CLAUDIA CASSER v. TOWNSHIP OF KNOWLTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CLAUDIA CASSER,

Plaintiff-Appellant,

v.

TOWNSHIP OF KNOWLTON, MAYOR AND COMMITTEE FOR KNOWLTON, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, TOWNSHIP OF KNOWLTON PLANNING BOARD, MEMBERS OF THE TOWNSHIP OF KNOWLTON PLANNING BOARD, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, RENE MATHEZ, MARK J. HONTZ, ROGER THOMAS, RICHARD P. CUSHING, DAVID A. SMITH, RONALD C. FARBER, FRANK VAN HORN, GEORGE JAMES, CLAYTON TAYLOR, MICHAEL TIRONI, DALE GLYNN HAL BROMM, and HOWARD COWELL,

Defendants-Respondents,

and

HEYER, GRUEL & ASSOCIATES, PA, FRED HEYER, and PAUL N. RICCI,

Defendants.

________________________________

May 12, 2014

Submitted: April 30, 2014 Decided:

Before Judges Fasciale and Haas.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0248-13 and Warren County, Docket No. L-0125-10.

Claudia Casser, appellant pro se.

Robert J. Greenbaum, attorney for respondents.

PER CURIAM

Plaintiff Claudia Casser appeals from an August 31, 2011 Law Division order granting the municipal defendants'1 motion for partial summary judgment; an April 12, 2013 order denying plaintiff's motion to amend her complaint and granting the municipal defendants' cross-motion for summary judgment and dismissing seven other counts of plaintiff's complaint; and a May 28, 2013 order denying plaintiff's motion for reconsideration. We dismiss this appeal as interlocutory because the decisions being appealed are not final as to all issues.

In 1985, plaintiff purchased over ninety-nine acres of farmland in Knowlton Township, Warren County. "At the time she bought the property, a density of one house per three acres was permitted" by the Township's zoning ordinances. Plaintiff's "intention was to subdivide and sell half the acreage."

In 1991, the Township Planning Board "adopted an ordinance which mandated there be one house per five acres in most of the Township." In 2003, the Township adopted an ordinance which "further downzoned most of the farms, including plaintiff's farm, in the municipality to one house per ten acres. The ordinance also required those who subdivided tracts of land larger than [fifty] acres to set aside (i.e. deed restrict) half of such acreage to open space." Plaintiff did not challenge either of these ordinances at the time they were adopted.

In 2007, plaintiff submitted an application to the Planning Board seeking permission to subdivide all of her property. She attacked the legality of the ordinance requiring her to set aside half of her property for open space. The Planning Board rejected plaintiff's argument and ultimately approved her subdivision plan, subject to the requirement that she "set aside a portion of her land to open space." Plaintiff sought a variance from the ordinance, but was not successful. Plaintiff did not institute any further proceedings concerning the Planning Board's decision at that time.

In January 2010, plaintiff "went before the Township Committee and argued that . . . the Planning Board did not have the power to require plaintiff to set aside any of her land to open space as a condition of approving her minor subdivision, and that she was therefore entitled to compensation." Although the Township Committee "agreed to discuss plaintiff's claim," it took no action concerning it.

On March 8, 2010, plaintiff filed a twelve-count complaint in Warren County against the municipal defendants. Among other things, plaintiff alleged that the ordinance violated the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163; and that defendants (1) had applied the ordinance in an "irrational and discriminatory" manner; (2) violated her civil rights; and (3) caused her to "suffer[] emotional injury from this discrimination against her."

In Count Twelve of the complaint, plaintiff asserted that defendants had engaged in civil racketeering in violation of New Jersey's Racketeer Influenced and Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6. In this count, plaintiff alleged "that the Planning Board did not require eleven other applicants who sought minor subdivisions of over [fifty] acres to set aside a portion of their land to open space." Plaintiff argued that, when she asked to review the applications submitted by the eleven applicants, they were not provided to her and that she was instead given information concerning applicants "who had been held to the same standard as plaintiff. Plaintiff allege[d] that such conduct on the part of the 'defendants' amounted to [the] fraudulent concealment" of evidence2 which caused her to sustain "substantial damages." The municipal defendants filed an answer to the complaint.

In addition to the municipal defendants, plaintiff named a consulting firm and several individuals who had provided professional services to Knowlton Township as defendants on each of the twelve counts of complaint. The parties collectively refer to the individual defendants as "the professional defendants" and we adopt that term here.

Pursuant to Rule 4:6-2(e), the professional defendants filed a motion to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted. In a May 5, 2011 order and accompanying written decision, the motion judge dismissed all of plaintiff's claims against the consulting firm. With regard to the individual professional defendants, the order stated "[t]hat all claims but for the claim of fraudulent concealment shall be and are hereby dismissed against" the professional defendants. (Emphasis added). Thereafter, the professional defendants settled the fraudulent concealment claim with plaintiff; were dismissed from the case; and are not parties to this appeal.

The municipal defendants then filed a motion for partial summary judgment. They noted that the May 5, 2011 order "dismissed all but the count of fraudulent concealment against" the professional defendants and they requested that similar relief be afforded to them. Plaintiff opposed the motion and filed a cross-motion for summary judgment on counts one and two of her complaint.

Following oral argument, the motion judge rendered a brief oral decision and issued an order on August 31, 2011 granting partial summary judgment "in part" to the municipal defendants. The order stated that "Counts 5, 6, 7, 10 and 12 in the Complaint in this matter as against the [municipal defendants] are hereby dismissed without prejudice, except for the plaintiff's claim of fraudulent concealment[.]" (Emphasis added). The judge denied plaintiff's cross-motion for summary judgment. Thus, at that point, counts one, two, three, four, eight, nine, and eleven were unresolved, together with plaintiff's fraudulent concealment of evidence claim as set forth in count twelve of her complaint.

Plaintiff subsequently filed a motion to amend her complaint, but she withdrew that motion following oral argument conducted on September 2, 2011. The municipal defendants then filed a motion for summary judgment seeking to dismiss counts one, two, three, four, eight, nine, and eleven of the complaint. On May 25, 2012, the motion judge denied defendants' motion without prejudice for the reasons set forth in a written opinion. Thereafter, the parties advise us that the Warren County motion judge recused herself from the case and it was transferred to a new judge in Somerset County, who listed the matter for trial.

Prior to the trial date, plaintiff again sought to file an amended complaint and the municipal defendants filed a cross-motion for summary judgment on counts one, two, three, four, eight, nine, and eleven of the complaint. Following oral argument, the Somerset County judge issued a written opinion and order on April 12, 2013. The judge denied plaintiff's motion to amend her complaint and granted the municipal defendants' "cross-motion for summary judgment as to Counts One, Two, Three, Four, Eight, Nine, and Eleven."

Although plaintiff's fraudulent concealment of evidence claim set forth in count twelve of her complaint had never been dismissed, and had been specifically preserved by the Warren County judge in her August 31, 2011 order, the Somerset County judge's April 12, 2013 order mistakenly went on to state: "Note: Counts Five, Six, Seven, Ten and Twelve of the Complaint were previously dismissed by [the Warren County judge] on May 25, 2012 and therefore all Counts of the Complaint have been dismissed." Contrary to the Somerset County judge's notation, the May 25, 2012 order also did not dismiss any counts of the complaint. As noted above, that order denied defendant's motion for summary judgment on counts one, two, three, four, eight, nine, and eleven of the complaint.

Plaintiff filed a motion for reconsideration and, among a number of other arguments, advised the Somerset County judge that "the claim for fraudulent concealment remain[ed]" unresolved. Nevertheless, on May 28, 2013, the judge denied plaintiff's motion for reconsideration without addressing the fact that the fraudulent concealment of evidence claim had not been dismissed in any order.

Plaintiff filed a notice of appeal challenging the Warren County judge's August 31, 2011 order and the Somerset County judge's orders of April 12, and May 28, 2013. Although she raises a number of substantive arguments concerning these orders, we are unable to review the matter on the merits at this juncture of the case. It is "well settled that a judgment, in order to be eligible for appeal as a final judgment, must be final as to all parties and all issues." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:2-3 (2014); See Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 383 (App. Div.), certif. denied, 209 N.J. 96 (2011) (holding that in order for a "judgment to be final and therefore appealable as of right, it must dispose of all claims against all parties") (internal quotation marks and citation omitted).

Here, it is clear that the fraudulent concealment of evidence claim set forth in count twelve of the complaint was never resolved by either of the two judges who handled this case. The Warren County judge's August 31, 2011 order specifically preserved the fraudulent concealment claim. The Somerset County judge's order of April 12, 2013 did not deal with count twelve of the complaint, but indicated that this count had previously been dismissed by the Warren County judge. However, that was plainly a mistake and plaintiff's fraudulent concealment of evidence claim remains unresolved.

Because this matter is not final as to all issues, we are compelled to dismiss the appeal as interlocutory. We remand to the trial court for resolution of plaintiff's fraudulent concealment claim. We do not retain jurisdiction.

1 As used in this opinion, the term "municipal defendants" collectively refers to the following defendants named in plaintiff's complaint: Township of Knowlton, Mayor and Committee for Knowlton, individually and in their official capacities, Township of Knowlton Planning Board, Members of the Township of Knowlton Planning Board, individually and in their official capacities, Rene Mathez, David A. Smith, Ronald C. Farber, Frank Van Horn, George James, Clayton Taylor, Michael Tironi, Dale Glynn, Hal Bromm, and Howard Cowell.

2 In order to establish a claim of fraudulent concealment of evidence, a plaintiff must establish that the defendant had a legal obligation to disclose material evidence "in connection with an existing or pending litigation" that the plaintiff "could not reasonably have obtained . . . from another source[.]" Rosenblit v. Zimmerman, 166 N.J. 391, 406-07 (2001). The plaintiff must also establish that the defendant "intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation" and that the plaintiff suffered damages as a result of not having access to "the evidence defendant concealed." Id. at 407.