CCTS, L.L.C v. JOHN F. DAUGHERTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2620-07T32620-07T3

CCTS, L.L.C.,

Plaintiff-Appellant,

v.

JOHN F. DAUGHERTY, his heirs,

devisees and personal

representatives, and his, their

or any of their successors in

right, title and interest;

PRUDENTIAL INSURANCE COMPANY OF

AMERICA; STATE OF NEW JERSEY;

THE PUBLIC GUARDIAN FOR ELDERLY

ADULTS; and JOHN F. DAUGHERTY, JR.,

Defendants,

and

CHERRYSTONE BAY, L.L.C.,

Intervenor-Respondent.

______________________________________

 

Argued December 8, 2008 - Decided

Before Judges Carchman and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. F-15781-05.

Milica A. Fatovich argued the cause for appellant (Honig & Greenberg, L.L.C., attorneys; Adam D. Greenberg, on the brief).

Anthony L. Velasquez argued the cause for respondent (Anthony L. Velasquez, LLC, attorneys; Mr. Velasquez, on the brief).

PER CURIAM

In this tax foreclosure matter, plaintiff CCTS, L.L.C. ("CCTS") appeals the Law Division's order of January 18, 2008, denying its post-judgment motion for sanctions against intervenor, Cherrystone Bay, L.L.C. ("Cherrystone"). We affirm that order, as we are satisfied that the motion judge did not abuse her discretion in declining to impose sanctions, particularly after the underlying matter had already concluded to judgment.

We will not recite in full the rather complicated facts and procedural history of this matter, except to the extent pertinent to our analysis of the narrow issue before us. The appeal arises out of a tax foreclosure against John and Helen Daugherty, owners of a house at 954 Clements Bridge Road in Barrington. The realty taxes on the residence were not paid in 2002. Consequently, CCTS obtained a tax sale certificate for the property at auction. Thereafter, in October 2005, CCTS filed a foreclosure action in the Law Division against the Daughertys.

In February 2007, the Law Division fixed the amount required to redeem the premises from tax sale at $17,256.16. Subsequently, a representative of Cherrystone approached the Daughertys. He offered to have Cherrystone buy the Daughertys' home and satisfy the tax indebtedness.

As the result of their discussions with the representative, the Daughertys signed a form contract on April 24, 2007, agreeing to sell Cherrystone their property for $75,000 ("the $75,000 contract"). The form contract, which was prepared by Cherrystone, included a merger clause stating that "[t]his Contract is the entire and only agreement between the Buyer and the Seller as to this sale of property from Seller to Buyer." The signed Contract was scanned into a computerized database maintained by Cherrystone.

On April 26, 2007, pursuant to Simon v. Cronecker, 189 N.J. 304 (2007), Cherrystone moved to intervene in CCTS's tax foreclosure action, to establish its right to purchase the Daugherty property and "to close on the sale of this property in accordance with the current contract[.]" In preparing that intervention motion, Cherrystone's counsel contends that he accessed only the company's database, with the "mistaken belief that all documents related to the [Daugherty] case were contained therein."

CCTS opposed Cherrystone's motion to intervene. In doing so, CCTS advised the court that Cherrystone had entered into an "buyback" agreement with a homeowner in an unrelated tax foreclosure case in Bergen County and had not timely disclosed that agreement to the court. CCTS suggested that Cherrystone may have entered into a similar undisclosed buyback arrangement with the Daughertys, which might affect whether or not the property was being conveyed to Cherrystone for more than nominal consideration as required by Cronecker. Id. at 321-22. In its reply papers on the intervention motion, Cherrystone denied that such a buyback agreement existed here.

After hearing oral argument, the trial court granted Cherrystone's intervention motion on July 10, 2007, finding that the contract price of $75,000 exceeded nominal consideration. The court simultaneously ordered that Cherrystone redeem the certificates on or before August 14, 2007. Meanwhile, CCTS's law firm transmitted correspondence to Cherrystone's closing attorney and to other parties connected with the proposed sale, announcing that CCTS intended to appeal the court's order granting intervention. Cherrystone then requested the trial court to extend the deadline for redemption and closing, which the court denied.

Because Cherrystone had failed to redeem and close by the stated deadline, the trial court issued an order on August 17, 2007, directing the foreclosure unit to recommend entry of final judgment in favor of CCTS. Cherrystone filed a notice of appeal contesting the entry of the foreclosure judgment. Shortly thereafter, however, Cherrystone voluntarily dismissed its appeal, as the Daughertys had amassed sufficient funds to pay off the tax certificate, and CCTS had decided to avoid further litigation with the Daughertys, allowing them to retain the property.

Meanwhile, it came to light that when Cherrystone's representative met with them on April 24, the Daughertys had, in fact, entered into a separate "buyback" agreement, authorizing them to repurchase their premises from Cherrystone for $100,000. That buyback agreement was generated at the same time as the $75,000 contract with a laptop computer and a portable printer. However, according to a certification from Cherrystone's principal, Michael Bonner, the buyback agreement had not been promptly scanned into Cherrystone's electronic database when its representative returned to the company's office in Hoboken. Consequently, when Cherrystone's counsel prepared and briefed the intervention motion, the buyback agreement did not appear on the accessed database.

Bonner attests that his company's failure to scan the buyback agreement was "an unintentional oversight" and that there was no intent by Cherrystone to deceive anyone. He also attests that the company has searched its records and discovered only one other instance in which a buyback agreement had not been promptly scanned. That instance was the same Bergen County matter to which CCTS had alluded in opposing Cherrystone's intervention here. Bonner also represents that Cherrystone has revised its business procedures so that all signed documents must be scanned and entered into the company's database within forty-eight hours.

After final judgment had been directed and Cherrystone's appeal was voluntarily dismissed, CCTS filed a motion with the trial court seeking counsel fees and other sanctions. CCTS predicated its application upon Cherrystone's failure to disclose the buyback agreement in a timely manner and its earlier affirmative misstatement denying the existence of such a buyback arrangement. CCTS also sought discovery of further information relating to the non-disclosure. Cherrystone opposed the motion, mainly on grounds of mootness.

After considering the parties' arguments and the procedural posture of the case, the motion judge denied CCTS's motion for sanctions. In the course of her oral ruling, the judge observed that "at this point this case is over." The judge also explained the practical difficulties of re-litigating the issues, post-judgment:

In order to determine if [Cherrystone would have been denied intervention had it timely disclosed the buyback agreement] . . . I would be trying in essence a case that was never tried before the [c]ourt. I would be trying a case for which I had very little facts even for my motion to decide.

So I fear that any decision I would make if indeed [CCTS] was successful in obtaining information [they] wish[] . . . [it] would be incredibly difficult for this [c]ourt to then go back and second guess what would I have done if I had this information and if this information was in fact concealed from the [c]ourt [whether] it would have made a difference because it's not just whether or not it was concealed [,] it would be whether or not [such concealment] interfered with the judicial system's ability to impartially adjudicate a matter.

CCTS appeals the trial court's denial of its motion for sanctions. Among other things, it argues that the court should have treated Cherrystone's initial misstatements as a fraud on the court, attempting to analogize this matter to Triffin v. Automatic Data Processing, 394 N.J. Super. 237 (App. Div. 2007) (outlining the elements of fraud on the court, and noting their potential applicability to circumstances in which a pro se litigant had improperly affixed fascimile signatures to several assignment agreements with check recipients).

Our standard of review of a trial court's ruling on an application for sanctions is limited. We only must determine whether the court's disposition constituted an abuse of discretion. Gilbert v. Electro-Steam Generator Corp., 328 N.J. Super. 231, 236 (App. Div. 2000) (affirming a trial court's denial of sanctions and its rejection of claims that a litigant's pleadings were frivolous). Having reviewed the limited record before us, and bearing in mind the procedural posture of the case, we are satisfied that the motion judge did not abuse her discretion in denying CCTS's application in these particular circumstances. In doing so, we stress that we do not condone any litigant making false assertions to the court, regardless of that litigant's business plan and its methods for storing relevant transactional data. We also do not, of course, foreclose CCTS from pursuing other measures, such as reporting the matter to the prosecutor or to regulatory authorities, if the facts on the whole should warrant it.

Affirmed.

 

Cherrystone represents that, as part of its overall business plan, it operates in a "paperless" environment, generally maintaining its transactional records only in electronic form.

We note that the trial judge in Bergen County sharply criticized Cherrystone for its actions and inactions in that matter.

We find the circumstances in Triffin inapposite, as they involved a fully-adjudicated jury trial and a remand to the trial court after we had vacated a judgment predicated on the jury's erroneous finding of common-law fraud without proof of detrimental reliance. Triffin, supra, 394 N.J. Super. at 249-53.

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A-2620-07T3

December 18, 2008