JEFFREY S. FELD v. THE CITY OF ORANGE TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4880-12T1

JEFFREY S. FELD,

Plaintiff-Appellant,

v.

THE CITY OF ORANGE TOWNSHIP,

WALTER G. ALEXANDER VILLAGE

URBAN RENEWAL I, L.L.C., WALTER

G. ALEXANDER VILLAGE URBAN

RENEWAL II, L.L.C., and THE

HOUSING AUTHORITY OF THE

CITY OF ORANGE,

Defendants-Respondents,

and

STATE OF NEW JERSEY, OFFICE OF

THE STATE COMPTROLLER, NEW JERSEY

DEPARTMENT OF COMMUNITY AFFAIRS,

COUNTY OF ESSEX, ORANGE BOARD OF

EDUCATION, ORANGE HOUSING DEVELOPMENT

CORPORATION, AJD CONSTRUCTION, POWER

ELECTRIC CO., INC., F & G MECHANICAL

CORP., and MEADOWLANDS FIRE PROTECTION

CORP.,

Defendants.

__________________________________________

THE FOUR FELDS, INC., d/b/a

L. EPSTEIN HARDWARE CO. and

REASONABLE LOCK & SAFE, INC.,

Plaintiffs-Appellants,

v.

THE CITY OF ORANGE TOWNSHIP and

RPM DEVELOPMENT, L.L.C.,

Defendants-Respondents.

______________________________________

March 26, 2015

Argued December 10, 2014 Decided

Before Judges Fuentes, Ashrafi, and O'Connor.

On appeal from the Superior Court Of New Jersey, Law Division, Essex County, Docket Nos. L-0193-11 and L-2865-11.

Jeffrey S. Feld argued the cause pro se and for appellants in A-4880-12.

Aldo J. Russo argued the cause for respondent The City of Orange Township (Lamb Kretzer, L.L.C., attorneys;

Robert D. Kretzer, on the brief).

Demetrice R. Miles argued the cause for respondent The Housing Authority of the City of Orange in A-3911-12 (McManimon, Scotland & Baumann, LLC, attorneys; Mr. Miles, on the brief).

Neal M. Ruben argued the cause for respondent RPM Development, L.L.C. in A-4880-12.

PER CURIAM

We address two related appeals in a single opinion. Attorney Jeffrey S. Feld filed these appeals from orders dismissing his own pro se complaint in A-03911-12 for lack of standing, and the complaint he filed in A-4880-12 on behalf of a family-owned corporation on grounds of collateral estoppel. We affirm in part and remand in part the pro se action0, and we affirm outright the corporate action.

Feld is a licensed attorney in New Jersey whose practice is essentially limited to serving as "house counsel" for three family businesses, two of which are plaintiffs L. Epstein Hardware Co. and Reasonable Lock & Safe, Inc. These businesses are located in the City of Orange Township (Orange). The two appeals before us are from the sixth and eighth lawsuits out of at least ten that Feld has filed against Orange and other entities challenging municipal actions that he and his family businesses disapprove. Feld describes himself as a "zealous gadfly" and a "radical barrister." He believes he must oversee the actions of government officials in Orange.

As we discussed in a previous opinion, Feld v. City of Orange Township (Feld II), No. A-2904-10 (App. Div. Mar. 8, 2012) (slip op. at 2-3), certif. denied, 211 N.J. 274 (2012), much of the litigation involves the redevelopment of a blighted business district of Orange with the construction of affordable housing by a private developer, defendant RPM Development, L.L.C. Feld objects to the conveyance of township-owned vacant lots to RPM and also objects to other incentives Orange has given the developer to facilitate the project. Ibid.

Some of Feld's lawsuits have been settled, and he has obtained modest judicial remedies in others. In Feld II, however, we affirmed dismissal of an action in lieu of prerogative writs by which the Feld plaintiffs sought to invalidate the sale of vacant lots by Orange to RPM. Id. at 2. The two cases before us now are designated Feld VI and Feld VIII. Feld VI challenges tax exemptions granted for the redevelopment site and Feld VIII the conveyance of two additional lots to RPM.

On appeal, Feld has filed lengthy briefs arguing that the trial court's rulings were legally erroneous, and also adding digressive discourses about his purposes and motives in relentlessly pursuing litigation against Orange. The statements of facts and procedural histories in his briefs are disjointed and vastly overstated. They jump from one factual allegation to another without seeming connection or transition, and with minimal citation to the record, in violation of Rule 2:6-2(a)(3), (4). These parts of Feld's briefs resemble detailed notes of an attorney regarding the grievances of his client, or himself in Feld VI. They treat all that has apparently happened in these cases as equally relevant to the issues Feld now raises on appeal.

The argument sections of the briefs are sprinkled with references to published and unpublished decisions from which Feld draws unwarranted conclusions of law. Feld's arguments cloud more than illuminate the issues that we must decide. The best we can do is to compare Feld's legal arguments to the grounds for the trial court's dismissals of his complaints and determine whether the court erred in either case.

The complaints were dismissed on defendants' motions under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. Our standard of review is plenary from dismissal of a complaint for lack of standing, NAACP of Camden Cnty. East v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 444 (App. Div.), certif. granted, 209 N.J. 96 (2011), appeal dismissed, 213 N.J. 47 (2013); State v. Bradley, 420 N.J. Super. 138, 141 (App. Div. 2011), or on grounds of collateral estoppel, Gannon v. Am. Home Prods., 414 N.J. Super. 507, 523 (App. Div. 2010), rev d on other grounds, 211 N.J. 454 (2012); Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 173 (App. Div.), certif. denied, 164 N.J. 188 (2000).

I.

Feld VI (A-3911-12) Standing

In Feld VI, pro se plaintiff Feld alleges violations of law when the Township Council of Orange adopted ordinances on December 7, 2010, granting tax exemptions to two of the urban renewal entities: Walter G. Alexander Village Urban Renewal I and II. Feld also alleges violation of law in the Council's approval of a resolution on December 21, 2010, that reduced the outstanding water and sewer charges for the urban renewal site.

In a case management letter dated March 23, 2011, the trial court summarized the issues Feld sought to raise in challenging these municipal actions

(A) Whether mandatory statutory terms were omitted from the long term tax abatement agreement ("agreement") approved 12/7/10 for the Walter G. Alexander development site;

(B) Whether a statutorily mandated 5% allotment to the County was omitted from the agreement;

(C) Whether a municipality is permitted to approve an agreement with a developer that owes outstanding water and sewer fees;

(D) Whether a resolution on 12/21/10 compromising outstanding water and sewer fees for the developer (from $700,000 to $200,000) violated the Open Public Meetings Act;

(E) Whether the consideration in (D) is illusory because no time for payment is specified.

(F) Whether (D) violates the "Pay to Play" law.

After many proceedings in the litigation that are not relevant to the present appeal, Orange moved to dismiss the prerogative writs action for lack of Feld's standing to pursue the lawsuit. The trial court granted the motion by written opinion and order dated February 8, 2013. Feld filed a motion for reconsideration and for expansion of the record. The trial court granted Feld's request to expand the record but denied reconsideration of the dismissal. Feld filed a notice of appeal from the court's February 8 and April 5, 2013 orders.

"Standing 'refers to the plaintiff's ability or entitlement to maintain an action before the court.'" In re Adoption of Baby T., 160 N.J. 332, 340 (1999) (quoting N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div.), certif. granted, 152 N.J. 13 (1997), appeal dismissed, 152 N.J. 361 (1998)). "Standing is a threshold requirement for justiciability." Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 421 (1991); see also Spinnaker Condo. Corp. v. Zoning Bd. of Sea Isle City, 357 N.J. Super. 105, 110 (App. Div.) (whether a party has standing is a threshold inquiry), certif. denied, 176 N.J. 280 (2003).

The courts of New Jersey liberally grant a litigant standing to sue. Jen Elec., Inc. v. Cnty. of Essex, 197 N.J. 627, 645 (2009); Campus Assocs. L.L.C. v. Zoning Bd. of Adjustment of Hillsborough, 413 N.J. Super. 527, 534 (App. Div. 2010). At the same time, our courts will not "entertain proceedings by plaintiffs who are 'mere intermeddlers' or are merely interlopers or strangers to the dispute." Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107 (1971) (citation omitted).

Generally, a litigant has standing under the common law to challenge a governmental action when he has "a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision." In re Camden Cnty., 170 N.J. 439, 449 (2002); accord Jen Elec., supra, 197 N.J. at 645; Baby T., supra, 160 N.J. at 340.

Feld contends he has standing to pursue his claims even without showing a personal financial stake in the outcome of the case because he seeks to vindicate the public interest in the lawful operation of the municipal government of Orange. "[I]n cases of great public interest, any 'slight additional private interest' will be sufficient to afford standing." Salorio v. Glaser, 82 N.J. 482, 491, cert. denied and appeal dismissed, 449 U.S. 874, 101 S. Ct. 215, 66 L. Ed. 2d 94 (1980) (quoting N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm'n, 82 N.J. 57, 68-69 (1980)); accord People for Open Gov't v. Roberts, 397 N.J. Super. 502, 510-12 (App. Div. 2008). We reject this basis for granting standing to Feld to pursue his claims in Feld VI. We cannot say here that the public interest is so exceptional that any slight personal interest of Feld is sufficient to confer standing under the common law.

Our courts have granted "a broad right in taxpayers and citizens of a municipality to seek review of local legislative action without proof of unique financial detriment to them." Kozesnik v. Twp. of Montgomery, 24 N.J. 154, 177 (1957); accord Roberts, supra, 397 N.J. Super. at 514; cf. Matlack v. Bd. of Chosen Freeholders of Burlington, 191 N.J. Super. 236, 248 (Law Div. 1982) (county taxpayer had standing to challenge expenditure by county government), aff d, 194 N.J. Super. 359 (App. Div.), certif. denied, 99 N.J. 191 (1984). But the right to challenge government actions as a taxpayer has its limits. See Loigman v. Twp. Comm. of Middletown, 297 N.J. Super. 287, 297-99 (App. Div. 1999) (a local taxpayer had no standing to enforce a collective negotiation agreement between a public employer and a public employee union); see also Borough of Seaside Park v. Comm'r of the N.J. Dep't of Educ., 432 N.J. Super. 167, 210-11 (App. Div.) (plaintiff had no standing to assert the constitutional rights of others), certif. denied, 216 N.J. 367 (2013).

Feld is neither a resident nor a property or business owner in Orange. He lives and pays property taxes in the same county, Essex, but not in the same municipality. He does not have the standing of a resident or property or business owner of Orange to challenge its municipal actions.

Feld cites Town of Secaucus v. City of Jersey City, 20 N.J. Tax 384 (Tax 2002), in support of his contention that he has common law standing as a county taxpayer because some of his property taxes are paid to the county and will be affected by the tax exemptions granted in Orange. Feld has not cited any binding authority holding that the standing broadly afforded to a resident or taxpayer in the same municipality extends to all taxpayers within the county. Such a rule of standing would subject government bodies and agencies to litigation by outsiders challenging local actions, potentially from all corners of the State. The common law does not treat those whose financial interests are remote as having the same standing to sue as local residents and taxpayers.

The trial court correctly ruled that Feld does not have common law standing simply because he is a resident and taxpayer in the same county as Orange.

We also find no error in denying Feld statutory standing under New Jersey's Long Term Tax Exemption Law (LTTEL), N.J.S.A. 40A:20-1 to -22. Apart from that law, any county taxpayer can challenge a tax assessment of another's property in the county pursuant to N.J.S.A. 54:3-21, a statute that is applicable to property tax appeals.1 In 2002, the Tax Court applied this statute to an appeal by the Town of Secaucus challenging tax exemptions Jersey City had granted to properties within Jersey City. Town of Secaucus, supra, 20 N.J. Tax at 423.

In 2003, the Legislature enacted amendments to LTTEL that transferred jurisdiction over challenges to tax exemptions under that act from the Tax Court to the Superior Court. The amendments accomplished this change by limiting such a challenge to the procedural requirements of an action in lieu of prerogative writs, which under Rule 4:69-1, is cognizable in the Superior Court, Law Division. See L. 2003, c. 125, 11 (codified at N.J.S.A. 40A:20-12).2

Feld argues that the 2003 amendments continue to confer standing on county residents to challenge tax exemptions anywhere in the county. Specifically, he points to the provision in the amendments that requires notice of a tax exemption agreement to be published in a newspaper of general circulation within the county.

The 2003 amendments, however, were a legislative reaction to judicial decisions such as Town of Secaucus, supra, 20 N.J. Tax 384, that affected the tax exemption provisions of LTTEL. They did not alter the common law standing considerations of the Superior Court in entertaining an action in lieu of prerogative writs. A plaintiff in a prerogative writs action must have a sufficient stake in the matter to challenge the governmental action. See Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657, 664-66 (1957); Campus Assocs., supra, 413 N.J. Super. at 534-35; Loigman, supra, 297 N.J. Super. at 299; Allen v. Planning Bd. of Evesham Twp., 137 N.J. Super. 359, 363 (App. Div. 1975). Feld has never indicated what his personal stake is in the actions of Orange respecting the redevelopment project.

We also reject Feld's argument that he is a creditor of the municipality and therefore has statutory standing to sue Orange under the United States Bankruptcy Code and the Uniform Fraudulent Transfers Act, N.J.S.A. 25:2-20 to -34. Feld claims he holds a contingent unliquidated claim against Orange because he is entitled to attorney's fees to be paid by Orange in one of the other cases he filed. But Feld cannot show that the tax exemptions or the compromise of water and sewer fees has impaired his ability to collect on his contingent claim against Orange. As the trial court stated: "accepting Feld's argument would mean that every creditor of any New Jersey municipality . . . would have standing to sue whenever the municipality allegedly spent money, or granted tax abatement, unwisely. This is not the law of New Jersey."

Feld argues he has statutory standing under the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, which applies to one of his claims, the granting of reductions in water and sewer charges. With respect to standing, OPMA provides: "Any person, including a member of the public, may apply to the Superior Court for injunctive orders or other remedies to insure compliance with the provisions of this act . . . ." N.J.S.A. 10:4-16.

In his complaint, Feld claims the Township Council adopted the December 21, 2010 resolution that compromised water and sewer fees without providing notice to the public or an opportunity for the public to be heard on the subject. He contends the Township Council did not include the proposed resolution in the agenda packet available before its meeting. Furthermore, he claims the Council refused to allow him to speak about the resolution at that meeting.

The broad language of N.J.S.A. 10:4-16 confers standing on "[a]ny . . . member of the public" to seek remedies under OPMA. Defendants have not directed us to any case authority that limits standing under OPMA as we have discussed under the common law. Therefore, we agree with Feld that he has statutory standing to challenge compliance of the Township Council with OPMA when it adopted the water and sewer resolution on December 21, 2010.

The trial court's decision states "there appears to be no [OPMA] challenge remaining in this case" because "Orange [agreed] to publicly post all financial arrangements regarding the projects at issue. . . . and not to 'cut [Mr. Feld] off' in violation of the Open Public Meeting Act." Feld has not addressed this part of the court's ruling in his brief on appeal. Instead, he contends the resolution of December 21, 2010, should be voided for failure to comply with OPMA. Because neither the court's February 8, 2013 written decision nor its order of that date indicate that any remedy afforded to Feld actually resolved the OPMA claims of his complaint, we are constrained to remand to the trial court to address more precisely whether an OPMA challenge remained in the case when the court issued its decision and order of dismissal.

If any part of Feld's OPMA claims still remained, we hold that Feld has standing to pursue that single claim, which is designated as item (D) previously quoted from the trial court's listing of issues in its case management letter of March 23, 2011. If in fact no OPMA challenge remained in the case by the time of the court's February 8, 2013 decision, then dismissal of the remainder of his complaint on standing grounds is affirmed.3 Our decision in this regard does not address the merits of Feld's OPMA challenge or his entitlement to the remedy he seeks but only his standing to pursue the claim.

II.

Feld VIII (A-4880-12) Collateral Estoppel

Feld VIII is an action brought by a corporate entity that owns businesses located in Orange. Standing is not an issue in Feld VIII. The trial court dismissed the complaint on the ground that it alleged essentially the same claims by essentially the same plaintiffs as in Feld II and so was collaterally estopped.

In Feld II, the plaintiffs were Judith S. Feld, Robert M. Feld, and The Four Felds, Inc., d/b/a L. Epstein Hardware Co. The individually named plaintiffs are the parents of attorney Feld and also owners of the business entities in Orange. They had sought to invalidate the sale of lots by Orange to RPM "for the purpose of building affordable housing and revitalizing commerce in the township." See Feld II, supra, (slip op. at 2). We affirmed the trial court's dismissal of the Feld II complaint. Ibid.

In Feld VIII, plaintiff is The Four Felds, Inc., d/b/a L. Epstein Hardware Co. and Reasonable Lock & Safe, Inc. Its claims are essentially the same claims as in Feld II but pertaining to two additional lots that Orange conveyed to RPM after the trial court's judgment in Feld II.

The doctrine of collateral estoppel prevents re-litigation of issues that have already been presented and decided by a court. Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012). It is based on "finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness." Ibid. (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522 (2006)).

The party seeking to bar a claim on grounds of collateral estoppel must show

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[Ibid. (quoting Olivieri, supra, 186 N.J. at 521).]

These elements are satisfied here because the issues in Feld VIII are the same as in Feld II, and the same parties or parties in privity actually litigated them to a final judgment on the merits in Feld II.

In Feld II, we considered and rejected the following claims

(1) that conveyance of the land required enactment of an ordinance by the municipal governing body and could not be effected by means of a resolution; (2) that the township council acted arbitrarily, capriciously, and unreasonably in conveying municipal land because there was inadequate consideration for the conveyance and no appraisals were obtained, among other reasons; and (3) that RPM failed to provide a so-called "pay-to-play certificate" before the township entered into the agreement to convey the land.

[Feld II, supra, (slip op. at 4).]

We rejected the Feld plaintiffs' primary argument that Orange acted outside its authority by conveying vacant lots it owned to the developer by means of a resolution the Township Council adopted rather than an ordinance. Id. at 5. We also rejected a variety of other arguments, including that findings of reasonableness of the consideration exchanged for the lots must be explicitly stated in the authorizing resolution or ordinance, that the conveyance of the land was an unlawful donation of land to a private party, and that Orange needed to include certain documents in the agenda packet before the Council meeting at which the resolution was passed. Id. at 7-11. In Feld II, we also addressed plaintiffs' "pay-to-play" contention. Id. at 12-13.

Plaintiff's three-count complaint in Feld VIII alleged again that the Township Council's action was ultra vires in approving by resolution rather than ordinance the conveyance of the two additional lots. It alleged that certain findings and recitations must be included on the face of an ordinance approving the conveyance (count one), that the Township Council abdicated its legislative duties by failing to follow the appropriate procedures when it approved the conveyances (count two), and that the municipal actions violated pay-to-play statutes (count three). These claims duplicate what was presented and decided in Feld II.

Plaintiff argues that collateral estoppel does not apply because of differences in the facts that pertain to these two conveyances, because the law is changing with respect to the presumption of validity of municipal actions, and because of equitable exceptions to collateral estoppel as set forth in Restatement (Second) of Judgments 28 (1982).

More specifically, plaintiff contends that: (1) the Feld II trial judge warned Orange that the approval procedures for conveyance of its lots must strictly comply with the authorizing statute; (2) a conflict of interest tainted the conveyance of the lots because the outside auditor Orange engaged also provided auditing services for RPM; (3) the pay-to-play issue was not considered and decided by the trial court in Feld II and only partially considered by this court on the appeal of that case; and (4) there was spoliation of evidence. We find no merit in any of these arguments.

First, it is not clear what "warning" the Feld II trial judge expressed at the conclusion of that case. There is allegedly a "tape glitch" and a "gap" in the transcription of the proceedings that plaintiff references. Assuming that plaintiff is correct that the trial judge warned of deficiencies in the procedures used by Orange when the court issued its decision in Feld II, a "warning" is not a holding that affects the legality of the subsequent conveyances of two additional lots. If the trial court intended to impose requirements on the conveyance of future lots, its decision and judgment did not state so. Moreover, in Feld II, we held that the pertinent statutes did not require Orange to make "mandatory statutory determinations or findings" in connection with approving a private sale. Feld II, supra, (slip op. at 10) (citing N.J.S.A. 40A:12A-8).

Second, plaintiffs are not entitled to a new adjudication in Feld VIII because of the alleged conflict of interest of a private auditor. Plaintiffs do not explain the role of the outside auditor in the conveyances or how the auditing of financial records creates a disqualifying conflict. They also do not cite any authority in support of their argument that such dual services of an auditor would require nullification of the conveyances.

Third, we considered the pay-to-play issue in the Feld II appeal even though plaintiffs had not raised the issue before the trial court until they filed a motion for reconsideration of the final dismissal order. Id. at 12-13. On the appeal, we noted that the normal remedy for violation of the pay-to-play laws is a fine and that plaintiffs did not present any authority holding that a violation "would require nullification of a conveyance of land . . . ." Id. at 13.

Fourth, plaintiff is not entitled to litigate the land conveyances again because of alleged spoliation of evidence. Plaintiff claims that Orange spoliated evidence because certain individuals did not appear for depositions and because counsel directed a witness not to answer a few questions at his deposition. This discovery dispute does not abrogate application of the doctrine of collateral estoppel.

Plaintiff makes a number of other arguments, many of them questioning the good faith of municipal officials who were involved in the redevelopment plan and the conveyances of township property. The additional arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In sum, the trial court correctly dismissed Feld VIII as collaterally estopped by the final judgment in Feld II.

Affirmed as to Feld VIII, A-4880-12. Affirmed in part and remanded in part as to Feld VI, A-3911-12. We do not retain jurisdiction.

1 N.J.S.A. 54:3-21(a) provides in relevant part

[A] taxpayer . . . feeling discriminated against by the assessed valuation of other property in the county . . . may . . . appeal to the county board of taxation by filing with it a petition of appeal . . . .

2 N.J.S.A. 40A:20-12 provides in part

The rehabilitation or improvements made in the development or redevelopment of a redevelopment area or area appurtenant thereto or for a redevelopment relocation housing project . . . shall be exempt from taxation for a limited period as hereinafter provided. When housing is to be constructed, acquired or rehabilitated by an urban renewal entity, the land upon which that housing is situated shall be exempt from taxation for a limited period as hereinafter provided. The exemption shall be allowed when the clerk of the municipality wherein the property is situated shall certify to the municipal tax assessor that a financial agreement with an urban renewal entity for the development or the redevelopment of the property . . . has been entered into and is in effect . . . .

. . . .

. . . The validity of a financial agreement or any exemption granted pursuant thereto may be challenged only by filing an action in lieu of prerogative writ within 20 days from the publication of a notice of the adoption of an ordinance by the governing body granting the exemption and approving the financial agreement. Such notice shall be published in a newspaper of general circulation in the municipality and in a newspaper of general circulation in the county if different from the municipal newspaper.

[(Emphasis added.)]

3 Any additional arguments made by Feld with respect to his standing are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).