STATE OF NEW JERSEY v. 1,297,522.20

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

$1,297,522.20,

Defendant.

______________________________

December 7, 2015

Argued October 14, 2015 - Decided

Before Judges Reisner, Hoffman and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-311-05.

Eric V. Kleiner argued the cause for appellant Estate of Frank Lagano (Mr. Kleiner, attorney; Rudie Weatherman and William H. Buckman, on the brief).

John M. Carbone argued the cause for respondent (Carbone and Faasse, attorneys; Mr. Carbone, on the brief).

PER CURIAM

In this forfeiture case, the Estate of Frank P. Lagano1 appeals from a July 26, 2013 order granting summary judgment in favor of the State.2 We reverse and remand the case to the trial court.

Our review of the trial court's grant of summary judgment is de novo, using the same Brill3 standard employed by the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). We view the motion evidence in the light most favorable to the non-moving party, and determine whether there are material facts in dispute. Id. at 406. If there are no material facts in dispute, we determine whether the undisputed facts entitle the moving party to judgment as a matter of law. Ibid.

Having reviewed the record, we conclude that the challenged order cannot withstand appellate scrutiny for three reasons. First, the trial court issued only a brief oral opinion on the motion, which did not contain the findings of fact and conclusions of law required by Rule 1:7-4 and Rule 4:46-2(c). As we have often noted, a trial court's failure to make findings of fact and conclusions of law does a disservice to the attorneys, the litigants, and this court. See Great Atl. & Pac. Tea Co., Inc. v. Checchio, 335 N.J. Super. 495, 498 (App. Div. 2000). The failure to make findings of fact and conclusions of law, standing alone, would ordinarily warrant a remand.

Second, in its terse opinion, the trial court appeared to have found that defendant failed to answer plaintiff's requests for admissions and was therefore deemed to have admitted the facts set forth therein. See R. 4:22-1. Having reviewed the record, including supplemental material we directed counsel to submit after oral argument, it is clear to us that plaintiff served the same requests for admissions twice, and defendant answered them twice. Plaintiff first served requests for admissions on March 3, 2011, under a cover letter signed by Assistant Prosecutor Salemi, who was then assigned to the case. On May 18, 2011, the trial court issued an order directing defendant to answer plaintiff's "previously served request for admissions" by June 17, 2011. Defendant complied with that order by serving its responses on June 15, 2011.

Apparently, due to changes in counsel on both sides, there later developed some confusion as to what discovery demands had been served and answered. On December 19, 2011, the State, represented by new counsel, sent defendant's new counsel the same request for admissions that Salemi had previously served. On January 24, 2012, the trial court ordered defendant to respond to "plaintiff's demands for admissions . . . by January 27, 2012." On February 15, 2012, defendant's new counsel sent plaintiff's new attorney a letter indicating that his review of the file revealed that defendant had already answered the request and enclosing another copy of defendant's previous responses. Based on that record, we find no basis to find that defendant had admitted the facts contained in the request for admissions by failing to answer them.4

Finally, defendant's motion submissions, viewed in the light most favorable to defendant, created a material factual dispute, thereby precluding summary judgment. See Davis, supra, 219 N.J. at 406. To put this conclusion in context, we briefly set forth the pertinent facts. In 2004, the State conducted an undercover investigation of suspected gambling and racketeering. As part of the investigation, the State seized several bank accounts, as well as cash contained in a safe owned by Frank P. Lagano, Sr., who was one of the targets of the investigation. In addition to conducting the criminal investigation, the State initiated a civil forfeiture proceeding in 2005. In 2007, while the criminal and forfeiture matters were still pending, Lagano was killed. His estate then participated as a claimant in the forfeiture action.

After a period of discovery, the State moved for summary judgment in the forfeiture action. In support of its motion, the State filed a certification from an undercover detective, Lieutenant Anzilotti, who attested that he had infiltrated a gambling and loansharking operation run by an organized crime family. Anzilotti never spoke to, or interacted with Lagano, although he had dealings with Donald Dinelle, who made various incriminating statements about Lagano's alleged loansharking activities. The State also submitted a certification from another detective, Lieutenant Stefanacci, who stated, based on his expertise and his database research, that Lagano had been involved in organized crime. Because defendant did not cross-move for summary judgment, and the trial court did not address the evidentiary and Confrontation Clause issues defendant raises on this appeal, we decline to parse the admissibility of the multiple hearsay statements contained in the detectives' certifications. If the parties are unable to resolve this case on remand, those issues may be raised again before the trial court.

In response to the motion, defendant filed a certification of Lagano's son, Frank Lagano, Jr. (Frank, Jr.). Among other things, Frank, Jr. attested that during the criminal case, the State had seized his father's financial records and had refused to return them. As a result, he contended, it was difficult to defend against the charge that the seized money was used to further criminal activity. Moreover, his father's death also hampered the defense. However, Frank, Jr. attested to his personal knowledge that his father was involved in a number of lucrative, legitimate business enterprises that could explain Frank, Sr.'s possession of the over $200,000 that the State had seized from him. Frank, Jr.'s certification also attached as exhibits several years of his father's income tax returns. We conclude that, viewed in the light most favorable to defendant, Frank, Jr.'s certification was sufficient to raise a material factual dispute as to the use and sources of the funds, so as to defeat summary judgment.5 Accordingly, the order granting summary judgment must be reversed and vacated, and the case remanded to the trial court.

Frank, Jr.'s certification also raises a question as to whether, on remand, the court should re-open discovery to permit the Estate to obtain from the State copies of any and all of Frank, Sr.'s financial records which the State seized during its investigation. As previously noted, we excluded discovery issues from the scope of this appeal; hence our opinion does not address the validity of prior discovery orders or preclude defendant from raising discovery issues on remand.

Reversed and remanded.

1 We recognize that the funds are the defendant, and the Estate is a claimant. However, in this opinion we will refer to the Estate as "defendant" and the State as "plaintiff," to be consistent with the terms the parties have used.

2 In response to plaintiff's motion to strike defendant's appellate brief, we issued an order dated August 13, 2014, limiting the appeal to the orders listed in the notice of appeal. Our order thereby excluded from review the trial court's interlocutory orders dated May 11, 2012 and May 25, 2012, which concerned discovery issues. We therefore do not address the merits of those orders. Nothing in our opinion would preclude defendant from asking the trial court to reconsider those orders on remand. Our August 13, 2014 order left to the merits panel whether to consider defendant's argument that the forfeiture action was barred by laches. Neither party has cited to any trial court order addressing the laches issue, and we decline to address the issue for the first time on this appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Defendant may raise the issue in the trial court on remand.

3 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

4 At oral argument, we specifically asked both attorneys whether plaintiff served the same questions twice, or whether plaintiff's "second" set of requests for admissions posed new and different questions. Plaintiff's counsel told us that the second set had different questions; defendant's counsel disagreed. Because the parties' appendices only contained one set of the requests for admissions, we directed plaintiff's counsel to provide us with both sets of requests, each with its corresponding cover letter. Plaintiff's counsel provided us with Salemi's March 3, 2011 cover letter and an incomplete, unsigned version of the request for admissions, ending with question fourteen. Defense counsel responded by sending us a copy of the complete set, signed by Salemi, which included question fifteen. The complete March version, compared with the later December version, reveals that plaintiff served the same questions twice, and that the second set was not labeled as a "second" or "supplemental" request. Consequently, it was reasonable for defendant to answer the second, duplicative set by providing plaintiff with a copy of its answers to the first set.

5 On this record, Frank, Jr.'s certification also supports defendant's responses to the requests for admissions, which alleged inability to provide more specific answers to the requests. In any event, it does not appear that plaintiff ever moved in the trial court to determine the sufficiency of the answers or objections. R. 4:22-1.