it entered, moreover, merely recited the court's conclusion that defendant RCG Development Corporation of Holmdel V, Inc. was in violation of litigant's rights.

When defendants moved for reconsideration, they again requested oral argument. Again, the trial court did not entertain the request but denied the motion after reviewing the papers.

We agree with defendants that their requests for oral argument should have been granted. Under R. 1:6-2(d), a request for oral argument "shall be granted as of right" for all motions not involving pretrial discovery or calendar control. The trial court erred in denying the request for oral argument without setting forth a statement of its reasons for doing so. Raspantini v. Arocho, 364 N.J. Super. 528, 531-32 (App. Div. 2003). In light of the complex factual background of this matter, we cannot consider the denial of a timely request for oral argument to be harmless. Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 497-98 (App. Div. 2000).

We thus reverse and remand this matter for further proceedings. We have no way of knowing, of course, what the disposition of the matter will be in the trial court following oral argument. If at that juncture the trial court is again satisfied that defendants have violated plaintiff's rights as a litigant, the trial court should consider the advisability of entering an order detailing those items, if any, which remain to be completed.

 
Reversed and remanded for further proceedings. We do not retain jurisdiction.

We note for the sake of completeness that the trial court denied defendants' motion for reconsideration without prejudice. Plaintiff makes no contention that the order is not appealable, and thus we do not address the question but elect, rather, to deal with the merits of the parties' dispute.

(continued)

(continued)

4

A- 6072-04T5

July 14, 2006