New Jersey Superior Court, Appellate Division - Unpublished Opinions Decisions 2017
Opinions 1 - 500 of 2405
HERIBERTO CABALLERO-GONZALEZ v. HARCO NATIONAL INSURANCE COMPANY
Date: December 29, 2017
Docket Number: a0875-16
Date: December 29, 2017
Docket Number: a0875-16
HELP GENESIS CLINTON AVENUE URBAN RENEWAL LP v. SHANTE BREEDLOVE
Date: December 29, 2017
Docket Number: a4542-15
Date: December 29, 2017
Docket Number: a4542-15
VERIZON NEW JERSEY INC v. J.F. KIELY CONSTRUCTION CO
Date: December 28, 2017
Docket Number: a1078-16
Date: December 28, 2017
Docket Number: a1078-16
TOWNSHIP OF PISCATAWAY v. SOUTH WASHINGTON AVENUE, LLC
Date: December 28, 2017
Docket Number: a1380-14 PER CURIAM Plaintiff Township of Piscataway (Piscataway) appeals from an amended final judgment setting: the interest rate on a condemnation award; the date that interest is to be calculated on a portion of an environmental escrow; the portion of an environmental escrow that is not to earn interest; the interest rate; and the detailed calculations of the sums owed by Piscataway. Piscataway also appeals the standard of remediation for the property and the amount of the environmental escrow. Defendants South Washington, LLC and the Halper family (collectively the Halpers) cross-appeal arguing that the Law Division judge erred in authorizing an interim distribution to Piscataway from the environmental escrow and limiting the award of interest on the unpaid balance of the condemnation award to the date Piscataway deposited the unpaid balance of the award. Laurence Harper cross-appeals arguing that the Law Division judge erred by failing to provide him with relocation assistance and by awarding Piscataway removal expenses associated with his vehicles. Having considered the record in light of the controlling law, we reverse the order relative to the standard of remediation and remand for a hearing to determine the appropriate escrow amount. We also reverse and hold the Halpers are entitled to interest on 3 A-1380-14T3 the unpaid balance of the condemnation award. We affirm relative to the interest rate owed to the Halpers. Given our decision, we do not need to decide the issues raised on appeal and cross-appeal relating to withdrawal of the money held in escrow. I. This condemnation case with environmental implications has been litigated since 1999. We derive the following facts and procedural history from the record and from the three prior appeals decided by this court. On December 10, 1999, Piscataway filed a condemnation action seeking to preserve a seventy-five acre farm within the Township as open space. Twp. of Piscataway v. South Washington Ave., LLC, 400 N.J. Super. 358, 361 (App. Div. 2008). The farm was owned by the Halpers. Ibid. In their answer, the Halpers challenged Piscataway's authority to condemn the farm. Ibid. On June 1, 2000, the Assignment Judge upheld the ordinance authorizing the condemnation and ordered Piscataway to provide the Halpers with a copy of the appraisal. Id. at 363. Thereafter, the judge again held for Piscataway and ordered the appointment of condemnation commissioners to determine the farm's fair market value as of the date the complaint was filed. Id. at 363-64. The Halpers appealed, and this court affirmed Piscataway's right to condemn 4 A-1380-14T3 the property. Twp. of Piscataway v. South Washington Ave., LLC, No. A-2741-02 (App. Div. Mar. 19, 2004). On September 3, 2004, Piscataway filed a declaration of taking and deposited in court its estimated fair market value of the property calculated as of the filing date of the condemnation action. Twp. of Piscataway, 400 N.J. Super. at 361. The estimate totaled approximately $4.3 million, which the Halpers were permitted to withdraw, pursuant to an order of the court, while still challenging Piscataway's right to condemn. Id. at 361, 65. During the five years between the filing of the complaint and the declaration of taking, the value of the property increased substantially due to market forces and inflation. Id. at 361. Consequently, a dispute arose over the proper valuation date; defendant argued it should be the date of filing of the declaration of taking, while Piscataway reasserted it should be the date the complaint was filed. Id. at 361-62. On March 31, 2005, the judge held the valuation date would remain as the date the complaint was filed. Id. at 364. For reasons not relevant to this appeal, the case was later assigned to a different judge. Id. at 365. Subsequently, on September 6, 2005, the Halpers moved for a stay of possession and for reconsideration of the valuation date. Twp. of Piscataway, 400 N.J. Super. at 365. The judge held for the Halpers, granting 5 A-1380-14T3 the stay and setting the valuation date to the date on which the declaration of taking was filed, September 3, 2004. Ibid. Piscataway's successive leave to appeal was denied. Ibid. Thereafter, in March 2006 following a jury trial, the jury determined the farm's fair market value to be $17,955,000. Ibid. Piscataway appealed, arguing the judgment should be reversed and a new trial held to determine the proper valuation date. Id. at 362. In resolution of the issue of the valuation date, in 2008, we affirmed the Law Division judge's determination, holding, [W]hen property increases in value between the date the complaint was filed and the date the declaration of taking was filed and the deposit made, and the increase is not due to governmental action but to market forces and inflation, the date of valuation must be the date of the deposit. [Id. at 362-63.] On February 6, 2006, subsequent to the trial but prior to the entry of final judgement, the Halpers sought emergent relief to remain in possession of the property. Twp. of Piscataway, 400 N.J. Super. at 365. Piscataway opposed the relief and requested a stay to prevent the Halpers from withdrawing deposited funds. Ibid. The Court granted Piscataway's motion and ordered the matter stayed until July 10, 2006. Ibid. In May 2006, Dr. John Trela, of TRC Raviv Associates, Inc., was jointly selected by the parties and appointed as an independent 6 A-1380-14T3 expert by consent order. Trela was charged with providing recommendations: concerning the amount which should be established as a Reserve to pay for the projected costs to remediate the Property . . . given [Piscataway's] planned use of the Property for a park with both active and passive recreation, and for farming. Dr. Trela shall also advise the Court separately concerning the cost to remediate the Property to the unrestricted cleanup criteria of the New Jersey Department of Environmental Protection (NJDEP) . . . if that cost is different. In consenting to the independent expert's rendering a report which considers remediation costs both from the perspective of a cleanup with and without engineering and institutional controls, neither party waives its legal position concerning the required cleanup standard and the corresponding reasonable cost of achieving the standard as determined by Dr. Trela. The consent order permitted the court to "consider the parties' legal arguments and decide the weight to give each of Dr. Trela's recommendations." The recommendations would only be reviewable for gross error or mistake of fact. At a July 2009 hearing, parties' respective experts testified regarding the issue of interest to be paid on the condemnation award and any related offsets. In a written decision, the judge concluded that interest should accrue as of September 4, 2004 in order to avoid unjust compensation. The judge awarded compound interest at the prime rate "because Piscataway, a low-risk 7 A-1380-14T3 investor, would likely have to pay a lender to secure a loan in the same amount, and the lender would have the benefit of earning not only the interest but also the ability to generate additional income from the interest." Twp. of Piscataway v. South Washington Ave., LLC, No. A-0356-10 (App. Div. Aug. 23, 2011) (slip op. at 9). Thereafter, the parties filed an appeal and cross-appeal which included "the Halpers' claim that the court erred in denying statutory interest from the date of the complaint." Id. at 2. Piscataway claimed that the award of compound interest was excessive. Id. at 3. This court held that "[a]lthough we agree that N.J.S.A. 20:3-31 requires interest as of the date of the complaint, we cannot conclude that the Halpers demonstrated a loss attributable to delayed payment prior to that date[, so] we affirm the denial of interest for that period." Id. at 2-3. Concerning Piscataway's claim, we determined that, [b]ecause the court did not provide findings of facts and reasons adequately explaining the award of compound interest at the prime rate, and because interest was reduced to a dollar amount before resolution of Piscataway's demand for a Suydam[1] escrow trust, we reverse and remand . . . . [Id. at 3.] 1 Hous. Auth. v. Suydam Inv'rs, LLC, 177 N.J. 2 (2003). 8 A-1380-14T3 This court further held: 1) The court's determination to deny interest for the period prior to September 3, 2004 is affirmed on the ground that [the Halpers] received a fair equivalent of the benefit they would have had if they obtained payment on December 10, 1992; 2) the order purporting to reduce interest to a dollar amount is vacated; 3) before recalculating interest the court must resolve the question of a trust escrow; and 4) before reducing interest to a dollar amount, the court must a) reconsider the award of compound interest and set forth its findings and reasons and b) consider the question of profits upon presentation of competent evidence or stipulation. [Twp. of Piscataway, slip op. at 18-19 (App. Div. Aug. 23, 2011).] In September 2012, Piscataway filed a motion to set the appropriate level of remediation for the property. Piscataway moved to have the environmental escrow determined as if the level of cleanup was that required for residential use and to set the escrow in a sufficient amount to allow for cleanup. On November 26, 2012, the trial court denied Piscataway's motion and ordered the cleanup be determined as if the property was developed for use as a park. Subsequently, the Halpers filed a motion for a determination of the environmental escrow, a redetermination of the interest award and fair rental value of the property during the period the Halpers remained in possession, and an entry of final judgment. 9 A-1380-14T3 Piscataway filed a motion seeking reconsideration of the November 26 order. The judge denied the Halpers' motion and set the environmental escrow amount at $1,720,000. The Halpers' motion to re-open discovery was also denied. Subsequently, in March 2014, the Halpers filed a motion for redetermination of interest and entry of final judgment. In an amended order dated November 6, 2014, the judge held, among other holdings, that: 1) the interest on the undeposited balance of the condemnation award would be calculated at the prime rate compounded annually; 2) the Halpers were entitled to interest accrued up to April 29, 2009 at the prime rate compounded annually on the portion of the environmental escrow refunded to the Halpers; 3) the Halpers were not entitled to earn interest on the portion of the environmental escrow not refunded to the Halpers; 4) the interest on the environmental escrow would not be included in the calculation of the amount to be paid to the Halpers; and 5) the judgment would not be paid until the Supreme Court lifted or vacated the stay entered on May 5, 2006. The order provided a detailed calculation of the sums owed to the Halpers. The Halpers filed an application seeking vacation of the Supreme Court stay on December 22, 2014, which Piscataway opposed. The motion was granted by the Court on March 10, 2015. 10 A-1380-14T3 Piscataway appealed and the Halpers cross-appealed from various parts of the November 6, 2014 final order. Laurence Halper also filed a cross-appeal. Piscataway moved to consolidate the appeals, which the Halpers joined. II. Piscataway raises the following points on A-1380-14: POINT I THE TRIAL COURT'S RULING [TO PERMIT] THE TOWNSHIP OF PISCATAWAY TO USE ENVIRONMENTAL ESCROW TOWARDS REMEDIATION EFFORTS SHOULD BE AFFIRMED. POINT II PLAINTIFF'S OBLIGATION TO PAY INTEREST CEASED WHEN THE BALANCE OF THE CONDEMNATION AWARD WAS PAID INTO THE COURT'S CONDEMNATION UNIT. Piscataway argues in opposition to Laurence Halper's cross- appeal the following point: POINT I DEFENDANT LAURENCE HALPER'S CROSS-APPEAL IS BARRED BASED UPON ISSUE PRECLUSION, ESTOPPEL OR WAIVER. Piscataway raises the following points on A-1781-14: POINT I THE COURT ERRED IN FIXING THE AMOUNT OF THE ENVIRONMENTAL ESCROW TO REMEDIATE AND CLEAN UP THE PROPERTY BASED UPON A RESTRICTED USE. 11 A-1380-14T3 A. UNRESTRICTED CLEANUP BASED UPON RESIDENTIAL USE IS THE ONLY FAIR CLEANUP STANDARD. B. PLAINTIFF SHOULD NOT BE BURDENED WITH CONTINUING LIMITATIONS ON THE USE OF THE PROPERTY DUE TO INSTITUTIONAL AND ENGINEERING CONTROLS. C. THE TRIAL COURT'S ORDER UNDERMINES PUBLIC ENTITY IMMUNITY UNDER THE SPILL ACT. D. THE TRIAL COURT ERRED IN FAILING TO TAKE ACCOUNT OF INCREASED COSTS OF REGULARTORY COMPLIANCE. POINT II THE COURT ERRED IN DETERMINING THE RATE AND METHOD OF CALCULATING INTEREST OWED TO DEFENDANTS. A. THE COURT ERRED IN AWARDING INTEREST AT THE PRIME RATE. B. THE COURT ERRED IN AWARDING COMPOUND [INTERESTS] RATHER THAN SIMPLE INTEREST. POINT III THE COURT ERRED IN AFFIRMING THE TRIAL COURT'S ORDER SETTING THE VALUATION DATE AS THE DATE OF THE TAKING AND NOT THE DATE THE COMPLAINT WAS FILED. POINT IV THE COURT ERRED IN FIXING CONDITIONS WITH RESPECT TO WITHDRAWL OF FUNDS FROM THE ENVIRONMENTAL ESCROW ON DEPOSIT WITH THE COURT. 12 A-1380-14T3 The Halpers raise the following points on the cross-appeal on A-1380-14: POINT I THE TRIAL COURT ERRED IN AUTHORIZING PISCATAWAY TO USE MONEY HELD IN THE ENVIRONMENTAL ESCROW TO PAY THE COSTS OF INVESTIGATION OF CONTAMINATION ON THE PROPERTY BECAUSE SUYDAM DOES NOT AUTHORIZE SUCH AN INTERIM DISTRIBUTION FROM AN ENVIRONMENTAL ESCROW FUND. POINT II DEFENDANTS ARE ENTITLED TO INTEREST ON THE UNPAID BALANCE OF THE CONDEMNATION AWARD UNTIL THE AWARD WAS ACTUALLY DISTRIBUTED TO THEM BECAUSE PISCATAWAY PREVENTED DEFENDANTS FROM WITHDRAWING MONEY FROM COURT. The Halpers raise the following points in response to Piscataway's cross-appeal: POINT I THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN CONCLUDING THAT THE APPROPRIATE ENVIRONMENTAL ESCROW FOR THE ESTIMATED COST OF REMEDIATION OF CONTAMINATION ON THE SUBJECT PROPERTY IS $1,720,000. POINT II THE TRIAL COURT'S DETERMINATION THAT DEFENDANTS SHOULD BE ALLOWED INTEREST ON THE UNDEPOSITED BALANCE OF THE CONDEMNATION AWARD AT THE PRIME RATE, COMPOUNDED ANNUALLY, DID NOT CONSTITUTE AN ABUSE OF DISCRETION. 13 A-1380-14T3 POINT III PISCATAWAY'S ARGUMENT THAT THIS COURT ERRED IN AFFIRMING THE ORDER SETTING THE VALUATION DATE AS THE DATE OF THE TAKING RATHER THAN THE DATE THE COMPLAINT WAS FILED IS FORCLOSED BY THE "LAW OF THE CASE" DOCTRINE. POINT IV THE COURT DOES NOT NEED TO REACH THE QUESTION WHETHER THE TRIAL COURT ERRED IN IMPOSING CONDITIONS UPON THE DISTRIBUTION OF FUNDS FROM THE ENVIRONMENTAL ESCROW TO PAY THE COSTS OF INVESTIGATION OF CONTAMINATION ON THE SUBJECT PROPERTY BECAUSE SUYDAM DOES NOT AUTHORIZE AN INTERIM DISTRIBUTION FROM THE ESCROW FOR THIS PURPOSE. The Halpers raise the following points on A-1781-14: POINT I SUYDAM ONLY AUTHORIZES A DISTRIBUTION FROM AN ENVIRONMENTAL ESCROW FUND TO SATISFY THE JUDGMENT ENTERED IN A COST RECOVERY ACTION; IT DOES NOT AUTHORIZE AN INTERIM DISTRIBUTION FROM THE FUND TO PAY THE CONDEMNOR'S COSTS IN INVESTIGATING CONTAMINATION ON THE SUBJECT PROPERTY. POINT II THE AWARD OF INTEREST ON THE UNPAID BALANCE OF THE CONDEMNATION AWARD THAT PISCATAWAY PREVENTED DEFENDANTS FROM WITHDRAWING FROM COURT FOR NEARLY NINE YEARS WOULD NOT RESULT IN DEFENDANTS OBTAINING A DOUBLE RECOVERY OF INTEREST. Laurence Halper raises the following points in his cross- appeal in A-1380-14 and A-1781-14: 14 A-1380-14T3 POINT I THE TRIAL COURT ERRED IN FAILING TO PROVIDE RELOCATION ASSISTANCE TO LAURENCE HALPER. POINT II THE TRIAL COURT IMPROPERLY AWARDED REMOVAL EXPENSES TO PISCATAWAY FOR LAURENCE HALPER'S VEHICLES WHEN RELOCATION COSTS ARE TYPICALLY PAID TO THE CONDEMNEE BY THE CONDEMNOR. Our standard of review is settled. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). An appellate court, however, should defer to the factual findings of the trial judge that are supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). III. We first address the issue in dispute upon which our decision hinges which pertain to the proper method of determining the standard of remediation. Piscataway argues, in reliance on Suydam, that the fixed amount of the environmental escrow was erroneously based upon use of the property as a park, which calls for a lower standard of remediation, rather than for its "highest and best" use as a residential property. The Halpers responded that since Piscataway obtained the farm under the Open Space Act, N.J.S.A. 15 A-1380-14T3 40:12-14 to -15.9, the township is bound to use the property for recreation or conservation purposes only. Our Supreme Court held that for purposes of valuation of contaminated property, "valuing property as if remediated assures just compensation insofar as it relates to the notion of 'highest and best use.'" Suydam, 177 N.J. at 23. "[W]here property is contaminated, the condemnor should appraise as if remediated and deposit that amount into a trust-escrow account in court. In addition, the condemnor should reserve its right to initiate a separate action to recover remediation costs." Id. at 24. The Court then provided procedural guidance, stating: Under the trust-escrow approach, when the condemnee makes a motion pursuant to [Rule] 4:73-9(c) to withdraw the money paid into court the condemnee, in many instances, will agree with the proffered amount of the transactional costs, thus forestalling any further controversy. When there is a dispute over the amount however, a trial-type hearing will be held under [Rule] 4:73-9(b) at which the condemnor will bear the burden of supporting the estimate of the transactional costs. If that burden is sustained, the withholding will be allowed and if not, the full amount will be released. [Id. at 26-27.] During the pendency of this appeal, we decided N.J. Transit Corp. v. Franco, 447 N.J. Super. 361 (App. Div. 2016), certif. denied, 230 N.J. 504 (2017). In Franco, we held that "the escrow 16 A-1380-14T3 for the estimated costs of environmental cleanup of a condemned contaminated property should be based on the remediation necessary to achieve the highest and best use of the property used to calculate the amount of the condemnation award." Id. at 387-88. We made this determination based on the rationale of Suydam, where the Court based the valuation of the contaminated property as if it was remediated for its "highest and best use." Id. at 386-87 (citing Suydam, 177 N.J. at 27). In Franco, defendants argued the estimate of remediation costs should have been based on the use of the property that plaintiff originally intended, which was a lower use than the highest and best use of the property as a residential development. Id. at 386. The property's fair market value was determined as if it was remediated for residential development. Id. at 388. We disagreed with defendants in holding that they "would receive an unfair windfall if they were awarded the enhanced value of the [p]roperty as if remediated for residential development, without withholding the cost of such remediation." Id. at 387. By our holding, both the condemnor and condemnee would be treated fairly. Franco, 447 N.J. Super. at 388. We provided that "if plaintiff does not incur the full cost of remediating the [p]roperty to the 'high occupancy' level, defendants will receive the resulting surplus funds from the escrow." Id. at 389. 17 A-1380-14T3 As such, in accord with Franco, the proper standard for remediation to be employed by the court is the "highest and best" use of the property as a residential development, rather than as a park. Consequently, notwithstanding the Halpers' arguments to the contrary, we are constrained to reverse and remand for further proceedings before the Law Division to determine the appropriate escrow amount. During oral argument, counsel for the Halpers argued that there was no need for a remand as Trela's report provided alternative costs based upon remediation for residential use. Counsel further argued, consonant with the Halpers' brief, that any additional costs associated with remediation should be borne by Piscataway. The Halpers contend that Piscataway should be responsible for the incurrence of these costs based upon the township's failure to apply for and obtain approval of a remediation plan prior to the change in remediation standards in 2012. We disagree for two reasons. First, relative to the need for a remand, it is clear from Trela's updated report of February 28, 2013, there were several changes in applicable NJDEP regulations that impacted upon the scope of remediation that could cause an increase in cost for the remediation. Due to the change in the regulations, Trela submitted 18 A-1380-14T3 a Change Order Request (Change Order) to include the following tasks: [A] Determine the site-specific applicable remediation standards for the identified contaminants of concern considering two alternative conditions: (1) residential site use; and (2) a park for recreational use; [B] Conduct additional soil and groundwater sampling to "re-delineate" the extent of contamination based on recently adopted applicable regulatory requirements and the amended May 7, 2012 New Jersey Remediation Standards N.J.A.C. 7:26(d). The "re- delineation" will be completed utilizing the historical data supplemented by the proposed additional sampling; [C] Revise the February 28, 2013 updated cost estimates for Remedial Alternatives Nos. 2, 3a, & 3b based on the "re-delineated" extent of contamination and the current and additional use scenarios identified in Task 1; and [D] Develop a new remedial alternative and associated implementation cost using NJDEP's new compliance averaging guidance, if permitted by the new and available sampling data. We conclude that the amended report and the change order provide ample support to pursue further studies to determine the cost of remediation. In light of Franco, as well as the change in the DEP regulations, those studies are required as the result will allow for an informed decision regarding the appropriate escrow amount. 19 A-1380-14T3 Second, to lay blame on Piscataway for delay in obtaining approvals from the NJDEP prior to the change in the regulations, ignores the history of this litigation. As readily discernable from the procedural history recited herein, all parties have sought judicial intervention on numerous matters in dispute over the course of almost two decades. Further, the argument that Piscataway should bear any additional costs for remediation sounds in estoppel. "Equitable estoppel is 'rarely invoked against a governmental entity.'" Middletown Twp. Policemen's Benevolent Ass'n v. Twp. of Middletown, 162 N.J. 361, 367 (2000) (quoting Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div. 1999)). Principles of equitable estoppel "'are relevant in assessing governmental conduct' and impose a duty on the court to invoke estoppel when the occasion arises." Middletown, 162 N.J. at 367. "The essential elements of equitable estoppel are a knowing and intentional misrepresentation by the party sought to be estopped under circumstances in which the misrepresentation would probably induce reliance, and reliance by the party seeking estoppel to his or her detriment." O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987). "Equitable estoppel may be invoked against a [public body] 'where interests of justice, morality and common fairness clearly 20 A-1380-14T3 dictate that course.'" Middletown, 162 N.J. at 367 (quoting Gruber v. Mayor and Twp. Comm. of Raritan, 39 N.J. 1, 13 (1962)). Doctrines of estoppel may be applied against the State, but are not applied "to the same extent as they are against individuals and private corporations." See Bayonne v. Murphy & Perrett Co., 7 N.J. 298, 311 (1951). There is no proof that Piscataway knowingly delayed in seeking approval for remediation, or misrepresented its intention to seek approval. In the absence of misrepresentation, there is no basis to invoke estoppel. IV. We next address those arguments that are unaffected by Franco. In doing so, we first note that the argument raised by Piscataway relating to the proper valuation date was decided by this court in Township of Piscataway, 400 N.J. Super. at 362-63. Piscataway's counsel stated during oral argument that Piscataway raised this argument solely to preserve it for further review. As such, we do not address that argument. Piscataway also argues the trial court should have awarded simple interest at the cash management fund rate on the portion of the environmental escrow, rather than compound interest at the prime rate. The judge conducted an evidentiary hearing, where both parties presented expert witnesses. In a written opinion, 21 A-1380-14T3 the judge held the prime interest rate applied and interest accrue on a compound basis. The judge affirmed the decision upon Piscataway's motion for reconsideration. Under the Eminent Domain Act, "[u]nless agreed upon by the parties, the amount of such interest shall be fixed and determined by the court in a summary manner after final determination of compensation, and shall be added to the amount of the award or judgment, as the case may be." N.J.S.A. 20:3-32. "The allowance of interest on an award of condemnation is a requirement of constitutional magnitude where the actual taking of the property is not contemporaneous with payment therefor. Interest is thus regarded as part of the condemnee's constitutional right to just compensation." Wayne v. Cassatly, 137 N.J. Super. 464, 471 (App. Div. 1975). In making a determination on the appropriate interest rate, [t]he judge should consider the prevailing commercial interest rates, the prime rates of interest, and the legal rates of interest, and select the rate "which will best indemnify the condemnee for the loss of use of the compensation to which he has been entitled from the date on which the action for condemnation was instituted, less interest on all amounts previously deposited . . . ." [Twp. of W. Windsor v. Nierenberg, 345 N.J. Super. 472, 478 (App. Div. 2001)(citing Cassatly, 137 N.J. Super. at 474).] 22 A-1380-14T3 On appeal, "[g]iven our limited scope of appellate review and deference to the fact-finding role of the trial court, we cannot substitute our review of the record for that of the Law Division." Id. at 478. Given the clear statutory mandate and our deferential standard of review, we find no error with the judge's determination of the interest rate. V. The Halpers further argue that interest should accrue on the funds deposited with the court. After Piscataway deposited $8,547,000 with the court, it moved for stay of the Halpers' exercise of their statutory right to withdraw that deposit. The Supreme Court granted the stay, which prevented the Halpers from withdrawing the deposited monies for almost nine years. In June 2010, the Halpers filed a motion to distribute the deposit. The motion was denied a month later. In denying the Halpers' motion, the judge accepted the argument that "the [j]udgment shall not be paid until such time as the Supreme Court [] lifts or vacates the stay entered in this matter on May 5, 2006." In Di Benedetto v. Estate of Di Benedetto, 219 N.J. Super. 440, 443-44 (App. Div. 1987), we held that a deposit in court by way of a bond does not stop the running of interest. However, in Harris v. Peridot Chemical (N.J.), Inc., 313 N.J. Super. 257, 300 (App. Div. 1998), we held that interest ceased running when a 23 A-1380-14T3 defendant deposited the amount of award in court pending appeal, and did nothing to prevent the plaintiffs from obtaining the benefit of the judgment while the appeal was pending. Here, we apply the Harris rationale as a matter of fundamental fairness. After depositing the funds with the court, Piscataway continuously moved to stay the withdrawal by the Halpers. While Piscataway's reasons for opposing the distribution were determined by the court to be meritorious, that is not dispositive of the issue of interest. As the Halpers argue, and we agree, the effect of Piscataway's success in obtaining stays of the distribution was to render the deposit of funds a nullity since the Halpers had no access to the funds. We therefore conclude that interest shall also accrue on the deposited funds until distribution to the Halpers at a rate of interest to be determined by the Law Division. VI. Finally, we conclude that Laurence Halper's arguments are barred by res judicata. Even if not barred, we further conclude that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Reversed in part. Affirmed in part. We do not retain jurisdiction. 24 A-1380-14T3
Date: December 28, 2017
Docket Number: a1380-14 PER CURIAM Plaintiff Township of Piscataway (Piscataway) appeals from an amended final judgment setting: the interest rate on a condemnation award; the date that interest is to be calculated on a portion of an environmental escrow; the portion of an environmental escrow that is not to earn interest; the interest rate; and the detailed calculations of the sums owed by Piscataway. Piscataway also appeals the standard of remediation for the property and the amount of the environmental escrow. Defendants South Washington, LLC and the Halper family (collectively the Halpers) cross-appeal arguing that the Law Division judge erred in authorizing an interim distribution to Piscataway from the environmental escrow and limiting the award of interest on the unpaid balance of the condemnation award to the date Piscataway deposited the unpaid balance of the award. Laurence Harper cross-appeals arguing that the Law Division judge erred by failing to provide him with relocation assistance and by awarding Piscataway removal expenses associated with his vehicles. Having considered the record in light of the controlling law, we reverse the order relative to the standard of remediation and remand for a hearing to determine the appropriate escrow amount. We also reverse and hold the Halpers are entitled to interest on 3 A-1380-14T3 the unpaid balance of the condemnation award. We affirm relative to the interest rate owed to the Halpers. Given our decision, we do not need to decide the issues raised on appeal and cross-appeal relating to withdrawal of the money held in escrow. I. This condemnation case with environmental implications has been litigated since 1999. We derive the following facts and procedural history from the record and from the three prior appeals decided by this court. On December 10, 1999, Piscataway filed a condemnation action seeking to preserve a seventy-five acre farm within the Township as open space. Twp. of Piscataway v. South Washington Ave., LLC, 400 N.J. Super. 358, 361 (App. Div. 2008). The farm was owned by the Halpers. Ibid. In their answer, the Halpers challenged Piscataway's authority to condemn the farm. Ibid. On June 1, 2000, the Assignment Judge upheld the ordinance authorizing the condemnation and ordered Piscataway to provide the Halpers with a copy of the appraisal. Id. at 363. Thereafter, the judge again held for Piscataway and ordered the appointment of condemnation commissioners to determine the farm's fair market value as of the date the complaint was filed. Id. at 363-64. The Halpers appealed, and this court affirmed Piscataway's right to condemn 4 A-1380-14T3 the property. Twp. of Piscataway v. South Washington Ave., LLC, No. A-2741-02 (App. Div. Mar. 19, 2004). On September 3, 2004, Piscataway filed a declaration of taking and deposited in court its estimated fair market value of the property calculated as of the filing date of the condemnation action. Twp. of Piscataway, 400 N.J. Super. at 361. The estimate totaled approximately $4.3 million, which the Halpers were permitted to withdraw, pursuant to an order of the court, while still challenging Piscataway's right to condemn. Id. at 361, 65. During the five years between the filing of the complaint and the declaration of taking, the value of the property increased substantially due to market forces and inflation. Id. at 361. Consequently, a dispute arose over the proper valuation date; defendant argued it should be the date of filing of the declaration of taking, while Piscataway reasserted it should be the date the complaint was filed. Id. at 361-62. On March 31, 2005, the judge held the valuation date would remain as the date the complaint was filed. Id. at 364. For reasons not relevant to this appeal, the case was later assigned to a different judge. Id. at 365. Subsequently, on September 6, 2005, the Halpers moved for a stay of possession and for reconsideration of the valuation date. Twp. of Piscataway, 400 N.J. Super. at 365. The judge held for the Halpers, granting 5 A-1380-14T3 the stay and setting the valuation date to the date on which the declaration of taking was filed, September 3, 2004. Ibid. Piscataway's successive leave to appeal was denied. Ibid. Thereafter, in March 2006 following a jury trial, the jury determined the farm's fair market value to be $17,955,000. Ibid. Piscataway appealed, arguing the judgment should be reversed and a new trial held to determine the proper valuation date. Id. at 362. In resolution of the issue of the valuation date, in 2008, we affirmed the Law Division judge's determination, holding, [W]hen property increases in value between the date the complaint was filed and the date the declaration of taking was filed and the deposit made, and the increase is not due to governmental action but to market forces and inflation, the date of valuation must be the date of the deposit. [Id. at 362-63.] On February 6, 2006, subsequent to the trial but prior to the entry of final judgement, the Halpers sought emergent relief to remain in possession of the property. Twp. of Piscataway, 400 N.J. Super. at 365. Piscataway opposed the relief and requested a stay to prevent the Halpers from withdrawing deposited funds. Ibid. The Court granted Piscataway's motion and ordered the matter stayed until July 10, 2006. Ibid. In May 2006, Dr. John Trela, of TRC Raviv Associates, Inc., was jointly selected by the parties and appointed as an independent 6 A-1380-14T3 expert by consent order. Trela was charged with providing recommendations: concerning the amount which should be established as a Reserve to pay for the projected costs to remediate the Property . . . given [Piscataway's] planned use of the Property for a park with both active and passive recreation, and for farming. Dr. Trela shall also advise the Court separately concerning the cost to remediate the Property to the unrestricted cleanup criteria of the New Jersey Department of Environmental Protection (NJDEP) . . . if that cost is different. In consenting to the independent expert's rendering a report which considers remediation costs both from the perspective of a cleanup with and without engineering and institutional controls, neither party waives its legal position concerning the required cleanup standard and the corresponding reasonable cost of achieving the standard as determined by Dr. Trela. The consent order permitted the court to "consider the parties' legal arguments and decide the weight to give each of Dr. Trela's recommendations." The recommendations would only be reviewable for gross error or mistake of fact. At a July 2009 hearing, parties' respective experts testified regarding the issue of interest to be paid on the condemnation award and any related offsets. In a written decision, the judge concluded that interest should accrue as of September 4, 2004 in order to avoid unjust compensation. The judge awarded compound interest at the prime rate "because Piscataway, a low-risk 7 A-1380-14T3 investor, would likely have to pay a lender to secure a loan in the same amount, and the lender would have the benefit of earning not only the interest but also the ability to generate additional income from the interest." Twp. of Piscataway v. South Washington Ave., LLC, No. A-0356-10 (App. Div. Aug. 23, 2011) (slip op. at 9). Thereafter, the parties filed an appeal and cross-appeal which included "the Halpers' claim that the court erred in denying statutory interest from the date of the complaint." Id. at 2. Piscataway claimed that the award of compound interest was excessive. Id. at 3. This court held that "[a]lthough we agree that N.J.S.A. 20:3-31 requires interest as of the date of the complaint, we cannot conclude that the Halpers demonstrated a loss attributable to delayed payment prior to that date[, so] we affirm the denial of interest for that period." Id. at 2-3. Concerning Piscataway's claim, we determined that, [b]ecause the court did not provide findings of facts and reasons adequately explaining the award of compound interest at the prime rate, and because interest was reduced to a dollar amount before resolution of Piscataway's demand for a Suydam[1] escrow trust, we reverse and remand . . . . [Id. at 3.] 1 Hous. Auth. v. Suydam Inv'rs, LLC, 177 N.J. 2 (2003). 8 A-1380-14T3 This court further held: 1) The court's determination to deny interest for the period prior to September 3, 2004 is affirmed on the ground that [the Halpers] received a fair equivalent of the benefit they would have had if they obtained payment on December 10, 1992; 2) the order purporting to reduce interest to a dollar amount is vacated; 3) before recalculating interest the court must resolve the question of a trust escrow; and 4) before reducing interest to a dollar amount, the court must a) reconsider the award of compound interest and set forth its findings and reasons and b) consider the question of profits upon presentation of competent evidence or stipulation. [Twp. of Piscataway, slip op. at 18-19 (App. Div. Aug. 23, 2011).] In September 2012, Piscataway filed a motion to set the appropriate level of remediation for the property. Piscataway moved to have the environmental escrow determined as if the level of cleanup was that required for residential use and to set the escrow in a sufficient amount to allow for cleanup. On November 26, 2012, the trial court denied Piscataway's motion and ordered the cleanup be determined as if the property was developed for use as a park. Subsequently, the Halpers filed a motion for a determination of the environmental escrow, a redetermination of the interest award and fair rental value of the property during the period the Halpers remained in possession, and an entry of final judgment. 9 A-1380-14T3 Piscataway filed a motion seeking reconsideration of the November 26 order. The judge denied the Halpers' motion and set the environmental escrow amount at $1,720,000. The Halpers' motion to re-open discovery was also denied. Subsequently, in March 2014, the Halpers filed a motion for redetermination of interest and entry of final judgment. In an amended order dated November 6, 2014, the judge held, among other holdings, that: 1) the interest on the undeposited balance of the condemnation award would be calculated at the prime rate compounded annually; 2) the Halpers were entitled to interest accrued up to April 29, 2009 at the prime rate compounded annually on the portion of the environmental escrow refunded to the Halpers; 3) the Halpers were not entitled to earn interest on the portion of the environmental escrow not refunded to the Halpers; 4) the interest on the environmental escrow would not be included in the calculation of the amount to be paid to the Halpers; and 5) the judgment would not be paid until the Supreme Court lifted or vacated the stay entered on May 5, 2006. The order provided a detailed calculation of the sums owed to the Halpers. The Halpers filed an application seeking vacation of the Supreme Court stay on December 22, 2014, which Piscataway opposed. The motion was granted by the Court on March 10, 2015. 10 A-1380-14T3 Piscataway appealed and the Halpers cross-appealed from various parts of the November 6, 2014 final order. Laurence Halper also filed a cross-appeal. Piscataway moved to consolidate the appeals, which the Halpers joined. II. Piscataway raises the following points on A-1380-14: POINT I THE TRIAL COURT'S RULING [TO PERMIT] THE TOWNSHIP OF PISCATAWAY TO USE ENVIRONMENTAL ESCROW TOWARDS REMEDIATION EFFORTS SHOULD BE AFFIRMED. POINT II PLAINTIFF'S OBLIGATION TO PAY INTEREST CEASED WHEN THE BALANCE OF THE CONDEMNATION AWARD WAS PAID INTO THE COURT'S CONDEMNATION UNIT. Piscataway argues in opposition to Laurence Halper's cross- appeal the following point: POINT I DEFENDANT LAURENCE HALPER'S CROSS-APPEAL IS BARRED BASED UPON ISSUE PRECLUSION, ESTOPPEL OR WAIVER. Piscataway raises the following points on A-1781-14: POINT I THE COURT ERRED IN FIXING THE AMOUNT OF THE ENVIRONMENTAL ESCROW TO REMEDIATE AND CLEAN UP THE PROPERTY BASED UPON A RESTRICTED USE. 11 A-1380-14T3 A. UNRESTRICTED CLEANUP BASED UPON RESIDENTIAL USE IS THE ONLY FAIR CLEANUP STANDARD. B. PLAINTIFF SHOULD NOT BE BURDENED WITH CONTINUING LIMITATIONS ON THE USE OF THE PROPERTY DUE TO INSTITUTIONAL AND ENGINEERING CONTROLS. C. THE TRIAL COURT'S ORDER UNDERMINES PUBLIC ENTITY IMMUNITY UNDER THE SPILL ACT. D. THE TRIAL COURT ERRED IN FAILING TO TAKE ACCOUNT OF INCREASED COSTS OF REGULARTORY COMPLIANCE. POINT II THE COURT ERRED IN DETERMINING THE RATE AND METHOD OF CALCULATING INTEREST OWED TO DEFENDANTS. A. THE COURT ERRED IN AWARDING INTEREST AT THE PRIME RATE. B. THE COURT ERRED IN AWARDING COMPOUND [INTERESTS] RATHER THAN SIMPLE INTEREST. POINT III THE COURT ERRED IN AFFIRMING THE TRIAL COURT'S ORDER SETTING THE VALUATION DATE AS THE DATE OF THE TAKING AND NOT THE DATE THE COMPLAINT WAS FILED. POINT IV THE COURT ERRED IN FIXING CONDITIONS WITH RESPECT TO WITHDRAWL OF FUNDS FROM THE ENVIRONMENTAL ESCROW ON DEPOSIT WITH THE COURT. 12 A-1380-14T3 The Halpers raise the following points on the cross-appeal on A-1380-14: POINT I THE TRIAL COURT ERRED IN AUTHORIZING PISCATAWAY TO USE MONEY HELD IN THE ENVIRONMENTAL ESCROW TO PAY THE COSTS OF INVESTIGATION OF CONTAMINATION ON THE PROPERTY BECAUSE SUYDAM DOES NOT AUTHORIZE SUCH AN INTERIM DISTRIBUTION FROM AN ENVIRONMENTAL ESCROW FUND. POINT II DEFENDANTS ARE ENTITLED TO INTEREST ON THE UNPAID BALANCE OF THE CONDEMNATION AWARD UNTIL THE AWARD WAS ACTUALLY DISTRIBUTED TO THEM BECAUSE PISCATAWAY PREVENTED DEFENDANTS FROM WITHDRAWING MONEY FROM COURT. The Halpers raise the following points in response to Piscataway's cross-appeal: POINT I THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN CONCLUDING THAT THE APPROPRIATE ENVIRONMENTAL ESCROW FOR THE ESTIMATED COST OF REMEDIATION OF CONTAMINATION ON THE SUBJECT PROPERTY IS $1,720,000. POINT II THE TRIAL COURT'S DETERMINATION THAT DEFENDANTS SHOULD BE ALLOWED INTEREST ON THE UNDEPOSITED BALANCE OF THE CONDEMNATION AWARD AT THE PRIME RATE, COMPOUNDED ANNUALLY, DID NOT CONSTITUTE AN ABUSE OF DISCRETION. 13 A-1380-14T3 POINT III PISCATAWAY'S ARGUMENT THAT THIS COURT ERRED IN AFFIRMING THE ORDER SETTING THE VALUATION DATE AS THE DATE OF THE TAKING RATHER THAN THE DATE THE COMPLAINT WAS FILED IS FORCLOSED BY THE "LAW OF THE CASE" DOCTRINE. POINT IV THE COURT DOES NOT NEED TO REACH THE QUESTION WHETHER THE TRIAL COURT ERRED IN IMPOSING CONDITIONS UPON THE DISTRIBUTION OF FUNDS FROM THE ENVIRONMENTAL ESCROW TO PAY THE COSTS OF INVESTIGATION OF CONTAMINATION ON THE SUBJECT PROPERTY BECAUSE SUYDAM DOES NOT AUTHORIZE AN INTERIM DISTRIBUTION FROM THE ESCROW FOR THIS PURPOSE. The Halpers raise the following points on A-1781-14: POINT I SUYDAM ONLY AUTHORIZES A DISTRIBUTION FROM AN ENVIRONMENTAL ESCROW FUND TO SATISFY THE JUDGMENT ENTERED IN A COST RECOVERY ACTION; IT DOES NOT AUTHORIZE AN INTERIM DISTRIBUTION FROM THE FUND TO PAY THE CONDEMNOR'S COSTS IN INVESTIGATING CONTAMINATION ON THE SUBJECT PROPERTY. POINT II THE AWARD OF INTEREST ON THE UNPAID BALANCE OF THE CONDEMNATION AWARD THAT PISCATAWAY PREVENTED DEFENDANTS FROM WITHDRAWING FROM COURT FOR NEARLY NINE YEARS WOULD NOT RESULT IN DEFENDANTS OBTAINING A DOUBLE RECOVERY OF INTEREST. Laurence Halper raises the following points in his cross- appeal in A-1380-14 and A-1781-14: 14 A-1380-14T3 POINT I THE TRIAL COURT ERRED IN FAILING TO PROVIDE RELOCATION ASSISTANCE TO LAURENCE HALPER. POINT II THE TRIAL COURT IMPROPERLY AWARDED REMOVAL EXPENSES TO PISCATAWAY FOR LAURENCE HALPER'S VEHICLES WHEN RELOCATION COSTS ARE TYPICALLY PAID TO THE CONDEMNEE BY THE CONDEMNOR. Our standard of review is settled. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). An appellate court, however, should defer to the factual findings of the trial judge that are supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). III. We first address the issue in dispute upon which our decision hinges which pertain to the proper method of determining the standard of remediation. Piscataway argues, in reliance on Suydam, that the fixed amount of the environmental escrow was erroneously based upon use of the property as a park, which calls for a lower standard of remediation, rather than for its "highest and best" use as a residential property. The Halpers responded that since Piscataway obtained the farm under the Open Space Act, N.J.S.A. 15 A-1380-14T3 40:12-14 to -15.9, the township is bound to use the property for recreation or conservation purposes only. Our Supreme Court held that for purposes of valuation of contaminated property, "valuing property as if remediated assures just compensation insofar as it relates to the notion of 'highest and best use.'" Suydam, 177 N.J. at 23. "[W]here property is contaminated, the condemnor should appraise as if remediated and deposit that amount into a trust-escrow account in court. In addition, the condemnor should reserve its right to initiate a separate action to recover remediation costs." Id. at 24. The Court then provided procedural guidance, stating: Under the trust-escrow approach, when the condemnee makes a motion pursuant to [Rule] 4:73-9(c) to withdraw the money paid into court the condemnee, in many instances, will agree with the proffered amount of the transactional costs, thus forestalling any further controversy. When there is a dispute over the amount however, a trial-type hearing will be held under [Rule] 4:73-9(b) at which the condemnor will bear the burden of supporting the estimate of the transactional costs. If that burden is sustained, the withholding will be allowed and if not, the full amount will be released. [Id. at 26-27.] During the pendency of this appeal, we decided N.J. Transit Corp. v. Franco, 447 N.J. Super. 361 (App. Div. 2016), certif. denied, 230 N.J. 504 (2017). In Franco, we held that "the escrow 16 A-1380-14T3 for the estimated costs of environmental cleanup of a condemned contaminated property should be based on the remediation necessary to achieve the highest and best use of the property used to calculate the amount of the condemnation award." Id. at 387-88. We made this determination based on the rationale of Suydam, where the Court based the valuation of the contaminated property as if it was remediated for its "highest and best use." Id. at 386-87 (citing Suydam, 177 N.J. at 27). In Franco, defendants argued the estimate of remediation costs should have been based on the use of the property that plaintiff originally intended, which was a lower use than the highest and best use of the property as a residential development. Id. at 386. The property's fair market value was determined as if it was remediated for residential development. Id. at 388. We disagreed with defendants in holding that they "would receive an unfair windfall if they were awarded the enhanced value of the [p]roperty as if remediated for residential development, without withholding the cost of such remediation." Id. at 387. By our holding, both the condemnor and condemnee would be treated fairly. Franco, 447 N.J. Super. at 388. We provided that "if plaintiff does not incur the full cost of remediating the [p]roperty to the 'high occupancy' level, defendants will receive the resulting surplus funds from the escrow." Id. at 389. 17 A-1380-14T3 As such, in accord with Franco, the proper standard for remediation to be employed by the court is the "highest and best" use of the property as a residential development, rather than as a park. Consequently, notwithstanding the Halpers' arguments to the contrary, we are constrained to reverse and remand for further proceedings before the Law Division to determine the appropriate escrow amount. During oral argument, counsel for the Halpers argued that there was no need for a remand as Trela's report provided alternative costs based upon remediation for residential use. Counsel further argued, consonant with the Halpers' brief, that any additional costs associated with remediation should be borne by Piscataway. The Halpers contend that Piscataway should be responsible for the incurrence of these costs based upon the township's failure to apply for and obtain approval of a remediation plan prior to the change in remediation standards in 2012. We disagree for two reasons. First, relative to the need for a remand, it is clear from Trela's updated report of February 28, 2013, there were several changes in applicable NJDEP regulations that impacted upon the scope of remediation that could cause an increase in cost for the remediation. Due to the change in the regulations, Trela submitted 18 A-1380-14T3 a Change Order Request (Change Order) to include the following tasks: [A] Determine the site-specific applicable remediation standards for the identified contaminants of concern considering two alternative conditions: (1) residential site use; and (2) a park for recreational use; [B] Conduct additional soil and groundwater sampling to "re-delineate" the extent of contamination based on recently adopted applicable regulatory requirements and the amended May 7, 2012 New Jersey Remediation Standards N.J.A.C. 7:26(d). The "re- delineation" will be completed utilizing the historical data supplemented by the proposed additional sampling; [C] Revise the February 28, 2013 updated cost estimates for Remedial Alternatives Nos. 2, 3a, & 3b based on the "re-delineated" extent of contamination and the current and additional use scenarios identified in Task 1; and [D] Develop a new remedial alternative and associated implementation cost using NJDEP's new compliance averaging guidance, if permitted by the new and available sampling data. We conclude that the amended report and the change order provide ample support to pursue further studies to determine the cost of remediation. In light of Franco, as well as the change in the DEP regulations, those studies are required as the result will allow for an informed decision regarding the appropriate escrow amount. 19 A-1380-14T3 Second, to lay blame on Piscataway for delay in obtaining approvals from the NJDEP prior to the change in the regulations, ignores the history of this litigation. As readily discernable from the procedural history recited herein, all parties have sought judicial intervention on numerous matters in dispute over the course of almost two decades. Further, the argument that Piscataway should bear any additional costs for remediation sounds in estoppel. "Equitable estoppel is 'rarely invoked against a governmental entity.'" Middletown Twp. Policemen's Benevolent Ass'n v. Twp. of Middletown, 162 N.J. 361, 367 (2000) (quoting Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div. 1999)). Principles of equitable estoppel "'are relevant in assessing governmental conduct' and impose a duty on the court to invoke estoppel when the occasion arises." Middletown, 162 N.J. at 367. "The essential elements of equitable estoppel are a knowing and intentional misrepresentation by the party sought to be estopped under circumstances in which the misrepresentation would probably induce reliance, and reliance by the party seeking estoppel to his or her detriment." O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987). "Equitable estoppel may be invoked against a [public body] 'where interests of justice, morality and common fairness clearly 20 A-1380-14T3 dictate that course.'" Middletown, 162 N.J. at 367 (quoting Gruber v. Mayor and Twp. Comm. of Raritan, 39 N.J. 1, 13 (1962)). Doctrines of estoppel may be applied against the State, but are not applied "to the same extent as they are against individuals and private corporations." See Bayonne v. Murphy & Perrett Co., 7 N.J. 298, 311 (1951). There is no proof that Piscataway knowingly delayed in seeking approval for remediation, or misrepresented its intention to seek approval. In the absence of misrepresentation, there is no basis to invoke estoppel. IV. We next address those arguments that are unaffected by Franco. In doing so, we first note that the argument raised by Piscataway relating to the proper valuation date was decided by this court in Township of Piscataway, 400 N.J. Super. at 362-63. Piscataway's counsel stated during oral argument that Piscataway raised this argument solely to preserve it for further review. As such, we do not address that argument. Piscataway also argues the trial court should have awarded simple interest at the cash management fund rate on the portion of the environmental escrow, rather than compound interest at the prime rate. The judge conducted an evidentiary hearing, where both parties presented expert witnesses. In a written opinion, 21 A-1380-14T3 the judge held the prime interest rate applied and interest accrue on a compound basis. The judge affirmed the decision upon Piscataway's motion for reconsideration. Under the Eminent Domain Act, "[u]nless agreed upon by the parties, the amount of such interest shall be fixed and determined by the court in a summary manner after final determination of compensation, and shall be added to the amount of the award or judgment, as the case may be." N.J.S.A. 20:3-32. "The allowance of interest on an award of condemnation is a requirement of constitutional magnitude where the actual taking of the property is not contemporaneous with payment therefor. Interest is thus regarded as part of the condemnee's constitutional right to just compensation." Wayne v. Cassatly, 137 N.J. Super. 464, 471 (App. Div. 1975). In making a determination on the appropriate interest rate, [t]he judge should consider the prevailing commercial interest rates, the prime rates of interest, and the legal rates of interest, and select the rate "which will best indemnify the condemnee for the loss of use of the compensation to which he has been entitled from the date on which the action for condemnation was instituted, less interest on all amounts previously deposited . . . ." [Twp. of W. Windsor v. Nierenberg, 345 N.J. Super. 472, 478 (App. Div. 2001)(citing Cassatly, 137 N.J. Super. at 474).] 22 A-1380-14T3 On appeal, "[g]iven our limited scope of appellate review and deference to the fact-finding role of the trial court, we cannot substitute our review of the record for that of the Law Division." Id. at 478. Given the clear statutory mandate and our deferential standard of review, we find no error with the judge's determination of the interest rate. V. The Halpers further argue that interest should accrue on the funds deposited with the court. After Piscataway deposited $8,547,000 with the court, it moved for stay of the Halpers' exercise of their statutory right to withdraw that deposit. The Supreme Court granted the stay, which prevented the Halpers from withdrawing the deposited monies for almost nine years. In June 2010, the Halpers filed a motion to distribute the deposit. The motion was denied a month later. In denying the Halpers' motion, the judge accepted the argument that "the [j]udgment shall not be paid until such time as the Supreme Court [] lifts or vacates the stay entered in this matter on May 5, 2006." In Di Benedetto v. Estate of Di Benedetto, 219 N.J. Super. 440, 443-44 (App. Div. 1987), we held that a deposit in court by way of a bond does not stop the running of interest. However, in Harris v. Peridot Chemical (N.J.), Inc., 313 N.J. Super. 257, 300 (App. Div. 1998), we held that interest ceased running when a 23 A-1380-14T3 defendant deposited the amount of award in court pending appeal, and did nothing to prevent the plaintiffs from obtaining the benefit of the judgment while the appeal was pending. Here, we apply the Harris rationale as a matter of fundamental fairness. After depositing the funds with the court, Piscataway continuously moved to stay the withdrawal by the Halpers. While Piscataway's reasons for opposing the distribution were determined by the court to be meritorious, that is not dispositive of the issue of interest. As the Halpers argue, and we agree, the effect of Piscataway's success in obtaining stays of the distribution was to render the deposit of funds a nullity since the Halpers had no access to the funds. We therefore conclude that interest shall also accrue on the deposited funds until distribution to the Halpers at a rate of interest to be determined by the Law Division. VI. Finally, we conclude that Laurence Halper's arguments are barred by res judicata. Even if not barred, we further conclude that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Reversed in part. Affirmed in part. We do not retain jurisdiction. 24 A-1380-14T3
DEUTSCHE BANK NATIONAL TRUST COMPANY v. ALICIA M. GUERRERO
Date: December 27, 2017
Docket Number: a0105-16
Date: December 27, 2017
Docket Number: a0105-16
MICHALENE BOWMAN v. TEACHERS'PENSION AND ANNUITY FUND
Date: December 27, 2017
Docket Number: a1211-16
Date: December 27, 2017
Docket Number: a1211-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.J.W.
Date: December 27, 2017
Docket Number: a1643-15 PER CURIAM L.J.W. and S.W. appeal from judgments entered by the Family Part, which terminated L.J.W. and S.W.'s parental rights to J.E.J., and L.J.W.'s parental rights to three other children, 1 N.T.J., J.D.W., and J.J.W., Jr. The appeals have been consolidated. For the reasons that follow, we affirm. I. L.J.W. had five children: N.T.J. (born July 2004), J.S.J. (born April 2006), J.E.J. (born October 2007), J.D.W. (born November 2009), and J.J.W., Jr. (born May 2011). N.T.J.'s biological father is M.H. S.W. is J.E.J.'s biological father, and J.J.W., Sr. is the biological father of J.D.W. and J.J.W., 1 The judgments also terminated the parental rights of J.J.W., Sr. to J.D.W. and J.J.W., Jr., and the parental rights of M.H. to N.T.J. These parties have not appealed. 2 A-1643-15T4 Jr. In July 2011, J.S.J. died after ingesting methadone while in the care of her godmother. The Division of Child Protection and Permanency (Division) 2 first became involved with L.J.W. and her children in 2006. L.J.W. initially declined services, but thereafter the Division provided L.J.W. and the children with an array of services. The Division removed the children from L.J.W.'s care in September 2011, after J.S.J.'s death, but they were returned to L.J.W.'s care in February 2012. In October 2012, the trial court granted the Division's application for care and supervision of the children, due to the Division's continuing concerns about the children's safety and well-being. The Division provided additional services to the family. In February 2013, the Division again removed the children from L.J.W.'s care. The Division placed J.E.J., J.D.W., and J.J.W., Jr. in a foster home. N.T.J. was placed in a separate resource home, and later transferred to a relative resource home. In September 2014, the trial court conducted a hearing and approved the Division's permanency plan, which called for the 2 Until 2012, the Division was known as the Division of Youth and Family Services. L. 2012, c. 16, effective June 29, 2012. 3 A-1643-15T4 termination of parental rights followed by foster home adoption. After the hearing, L.J.W. executed an identified surrender of her parental rights to N.T.J. so that M.V. could adopt the child. In November 2014, the Division filed its guardianship complaint, and thereafter Judge Peter E. Warshaw, Jr. conducted a trial on the matter. At the trial, the Division presented testimony from caseworker John Marciniak, Edwige Paul of the Children's Home Society of New Jersey (CHS), and psychologist Dr. Alan Lee. The Law Guardian presented testimony from psychologist Dr. Barry Katz. L.D.W. testified, as did S.W. and his sister. After the trial concluded, J.J.W., Sr. executed an identified surrender of his parental rights to J.D.W. and J.J.W., Jr. so that they could be adopted by their foster parent. In addition, the Division informed the judge that L.J.W.'s identified surrender of her parental rights to N.T.J. had failed. On October 15, 2015, Judge Warshaw placed an oral opinion on the record, finding that the Division had established the criteria in N.J.S.A. 30:4C-15.1(a) for the termination of S.W. and L.J.W.'s parental rights to J.E.J., and for the termination of L.J.W.'s parental rights to J.D.W., and J.J.W., Jr. The judge 4 A-1643-15T4 memorialized his findings in a judgment dated October 15, 2015. The judgment also terminated J.J.W., Sr.'s parental rights to J.D.W. and J.J.W., Jr., and M.H.'s parental rights to N.T.J. On October 22, 2015, the judge conducted a hearing and approved the Division's permanency plan for the termination of L.J.W.'s parental rights to N.T.J. followed by select home adoption. The judge allowed the parties to supplement the record, and continued the trial as to N.T.J. Caseworker Marciniak, Dr. Lee, and L.J.W. provided additional testimony. On December 2, 2015, Judge Warshaw placed an oral decision on the record. The judge found the Division had presented clear and convincing evidence establishing the criteria for termination of L.J.W.'s parental rights to N.T.J. On December 2, 2015, the judge entered a judgment that terminated L.J.W.'s parental rights to N.T.J. S.W.'s appeal (A- 1643-15) and L.J.W.'s appeal (A-1644-15) followed. II. On appeal, L.J.W. and S.W. argue that the trial judge erred by entering the judgments terminating their parental rights. They maintain the record does not support the judge's findings that the Division established the criteria for termination of the parental rights to their children. 5 A-1643-15T4 A parent has a constitutional right to rear his or her child, but that right is not absolute. N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). The parent's right is "tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." Ibid. Therefore, the Division is authorized by N.J.S.A. 30:4C- 15.1(a) to seek the termination of parental rights in "the best interests of the child" when (1) [t]he child's safety, health, or development has been or will continue to be endangered by the parental relationship; (2) [t]he parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) [t]he [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) [t]ermination of parental rights will not do more harm than good. 6 A-1643-15T4 "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The Division must establish the criteria in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. In re Guardianship of K.L.F., 129 N.J. 32, 38 (1992) (citing In re J.C., 129 N.J. 1, 10-11 (1992)). The scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, factual findings of the Family Part "are entitled to considerable deference." D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). III. We turn first to L.J.W.'s appeal. She argues the trial judge erred by finding that the Division established the four prongs of the best interests standard in N.J.S.A. 30:4C-15.1(a). 7 A-1643-15T4 A. Prong One L.J.W. argues that the Division failed to present any evidence showing that she inflicted serious harm on the children. She asserts that, to the contrary, the record shows that over the years, her interactions with the children have been positive, warm, and nurturing. L.J.W. asserts that she did not miss any scheduled visits with the children, and their reactions to her during those visits were "joyful and affectionate." In his decision, Judge Warshaw recognized that L.J.W. has many positive qualities and loved her children. The judge found, however, for "a combination of reasons" addressed by Dr. Lee and Dr. Katz, and "fully demonstrated by her inability to respond to multiple services," that L.J.W. was "absolutely incapable of ensuring the safety, health and development of the three children." Judge Warshaw noted that the Division's records showed that L.J.W. had "actually endangered" the children's safety, health and development through the years. The judge noted since 2009, the Division had offered L.J.W. numerous services, including substance abuse treatment, domestic violence counseling, mental health services, home visits, and assistance with housing and daycare. 8 A-1643-15T4 The Division also assisted L.J.W. with budgeting, furniture, transportation assistance, home therapeutic services, housing, and daycare. The judge found that despite these many services, L.J.W.'s parenting capability had not improved. The judge stated that the Division's "extensive involvement" with the family through the years, "along with [L.J.W.'s] failure to truly respond in a positive way," demonstrated that the children had been harmed by their relationship with her. The judge observed that there may not have been a single, readily identifiable harm that would justify termination of parental rights, but L.J.W. had consistently failed to address her problems appropriately. The judge determined that until L.J.W. addressed her problems, the children remain "at great risk of harm." We are convinced that there is sufficient credible evidence in the record to support the judge's findings. Moreover, the judge's conclusion is consistent with New Jersey Division of Youth and Family Services v. P.P., 180 N.J. 494, 506-07 (2004), where the Court noted that prong one of the best interests standard may be established by evidence showing that a child has been subjected to an accumulation of harms. As Judge Warshaw found, L.J.W. subjected her children to an accumulation of harms. 9 A-1643-15T4 These harms included: exposing the children to a home with domestic violence; failing to adequately supervise the children; placing the children in the care of her mother, who she claimed abused her; and failing to provide a safe and stable home, which resulted in the children's removal and placement in foster care. The children were also exposed to L.J.W.'s persistent use of marijuana. The judge determined that until L.J.W. addressed her problems, the children remain "at great risk of harm." B. Prong Two L.J.W. argues that the record does not support the judge's finding that she is unwilling and unable to eliminate any perceived harm to the children. She therefore contends the evidence does not support the judge's determination that the Division established prong two of the best interests test. Here, Judge Warshaw found that although L.J.W. had "enjoyed some success with services," she was unable to maintain her parenting skills or appropriately care for the children in a way that ensured or promoted their well-being. The judge stated that L.J.W. had "made a sincere effort" and "received . . . many services," but she "cannot stop creating or continuing the problems which put the children at risk in the first place." Judge Warshaw noted that Dr. Lee and Dr. Katz had determined that despite the many services provided to her, 10 A-1643-15T4 L.J.W. had not improved her parenting ability and that "no reasonable prognosticator would believe she can." The judge stated that "[r]isk factors identified years ago remain risk factors today." The judge found that L.J.W. had been unable to provide the children with a safe and stable home, and she continued to focus "inappropriately" on her own needs. The judge also noted that L.J.W. had some positive interactions with the children during her visits with them. The judge found, however, that these interactions did not change his conclusion that L.J.W. is unwilling or unable to eliminate the harm to the children. The judge pointed out that L.J.W.'s visits had "occurred in a tightly controlled environment" and at times during the visits, L.J.W. had difficulty managing the children. On appeal, L.J.W. argues that many of her difficulties resulted from her reaction to J.S.J.'s tragic death and her "brutal victimization" by her "romantic partners." L.J.W. contends there were "hurdles" that she could have addressed through counseling. She notes that Ms. Paul, her treating clinician at CHS, had testified that she was optimistic L.J.W. could eventually be a safe and effective parent. We are convinced, however, that the trial judge did not err by accepting and relying upon the opinions of Dr. Lee and Dr. Katz, who testified that L.J.W. was not capable of providing the 11 A-1643-15T4 children with a safe and stable home and would not be able to do so in the foreseeable future. We conclude that the record supports the judge's finding that the Division established prong two of the best interests test with clear and convincing evidence. C. Prong Three L.J.W. concedes that the Division provided her with numerous services. She nevertheless argues that the Division failed to advise B.P., the foster parent for J.E.J., J.D.W., and J.J.W., Jr., that kinship legal guardianship (KLG) was an alternative to adoption and failed to explain how KLG functions. L.J.W. notes that B.P. had committed to adopt the three children, but she claims B.P. did not have an adequate understanding of KLG as a potential alternative to adoption. Again, we disagree. KLG "is not intended as an equally available alternative to termination [of parental rights] that must be considered in order to satisfy the third [prong] of N.J.S.A. 30:4C-15.1." N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 558 (2014) (quoting N.J. Div. of Youth & Fam. Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003)) (alteration in original). To the contrary, the Legislature has established statutory 12 A-1643-15T4 prerequisites that must be met before a court may establish a KLG. N.J.S.A. 3B:12A-6(d). One such prerequisite is a finding by the court that "adoption of the child is neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3). "[W]hen the permanency provided by adoption is available, [KLG] cannot be used as a defense to termination of parental rights." R.G., 217 N.J. at 558-59 (quoting P.P., 180 N.J. at 513) (alteration in original). Here, the record shows that adoption is feasible and likely. Indeed, as L.J.W. concedes, B.P. has indicated she will adopt J.E.J., J.D.W., and J.J.W., Jr. Judge Warshaw stated that B.P. is "steadfastly committed to adopting" these three children. L.J.W. cites no evidence that would support a contrary finding. Thus, KLG is not a valid alternative to termination of L.J.W.'s parental rights to J.E.J., J.D.W., and J.J.W., Jr. Moreover, L.J.W. presented no evidence showing that the Division failed to inform B.P. that KLG was an option or advise B.P. about KLG. In this regard, the Division notes that B.P. has been involved in KLGs with two other children in her home. Therefore, B.P. was well aware of what KLG entails. 13 A-1643-15T4 D. Prong Four L.J.W. argues that the judge erred by finding that the Division had established the fourth prong of the best interests test. She argues that the judge erred by finding that termination of her parental rights to the four children would not do more harm than good. 1. As to J.E.J., J.D.W., and J.J.W., Jr. Here, Judge Warshaw relied on Dr. Lee and Dr. Katz's opinions and determined that J.E.J., J.D.W., and J.J.W., Jr. "would suffer a substantially greater harm from [a] permanent[] disrupt[ion] [of] their relationships with [B.P.], than from the termination of their ties to [L.J.W.]" The judge noted that L.J.W.'s relationships with these three children had "been limited almost exclusively to supervised visits," which she and the children apparently enjoyed. However, as noted previously, the judge found that during these visits, L.J.W. sometimes had considerable difficulty managing the children. The judge stated that L.J.W. "does not and has not nurtured these children on a daily basis." The judge concluded that although L.J.W. "put forth a real effort, a significant effort, . . . she simply [cannot] do what . . . she needs to do and . . . under no conceivable circumstances . . . would termination of parental rights do more harm than good." 14 A-1643-15T4 On appeal, L.J.W. argues that although B.P. stated that she intended to adopt J.E.J., J.D.W., and J.J.W., Jr., there is a possibility she will not do so. L.J.W. asserts that Ms. Paul testified L.J.W. has a strong bond with these three children. L.J.W. therefore contends that termination of her parental rights poses a risk of harm to these children, which would be exacerbated because N.T.J. has been placed in a separate resource home. We find no merit in these arguments. L.J.W.'s assertion that B.P. may not adopt the children is not based on any evidence in the record. Moreover, while Ms. Paul had some positive observations about L.J.W.'s interactions with J.E.J., J.D.W., and J.J.W., Jr. during the supervised visits, the trial judge determined that Ms. Paul's observations did not warrant rejection of Dr. Lee and Dr. Katz's opinions that termination of L.J.W.'s parental rights would be in the children's best interests. Dr. Lee testified that these three children had ambivalent and insecure attachments to L.J.W., and there was a low risk that they would suffer severe and enduring harm if her parental rights to them are terminated. Dr. Lee further testified that these children had significant and positive bonds with B.P. They would suffer significant and enduring harm if removed from B.P., which L.J.W. could not ameliorate. 15 A-1643-15T4 Dr. Katz offered substantially similar testimony. He stated that these three children would not suffer severe or enduring harm from the termination of their relationships with L.J.W. He testified that there would be "minimal impact" on J.J.W., Jr., and "at most a potential adjustment period," for J.E.J. and J.D.W. Dr. Katz said B.P. could address any such difficulties. Dr. Katz further testified that the children's attachment to their foster mother was "not a hundred percent secure," but it was "the only secure attachment that they currently have." He stated that if these children are removed and returned to L.J.W., they would exhibit "severe acting out behaviors," which L.J.W. "has been at a loss to deal with" throughout the years. Dr. Katz opined that returning these three children to L.J.W. was "a recipe for severe problems and [a] high risk to the children." He stated that there were no services that could be put in place to lessen the harm of removal from their foster mother. We are convinced there is sufficient credible evidence in the record to support Judge Warshaw's finding that termination of L.J.W.'s parental rights to J.E.J., J.D.W., and J.J.W., Jr. would not do more harm than good. Thus, the record supports the judge's finding that the Division established the fourth prong as to these three children. 16 A-1643-15T4 2. Regarding N.T.J. L.J.W. further argues that the record does not support the trial court's finding that the Division established prong four as to N.T.J. She notes that her identified surrender of parental rights failed, and N.T.J. has expressed opposition to any adoption. According to L.J.W., N.T.J. stated that she preferred to return to her mother if her mother "could get better." L.J.W. asserts that because N.T.J. has certain behavioral and psychological problems, she may not be placed with foster parents who would be willing to adopt her. She contends there is a danger N.T.J. will be placed in a succession of temporary resource homes that may be located a distance from her siblings. She contends the record is clear that termination of her parental rights would do more harm than good. Again, we disagree. Here, Judge Warshaw found that termination of L.J.W.'s parental rights to N.T.J. would not do more harm than good. The judge noted that Dr. Lee testified that the failed surrender did not change his conclusion that L.J.W. was not fit to parent. The judge pointed out that L.J.W.'s prognosis for significant and lasting change remains poor. The judge also noted that N.T.J. has a limited bond with her mother, and there was a low risk that she would suffer 17 A-1643-15T4 severe or enduring psychological harm if L.J.W.'s parental rights were terminated. The judge found that it would be inappropriate to order the Division to provide L.J.W. additional services because despite her good intentions and many prior services, L.J.W. cannot provide a safe and stable home for N.T.J. The judge stated that to "begin services towards that end" would be "unimaginably cruel." It would create a "false hope in a child whose life already lacks permanency and stability." The judge's findings are fully supported by the record. Dr. Lee testified that the unsuccessful surrender did not render L.J.W. a fit parent, and the failed surrender did not mean that the attachment between L.J.W. and N.T.J. had improved. Dr. Lee stated that N.T.J. had an ambivalent and insecure attachment to L.J.W., and N.T.J. remained at the same risk of harm from the parental relationship notwithstanding the failed surrender. Dr. Lee further testified that based on her history, L.J.W.'s prognosis for lasting change remains poor, and it is unlikely additional services would improve her parenting deficiencies. He noted that L.J.W.'s problems are prominent and long-standing. He said returning N.T.J. to L.J.W.'s care would expose the child to additional harm. He opined that the termination of L.J.W.'s parental rights to N.T.J. was in the 18 A-1643-15T4 child's best interests. Therefore, the record fully supports Judge Warshaw's finding that notwithstanding the failed surrender, termination of L.J.W.'s parental rights to N.T.J. would not do more harm than good. The judge properly found that N.T.J.'s need for permanency outweighs other considerations, and continuation of the child's parental relationship with L.J.W. would do more harm than good. Accordingly, we affirm the trial court's judgments terminating L.J.W.'s parental rights to N.T.J., J.E.J., J.D.W., and J.J.W., Jr. IV. We turn to S.W.'s appeal. He argues that the Division failed to establish the four prongs of the best interests test. He therefore argues that the court erred by terminating his parental rights to J.E.J. We cannot agree. Judge Warshaw noted that at the time of his decision in October 2015, J.E.J. was eight years old, and she had a limited and superficial relationship with S.W. The judge pointed out that in April 2007, when L.J.W. was pregnant with J.E.J., L.J.W. and S.W. were living together in Georgia. They were no longer together in October 2007, when J.E.J. was born. L.J.W. relocated to New York and had limited contact with 19 A-1643-15T4 S.W. During 2011 and 2012, S.W. was incarcerated in Georgia. He was released in November 2012 and remained in Georgia until the spring of 2013. J.E.J. had been placed in a resource home in February 2013, after the Division removed her from L.J.W.'s care. S.W. first saw J.E.J. in June 2014. The judge noted that S.W. was inconsistent with his visits with the child. He also had a history of failing to appear in court, for services, and for evaluations. The judge concluded that the Division had established that J.E.J.'s safety, health, and development had been endangered by her relationship with S.W. The judge stated that for all intents and purposes, S.W. had "done nothing for [J.E.J.] and he knows nothing about her." The judge said there were many reasons for S.W.'s lack of involvement, including his distance and incarceration, but "it all adds up to no relationship." Moreover, S.W. left the child in L.J.W.'s "incapable hands." The judge also found that there was no prospect that S.W. will change. He noted that Dr. Katz testified that while J.E.J. had enjoyed some pleasant interactions with S.W., the child had an insecure attachment to her father. Dr. Katz stated that S.W. failed to do what was necessary to develop the capacity to parent J.E.J. Dr. Katz also took note of S.W.'s history of domestic violence and anger management problems. He noted that 20 A-1643-15T4 S.W.'s substance abuse has not been remediated. The judge further found that S.W. was unwilling or unable to eliminate the harm facing the child, or provide her with a safe and stable home. The judge noted that J.E.J. would suffer serious and enduring emotional or psychological harm if removed from B.P., her resource parent. The judge found that S.W. is "absolutely incapable of minimizing the trauma associated with" terminating the relationship between J.E.J. and her foster parent and the "lengthy bond" that presently exists between them. In addition, the judge found that the Division provided clear and convincing evidence showing that it made reasonable efforts to provide services to correct the circumstances that led to the child's placement outside the home, and the Division had considered alternatives to the termination of S.W.'s parental rights. The judge observed that S.W. had little to do with J.E.J. since she was born, and he was absent for most of the litigation in this matter. The judge noted that the Division did not know where S.W. lived and he did nothing to locate the child or "be a father." The judge found that it is "highly unlikely" services would have made a difference. The judge stated that S.W. never put himself in a position to effectively parent the child. He "never became 21 A-1643-15T4 fully engaged." The judge also determined that the Division had considered alternatives to the termination of S.W.'s parental rights. He stated that B.P. had unequivocally committed to adopting J.E.J. Therefore, KLG was not an option. The judge noted that S.W.'s sister had testified and she appeared forthright and sincere, but she had never met the child and did not offer herself as a caretaker during the court proceedings. In addition, the judge found that the Division had established termination of S.W.'s parental rights would not do more harm than good. The judge pointed out that Dr. Katz had testified that there was a significant risk J.E.J. would suffer severe and enduring psychological or emotional harm if her relationship with B.P. were severed. Dr. Katz further testified S.W. was not able to parent J.E.J. at that time and he would not be able to do so in the foreseeable future. Dr. Katz opined that termination of S.W.'s parental rights would not result in any severe or enduring harm to J.E.J. The judge found Dr. Katz's testimony persuasive and concluded that there was no evidence that J.E.J. could be returned to S.W. "without endangering [her] health and safety." The judge concluded that "[t]he relationship with the resource parent is truly the relationship which best meets the best 22 A-1643-15T4 interest of this child, [and it] would be a terrible thing to disrupt that relationship." The judge added that "there would be truly no benefit which could be found by way of reunification." A. Prong One On appeal, S.W. argues that the evidence does not support the judge's finding that J.E.J.'s safety, health, or development had been or would continue to be endangered by his relationship with her. He argues that it was not his own choices but, rather, the actions of L.J.W. and the Division that kept him out of J.E.J.'s life. He asserts it is undisputed that L.J.W. left him and that there is no evidence to contradict his assertion that he attempted to find L.J.W. and J.E.J. during his visits to New Jersey. S.W. contends that the Division had "multiple opportunities" to notify him of the proceedings, and that he contacted the Division when he learned about J.E.J.'s whereabouts. He also contends there is no evidence to support L.J.W.'s claim that she left him due to domestic violence. We reject these arguments because they are not supported by the record. At trial, S.W. admitted that L.J.W. left him because of domestic violence. He also admitted that L.J.W. gave him a telephone number, but he never attempted to use that number to remain in contact. S.W. presented no evidence showing the 23 A-1643-15T4 Division should have known of his whereabouts or how to reach him. In any event, the judge's finding that J.E.J. was harmed by her relationship with S.W. is amply supported by evidence of S.W.'s conduct after he became involved in the case. As the judge noted in his decision, S.W. failed to take the appropriate steps to prepare himself to parent J.E.J., by refusing to engage in even the most basic services offered by the Division. S.W. presented no evidence showing he could provide the child with a safe and stable home. Thus, there is substantial credible evidence in the record to support Judge Warshaw's finding that the Division had proven, clearly and convincingly, that J.E.J.'s safety, health, and development had been and would continue to be endangered by her relationship with S.W. B. Prong Two Next, S.W. argues that the Division failed to present clear and convincing evidence on prong two of the best interests test. He asserts that there is no evidence to support the court's finding that he is unable or unwilling to provide J.E.J. a safe and stable home. S.W. contends the Division failed to assess his home in New Jersey, never presented any evidence about his finances, and did not review his child-care arrangements. He asserts he "uprooted 24 A-1643-15T4 his entire life" to return from Georgia. He claims he offered two relative placements immediately, and showed he was "willing and able" to become an important part of his daughter's life. These arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We note, however, that there is sufficient credible evidence in the record to support Judge Warshaw's finding that S.W. failed to take the actions necessary to provide J.E.J. with a safe and stable home. The record also supports the judge's finding that J.E.J. would suffer serious and enduring emotional or psychological harm if she is removed from her resource parent and returned to S.W. Thus, there is sufficient credible evidence in the record to support the judge's finding that the Division had met its burden of proof on prong two. C. Prong Three S.W. argues that the Division failed to offer him appropriate services. He asserts that the Division scheduled the substance abuse, psychological, and bonding evaluations solely for the purpose of providing it with evidence for the guardianship trial. S.W. further argues that the Division failed to "promptly and fairly" assess his sister as an alternative placement. We note, however, that the scheduled evaluations were 25 A-1643-15T4 necessary so that the Division could assess the services that S.W. required to capably parent J.E.J. In addition, the trial judge provided sound reasons for concluding that S.W.'s sister was not an appropriate alternative placement. As the judge noted in his decision, during the litigation, S.W.'s sister never made an attempt to obtain custody of J.E.J., and she has never met the child. We are convinced that the record fully supports the judge's finding that the Division met its evidentiary burden on prong three. S.W.'s arguments regarding this prong lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). D Prong Four S.W. argues that the record does not support the judge's finding that termination of his parental rights would not do more harm than good. S.W. contends the judge erred by relying upon Dr. Katz's testimony because Dr. Katz was unaware of the "missing" services that allegedly would have nurtured his bond with J.E.J. S.W. contends Dr. Katz was unable to determine accurately the impact of severing his relationship with the child. We conclude, however, that there was ample support in the record for the judge's findings on prong four. S.W. presented no expert testimony or other evidence to counter Dr. Katz's 26 A-1643-15T4 opinions. S.W.'s assumption that "missing" services would have helped him foster a bond with the child is pure speculation. Moreover, the record supports the trial judge's finding that J.E.J. would suffer serious or enduring emotional and psychological harm if she is removed from her foster parent and siblings, and S.W. cannot ameliorate this harm. In addition, the record supports the judge's determination that J.E.J. would suffer no severe or enduring harm if her relationship with S.W. is terminated. We are convinced there is sufficient credible evidence in the record to support the trial judge's determination that the termination of S.W.'s parental rights to J.E.J. would not do more harm than good, and termination of S.W.'s parental rights would be in the child's best interests. Accordingly, we affirm the judgment terminating S.W.'s parental rights to J.E.J. Affirmed in A-1643-15 and in A-1644-15. 27 A-1643-15T4
Date: December 27, 2017
Docket Number: a1643-15 PER CURIAM L.J.W. and S.W. appeal from judgments entered by the Family Part, which terminated L.J.W. and S.W.'s parental rights to J.E.J., and L.J.W.'s parental rights to three other children, 1 N.T.J., J.D.W., and J.J.W., Jr. The appeals have been consolidated. For the reasons that follow, we affirm. I. L.J.W. had five children: N.T.J. (born July 2004), J.S.J. (born April 2006), J.E.J. (born October 2007), J.D.W. (born November 2009), and J.J.W., Jr. (born May 2011). N.T.J.'s biological father is M.H. S.W. is J.E.J.'s biological father, and J.J.W., Sr. is the biological father of J.D.W. and J.J.W., 1 The judgments also terminated the parental rights of J.J.W., Sr. to J.D.W. and J.J.W., Jr., and the parental rights of M.H. to N.T.J. These parties have not appealed. 2 A-1643-15T4 Jr. In July 2011, J.S.J. died after ingesting methadone while in the care of her godmother. The Division of Child Protection and Permanency (Division) 2 first became involved with L.J.W. and her children in 2006. L.J.W. initially declined services, but thereafter the Division provided L.J.W. and the children with an array of services. The Division removed the children from L.J.W.'s care in September 2011, after J.S.J.'s death, but they were returned to L.J.W.'s care in February 2012. In October 2012, the trial court granted the Division's application for care and supervision of the children, due to the Division's continuing concerns about the children's safety and well-being. The Division provided additional services to the family. In February 2013, the Division again removed the children from L.J.W.'s care. The Division placed J.E.J., J.D.W., and J.J.W., Jr. in a foster home. N.T.J. was placed in a separate resource home, and later transferred to a relative resource home. In September 2014, the trial court conducted a hearing and approved the Division's permanency plan, which called for the 2 Until 2012, the Division was known as the Division of Youth and Family Services. L. 2012, c. 16, effective June 29, 2012. 3 A-1643-15T4 termination of parental rights followed by foster home adoption. After the hearing, L.J.W. executed an identified surrender of her parental rights to N.T.J. so that M.V. could adopt the child. In November 2014, the Division filed its guardianship complaint, and thereafter Judge Peter E. Warshaw, Jr. conducted a trial on the matter. At the trial, the Division presented testimony from caseworker John Marciniak, Edwige Paul of the Children's Home Society of New Jersey (CHS), and psychologist Dr. Alan Lee. The Law Guardian presented testimony from psychologist Dr. Barry Katz. L.D.W. testified, as did S.W. and his sister. After the trial concluded, J.J.W., Sr. executed an identified surrender of his parental rights to J.D.W. and J.J.W., Jr. so that they could be adopted by their foster parent. In addition, the Division informed the judge that L.J.W.'s identified surrender of her parental rights to N.T.J. had failed. On October 15, 2015, Judge Warshaw placed an oral opinion on the record, finding that the Division had established the criteria in N.J.S.A. 30:4C-15.1(a) for the termination of S.W. and L.J.W.'s parental rights to J.E.J., and for the termination of L.J.W.'s parental rights to J.D.W., and J.J.W., Jr. The judge 4 A-1643-15T4 memorialized his findings in a judgment dated October 15, 2015. The judgment also terminated J.J.W., Sr.'s parental rights to J.D.W. and J.J.W., Jr., and M.H.'s parental rights to N.T.J. On October 22, 2015, the judge conducted a hearing and approved the Division's permanency plan for the termination of L.J.W.'s parental rights to N.T.J. followed by select home adoption. The judge allowed the parties to supplement the record, and continued the trial as to N.T.J. Caseworker Marciniak, Dr. Lee, and L.J.W. provided additional testimony. On December 2, 2015, Judge Warshaw placed an oral decision on the record. The judge found the Division had presented clear and convincing evidence establishing the criteria for termination of L.J.W.'s parental rights to N.T.J. On December 2, 2015, the judge entered a judgment that terminated L.J.W.'s parental rights to N.T.J. S.W.'s appeal (A- 1643-15) and L.J.W.'s appeal (A-1644-15) followed. II. On appeal, L.J.W. and S.W. argue that the trial judge erred by entering the judgments terminating their parental rights. They maintain the record does not support the judge's findings that the Division established the criteria for termination of the parental rights to their children. 5 A-1643-15T4 A parent has a constitutional right to rear his or her child, but that right is not absolute. N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). The parent's right is "tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." Ibid. Therefore, the Division is authorized by N.J.S.A. 30:4C- 15.1(a) to seek the termination of parental rights in "the best interests of the child" when (1) [t]he child's safety, health, or development has been or will continue to be endangered by the parental relationship; (2) [t]he parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) [t]he [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) [t]ermination of parental rights will not do more harm than good. 6 A-1643-15T4 "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The Division must establish the criteria in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. In re Guardianship of K.L.F., 129 N.J. 32, 38 (1992) (citing In re J.C., 129 N.J. 1, 10-11 (1992)). The scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, factual findings of the Family Part "are entitled to considerable deference." D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). III. We turn first to L.J.W.'s appeal. She argues the trial judge erred by finding that the Division established the four prongs of the best interests standard in N.J.S.A. 30:4C-15.1(a). 7 A-1643-15T4 A. Prong One L.J.W. argues that the Division failed to present any evidence showing that she inflicted serious harm on the children. She asserts that, to the contrary, the record shows that over the years, her interactions with the children have been positive, warm, and nurturing. L.J.W. asserts that she did not miss any scheduled visits with the children, and their reactions to her during those visits were "joyful and affectionate." In his decision, Judge Warshaw recognized that L.J.W. has many positive qualities and loved her children. The judge found, however, for "a combination of reasons" addressed by Dr. Lee and Dr. Katz, and "fully demonstrated by her inability to respond to multiple services," that L.J.W. was "absolutely incapable of ensuring the safety, health and development of the three children." Judge Warshaw noted that the Division's records showed that L.J.W. had "actually endangered" the children's safety, health and development through the years. The judge noted since 2009, the Division had offered L.J.W. numerous services, including substance abuse treatment, domestic violence counseling, mental health services, home visits, and assistance with housing and daycare. 8 A-1643-15T4 The Division also assisted L.J.W. with budgeting, furniture, transportation assistance, home therapeutic services, housing, and daycare. The judge found that despite these many services, L.J.W.'s parenting capability had not improved. The judge stated that the Division's "extensive involvement" with the family through the years, "along with [L.J.W.'s] failure to truly respond in a positive way," demonstrated that the children had been harmed by their relationship with her. The judge observed that there may not have been a single, readily identifiable harm that would justify termination of parental rights, but L.J.W. had consistently failed to address her problems appropriately. The judge determined that until L.J.W. addressed her problems, the children remain "at great risk of harm." We are convinced that there is sufficient credible evidence in the record to support the judge's findings. Moreover, the judge's conclusion is consistent with New Jersey Division of Youth and Family Services v. P.P., 180 N.J. 494, 506-07 (2004), where the Court noted that prong one of the best interests standard may be established by evidence showing that a child has been subjected to an accumulation of harms. As Judge Warshaw found, L.J.W. subjected her children to an accumulation of harms. 9 A-1643-15T4 These harms included: exposing the children to a home with domestic violence; failing to adequately supervise the children; placing the children in the care of her mother, who she claimed abused her; and failing to provide a safe and stable home, which resulted in the children's removal and placement in foster care. The children were also exposed to L.J.W.'s persistent use of marijuana. The judge determined that until L.J.W. addressed her problems, the children remain "at great risk of harm." B. Prong Two L.J.W. argues that the record does not support the judge's finding that she is unwilling and unable to eliminate any perceived harm to the children. She therefore contends the evidence does not support the judge's determination that the Division established prong two of the best interests test. Here, Judge Warshaw found that although L.J.W. had "enjoyed some success with services," she was unable to maintain her parenting skills or appropriately care for the children in a way that ensured or promoted their well-being. The judge stated that L.J.W. had "made a sincere effort" and "received . . . many services," but she "cannot stop creating or continuing the problems which put the children at risk in the first place." Judge Warshaw noted that Dr. Lee and Dr. Katz had determined that despite the many services provided to her, 10 A-1643-15T4 L.J.W. had not improved her parenting ability and that "no reasonable prognosticator would believe she can." The judge stated that "[r]isk factors identified years ago remain risk factors today." The judge found that L.J.W. had been unable to provide the children with a safe and stable home, and she continued to focus "inappropriately" on her own needs. The judge also noted that L.J.W. had some positive interactions with the children during her visits with them. The judge found, however, that these interactions did not change his conclusion that L.J.W. is unwilling or unable to eliminate the harm to the children. The judge pointed out that L.J.W.'s visits had "occurred in a tightly controlled environment" and at times during the visits, L.J.W. had difficulty managing the children. On appeal, L.J.W. argues that many of her difficulties resulted from her reaction to J.S.J.'s tragic death and her "brutal victimization" by her "romantic partners." L.J.W. contends there were "hurdles" that she could have addressed through counseling. She notes that Ms. Paul, her treating clinician at CHS, had testified that she was optimistic L.J.W. could eventually be a safe and effective parent. We are convinced, however, that the trial judge did not err by accepting and relying upon the opinions of Dr. Lee and Dr. Katz, who testified that L.J.W. was not capable of providing the 11 A-1643-15T4 children with a safe and stable home and would not be able to do so in the foreseeable future. We conclude that the record supports the judge's finding that the Division established prong two of the best interests test with clear and convincing evidence. C. Prong Three L.J.W. concedes that the Division provided her with numerous services. She nevertheless argues that the Division failed to advise B.P., the foster parent for J.E.J., J.D.W., and J.J.W., Jr., that kinship legal guardianship (KLG) was an alternative to adoption and failed to explain how KLG functions. L.J.W. notes that B.P. had committed to adopt the three children, but she claims B.P. did not have an adequate understanding of KLG as a potential alternative to adoption. Again, we disagree. KLG "is not intended as an equally available alternative to termination [of parental rights] that must be considered in order to satisfy the third [prong] of N.J.S.A. 30:4C-15.1." N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 558 (2014) (quoting N.J. Div. of Youth & Fam. Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003)) (alteration in original). To the contrary, the Legislature has established statutory 12 A-1643-15T4 prerequisites that must be met before a court may establish a KLG. N.J.S.A. 3B:12A-6(d). One such prerequisite is a finding by the court that "adoption of the child is neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3). "[W]hen the permanency provided by adoption is available, [KLG] cannot be used as a defense to termination of parental rights." R.G., 217 N.J. at 558-59 (quoting P.P., 180 N.J. at 513) (alteration in original). Here, the record shows that adoption is feasible and likely. Indeed, as L.J.W. concedes, B.P. has indicated she will adopt J.E.J., J.D.W., and J.J.W., Jr. Judge Warshaw stated that B.P. is "steadfastly committed to adopting" these three children. L.J.W. cites no evidence that would support a contrary finding. Thus, KLG is not a valid alternative to termination of L.J.W.'s parental rights to J.E.J., J.D.W., and J.J.W., Jr. Moreover, L.J.W. presented no evidence showing that the Division failed to inform B.P. that KLG was an option or advise B.P. about KLG. In this regard, the Division notes that B.P. has been involved in KLGs with two other children in her home. Therefore, B.P. was well aware of what KLG entails. 13 A-1643-15T4 D. Prong Four L.J.W. argues that the judge erred by finding that the Division had established the fourth prong of the best interests test. She argues that the judge erred by finding that termination of her parental rights to the four children would not do more harm than good. 1. As to J.E.J., J.D.W., and J.J.W., Jr. Here, Judge Warshaw relied on Dr. Lee and Dr. Katz's opinions and determined that J.E.J., J.D.W., and J.J.W., Jr. "would suffer a substantially greater harm from [a] permanent[] disrupt[ion] [of] their relationships with [B.P.], than from the termination of their ties to [L.J.W.]" The judge noted that L.J.W.'s relationships with these three children had "been limited almost exclusively to supervised visits," which she and the children apparently enjoyed. However, as noted previously, the judge found that during these visits, L.J.W. sometimes had considerable difficulty managing the children. The judge stated that L.J.W. "does not and has not nurtured these children on a daily basis." The judge concluded that although L.J.W. "put forth a real effort, a significant effort, . . . she simply [cannot] do what . . . she needs to do and . . . under no conceivable circumstances . . . would termination of parental rights do more harm than good." 14 A-1643-15T4 On appeal, L.J.W. argues that although B.P. stated that she intended to adopt J.E.J., J.D.W., and J.J.W., Jr., there is a possibility she will not do so. L.J.W. asserts that Ms. Paul testified L.J.W. has a strong bond with these three children. L.J.W. therefore contends that termination of her parental rights poses a risk of harm to these children, which would be exacerbated because N.T.J. has been placed in a separate resource home. We find no merit in these arguments. L.J.W.'s assertion that B.P. may not adopt the children is not based on any evidence in the record. Moreover, while Ms. Paul had some positive observations about L.J.W.'s interactions with J.E.J., J.D.W., and J.J.W., Jr. during the supervised visits, the trial judge determined that Ms. Paul's observations did not warrant rejection of Dr. Lee and Dr. Katz's opinions that termination of L.J.W.'s parental rights would be in the children's best interests. Dr. Lee testified that these three children had ambivalent and insecure attachments to L.J.W., and there was a low risk that they would suffer severe and enduring harm if her parental rights to them are terminated. Dr. Lee further testified that these children had significant and positive bonds with B.P. They would suffer significant and enduring harm if removed from B.P., which L.J.W. could not ameliorate. 15 A-1643-15T4 Dr. Katz offered substantially similar testimony. He stated that these three children would not suffer severe or enduring harm from the termination of their relationships with L.J.W. He testified that there would be "minimal impact" on J.J.W., Jr., and "at most a potential adjustment period," for J.E.J. and J.D.W. Dr. Katz said B.P. could address any such difficulties. Dr. Katz further testified that the children's attachment to their foster mother was "not a hundred percent secure," but it was "the only secure attachment that they currently have." He stated that if these children are removed and returned to L.J.W., they would exhibit "severe acting out behaviors," which L.J.W. "has been at a loss to deal with" throughout the years. Dr. Katz opined that returning these three children to L.J.W. was "a recipe for severe problems and [a] high risk to the children." He stated that there were no services that could be put in place to lessen the harm of removal from their foster mother. We are convinced there is sufficient credible evidence in the record to support Judge Warshaw's finding that termination of L.J.W.'s parental rights to J.E.J., J.D.W., and J.J.W., Jr. would not do more harm than good. Thus, the record supports the judge's finding that the Division established the fourth prong as to these three children. 16 A-1643-15T4 2. Regarding N.T.J. L.J.W. further argues that the record does not support the trial court's finding that the Division established prong four as to N.T.J. She notes that her identified surrender of parental rights failed, and N.T.J. has expressed opposition to any adoption. According to L.J.W., N.T.J. stated that she preferred to return to her mother if her mother "could get better." L.J.W. asserts that because N.T.J. has certain behavioral and psychological problems, she may not be placed with foster parents who would be willing to adopt her. She contends there is a danger N.T.J. will be placed in a succession of temporary resource homes that may be located a distance from her siblings. She contends the record is clear that termination of her parental rights would do more harm than good. Again, we disagree. Here, Judge Warshaw found that termination of L.J.W.'s parental rights to N.T.J. would not do more harm than good. The judge noted that Dr. Lee testified that the failed surrender did not change his conclusion that L.J.W. was not fit to parent. The judge pointed out that L.J.W.'s prognosis for significant and lasting change remains poor. The judge also noted that N.T.J. has a limited bond with her mother, and there was a low risk that she would suffer 17 A-1643-15T4 severe or enduring psychological harm if L.J.W.'s parental rights were terminated. The judge found that it would be inappropriate to order the Division to provide L.J.W. additional services because despite her good intentions and many prior services, L.J.W. cannot provide a safe and stable home for N.T.J. The judge stated that to "begin services towards that end" would be "unimaginably cruel." It would create a "false hope in a child whose life already lacks permanency and stability." The judge's findings are fully supported by the record. Dr. Lee testified that the unsuccessful surrender did not render L.J.W. a fit parent, and the failed surrender did not mean that the attachment between L.J.W. and N.T.J. had improved. Dr. Lee stated that N.T.J. had an ambivalent and insecure attachment to L.J.W., and N.T.J. remained at the same risk of harm from the parental relationship notwithstanding the failed surrender. Dr. Lee further testified that based on her history, L.J.W.'s prognosis for lasting change remains poor, and it is unlikely additional services would improve her parenting deficiencies. He noted that L.J.W.'s problems are prominent and long-standing. He said returning N.T.J. to L.J.W.'s care would expose the child to additional harm. He opined that the termination of L.J.W.'s parental rights to N.T.J. was in the 18 A-1643-15T4 child's best interests. Therefore, the record fully supports Judge Warshaw's finding that notwithstanding the failed surrender, termination of L.J.W.'s parental rights to N.T.J. would not do more harm than good. The judge properly found that N.T.J.'s need for permanency outweighs other considerations, and continuation of the child's parental relationship with L.J.W. would do more harm than good. Accordingly, we affirm the trial court's judgments terminating L.J.W.'s parental rights to N.T.J., J.E.J., J.D.W., and J.J.W., Jr. IV. We turn to S.W.'s appeal. He argues that the Division failed to establish the four prongs of the best interests test. He therefore argues that the court erred by terminating his parental rights to J.E.J. We cannot agree. Judge Warshaw noted that at the time of his decision in October 2015, J.E.J. was eight years old, and she had a limited and superficial relationship with S.W. The judge pointed out that in April 2007, when L.J.W. was pregnant with J.E.J., L.J.W. and S.W. were living together in Georgia. They were no longer together in October 2007, when J.E.J. was born. L.J.W. relocated to New York and had limited contact with 19 A-1643-15T4 S.W. During 2011 and 2012, S.W. was incarcerated in Georgia. He was released in November 2012 and remained in Georgia until the spring of 2013. J.E.J. had been placed in a resource home in February 2013, after the Division removed her from L.J.W.'s care. S.W. first saw J.E.J. in June 2014. The judge noted that S.W. was inconsistent with his visits with the child. He also had a history of failing to appear in court, for services, and for evaluations. The judge concluded that the Division had established that J.E.J.'s safety, health, and development had been endangered by her relationship with S.W. The judge stated that for all intents and purposes, S.W. had "done nothing for [J.E.J.] and he knows nothing about her." The judge said there were many reasons for S.W.'s lack of involvement, including his distance and incarceration, but "it all adds up to no relationship." Moreover, S.W. left the child in L.J.W.'s "incapable hands." The judge also found that there was no prospect that S.W. will change. He noted that Dr. Katz testified that while J.E.J. had enjoyed some pleasant interactions with S.W., the child had an insecure attachment to her father. Dr. Katz stated that S.W. failed to do what was necessary to develop the capacity to parent J.E.J. Dr. Katz also took note of S.W.'s history of domestic violence and anger management problems. He noted that 20 A-1643-15T4 S.W.'s substance abuse has not been remediated. The judge further found that S.W. was unwilling or unable to eliminate the harm facing the child, or provide her with a safe and stable home. The judge noted that J.E.J. would suffer serious and enduring emotional or psychological harm if removed from B.P., her resource parent. The judge found that S.W. is "absolutely incapable of minimizing the trauma associated with" terminating the relationship between J.E.J. and her foster parent and the "lengthy bond" that presently exists between them. In addition, the judge found that the Division provided clear and convincing evidence showing that it made reasonable efforts to provide services to correct the circumstances that led to the child's placement outside the home, and the Division had considered alternatives to the termination of S.W.'s parental rights. The judge observed that S.W. had little to do with J.E.J. since she was born, and he was absent for most of the litigation in this matter. The judge noted that the Division did not know where S.W. lived and he did nothing to locate the child or "be a father." The judge found that it is "highly unlikely" services would have made a difference. The judge stated that S.W. never put himself in a position to effectively parent the child. He "never became 21 A-1643-15T4 fully engaged." The judge also determined that the Division had considered alternatives to the termination of S.W.'s parental rights. He stated that B.P. had unequivocally committed to adopting J.E.J. Therefore, KLG was not an option. The judge noted that S.W.'s sister had testified and she appeared forthright and sincere, but she had never met the child and did not offer herself as a caretaker during the court proceedings. In addition, the judge found that the Division had established termination of S.W.'s parental rights would not do more harm than good. The judge pointed out that Dr. Katz had testified that there was a significant risk J.E.J. would suffer severe and enduring psychological or emotional harm if her relationship with B.P. were severed. Dr. Katz further testified S.W. was not able to parent J.E.J. at that time and he would not be able to do so in the foreseeable future. Dr. Katz opined that termination of S.W.'s parental rights would not result in any severe or enduring harm to J.E.J. The judge found Dr. Katz's testimony persuasive and concluded that there was no evidence that J.E.J. could be returned to S.W. "without endangering [her] health and safety." The judge concluded that "[t]he relationship with the resource parent is truly the relationship which best meets the best 22 A-1643-15T4 interest of this child, [and it] would be a terrible thing to disrupt that relationship." The judge added that "there would be truly no benefit which could be found by way of reunification." A. Prong One On appeal, S.W. argues that the evidence does not support the judge's finding that J.E.J.'s safety, health, or development had been or would continue to be endangered by his relationship with her. He argues that it was not his own choices but, rather, the actions of L.J.W. and the Division that kept him out of J.E.J.'s life. He asserts it is undisputed that L.J.W. left him and that there is no evidence to contradict his assertion that he attempted to find L.J.W. and J.E.J. during his visits to New Jersey. S.W. contends that the Division had "multiple opportunities" to notify him of the proceedings, and that he contacted the Division when he learned about J.E.J.'s whereabouts. He also contends there is no evidence to support L.J.W.'s claim that she left him due to domestic violence. We reject these arguments because they are not supported by the record. At trial, S.W. admitted that L.J.W. left him because of domestic violence. He also admitted that L.J.W. gave him a telephone number, but he never attempted to use that number to remain in contact. S.W. presented no evidence showing the 23 A-1643-15T4 Division should have known of his whereabouts or how to reach him. In any event, the judge's finding that J.E.J. was harmed by her relationship with S.W. is amply supported by evidence of S.W.'s conduct after he became involved in the case. As the judge noted in his decision, S.W. failed to take the appropriate steps to prepare himself to parent J.E.J., by refusing to engage in even the most basic services offered by the Division. S.W. presented no evidence showing he could provide the child with a safe and stable home. Thus, there is substantial credible evidence in the record to support Judge Warshaw's finding that the Division had proven, clearly and convincingly, that J.E.J.'s safety, health, and development had been and would continue to be endangered by her relationship with S.W. B. Prong Two Next, S.W. argues that the Division failed to present clear and convincing evidence on prong two of the best interests test. He asserts that there is no evidence to support the court's finding that he is unable or unwilling to provide J.E.J. a safe and stable home. S.W. contends the Division failed to assess his home in New Jersey, never presented any evidence about his finances, and did not review his child-care arrangements. He asserts he "uprooted 24 A-1643-15T4 his entire life" to return from Georgia. He claims he offered two relative placements immediately, and showed he was "willing and able" to become an important part of his daughter's life. These arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We note, however, that there is sufficient credible evidence in the record to support Judge Warshaw's finding that S.W. failed to take the actions necessary to provide J.E.J. with a safe and stable home. The record also supports the judge's finding that J.E.J. would suffer serious and enduring emotional or psychological harm if she is removed from her resource parent and returned to S.W. Thus, there is sufficient credible evidence in the record to support the judge's finding that the Division had met its burden of proof on prong two. C. Prong Three S.W. argues that the Division failed to offer him appropriate services. He asserts that the Division scheduled the substance abuse, psychological, and bonding evaluations solely for the purpose of providing it with evidence for the guardianship trial. S.W. further argues that the Division failed to "promptly and fairly" assess his sister as an alternative placement. We note, however, that the scheduled evaluations were 25 A-1643-15T4 necessary so that the Division could assess the services that S.W. required to capably parent J.E.J. In addition, the trial judge provided sound reasons for concluding that S.W.'s sister was not an appropriate alternative placement. As the judge noted in his decision, during the litigation, S.W.'s sister never made an attempt to obtain custody of J.E.J., and she has never met the child. We are convinced that the record fully supports the judge's finding that the Division met its evidentiary burden on prong three. S.W.'s arguments regarding this prong lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). D Prong Four S.W. argues that the record does not support the judge's finding that termination of his parental rights would not do more harm than good. S.W. contends the judge erred by relying upon Dr. Katz's testimony because Dr. Katz was unaware of the "missing" services that allegedly would have nurtured his bond with J.E.J. S.W. contends Dr. Katz was unable to determine accurately the impact of severing his relationship with the child. We conclude, however, that there was ample support in the record for the judge's findings on prong four. S.W. presented no expert testimony or other evidence to counter Dr. Katz's 26 A-1643-15T4 opinions. S.W.'s assumption that "missing" services would have helped him foster a bond with the child is pure speculation. Moreover, the record supports the trial judge's finding that J.E.J. would suffer serious or enduring emotional and psychological harm if she is removed from her foster parent and siblings, and S.W. cannot ameliorate this harm. In addition, the record supports the judge's determination that J.E.J. would suffer no severe or enduring harm if her relationship with S.W. is terminated. We are convinced there is sufficient credible evidence in the record to support the trial judge's determination that the termination of S.W.'s parental rights to J.E.J. would not do more harm than good, and termination of S.W.'s parental rights would be in the child's best interests. Accordingly, we affirm the judgment terminating S.W.'s parental rights to J.E.J. Affirmed in A-1643-15 and in A-1644-15. 27 A-1643-15T4
T.L. v. BOARD OF EDUCATION OF THE TOWNSHIP OF UNION, UNION COUNTY
Date: December 27, 2017
Docket Number: a5566-15
Date: December 27, 2017
Docket Number: a5566-15
IN THE MATTER OF THE APPEAL FROM THE DENIAL OF AN APPLICATION FOR A CHANGE OF ADDRESS ON A NEW JERSEY FIREARMS PURCHASER IDENTIFICATION CARD AND SIX PERMITS TO PURCHASE HANDGUNS IN THE NAME OF C.R.1
Date: December 26, 2017
Docket Number: a1235-16
Date: December 26, 2017
Docket Number: a1235-16
NATIONSTAR MORTGAGE, LLC v. YONATHAN COHEN
Date: December 26, 2017
Docket Number: a2488-15 PER CURIAM Yonathan Cohen and Rosalie Cohen (defendants) appeal from a January 13, 2016 foreclosure judgment, and a March 4, 2016 order denying their motion to vacate that judgment and granting leave to correct scrivener's errors in a writ of execution that was entered with the judgment. These matters have been consolidated, and we affirm both the entry of the judgment and denial of the motion. Defendants executed a note for $200,000 to Bank of America (BOA), which was secured by a recorded mortgage encumbering their realty in Lakewood. Defendants defaulted on payments in December 2009. BOA sent defendants a Notice of Intent (NOI) to foreclose on January 21, 2010, and filed a foreclosure complaint on March 24, 2010, with which defendants were served. Defendants did not file an answer, and default was entered on June 17, 2010. The mortgage was assigned to Nationstar Mortgage, LLC, on September 6, 2013, and the assignment was recorded on November 12 of that year. BOA took no action,2 and the complaint was administratively dismissed on December 20, 2013. A Chancery Division judge, over 2 A moratorium issued after Superstorm Sandy halted the prosecution of foreclosure actions in mid-December 2012 until April 16, 2013. 2 A-2488-15T3 defendants' objection, granted BOA's motion to reinstate the case to active status on July 25, 2014, subject to plaintiff filing a motion for final judgment by February 28, 2015.3 The motion for final judgment was not timely filed. BOA moved to extend the time to file the motion and to substitute Nationstar4 as plaintiff. Both motions were granted by a second Chancery Division judge on September 4, 2015; defendants' motion to reconsider was denied on December 11, 2015. An uncontested judgment of foreclosure was entered on January 13, 2016. Defendants' motion to vacate the final judgment and dismiss the foreclosure action was filed on February 9, 2016, and was denied on March 4, 2016, by a third Chancery Division judge. Defendants argue: [POINT I] NATIONSTAR COULD NOT RIGHTFULLY PROSECUTE THIS FORECLOSURE ACTION IN THE NAME OF [ITS] PREDECESSOR IN INTEREST BANK OF AMERICA[.] [POINT II] NATIONSTAR COULD NOT PROSECUTE [ITS] FORECLOSURE ACTION IN THE NAME OF [ITS] [PREDECESSOR] BANK OF AMERICA BECAUSE[,] THOUGH BANK OF AMERICA WAS THE PREDECESSOR OF 3 The date in the order is February 28, 2014, but defendants acknowledge the correct date as February 28, 2015. 4 A remedial NOI was sent to defendants by Nationstar in October 2014. 3 A-2488-15T3 THE MORTGAGE[,] BANK OF AMERICA AND NATIONSTAR DID NOT SHARE A COMMON FORECLOSURE ACTION; THE MAIN THRUST OF THE FORECLOSURE ACTION IS NOT [SHARED] ALIKE BY THE TWO ENTITIES[.] [POINT III] THOUGH BANK OF AMERICA APPEARED AT THE COURT[- ]ORDERED MEDIATION SESSIONS[,] BANK OF AMERICA HAD NO AUTHORITY TO DO SO[,] CONSEQUENTLY DEFENDANTS/APPELLANTS WERE DEPRIVED OF THEIR NONWAIVABLE RIGHTS [TO] MEDIATION[.] [POINT IV] THE CASE LAW OF LAKS[5] SUPPORTS DEFENDANTS/APPELLANTS REQUEST FOR RELIEF[.] [POINT V] COURT RULE 4:64-8 STATES A REINSTATEMENT OF A FORECLOSURE MATTER MAY BE PERMITTED ONLY ON MOTION FOR GOOD CAUSE SHOWN ABSENT . . . EXCEPTIONAL CIRCUMSTANCES BEING SHOWN AND WITH THE HEREIN MATTER HAVING NOT [BEEN] REINSTATED AND THEREBY REMAINING DISMISSED[,] IT WAS IMPROPER FOR THE TRIAL COURT TO ALLOW PLAINTIFF A SECOND OPPORTUNITY TO REINSTATE[.] [POINT VI] THE HEREIN MATTER CONTAINS A FORECLOSURE FILING ISSUE THAT[,] ACCORDING TO THE NOTICE TO THE BAR DATED APRIL 23, 2014[,] QUALIFIES AS A DEFICIENCY THAT WOULD WARRANT THE MOTION APPLICATION TO BE RETURNED TO THE FILER FOR CORRECTION BEFORE BEING ACCEPTED FOR FILING THE NOTICE WAS ISSUED IN ORDER TO SECURE THE JUDICIARY'S COMMITMENT TO ENSURE DUE PROCESS IN FORECLOSURES[.] 5 Bank of New York v. Laks, 422 N.J. Super. 201 (App. Div. 2011). 4 A-2488-15T3 [POINT VII] DEFENDANTS/APPELLANTS ARE ENTITLED TO RELIEF BECAUSE THE NAMING OF BANK OF AMERICA ON THE WRIT OF EXECUTION WAS NOT A MERE SCRIVENER'S ERROR[.] These arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We add the following remarks. Where, as here, "the court has entered a default judgment pursuant to Rule 4:43-2, the party seeking to vacate the judgment must meet the standard of Rule 4:50-1." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). We review the court's decision whether to vacate or set aside the judgment under an abuse of discretion standard. Guillaume, 209 N.J. at 467. "The trial court's determination under [Rule 4:50-1] warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion," namely where the "decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Guillaume, 209 N.J. at 467 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). Although defendants did not specify which sections of the Rule they were asserting, none of them provide grounds for defendants' prayers for relief. Under Rule 4:50-1(a), a defendant must show excusable neglect and a meritorious defense. Guillaume, 5 A-2488-15T3 209 N.J. at 468. Relief under Rule 4:50-1(f) is reserved for "exceptional situations" where "truly exceptional circumstances are present." Morristown Hous. Auth. v. Little, 135 N.J. 274, 286 (1994) (quoting Bauman v. Marinaro, 95 N.J. 380, 395 (1984)). Defendants have failed to satisfy either criteria, or any other section of the rule. Defendants seemingly argued fraud, R. 4:50- 1(c), and that the judgment was void, R. 4:50-1(d), to the third Chancery Division judge; there is no merit to those contentions. A motion to vacate based on fraud, pursuant to Rule 4:50-1(c), requires movant to "allege with specificity the representation, its falsity, materiality, the speaker's knowledge or ignorance, and reliance." Palko v. Palko, 73 N.J. 395, 401 (1977) (Schreiber, J., dissenting); see also State v. Hill, 267 N.J. Super. 223, 226 (App. Div. 1993), rev'd on other grounds, 136 N.J. 292 (1994). Again, defendants made no specific allegations. And, even if defendants were correct that plaintiff lacked standing to bring the complaint, in the "post-judgment context, lack of standing would not constitute a meritorious defense to the foreclosure complaint." Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012). Standing is therefore "not a jurisdictional issue in our State court system and . . . a foreclosure judgment obtained by a party that lacked standing is not 'void' within the meaning of Rule 4:50-1(d)." Ibid. 6 A-2488-15T3 "The only material issues in a foreclosure proceeding are the validity of the mortgage, the amount of the indebtedness, and the right of the mortgagee to resort to the mortgaged premises." Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd o.b., 273 N.J. Super. 542 (App. Div. 1994). "[W]e [have] held that either possession of the note or an assignment of the mortgage that predated the original complaint confer[s] standing." Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank Tr. Co. Ams. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011)). There is no dispute that BOA possessed the note at the time it filed the foreclosure complaint. The assignment of mortgage to Nationstar was made and recorded prior to the administrative dismissal. The complaint was reinstated, and Nationstar was substituted as plaintiff in the original complaint. We agree with the second Chancery Division judge that no harm befell defendants by allowing the substitution because "[t]here was a recognition all along of their obligation. Their obligation to repay the money is not altered by who the current note holder is in the litigation"; and we agree with the third Chancery Division judge who, in denying defendants' motion to vacate, ruled BOA was permitted to continue its original action, and that Nationstar, as assignee, was properly substituted as plaintiff prior to the 7 A-2488-15T3 entry of final judgment. The substitution simply continued the foreclosure action involving the same property and same documents, save for the assignment of mortgage. The second Chancery Division judge also found it appropriate to allow plaintiff to continue the litigation notwithstanding its failure to comply with the July 25, 2014 order, finding defendants suffered no harm by plaintiff's failure to file a timely NOI pursuant to that order, and that defendants participated in mediation and in "ongoing discussions" in an attempt to resolve the foreclosure.6 We also note no agreement was reached during mediation because defendants' "debt to income ratio [was] too high" to qualify for a modification. It is also undisputed that defendants defaulted in payments on the note and never answered the complaint; and that, notwithstanding receipt of two NOIs, and defendants' argument that they were confused because BOA, not Nationstar, was identified as the plaintiff until the latter stages of litigation, defendants never attempted to contact either entity to avail themselves of any right set forth in either NOI, including by curing the default. The foreclosure judgment was properly entered and defendants' motion to vacate that judgment was properly denied. Affirmed. 6 Defendants did not appeal the second Chancery Division judge's order of September 4, 2015. 8 A-2488-15T3 9 A-2488-15T3
Date: December 26, 2017
Docket Number: a2488-15 PER CURIAM Yonathan Cohen and Rosalie Cohen (defendants) appeal from a January 13, 2016 foreclosure judgment, and a March 4, 2016 order denying their motion to vacate that judgment and granting leave to correct scrivener's errors in a writ of execution that was entered with the judgment. These matters have been consolidated, and we affirm both the entry of the judgment and denial of the motion. Defendants executed a note for $200,000 to Bank of America (BOA), which was secured by a recorded mortgage encumbering their realty in Lakewood. Defendants defaulted on payments in December 2009. BOA sent defendants a Notice of Intent (NOI) to foreclose on January 21, 2010, and filed a foreclosure complaint on March 24, 2010, with which defendants were served. Defendants did not file an answer, and default was entered on June 17, 2010. The mortgage was assigned to Nationstar Mortgage, LLC, on September 6, 2013, and the assignment was recorded on November 12 of that year. BOA took no action,2 and the complaint was administratively dismissed on December 20, 2013. A Chancery Division judge, over 2 A moratorium issued after Superstorm Sandy halted the prosecution of foreclosure actions in mid-December 2012 until April 16, 2013. 2 A-2488-15T3 defendants' objection, granted BOA's motion to reinstate the case to active status on July 25, 2014, subject to plaintiff filing a motion for final judgment by February 28, 2015.3 The motion for final judgment was not timely filed. BOA moved to extend the time to file the motion and to substitute Nationstar4 as plaintiff. Both motions were granted by a second Chancery Division judge on September 4, 2015; defendants' motion to reconsider was denied on December 11, 2015. An uncontested judgment of foreclosure was entered on January 13, 2016. Defendants' motion to vacate the final judgment and dismiss the foreclosure action was filed on February 9, 2016, and was denied on March 4, 2016, by a third Chancery Division judge. Defendants argue: [POINT I] NATIONSTAR COULD NOT RIGHTFULLY PROSECUTE THIS FORECLOSURE ACTION IN THE NAME OF [ITS] PREDECESSOR IN INTEREST BANK OF AMERICA[.] [POINT II] NATIONSTAR COULD NOT PROSECUTE [ITS] FORECLOSURE ACTION IN THE NAME OF [ITS] [PREDECESSOR] BANK OF AMERICA BECAUSE[,] THOUGH BANK OF AMERICA WAS THE PREDECESSOR OF 3 The date in the order is February 28, 2014, but defendants acknowledge the correct date as February 28, 2015. 4 A remedial NOI was sent to defendants by Nationstar in October 2014. 3 A-2488-15T3 THE MORTGAGE[,] BANK OF AMERICA AND NATIONSTAR DID NOT SHARE A COMMON FORECLOSURE ACTION; THE MAIN THRUST OF THE FORECLOSURE ACTION IS NOT [SHARED] ALIKE BY THE TWO ENTITIES[.] [POINT III] THOUGH BANK OF AMERICA APPEARED AT THE COURT[- ]ORDERED MEDIATION SESSIONS[,] BANK OF AMERICA HAD NO AUTHORITY TO DO SO[,] CONSEQUENTLY DEFENDANTS/APPELLANTS WERE DEPRIVED OF THEIR NONWAIVABLE RIGHTS [TO] MEDIATION[.] [POINT IV] THE CASE LAW OF LAKS[5] SUPPORTS DEFENDANTS/APPELLANTS REQUEST FOR RELIEF[.] [POINT V] COURT RULE 4:64-8 STATES A REINSTATEMENT OF A FORECLOSURE MATTER MAY BE PERMITTED ONLY ON MOTION FOR GOOD CAUSE SHOWN ABSENT . . . EXCEPTIONAL CIRCUMSTANCES BEING SHOWN AND WITH THE HEREIN MATTER HAVING NOT [BEEN] REINSTATED AND THEREBY REMAINING DISMISSED[,] IT WAS IMPROPER FOR THE TRIAL COURT TO ALLOW PLAINTIFF A SECOND OPPORTUNITY TO REINSTATE[.] [POINT VI] THE HEREIN MATTER CONTAINS A FORECLOSURE FILING ISSUE THAT[,] ACCORDING TO THE NOTICE TO THE BAR DATED APRIL 23, 2014[,] QUALIFIES AS A DEFICIENCY THAT WOULD WARRANT THE MOTION APPLICATION TO BE RETURNED TO THE FILER FOR CORRECTION BEFORE BEING ACCEPTED FOR FILING THE NOTICE WAS ISSUED IN ORDER TO SECURE THE JUDICIARY'S COMMITMENT TO ENSURE DUE PROCESS IN FORECLOSURES[.] 5 Bank of New York v. Laks, 422 N.J. Super. 201 (App. Div. 2011). 4 A-2488-15T3 [POINT VII] DEFENDANTS/APPELLANTS ARE ENTITLED TO RELIEF BECAUSE THE NAMING OF BANK OF AMERICA ON THE WRIT OF EXECUTION WAS NOT A MERE SCRIVENER'S ERROR[.] These arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We add the following remarks. Where, as here, "the court has entered a default judgment pursuant to Rule 4:43-2, the party seeking to vacate the judgment must meet the standard of Rule 4:50-1." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). We review the court's decision whether to vacate or set aside the judgment under an abuse of discretion standard. Guillaume, 209 N.J. at 467. "The trial court's determination under [Rule 4:50-1] warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion," namely where the "decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Guillaume, 209 N.J. at 467 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). Although defendants did not specify which sections of the Rule they were asserting, none of them provide grounds for defendants' prayers for relief. Under Rule 4:50-1(a), a defendant must show excusable neglect and a meritorious defense. Guillaume, 5 A-2488-15T3 209 N.J. at 468. Relief under Rule 4:50-1(f) is reserved for "exceptional situations" where "truly exceptional circumstances are present." Morristown Hous. Auth. v. Little, 135 N.J. 274, 286 (1994) (quoting Bauman v. Marinaro, 95 N.J. 380, 395 (1984)). Defendants have failed to satisfy either criteria, or any other section of the rule. Defendants seemingly argued fraud, R. 4:50- 1(c), and that the judgment was void, R. 4:50-1(d), to the third Chancery Division judge; there is no merit to those contentions. A motion to vacate based on fraud, pursuant to Rule 4:50-1(c), requires movant to "allege with specificity the representation, its falsity, materiality, the speaker's knowledge or ignorance, and reliance." Palko v. Palko, 73 N.J. 395, 401 (1977) (Schreiber, J., dissenting); see also State v. Hill, 267 N.J. Super. 223, 226 (App. Div. 1993), rev'd on other grounds, 136 N.J. 292 (1994). Again, defendants made no specific allegations. And, even if defendants were correct that plaintiff lacked standing to bring the complaint, in the "post-judgment context, lack of standing would not constitute a meritorious defense to the foreclosure complaint." Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012). Standing is therefore "not a jurisdictional issue in our State court system and . . . a foreclosure judgment obtained by a party that lacked standing is not 'void' within the meaning of Rule 4:50-1(d)." Ibid. 6 A-2488-15T3 "The only material issues in a foreclosure proceeding are the validity of the mortgage, the amount of the indebtedness, and the right of the mortgagee to resort to the mortgaged premises." Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd o.b., 273 N.J. Super. 542 (App. Div. 1994). "[W]e [have] held that either possession of the note or an assignment of the mortgage that predated the original complaint confer[s] standing." Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank Tr. Co. Ams. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011)). There is no dispute that BOA possessed the note at the time it filed the foreclosure complaint. The assignment of mortgage to Nationstar was made and recorded prior to the administrative dismissal. The complaint was reinstated, and Nationstar was substituted as plaintiff in the original complaint. We agree with the second Chancery Division judge that no harm befell defendants by allowing the substitution because "[t]here was a recognition all along of their obligation. Their obligation to repay the money is not altered by who the current note holder is in the litigation"; and we agree with the third Chancery Division judge who, in denying defendants' motion to vacate, ruled BOA was permitted to continue its original action, and that Nationstar, as assignee, was properly substituted as plaintiff prior to the 7 A-2488-15T3 entry of final judgment. The substitution simply continued the foreclosure action involving the same property and same documents, save for the assignment of mortgage. The second Chancery Division judge also found it appropriate to allow plaintiff to continue the litigation notwithstanding its failure to comply with the July 25, 2014 order, finding defendants suffered no harm by plaintiff's failure to file a timely NOI pursuant to that order, and that defendants participated in mediation and in "ongoing discussions" in an attempt to resolve the foreclosure.6 We also note no agreement was reached during mediation because defendants' "debt to income ratio [was] too high" to qualify for a modification. It is also undisputed that defendants defaulted in payments on the note and never answered the complaint; and that, notwithstanding receipt of two NOIs, and defendants' argument that they were confused because BOA, not Nationstar, was identified as the plaintiff until the latter stages of litigation, defendants never attempted to contact either entity to avail themselves of any right set forth in either NOI, including by curing the default. The foreclosure judgment was properly entered and defendants' motion to vacate that judgment was properly denied. Affirmed. 6 Defendants did not appeal the second Chancery Division judge's order of September 4, 2015. 8 A-2488-15T3 9 A-2488-15T3
COLLEEN BORUCH v. PHUONG VO
Date: December 22, 2017
Docket Number: a0615-15 PER CURIAM Defendant Phuong Vo t/a Gorgeous Nails (collectively "Vo") appeals from orders entered on February 24, 2015, dismissing the third-party complaint against Franklin Mutual Insurance Company (FMI); a final judgment entered by the Law Division on August 12, 2015, following a jury trial; and an order dated September 18, 2015, denying a motion for a new trial. Plaintiffs Colleen and Robert Boruch cross-appeal from the final judgment. We affirm the February 24, 2015, and September 18, 2015 orders, and we affirm 3 A-0615-15T2 the final judgment except we remand to the trial court to mold the judgment and the verdict to reflect its entry against Vo trading as Gorgeous Nails. The following facts are taken from the record. Plaintiff Colleen Boruch alleged she was cut and injured by defendant Thuong Van Nguyen during a pedicure at the Gorgeous Nails salon on May 5, 2010. Nguyen was employed by Vo. Boruch claimed Nguyen used a metal tool that felt like a razor to cut a corn from her foot, despite her instructions to Nguyen there was to be no cutting. Boruch alleged she was injured and subsequently suffered from an infection as a result of Nguyen's negligence. Thereafter, Boruch and her husband, plaintiff Robert Boruch, filed a complaint in the Law Division naming, among others, Vo, Nguyen, and Hoang as defendants. FMI insured Vo. Vo filed an answer and a third-party complaint for insurance coverage against FMI. FMI disclaimed coverage on the ground that Boruch's injuries were caused by conduct excluded from coverage, namely, the "[k]nowing violation of penal law," the "removal or attempted removal of growths, moles, or warts," and "bodily injuries arising out of . . . piercing of any skin or body part." FMI moved for summary judgment. The motion judge denied the motion, finding that there were genuine issues of material fact 4 A-0615-15T2 as to whether Boruch's injuries were the result of the removal of a growth. Indeed, Nguyen had denied the incident ever occurred, and testified at deposition that he did not remove a corn from plaintiff's foot. He also denied he ever used a razor blade or a similar tool to cut anyone while he was employed at the salon. With no involvement by FMI, plaintiffs and defendants Vo, Hoai Hoang (Vo's wife), and Nguyen reached a settlement for $775,000. A second judge conducted a "fairness hearing" pursuant to Griggs v. Bertram, 88 N.J. 347 (1982), and found the settlement was unreasonable and unenforceable as to FMI. FMI moved to dismiss the third-party complaint based on the court's ruling. A third motion judge denied the motion. Thereafter, plaintiffs and Vo, Hoang, and Nguyen agreed to dismiss plaintiff's complaint without prejudice. Vo then moved for a declaratory judgment, seeking to compel FMI to honor the terms of its policy. FMI again moved for summary judgment. The third motion judge denied Vo's motion for a declaratory judgment, but reconsidered her earlier decision denying FMI's motion for summary judgment, and this time granted it and dismissed the third-party complaint. The motion judge found the Griggs hearing ended the case as to FMI. As a result, plaintiffs moved to reinstate the complaint against defendants. Plaintiffs' motion was granted and a jury 5 A-0615-15T2 trial ensued, which resulted in a verdict for plaintiffs in the amount of $100,000, finding only Gorgeous Nails liable. The trial judge entered the judgment against Gorgeous Nails, because the jury did not find Vo, Hoang, or Nguyen individually liable. Plaintiffs and Vo each filed motions to amend the judgment, or in the alternative for a new trial. Both motions were denied on September 18, 2015. Vo's appeals and plaintiffs' cross-appeals followed. In appeal A-0615-15, Vo challenges the granting of summary judgment to FMI. In appeal A-0651-15, plaintiffs cross-appeal, arguing the judgment should have been molded to be against Vo as the sole proprietor of Gorgeous Nails. Our review of an order granting summary judgment is de novo. Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). "[W]e review the trial court's grant of summary judgment . . . under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). The court considers all of the evidence submitted "in the light most favorable to the non-moving party," and determines if the moving party is entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 6 A-0615-15T2 The court may not weigh the evidence and determine the truth of the matter. Ibid. If the evidence presented "show[s] that there is no real material issue, then summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987) (citing Judson v. Peoples Bank and Tr. Co. of Westfield, 17 N.J. 67, 75 (1954)). "[C]onclusory and self- serving assertions by one of the parties are insufficient to overcome [summary judgment]." Puder v. Buechel, 183 N.J. 428, 440-41 (2005). Vo argues the trial court erred in granting FMI summary judgment because its policy covered the claims asserted by plaintiffs. Vo argues the FMI policy did not exclude accidental coverage and the policy should be "construed liberally to the end that coverage is afforded to the full extent that any fair interpretation will allow." Vo asserts any ambiguity in the policy should be construed in the insured's favor. He argues the denial of summary judgment by the first motion judge demonstrates why the motion judge who granted summary judgment erred. Vo also claims the judge who granted summary judgment erred in concluding coverage was forfeited because the judge who held the Griggs hearing concluded the settlement was unreasonable. Vo contends the motion judge erred in finding no coverage because he did not find that the parties acted in bad faith in settling the case. 7 A-0615-15T2 The duty of an insurer to defend is determined by a side-by- side comparison of the policy and the complaint, and is triggered when the comparison demonstrates that if the complaint's allegations were sustained, an insurer would be required to pay the judgment. Sears Roebuck & Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 340 N.J. Super. 223, 241-42 (App. Div. 2001); see also Danek v. Hommer, 28 N.J. Super. 68, 77 (App. Div. 1953). Facts developed in discovery may trigger the duty to defend or establish that there is no such duty under the policy in question. Polarome Int'l, Inc. v. Greenwich Ins. Co., 404 N.J. Super. 241, 274 (App. Div. 2008). "It is the nature of the claim for damages . . . [that] triggers the obligation to defend." L.C.S., Inc. v. Lexington Ins. Co., 371 N.J. Super. 482, 490 (App. Div. 2004). The insurer remains obligated to defend even if the claims are meritless, fraudulent, or "poorly developed and almost sure to fail." Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 174 (1992). However, that obligation does not extend to "claims which would be beyond the covenant to pay if the claimant prevailed." Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 389 (1970); see also Danek, 28 N.J. Super. at 77 (drawing a distinction between groundless actions and ones that, "even if successful, would not be within the policy coverage"). Neither the duty to defend nor the duty 8 A-0615-15T2 to indemnify "exists except with respect to occurrences for which the policy provides coverage." Hartford Accident & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 22 (1984). As we noted, the first motion judge denied summary judgment to FMI concluding that while the FMI policy clearly excluded removal of a growth, a material dispute of fact existed regarding whether a growth had been removed from Boruch's foot because Nguyen denied doing so. However, coverage is measured by plaintiffs' allegations, not defendants' denials. FMI argues plaintiff's claim falls within the exclusions denying coverage for the removal of growths, the piercing of the skin, and the knowing violation of penal laws, namely N.J.S.A. 45:5B-13(e) and N.J.A.C. 13:28-2.15(b). N.J.S.A. 45:5B-13(e) states "it shall be unlawful for a licensed shop or shop owner to . . . [m]aintain a shop in a manner which is unsafe or unsanitary[.]" N.J.A.C. 13:28-2.15(b) provides a practitioner within a shop shall not "[u]se or offer to use a credo blade, skin scraper, lancet, or other comparable implement." Boruch testified at deposition that she was a cosmetology school graduate and had been employed as a cosmetologist for twelve years. She testified she "knew the rules and regulations . . . as far as cutting." She then described the incident, stating that "it burned like hell, it felt like a razor," "[o]n [Nguyen's] lap, 9 A-0615-15T2 I saw something metal," and "[h]e said I cut your corn off." Boruch's answers to interrogatories stated "[t]he pedicurist improperly performed a surgical procedure utilizing a razor device/credo blade to cut a corn off my foot." FMI's insurance policy with Vo extends professional liability coverage, subject to the following exclusion: Liability Not Insured – We do not provide insurance for the following: Acts of unlicensed practitioners required to be licensed. Face lifting; plastic surgery; removal or attempted removal of growths, moles, or warts or hair from any such; removal of hair by electrolysis or diathermy or from eyelids or nostrils; hair implanting, transplanting or attempts at such. We conclude summary judgment should have been granted on the basis of the policy exclusions by the second motion judge. Although the complaint merely set forth claims of negligence, plaintiff's answers to interrogatories and her deposition testimony made clear that she was asserting claims based on the injury sustained when the pedicurist used a razor or credo blade and cut the corn from her foot. The policy provided no coverage for such a claim. Based on the claims asserted by plaintiffs, FMI 10 A-0615-15T2 had no obligation to defend Vo. Moreover, the plain language of the policy was not ambiguous. Because plaintiffs' claims could not result in liability unless the jury found that defendants removed or attempted to remove a corn, or knowingly used a credo blade or comparable implement in violation of N.J.A.C. 13:28- 2.15(b), FMI's policy was inapplicable to the dispute. Therefore, FMI had no duty to defend or indemnify Vo with regard to the claims asserted in this action. We need not reach the "piercing" exclusion or the alleged violation of N.J.S.A. 45:5B-13(e). Because our review of summary judgment is de novo, we conclude summary judgment in FMI's favor was appropriate based upon the policy exclusions. Thus, on that ground the entry of summary judgment for FMI in the February 24, 2015 order was proper, even though the court expressed other grounds for its order. We review the propriety of summary judgment de novo, and review the order, not the opinion. Templo Fuente 224 N.J. at 199; Credit Bureau Collection Agency v. Lind, 71 N.J. Super. 326, 328 (App. Div. 1961). Vo also appeals the $100,000 jury verdict. The jury found Gorgeous Nails negligently caused plaintiff's injury. The jury assessed no liability to Vo, Hoang, or Nguyen. Therefore, Vo argues the jury verdict was inconsistent and should be vacated. In their cross-appeal, plaintiffs argue the judgment should have 11 A-0615-15T2 been molded to be against Vo as the sole proprietor of Gorgeous Nails. A jury verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). A jury's evaluation of a disputed factual issue must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div. 2004). A jury verdict will not be set aside "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law." Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969) (quoting R. 4:49-1(a)). A "miscarriage of justice" has been described as a "pervading sense of 'wrongness' needed to justify [an] appellate or trial judge undoing of a jury verdict . . . '[which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, [or] a clearly unjust result[.]'" Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996) (alteration in original) (quoting Baxter, 74 N.J. at 599). Here, the jury received the following instruction regarding negligence: You must understand that a business enterprise, such as Gorgeous Nails, acts only through people who are its officers, 12 A-0615-15T2 employees, or agents. To prove her claim, . . . Boruch must establish, by the preponderance of the evidence, that the negligence of one or more defendants was a proximate cause of the injury which she suffered. The jury returned a verdict in favor of plaintiffs. The jury answered the first interrogatory in the affirmative finding plaintiffs had proved that "any or all of the defendants were negligent on May 5, 2010." In response to the second interrogatory, the jury found plaintiffs had proved that "the negligence of the defendant(s) was the proximate cause of [Boruch's] injuries." The jury answered interrogatory three of the verdict sheet as follows: If you have answered both Questions 1 and 2 "Yes", state which of the defendants were negligent and which defendants' conduct constituted a proximate cause of harm to Mrs. Boruch by stating "Yes" as to each such defendant ["Yes" must appear at least once]: Phuong Vo: NO Hoai T. Hoang: NO Thuong Van Nguyen: NO Gorgeous Nails: YES Vo argues the trial court should not have instructed the jury to determine its liability where all three individual defendants were not found liable. Vo asserts "it is logically impossible for 13 A-0615-15T2 the proprietorship to have been liable independent of the liability of its owner or its agents." Under the doctrine of invited error, trial errors which were induced, encouraged, acquiesced in, or consented to by a defendant generally are not a basis for reversal on appeal. State v. A.R., 213 N.J. 542, 561 (2013). At the outset, we note the parties agreed to place Gorgeous Nails on the verdict sheet. The jury was presented with a claim of negligence on the part of the parties named in the verdict sheet. Although Gorgeous Nails should not have been named separately from Vo, Vo's argument the verdict sheet was incorrect is barred by invited error. The proper party was Vo, trading as Gorgeous Nails. Therefore, the jury's finding of liability on the part of Gorgeous Nails was essentially a finding against Vo trading as Gorgeous Nails. Although the jury did not specifically find negligence on the part of the three individual defendants, there is no doubt the jury determined the proprietorship was negligent. Since Vo is the proprietor, the verdict should be entered against him personally. Lastly, there is no dispute Vo traded as Gorgeous Nails. We have stated "a sole proprietor is neither an employer nor an employee, but works for his or her own benefit[.]" Aetna Ins. Co. v. Trans Am. Trucking Serv., Inc., 261 N.J. Super. 316, 320 n.5 (App. Div. 1993). Therefore, with Vo as the sole proprietor 14 A-0615-15T2 operating a business under a "trading-as" name, the jury verdict should have been molded to reflect the proper defendant. For these reasons, we affirm the final judgment, except we remand to the trial court to mold the judgment and the verdict as against Phuong Vo trading as Gorgeous Nails. Affirmed in part, remanded in part. We do not retain jurisdiction. 15 A-0615-15T2
Date: December 22, 2017
Docket Number: a0615-15 PER CURIAM Defendant Phuong Vo t/a Gorgeous Nails (collectively "Vo") appeals from orders entered on February 24, 2015, dismissing the third-party complaint against Franklin Mutual Insurance Company (FMI); a final judgment entered by the Law Division on August 12, 2015, following a jury trial; and an order dated September 18, 2015, denying a motion for a new trial. Plaintiffs Colleen and Robert Boruch cross-appeal from the final judgment. We affirm the February 24, 2015, and September 18, 2015 orders, and we affirm 3 A-0615-15T2 the final judgment except we remand to the trial court to mold the judgment and the verdict to reflect its entry against Vo trading as Gorgeous Nails. The following facts are taken from the record. Plaintiff Colleen Boruch alleged she was cut and injured by defendant Thuong Van Nguyen during a pedicure at the Gorgeous Nails salon on May 5, 2010. Nguyen was employed by Vo. Boruch claimed Nguyen used a metal tool that felt like a razor to cut a corn from her foot, despite her instructions to Nguyen there was to be no cutting. Boruch alleged she was injured and subsequently suffered from an infection as a result of Nguyen's negligence. Thereafter, Boruch and her husband, plaintiff Robert Boruch, filed a complaint in the Law Division naming, among others, Vo, Nguyen, and Hoang as defendants. FMI insured Vo. Vo filed an answer and a third-party complaint for insurance coverage against FMI. FMI disclaimed coverage on the ground that Boruch's injuries were caused by conduct excluded from coverage, namely, the "[k]nowing violation of penal law," the "removal or attempted removal of growths, moles, or warts," and "bodily injuries arising out of . . . piercing of any skin or body part." FMI moved for summary judgment. The motion judge denied the motion, finding that there were genuine issues of material fact 4 A-0615-15T2 as to whether Boruch's injuries were the result of the removal of a growth. Indeed, Nguyen had denied the incident ever occurred, and testified at deposition that he did not remove a corn from plaintiff's foot. He also denied he ever used a razor blade or a similar tool to cut anyone while he was employed at the salon. With no involvement by FMI, plaintiffs and defendants Vo, Hoai Hoang (Vo's wife), and Nguyen reached a settlement for $775,000. A second judge conducted a "fairness hearing" pursuant to Griggs v. Bertram, 88 N.J. 347 (1982), and found the settlement was unreasonable and unenforceable as to FMI. FMI moved to dismiss the third-party complaint based on the court's ruling. A third motion judge denied the motion. Thereafter, plaintiffs and Vo, Hoang, and Nguyen agreed to dismiss plaintiff's complaint without prejudice. Vo then moved for a declaratory judgment, seeking to compel FMI to honor the terms of its policy. FMI again moved for summary judgment. The third motion judge denied Vo's motion for a declaratory judgment, but reconsidered her earlier decision denying FMI's motion for summary judgment, and this time granted it and dismissed the third-party complaint. The motion judge found the Griggs hearing ended the case as to FMI. As a result, plaintiffs moved to reinstate the complaint against defendants. Plaintiffs' motion was granted and a jury 5 A-0615-15T2 trial ensued, which resulted in a verdict for plaintiffs in the amount of $100,000, finding only Gorgeous Nails liable. The trial judge entered the judgment against Gorgeous Nails, because the jury did not find Vo, Hoang, or Nguyen individually liable. Plaintiffs and Vo each filed motions to amend the judgment, or in the alternative for a new trial. Both motions were denied on September 18, 2015. Vo's appeals and plaintiffs' cross-appeals followed. In appeal A-0615-15, Vo challenges the granting of summary judgment to FMI. In appeal A-0651-15, plaintiffs cross-appeal, arguing the judgment should have been molded to be against Vo as the sole proprietor of Gorgeous Nails. Our review of an order granting summary judgment is de novo. Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). "[W]e review the trial court's grant of summary judgment . . . under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). The court considers all of the evidence submitted "in the light most favorable to the non-moving party," and determines if the moving party is entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 6 A-0615-15T2 The court may not weigh the evidence and determine the truth of the matter. Ibid. If the evidence presented "show[s] that there is no real material issue, then summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987) (citing Judson v. Peoples Bank and Tr. Co. of Westfield, 17 N.J. 67, 75 (1954)). "[C]onclusory and self- serving assertions by one of the parties are insufficient to overcome [summary judgment]." Puder v. Buechel, 183 N.J. 428, 440-41 (2005). Vo argues the trial court erred in granting FMI summary judgment because its policy covered the claims asserted by plaintiffs. Vo argues the FMI policy did not exclude accidental coverage and the policy should be "construed liberally to the end that coverage is afforded to the full extent that any fair interpretation will allow." Vo asserts any ambiguity in the policy should be construed in the insured's favor. He argues the denial of summary judgment by the first motion judge demonstrates why the motion judge who granted summary judgment erred. Vo also claims the judge who granted summary judgment erred in concluding coverage was forfeited because the judge who held the Griggs hearing concluded the settlement was unreasonable. Vo contends the motion judge erred in finding no coverage because he did not find that the parties acted in bad faith in settling the case. 7 A-0615-15T2 The duty of an insurer to defend is determined by a side-by- side comparison of the policy and the complaint, and is triggered when the comparison demonstrates that if the complaint's allegations were sustained, an insurer would be required to pay the judgment. Sears Roebuck & Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 340 N.J. Super. 223, 241-42 (App. Div. 2001); see also Danek v. Hommer, 28 N.J. Super. 68, 77 (App. Div. 1953). Facts developed in discovery may trigger the duty to defend or establish that there is no such duty under the policy in question. Polarome Int'l, Inc. v. Greenwich Ins. Co., 404 N.J. Super. 241, 274 (App. Div. 2008). "It is the nature of the claim for damages . . . [that] triggers the obligation to defend." L.C.S., Inc. v. Lexington Ins. Co., 371 N.J. Super. 482, 490 (App. Div. 2004). The insurer remains obligated to defend even if the claims are meritless, fraudulent, or "poorly developed and almost sure to fail." Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 174 (1992). However, that obligation does not extend to "claims which would be beyond the covenant to pay if the claimant prevailed." Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 389 (1970); see also Danek, 28 N.J. Super. at 77 (drawing a distinction between groundless actions and ones that, "even if successful, would not be within the policy coverage"). Neither the duty to defend nor the duty 8 A-0615-15T2 to indemnify "exists except with respect to occurrences for which the policy provides coverage." Hartford Accident & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 22 (1984). As we noted, the first motion judge denied summary judgment to FMI concluding that while the FMI policy clearly excluded removal of a growth, a material dispute of fact existed regarding whether a growth had been removed from Boruch's foot because Nguyen denied doing so. However, coverage is measured by plaintiffs' allegations, not defendants' denials. FMI argues plaintiff's claim falls within the exclusions denying coverage for the removal of growths, the piercing of the skin, and the knowing violation of penal laws, namely N.J.S.A. 45:5B-13(e) and N.J.A.C. 13:28-2.15(b). N.J.S.A. 45:5B-13(e) states "it shall be unlawful for a licensed shop or shop owner to . . . [m]aintain a shop in a manner which is unsafe or unsanitary[.]" N.J.A.C. 13:28-2.15(b) provides a practitioner within a shop shall not "[u]se or offer to use a credo blade, skin scraper, lancet, or other comparable implement." Boruch testified at deposition that she was a cosmetology school graduate and had been employed as a cosmetologist for twelve years. She testified she "knew the rules and regulations . . . as far as cutting." She then described the incident, stating that "it burned like hell, it felt like a razor," "[o]n [Nguyen's] lap, 9 A-0615-15T2 I saw something metal," and "[h]e said I cut your corn off." Boruch's answers to interrogatories stated "[t]he pedicurist improperly performed a surgical procedure utilizing a razor device/credo blade to cut a corn off my foot." FMI's insurance policy with Vo extends professional liability coverage, subject to the following exclusion: Liability Not Insured – We do not provide insurance for the following: Acts of unlicensed practitioners required to be licensed. Face lifting; plastic surgery; removal or attempted removal of growths, moles, or warts or hair from any such; removal of hair by electrolysis or diathermy or from eyelids or nostrils; hair implanting, transplanting or attempts at such. We conclude summary judgment should have been granted on the basis of the policy exclusions by the second motion judge. Although the complaint merely set forth claims of negligence, plaintiff's answers to interrogatories and her deposition testimony made clear that she was asserting claims based on the injury sustained when the pedicurist used a razor or credo blade and cut the corn from her foot. The policy provided no coverage for such a claim. Based on the claims asserted by plaintiffs, FMI 10 A-0615-15T2 had no obligation to defend Vo. Moreover, the plain language of the policy was not ambiguous. Because plaintiffs' claims could not result in liability unless the jury found that defendants removed or attempted to remove a corn, or knowingly used a credo blade or comparable implement in violation of N.J.A.C. 13:28- 2.15(b), FMI's policy was inapplicable to the dispute. Therefore, FMI had no duty to defend or indemnify Vo with regard to the claims asserted in this action. We need not reach the "piercing" exclusion or the alleged violation of N.J.S.A. 45:5B-13(e). Because our review of summary judgment is de novo, we conclude summary judgment in FMI's favor was appropriate based upon the policy exclusions. Thus, on that ground the entry of summary judgment for FMI in the February 24, 2015 order was proper, even though the court expressed other grounds for its order. We review the propriety of summary judgment de novo, and review the order, not the opinion. Templo Fuente 224 N.J. at 199; Credit Bureau Collection Agency v. Lind, 71 N.J. Super. 326, 328 (App. Div. 1961). Vo also appeals the $100,000 jury verdict. The jury found Gorgeous Nails negligently caused plaintiff's injury. The jury assessed no liability to Vo, Hoang, or Nguyen. Therefore, Vo argues the jury verdict was inconsistent and should be vacated. In their cross-appeal, plaintiffs argue the judgment should have 11 A-0615-15T2 been molded to be against Vo as the sole proprietor of Gorgeous Nails. A jury verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). A jury's evaluation of a disputed factual issue must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div. 2004). A jury verdict will not be set aside "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law." Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969) (quoting R. 4:49-1(a)). A "miscarriage of justice" has been described as a "pervading sense of 'wrongness' needed to justify [an] appellate or trial judge undoing of a jury verdict . . . '[which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, [or] a clearly unjust result[.]'" Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996) (alteration in original) (quoting Baxter, 74 N.J. at 599). Here, the jury received the following instruction regarding negligence: You must understand that a business enterprise, such as Gorgeous Nails, acts only through people who are its officers, 12 A-0615-15T2 employees, or agents. To prove her claim, . . . Boruch must establish, by the preponderance of the evidence, that the negligence of one or more defendants was a proximate cause of the injury which she suffered. The jury returned a verdict in favor of plaintiffs. The jury answered the first interrogatory in the affirmative finding plaintiffs had proved that "any or all of the defendants were negligent on May 5, 2010." In response to the second interrogatory, the jury found plaintiffs had proved that "the negligence of the defendant(s) was the proximate cause of [Boruch's] injuries." The jury answered interrogatory three of the verdict sheet as follows: If you have answered both Questions 1 and 2 "Yes", state which of the defendants were negligent and which defendants' conduct constituted a proximate cause of harm to Mrs. Boruch by stating "Yes" as to each such defendant ["Yes" must appear at least once]: Phuong Vo: NO Hoai T. Hoang: NO Thuong Van Nguyen: NO Gorgeous Nails: YES Vo argues the trial court should not have instructed the jury to determine its liability where all three individual defendants were not found liable. Vo asserts "it is logically impossible for 13 A-0615-15T2 the proprietorship to have been liable independent of the liability of its owner or its agents." Under the doctrine of invited error, trial errors which were induced, encouraged, acquiesced in, or consented to by a defendant generally are not a basis for reversal on appeal. State v. A.R., 213 N.J. 542, 561 (2013). At the outset, we note the parties agreed to place Gorgeous Nails on the verdict sheet. The jury was presented with a claim of negligence on the part of the parties named in the verdict sheet. Although Gorgeous Nails should not have been named separately from Vo, Vo's argument the verdict sheet was incorrect is barred by invited error. The proper party was Vo, trading as Gorgeous Nails. Therefore, the jury's finding of liability on the part of Gorgeous Nails was essentially a finding against Vo trading as Gorgeous Nails. Although the jury did not specifically find negligence on the part of the three individual defendants, there is no doubt the jury determined the proprietorship was negligent. Since Vo is the proprietor, the verdict should be entered against him personally. Lastly, there is no dispute Vo traded as Gorgeous Nails. We have stated "a sole proprietor is neither an employer nor an employee, but works for his or her own benefit[.]" Aetna Ins. Co. v. Trans Am. Trucking Serv., Inc., 261 N.J. Super. 316, 320 n.5 (App. Div. 1993). Therefore, with Vo as the sole proprietor 14 A-0615-15T2 operating a business under a "trading-as" name, the jury verdict should have been molded to reflect the proper defendant. For these reasons, we affirm the final judgment, except we remand to the trial court to mold the judgment and the verdict as against Phuong Vo trading as Gorgeous Nails. Affirmed in part, remanded in part. We do not retain jurisdiction. 15 A-0615-15T2
FRANKLIN JACK BURR, II v. BEHAVIORAL INTERVENTIONS INC.
Date: December 22, 2017
Docket Number: a0730-15
Date: December 22, 2017
Docket Number: a0730-15
STATE OF NEW JERSEY v. PHILIPPE BARTHELUS
Date: December 22, 2017
Docket Number: a2954-15 PER CURIAM In these two consolidated appeals, the parties challenge different aspects of the Law Division's March 9, 2016 order, which addressed defendant Philippe Barthelus's petition for post- conviction relief (PCR) without an evidentiary hearing. Defendant contends the judge1 incorrectly denied his motion for a new trial based on alleged newly discovered evidence. In its appeal, the State asserts the judge erred by "reversing" defendant's conviction for attempted murder because he failed to give the jury a limiting instruction concerning the testimony of a police detective. We affirm in part, reverse in part, and remand for further proceedings. 1 The same judge who presided over defendant's trial also reviewed defendant's PCR petition. 2 A-2954-15T4 I. We incorporate herein the procedural history and facts set forth in our prior opinion on defendant's direct appeal from his conviction on the underlying offenses. State v. Barthelus, No. A-5012-10 (App. Div. Oct. 11, 2013) (slip op. at 1-11), certif. denied, 217 N.J. 588 (2014). The following facts are pertinent to the issues raised in this appeal. Defendant and his co-defendant Wedpens Dorsainvil2 used Jamillah Payne's apartment as a "stash house" for the drugs they were selling on the street and in a nearby park. Id. at 3. Dorsainvil suspected that Payne had recently begun associating with a rival gang and was permitting those gang members, including Khalid Walker, to use the apartment. Id. at 3-5. On the day of Payne's murder, defendant and Dorsainvil went to Payne's apartment and encountered Payne, Walker, and a number of other individuals. Id. at 4-6. According to the State's proofs, Dorsainvil shot Payne once in the chest and defendant then pushed her out of a window. Id. at 5-8. Walker was in the bathroom, and stated that two men began shooting at him through 2 Dorsainvil was tried separately on the same charges involved in this case. Id. at 3 n.1. 3 A-2954-15T4 the bathroom door, and one bullet struck him in the leg.3 Id. at 5. One of the men put a gun to Walker's head, pulled the trigger, but the gun did not go off. Id. at 6. Walker then jumped out the bathroom window. Ibid. The jury convicted defendant of the murder of Payne, the attempted murder of Walker, and a number of other charges. Id. at 1-2. After the trial, the judge sentenced defendant to a sixty- year aggregate term on all the charges, which included forty-five years for Payne's murder, and a consecutive fifteen-year term for the attempted murder of Walker. Id. at 2. This sentence was subject to the 85% parole ineligibility provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, with mandatory periods of parole supervision upon release. Id. at 2-3. We affirmed defendant's conviction and sentence on direct appeal and, as noted above, the Supreme Court denied certification. Id. at 3. Following a separate trial, a jury convicted Dorsainvil of conspiracy to murder Payne, and aggravated assault in connection with the shooting of Walker, as a lesser-included offense of attempted murder. State v. Dorsainvil, 435 N.J. Super. 449, 452- 53 (App. Div. 2014). However, we reversed Dorsainvil's conviction 3 Walker identified defendant as one of the shooters after picking out his photograph from an array. However, the judge granted defendant's motion to suppress the identification under State v. Henderson, 208 N.J. 208 (2011). 4 A-2954-15T4 on appeal, and remanded the matter for further proceedings. Id. at 453-54. Prior to a retrial, Dorsainvil pled guilty to Payne's murder and the attempted murder of Walker. A. By this time, defendant had filed a PCR petition.4 Less than two weeks after Dorsainvil finalized his plea agreement, he gave defendant a written statement purporting to exculpate defendant from any involvement in Payne's murder and Walker's attempted murder. In the statement, Dorsainvil alleged he conspired with a man named John Zepherin, who was now deceased, to murder Payne. None of the witnesses who testified at defendant's trial identified Zepherin as one of the individuals present in the apartment at the time of the shootings. Nevertheless, Dorsainvil claimed Zepherin shot Payne. Dorsainvil also asserted he attempted to pull Payne back into the apartment after she went out of the window, but was unable to do so. Dorsainvil alleged he shot at Walker through the bathroom door, and shot him once in the leg after the door opened because Walker was trying to kick him. Dorsainvil stated that 4 Defendant raised a number of issues in his petition, but only the two discussed in this opinion are relevant to the present appeal. 5 A-2954-15T4 defendant fled the apartment as soon as the shooting started and, therefore, was not involved in either offense. Asserting that Dorsainvil's written statement constituted newly discovered evidence, defendant asked the judge to order a new trial. In rejecting this portion of defendant's PCR petition, the judge applied the three-prong test established by the Supreme Court in State v. Carter, 85 N.J. 300, 314 (1981), to evaluate Dorsainvil's statement. The judge found that defendant met the first two prongs of the test because the statement was material to the issue of defendant's involvement in the offenses, and the information was not available earlier because Dorsainvil did not waive his Fifth Amendment privilege against self-incrimination until after he entered his plea. See ibid. However, the judge ruled that the information contained in Dorsainvil's statement did not meet the third Carter prong because it would not have changed the jury's verdict due to the many inconsistencies between Dorsainvil's belated account, his and defendant's earlier admissions, and the testimony of the witnesses to the shootings at trial. See ibid. As the judge explained, Dorsainvil told an associate immediately after the incident, "I had to do it. I had to do it . . . I popped her." He also admitted that "they threw [Payne] out the window[,]" which was inconsistent with his new claim that Payne jumped out of the window 6 A-2954-15T4 on her own and he tried to pull her back inside. Dorsainvil's allegations were also inconsistent with the testimony of another witness, who identified defendant as the individual who pushed Payne out the window. The judge noted that defendant's own statements also conflicted with Dorsainvil's new assertions. Defendant originally claimed he was not even in the municipality on the day of the shootings; later asserted he was playing dice in the park when he heard the shots ring out; and then sent a letter to the judge stating that he was in the apartment, but ran when the shooting began. Based on the irreconcilable differences in defendant's and Dorsainvil's stories, coupled with the "inherently suspect" nature of Dorsainvil's "after-the-fact" exculpatory statement, the judge denied this portion of defendant's PCR petition. B. One of the themes defendant's attorney presented to the jury at trial was that the police improperly focused on defendant instead of investigating other suspects in the attempted murder of Walker. During her cross-examination of Detective Jorge Jimenez, the attorney attempted to advance this position by asking the detective a number of questions concerning his failure to pursue other leads. As noted above, Walker identified defendant as one of his assailants after participating in a photo array and, 7 A-2954-15T4 once that identification was made, the police had no need to look at other suspects. However, because the judge suppressed Walker's identification of defendant, the State could not present this information to the jury. As defense counsel continued this line of questioning, the State began to object, and noted that the attorney was opening the door to allow Detective Jimenez to disclose that he "was in possession of information that implicated [defendant] as the second shooter in that apartment[.]" During several side bar conferences on this subject, the judge cautioned defendant's attorney that if she continued to seek to demonstrate that the detective had no basis for limiting the investigation to defendant, the State would be permitted to ask the detective on redirect whether he had information that caused him to believe defendant was the second shooter. As the cross-examination proceeded, defense counsel identified a man, L.D.,5 as a potential suspect and, through her questions, attempted to demonstrate that Detective Jimenez failed to properly investigate him. On redirect, the judge permitted Detective Jimenez to testify that he did not have any information that led him to believe L.D. was the second shooter. The State 5 We use initials to refer to this individual in order to protect his privacy. 8 A-2954-15T4 then asked the detective, "At that point were you in possession of information that [defendant] was, in fact, the second shooter in that apartment?" After the judge overruled defendant's objection, the detective replied, "Yes[,]" and the State asked no further questions about the subject. Defense counsel did not request any limiting instruction concerning the jury's consideration of the detective's response and the judge did not issue a sua sponte charge on this testimony. In his PCR petition, defendant argued that his attorney provided him with ineffective assistance by continuing to pursue this line of questioning in the face of the judge's warning, and by opening the door to the State's introduction of improper hearsay evidence concerning the information the detective possessed. However, the judge declined to consider defendant's ineffective assistance of counsel argument. Instead, on his own motion, the judge determined that he committed prejudicial error during the trial by not instructing the jury that the detective's statement that he possessed certain information "could not be used for the truth of the matter asserted; but solely for his state of mind of why he eliminated certain suspects versus others during the course of his investigation." In his direct appeal of his conviction for Walker's attempted murder, defendant did not challenge the failure of the judge to provide such an instruction. 9 A-2954-15T4 Nevertheless, the judge concluded that "[t]he omission of a limiting jury instruction warrants reversal of [defendant's] conviction for the attempted murder of Khalid Walker." These consolidated appeals followed. II. In his appeal, defendant argues that "the portion of the [trial] court's decision denying" his motion for a new trial based upon the alleged newly discovered evidence contained in Dorsainvil's written statement "must be reversed." The State asserts that "the trial court erred in granting a portion of defendant's petition for [PCR] and vacating defendant's conviction for attempted murder." Before addressing the parties' specific arguments, we briefly review the general principles that guide our task. The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance, material issues of disputed facts lie outside the record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision to deny a PCR 10 A-2954-15T4 petition without an evidentiary hearing for abuse of discretion. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, the defendant must satisfy two prongs. First, he must demonstrate that counsel made errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." An attorney's representation is deficient when it "[falls] below an objective standard of reasonableness." Second, a defendant "must show that the deficient performance prejudiced the defense." A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a "fair trial." The prejudice standard is met if there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." A "reasonable probability" simply means a "probability sufficient to undermine confidence in the outcome" of the proceeding. [State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)).] "[I]n order to establish a prima facie claim, [the defendant] must do more that make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170. The defendant must establish, 11 A-2954-15T4 by a preponderance of the credible evidence, that he is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013). A. We turn first to defendant's appeal from the judge's denial of his motion for a new trial based on the alleged newly discovered evidence Dorsainvil provided in his written statement. Defendant asserts he met all three prongs of the Carter test because Dorsainvil's claim that defendant was not involved in either of the shootings "had the capacity to change the verdict[.]" We disagree. To secure a new trial based upon newly discovered evidence, a "defendant must show that the evidence is 1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting Carter, 85 N.J. at 314). All three prongs of the test must be established. Ibid. "Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new 12 A-2954-15T4 trial." Id. at 187-88. The "belated introduction of evidence" may detract from its credibility. Id. at 192. Based on our review of the record, we conclude that the judge did not abuse his discretion by denying defendant's request for a new trial based on Dorsainvil's written statement. Assuming that the first two prongs of the Carter test were met, the judge correctly determined that the statement would not have changed the jury's verdict because Dorsainvil's new account completely contradicted his own admission that he shot Payne and "they" then threw her out of the window. The statement was also inconsistent with the accounts of other witnesses to the shooting. These deficiencies, coupled with the fact that Dorsainvil did not indicate his willingness to exculpate defendant until after he pled guilty to avoid a retrial, would be more likely to dissuade than persuade a jury that Dorsainvil's belated story was truthful. Therefore, we reject defendant's contentions on this point and affirm this portion of the March 9, 2016 order. B. In its appeal, the State argues that the judge mistakenly "reversed" defendant's conviction for the attempted murder of Walker. We agree. It is well established that a PCR petition "is not . . . a substitute for appeal. . . ." R. 3:22-3; See, e.g., State v. 13 A-2954-15T4 Hess, 207 N.J. 123, 145 (2011). Therefore, a defendant "is generally barred from presenting a claim on PCR that could have been raised at trial or on direct appeal, R. 3:22-4(a)[.]" Nash, 212 N.J. at 546. Under Rule 3:22-4(a), [a]ny ground for relief not raised in the proceedings resulting in the conviction, or in a [PCR] proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a [PCR] proceeding . . . unless the court on motion or at the hearing finds: (1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or (3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey. Here, defendant did not allege on direct appeal that the judge erred by failing to provide a sua sponte limiting instruction to the jury on Detective Jimenez's statement that he possessed information pointing to defendant as one of the men who shot at Walker. Thus, defendant was barred from raising this issue in his PCR petition and did not do so, instead asserting that his trial attorney was ineffective for pursuing the line of inquiry that led 14 A-2954-15T4 to the admission of the detective's statement. Under these circumstances, the judge erred by, in effect, acting as an appellate court and, on his own motion during the PCR proceeding, "reversing" the defendant's attempted murder conviction because he did not give a limiting instruction on the detective's testimony. Contrary to defendant's contentions on appeal, none of the exceptions provided in Rule 3:22-4(a) permitted the judge to ignore the bar prohibiting him from considering an issue defendant could have raised on direct appeal. Defendant filed a timely appeal from his convictions and, therefore, that avenue of review was plainly available to him. R. 3:22-4(a)(1). Thus, there would have been no "fundamental injustice" if the judge had declined to consider whether his failure to provide a limiting instruction constituted "reversible error" and, instead, considered the claim defendant did raise, namely, that his trial attorney provided ineffective assistance. R. 3:22-4(a)(2). There was also no "new rule of constitutional law" that permitted this issue to be addressed in the manner the judge employed in this case. R. 3:22- 4(a)(3). Therefore, we are constrained to reverse the judge's decision to overturn defendant's conviction for the attempted murder of Walker. However, this does not leave defendant without a possible 15 A-2954-15T4 remedy. As noted above, defendant filed a PCR petition asserting that his trial attorney was ineffective for pursuing the line of questioning that led to Detective Jimenez's testimony that he had information pointing to defendant as one of Walker's assailants, and, after the judge raised the issue sua sponte, for failing to request a limiting instruction once the detective completed his testimony. The judge mistakenly failed to consider these contentions.6 Based upon our review, we conclude that defendant made out a prima facie case of ineffectiveness of trial counsel that warranted an evidentiary hearing on the issues involving the detective's testimony. Porter, 216 N.J. at 355. There were obviously material facts outside the record, including defense counsel's rationale for pursuing this strategy in questioning Detective Jimenez, that could not be adequately addressed solely on the trial record. Ibid. A hearing would also give the State the opportunity to present evidence of its own, and for both parties to address the legal issues of whether a limiting instruction was necessary under the circumstances of this case, and whether both prongs of the 6 In refusing to address defendant's arguments, the judge stated, "I do not reach the question of whether [defense counsel's] approach was a legitimate strategic decision or ineffectiveness of counsel. Nor do I reach the decision of whether the second prong of Strickland has been met in this regard." 16 A-2954-15T4 Strickland test were met. Therefore, we remand this matter to the trial court for an evidentiary hearing. In remanding, we express no view on the merits of the parties' respective positions on these issues. In sum, we reverse the portion of the March 9, 2016 order that overturned defendant's conviction for the attempted murder of Walker, and remand for further proceedings. In all other aspects, the order is affirmed. Affirmed in part; reversed in part; and remanded for further proceedings. We do not retain jurisdiction. 17 A-2954-15T4
Date: December 22, 2017
Docket Number: a2954-15 PER CURIAM In these two consolidated appeals, the parties challenge different aspects of the Law Division's March 9, 2016 order, which addressed defendant Philippe Barthelus's petition for post- conviction relief (PCR) without an evidentiary hearing. Defendant contends the judge1 incorrectly denied his motion for a new trial based on alleged newly discovered evidence. In its appeal, the State asserts the judge erred by "reversing" defendant's conviction for attempted murder because he failed to give the jury a limiting instruction concerning the testimony of a police detective. We affirm in part, reverse in part, and remand for further proceedings. 1 The same judge who presided over defendant's trial also reviewed defendant's PCR petition. 2 A-2954-15T4 I. We incorporate herein the procedural history and facts set forth in our prior opinion on defendant's direct appeal from his conviction on the underlying offenses. State v. Barthelus, No. A-5012-10 (App. Div. Oct. 11, 2013) (slip op. at 1-11), certif. denied, 217 N.J. 588 (2014). The following facts are pertinent to the issues raised in this appeal. Defendant and his co-defendant Wedpens Dorsainvil2 used Jamillah Payne's apartment as a "stash house" for the drugs they were selling on the street and in a nearby park. Id. at 3. Dorsainvil suspected that Payne had recently begun associating with a rival gang and was permitting those gang members, including Khalid Walker, to use the apartment. Id. at 3-5. On the day of Payne's murder, defendant and Dorsainvil went to Payne's apartment and encountered Payne, Walker, and a number of other individuals. Id. at 4-6. According to the State's proofs, Dorsainvil shot Payne once in the chest and defendant then pushed her out of a window. Id. at 5-8. Walker was in the bathroom, and stated that two men began shooting at him through 2 Dorsainvil was tried separately on the same charges involved in this case. Id. at 3 n.1. 3 A-2954-15T4 the bathroom door, and one bullet struck him in the leg.3 Id. at 5. One of the men put a gun to Walker's head, pulled the trigger, but the gun did not go off. Id. at 6. Walker then jumped out the bathroom window. Ibid. The jury convicted defendant of the murder of Payne, the attempted murder of Walker, and a number of other charges. Id. at 1-2. After the trial, the judge sentenced defendant to a sixty- year aggregate term on all the charges, which included forty-five years for Payne's murder, and a consecutive fifteen-year term for the attempted murder of Walker. Id. at 2. This sentence was subject to the 85% parole ineligibility provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, with mandatory periods of parole supervision upon release. Id. at 2-3. We affirmed defendant's conviction and sentence on direct appeal and, as noted above, the Supreme Court denied certification. Id. at 3. Following a separate trial, a jury convicted Dorsainvil of conspiracy to murder Payne, and aggravated assault in connection with the shooting of Walker, as a lesser-included offense of attempted murder. State v. Dorsainvil, 435 N.J. Super. 449, 452- 53 (App. Div. 2014). However, we reversed Dorsainvil's conviction 3 Walker identified defendant as one of the shooters after picking out his photograph from an array. However, the judge granted defendant's motion to suppress the identification under State v. Henderson, 208 N.J. 208 (2011). 4 A-2954-15T4 on appeal, and remanded the matter for further proceedings. Id. at 453-54. Prior to a retrial, Dorsainvil pled guilty to Payne's murder and the attempted murder of Walker. A. By this time, defendant had filed a PCR petition.4 Less than two weeks after Dorsainvil finalized his plea agreement, he gave defendant a written statement purporting to exculpate defendant from any involvement in Payne's murder and Walker's attempted murder. In the statement, Dorsainvil alleged he conspired with a man named John Zepherin, who was now deceased, to murder Payne. None of the witnesses who testified at defendant's trial identified Zepherin as one of the individuals present in the apartment at the time of the shootings. Nevertheless, Dorsainvil claimed Zepherin shot Payne. Dorsainvil also asserted he attempted to pull Payne back into the apartment after she went out of the window, but was unable to do so. Dorsainvil alleged he shot at Walker through the bathroom door, and shot him once in the leg after the door opened because Walker was trying to kick him. Dorsainvil stated that 4 Defendant raised a number of issues in his petition, but only the two discussed in this opinion are relevant to the present appeal. 5 A-2954-15T4 defendant fled the apartment as soon as the shooting started and, therefore, was not involved in either offense. Asserting that Dorsainvil's written statement constituted newly discovered evidence, defendant asked the judge to order a new trial. In rejecting this portion of defendant's PCR petition, the judge applied the three-prong test established by the Supreme Court in State v. Carter, 85 N.J. 300, 314 (1981), to evaluate Dorsainvil's statement. The judge found that defendant met the first two prongs of the test because the statement was material to the issue of defendant's involvement in the offenses, and the information was not available earlier because Dorsainvil did not waive his Fifth Amendment privilege against self-incrimination until after he entered his plea. See ibid. However, the judge ruled that the information contained in Dorsainvil's statement did not meet the third Carter prong because it would not have changed the jury's verdict due to the many inconsistencies between Dorsainvil's belated account, his and defendant's earlier admissions, and the testimony of the witnesses to the shootings at trial. See ibid. As the judge explained, Dorsainvil told an associate immediately after the incident, "I had to do it. I had to do it . . . I popped her." He also admitted that "they threw [Payne] out the window[,]" which was inconsistent with his new claim that Payne jumped out of the window 6 A-2954-15T4 on her own and he tried to pull her back inside. Dorsainvil's allegations were also inconsistent with the testimony of another witness, who identified defendant as the individual who pushed Payne out the window. The judge noted that defendant's own statements also conflicted with Dorsainvil's new assertions. Defendant originally claimed he was not even in the municipality on the day of the shootings; later asserted he was playing dice in the park when he heard the shots ring out; and then sent a letter to the judge stating that he was in the apartment, but ran when the shooting began. Based on the irreconcilable differences in defendant's and Dorsainvil's stories, coupled with the "inherently suspect" nature of Dorsainvil's "after-the-fact" exculpatory statement, the judge denied this portion of defendant's PCR petition. B. One of the themes defendant's attorney presented to the jury at trial was that the police improperly focused on defendant instead of investigating other suspects in the attempted murder of Walker. During her cross-examination of Detective Jorge Jimenez, the attorney attempted to advance this position by asking the detective a number of questions concerning his failure to pursue other leads. As noted above, Walker identified defendant as one of his assailants after participating in a photo array and, 7 A-2954-15T4 once that identification was made, the police had no need to look at other suspects. However, because the judge suppressed Walker's identification of defendant, the State could not present this information to the jury. As defense counsel continued this line of questioning, the State began to object, and noted that the attorney was opening the door to allow Detective Jimenez to disclose that he "was in possession of information that implicated [defendant] as the second shooter in that apartment[.]" During several side bar conferences on this subject, the judge cautioned defendant's attorney that if she continued to seek to demonstrate that the detective had no basis for limiting the investigation to defendant, the State would be permitted to ask the detective on redirect whether he had information that caused him to believe defendant was the second shooter. As the cross-examination proceeded, defense counsel identified a man, L.D.,5 as a potential suspect and, through her questions, attempted to demonstrate that Detective Jimenez failed to properly investigate him. On redirect, the judge permitted Detective Jimenez to testify that he did not have any information that led him to believe L.D. was the second shooter. The State 5 We use initials to refer to this individual in order to protect his privacy. 8 A-2954-15T4 then asked the detective, "At that point were you in possession of information that [defendant] was, in fact, the second shooter in that apartment?" After the judge overruled defendant's objection, the detective replied, "Yes[,]" and the State asked no further questions about the subject. Defense counsel did not request any limiting instruction concerning the jury's consideration of the detective's response and the judge did not issue a sua sponte charge on this testimony. In his PCR petition, defendant argued that his attorney provided him with ineffective assistance by continuing to pursue this line of questioning in the face of the judge's warning, and by opening the door to the State's introduction of improper hearsay evidence concerning the information the detective possessed. However, the judge declined to consider defendant's ineffective assistance of counsel argument. Instead, on his own motion, the judge determined that he committed prejudicial error during the trial by not instructing the jury that the detective's statement that he possessed certain information "could not be used for the truth of the matter asserted; but solely for his state of mind of why he eliminated certain suspects versus others during the course of his investigation." In his direct appeal of his conviction for Walker's attempted murder, defendant did not challenge the failure of the judge to provide such an instruction. 9 A-2954-15T4 Nevertheless, the judge concluded that "[t]he omission of a limiting jury instruction warrants reversal of [defendant's] conviction for the attempted murder of Khalid Walker." These consolidated appeals followed. II. In his appeal, defendant argues that "the portion of the [trial] court's decision denying" his motion for a new trial based upon the alleged newly discovered evidence contained in Dorsainvil's written statement "must be reversed." The State asserts that "the trial court erred in granting a portion of defendant's petition for [PCR] and vacating defendant's conviction for attempted murder." Before addressing the parties' specific arguments, we briefly review the general principles that guide our task. The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance, material issues of disputed facts lie outside the record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision to deny a PCR 10 A-2954-15T4 petition without an evidentiary hearing for abuse of discretion. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, the defendant must satisfy two prongs. First, he must demonstrate that counsel made errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." An attorney's representation is deficient when it "[falls] below an objective standard of reasonableness." Second, a defendant "must show that the deficient performance prejudiced the defense." A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a "fair trial." The prejudice standard is met if there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." A "reasonable probability" simply means a "probability sufficient to undermine confidence in the outcome" of the proceeding. [State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)).] "[I]n order to establish a prima facie claim, [the defendant] must do more that make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170. The defendant must establish, 11 A-2954-15T4 by a preponderance of the credible evidence, that he is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013). A. We turn first to defendant's appeal from the judge's denial of his motion for a new trial based on the alleged newly discovered evidence Dorsainvil provided in his written statement. Defendant asserts he met all three prongs of the Carter test because Dorsainvil's claim that defendant was not involved in either of the shootings "had the capacity to change the verdict[.]" We disagree. To secure a new trial based upon newly discovered evidence, a "defendant must show that the evidence is 1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting Carter, 85 N.J. at 314). All three prongs of the test must be established. Ibid. "Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new 12 A-2954-15T4 trial." Id. at 187-88. The "belated introduction of evidence" may detract from its credibility. Id. at 192. Based on our review of the record, we conclude that the judge did not abuse his discretion by denying defendant's request for a new trial based on Dorsainvil's written statement. Assuming that the first two prongs of the Carter test were met, the judge correctly determined that the statement would not have changed the jury's verdict because Dorsainvil's new account completely contradicted his own admission that he shot Payne and "they" then threw her out of the window. The statement was also inconsistent with the accounts of other witnesses to the shooting. These deficiencies, coupled with the fact that Dorsainvil did not indicate his willingness to exculpate defendant until after he pled guilty to avoid a retrial, would be more likely to dissuade than persuade a jury that Dorsainvil's belated story was truthful. Therefore, we reject defendant's contentions on this point and affirm this portion of the March 9, 2016 order. B. In its appeal, the State argues that the judge mistakenly "reversed" defendant's conviction for the attempted murder of Walker. We agree. It is well established that a PCR petition "is not . . . a substitute for appeal. . . ." R. 3:22-3; See, e.g., State v. 13 A-2954-15T4 Hess, 207 N.J. 123, 145 (2011). Therefore, a defendant "is generally barred from presenting a claim on PCR that could have been raised at trial or on direct appeal, R. 3:22-4(a)[.]" Nash, 212 N.J. at 546. Under Rule 3:22-4(a), [a]ny ground for relief not raised in the proceedings resulting in the conviction, or in a [PCR] proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a [PCR] proceeding . . . unless the court on motion or at the hearing finds: (1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or (3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey. Here, defendant did not allege on direct appeal that the judge erred by failing to provide a sua sponte limiting instruction to the jury on Detective Jimenez's statement that he possessed information pointing to defendant as one of the men who shot at Walker. Thus, defendant was barred from raising this issue in his PCR petition and did not do so, instead asserting that his trial attorney was ineffective for pursuing the line of inquiry that led 14 A-2954-15T4 to the admission of the detective's statement. Under these circumstances, the judge erred by, in effect, acting as an appellate court and, on his own motion during the PCR proceeding, "reversing" the defendant's attempted murder conviction because he did not give a limiting instruction on the detective's testimony. Contrary to defendant's contentions on appeal, none of the exceptions provided in Rule 3:22-4(a) permitted the judge to ignore the bar prohibiting him from considering an issue defendant could have raised on direct appeal. Defendant filed a timely appeal from his convictions and, therefore, that avenue of review was plainly available to him. R. 3:22-4(a)(1). Thus, there would have been no "fundamental injustice" if the judge had declined to consider whether his failure to provide a limiting instruction constituted "reversible error" and, instead, considered the claim defendant did raise, namely, that his trial attorney provided ineffective assistance. R. 3:22-4(a)(2). There was also no "new rule of constitutional law" that permitted this issue to be addressed in the manner the judge employed in this case. R. 3:22- 4(a)(3). Therefore, we are constrained to reverse the judge's decision to overturn defendant's conviction for the attempted murder of Walker. However, this does not leave defendant without a possible 15 A-2954-15T4 remedy. As noted above, defendant filed a PCR petition asserting that his trial attorney was ineffective for pursuing the line of questioning that led to Detective Jimenez's testimony that he had information pointing to defendant as one of Walker's assailants, and, after the judge raised the issue sua sponte, for failing to request a limiting instruction once the detective completed his testimony. The judge mistakenly failed to consider these contentions.6 Based upon our review, we conclude that defendant made out a prima facie case of ineffectiveness of trial counsel that warranted an evidentiary hearing on the issues involving the detective's testimony. Porter, 216 N.J. at 355. There were obviously material facts outside the record, including defense counsel's rationale for pursuing this strategy in questioning Detective Jimenez, that could not be adequately addressed solely on the trial record. Ibid. A hearing would also give the State the opportunity to present evidence of its own, and for both parties to address the legal issues of whether a limiting instruction was necessary under the circumstances of this case, and whether both prongs of the 6 In refusing to address defendant's arguments, the judge stated, "I do not reach the question of whether [defense counsel's] approach was a legitimate strategic decision or ineffectiveness of counsel. Nor do I reach the decision of whether the second prong of Strickland has been met in this regard." 16 A-2954-15T4 Strickland test were met. Therefore, we remand this matter to the trial court for an evidentiary hearing. In remanding, we express no view on the merits of the parties' respective positions on these issues. In sum, we reverse the portion of the March 9, 2016 order that overturned defendant's conviction for the attempted murder of Walker, and remand for further proceedings. In all other aspects, the order is affirmed. Affirmed in part; reversed in part; and remanded for further proceedings. We do not retain jurisdiction. 17 A-2954-15T4
STATE OF NEW JERSEY v. B.L. THOMAS-HUNTER
Date: December 22, 2017
Docket Number: a4970-15 PER CURIAM In these consolidated appeals, the State appeals from the probationary sentence imposed by the Law Division on second-degree Graves Act charges. Defendant B.L. Thomas cross-appeals from the denial of his motion to dismiss the indictment. We reverse and remand for re-sentence. We affirm the denial of the motion to dismiss the indictment. On June 25, 2014, Monroe Township police officers responded to a suspicious person complaint regarding a private residence 2 A-4970-15T2 located on Trinidad Avenue. Upon arrival, police observed defendant on the property with two other men. Defendant stated that the property belonged to his deceased sister and that he was the executor of the estate. Defendant produced documentation to confirm his statement. Defendant further indicated that he did not possess a key to the residence and used a knife to split a window screen to gain entry into the residence. Defendant identified himself as a Special Agent for the United States Office of American Security and Intelligence Service and produced identification. Due to a suspicion that defendant provided false identification, police questioned defendant further regarding his employment. Defendant was unable to provide answers to the police inquiries and altered his statement multiple times regarding his employer and employment status. In addition to the knife seized by police, defendant voluntarily surrendered a firearm, holstered on his person, found to contain four hollow-point bullets. Defendant produced a Utah permit to carry. He did not have a permit to carry in New Jersey or in his home state of California. The police communicated by phone with a representative from Bank of America, who indicated that the house was foreclosed upon. Defendant was then arrested and searched, which yielded a pepper spray blaster attached to his belt. 3 A-4970-15T2 In December 2014, a Gloucester County grand jury charged defendant with: third-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one); second-degree unlawful possession of a weapon- handgun, N.J.S.A. 2C:39-5(b) (count two); fourth-degree unlawful possession of a deadly weapon, N.J.S.A. 2C:39-5(d), (counts three and seven); fourth-degree unlawful possession of certain weapons or device (dum-dum bullets), N.J.S.A. 2C:39-3(f) (count four); fourth-degree impersonating a law enforcement officer, N.J.S.A. 2C:28-8(b) (count five); and fourth-degree possession of a document falsely purported to be government issued identification, N.J.S.A. 2C:21-2.1(d) (count six).1 In October 2015, defendant filed a motion to dismiss the indictment arguing that there was improper instruction given to the grand jurors on the applicable law. It was further argued that several charges be dismissed due to failure to provide the grand jurors with exculpatory evidence that defendant had a right to be on the property. After hearing argument, the judge held the State presented a prima facie case to the grand jury and denied defendant's motion. 1 The State served two subpoenas duces tecum to Bank of America. In response to the second subpoena, after defendant's indictment, Bank of America responded that the property was not foreclosed upon. Rather, the property was owned by the Estate of Barbara Berry and was in the process of foreclosure. 4 A-4970-15T2 Pursuant to a negotiated plea agreement, defendant pled guilty to second-degree unlawful possession of a weapon in exchange for the State recommending a sentence of three years in New Jersey State Prison, with one year of parole ineligibility. The State, in order to allow for the departure from the mandatory minimum sentence under the Graves Act, filed a motion for a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2, which was granted by the assignment judge's designee, the criminal presiding judge. The matter was set down for sentence before the presiding judge. On the sentence date, after hearing from defendant, his counsel, and the State, the judge made findings regarding the applicable aggravating and mitigating factors N.J.S.A. 2C:44-1(a) and N.J.S.A. 2C:44-1(b). The judge found one aggravating factor (9), which he did not afford substantial weight. On the other hand, the judge found mitigating factors (2), (4), (7), (8), (9) and (10), which he afforded substantial weight. After weighing of the factors and after considering the defendant's prior military service, his service-related illness, his history of community involvement, and the character of the defendant, the judge held that it would be a serious injustice for defendant to receive a prison term. As such, the judge sentenced defendant to a two-year probationary term. All remaining charges were dismissed, appropriate fines were imposed, and defendant was 5 A-4970-15T2 credited with fifty-eight days' time served. On appeal, the State argues that the probationary sentence was erroneous as the judge was without authority to reduce the negotiated plea to probation under the Graves Act waiver. Given our Supreme Court's decision in State v. Nance, 228 N.J. 378, 397 (2017), which was decided after the filing of the appeal, this argument lacks merit. The State also argues that the sentence was illegal pursuant to N.J.S.A. 2C:43-6.2 and N.J.S.A. 2C:44-1(d) because the facts before the judge, as well as the findings, supported imposition of a prison sentence of not less than three years, which would require, under the waiver provision, a one-year parole disqualifier as a component of the sentence. For reasons set forth below, we conclude this argument has merit and compels reversal. Following the State's appeal, defendant cross-appealed the order denying dismissal of the indictment contending that the prosecutorial misconduct warranted its dismissal. We disagree. On appeal, defendant raises the following contention: POINT I PROSECUTORIAL MISCONDUCT AFFECTED THE FAIR AND IMPARTIAL DECISION-MAKING PROCESS OF THE GRAND JURY. A. FAILURE TO INVESTIGATE. 6 A-4970-15T2 B. INSTRUCTIONS TO THE GRAND JURY. C. FAILURE TO PRESENT PRIMA FACIE EVIDENCE AS TO EACH ELEMENT OF THE CRIMES CHARGED. Further, defendant raises the following points in response to the State's brief: POINT I THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION BY IMPOSING A CUSTODIAL PROBATIONARY SENTENCE UPON THIS DEFENDANT. POINT II DEFENDANT'S CHALLENGES TO THE INDICTMENT WERE RAISED BEFORE THE LOWER COURT. I. We commence our discussion by addressing whether the sentence imposed was in derogation of the exacting standards for deviation from the presumption of incarceration for a second-degree crime. N.J.S.A. 2C:44-1(d).2 In other words, we are called upon to determine whether this is the exceptional case where imprisonment will not serve any deterrence purpose and imprisonment would be a serious injustice. 2 The downgrading of a second-degree crime to a third-degree crime, as here, does not affect the applicability of the presumption of incarceration. See, State v. Salentre, 275 N.J. Super. 410, 415 (App. Div. 1994). 7 A-4970-15T2 In Nance, the Court addressed the serious injustice exception: N.J.S.A. 2C:44-1(d) provides: The court shall deal with a person who has been convicted of a crime of the first or second degree . . . by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. "The 'serious injustice' exception to the presumption of imprisonment applies only in 'truly extraordinary and unanticipated circumstances,'" State v. Jabbour, 118 N.J. 1, 7 (1990) (quoting State v. Roth, 95 N.J. 334, 358 (1984), "where the 'human cost' of punishing a particular defendant to deter others from committing his offense would be 'too great,'" State v. Evers, 175 N.J. 355, 389 (2003) (quoting State v. Rivera, 124 N.J. 122, 125 (1991)). N.J.S.A. 2C:44-1(d) thus imposes a high standard that must be overcome before a first or second-degree offender may be sentenced to a non-custodial term. [Nance, 228 N.J. at 395.] For a defendant to overcome the presumption of incarceration and forestall the deterrent effect of incarceration, the defendant must be "idiosyncratic." The exception only applies in the exceptional case. See Jabbour, 118 N.J. at 7-8. In Evers, the Court provided guidance to trial courts for 8 A-4970-15T2 determining whether the presumption has been overcome. [T]rial courts should look to the statutory sentencing mitigating factors and determine whether those factors are present to such an extraordinary degree and so greatly exceed the aggravating factors that a particular defendant is distinguished from the "heartland" of cases for the particular offense. (citation omitted). It is the quality of the extraordinary mitigating factors taken together that must be weighted in deciding whether the "serious injustice" standard has been met. The trial court also must look at the gravity of the offense with respect to the peculiar facts of a case to determine how paramount deterrence will be in the equation. Generally, for first- and second-degree crimes there will be an overwhelming presumption that deterrence will be of value. [Id. at 395-96.] Turning to the sentence herein, the judge found only aggravating factor (9) "the need for deterrence" but provided it little weight. The judge declined to find mitigating factor (1) "the defendant's conduct neither caused nor threatened serious harm." The judge stated, "[I] find that in any possession, unlawful possession of a weapon case, there's always a threat of serious harm that could result." We agree. Defendant was carrying a handgun on his person while at his sister's former residence under circumstances that resulted in the police responding to the scene. One can easily envision how the events of that encounter between the defendant and the police may 9 A-4970-15T2 have been different, resulting in "serious harm." Further, defendant's conduct in possessing the weapon without the required permit, without more, is conduct that the Graves Act seeks to deter. Clearly, the Legislature considered the harm caused by defendant's conduct when it graded the conduct as a second-degree crime. We disagree with the judge's finding that defendant possessed the weapon "lawfully" but "in the wrong jurisdiction" as that finding is in contravention of the facts and the controlling law. As such, the application of that finding to a determination of the applicability of mitigating factor (2) "defendant did not contemplate that his conduct would cause or threaten serious harm," is without support. We take no issue with the judge's findings as to the applicability of the remaining mitigating factors. Those mitigating factors are supported by the record. As well, we take no issue with the judge's findings relating to defendant's positive character. However, we do not conclude, even after acceptance of those findings, that defendant's character is of the type and the nature that qualifies as an exception to the presumption of incarceration. Defendant's status as a first-time offender, a military veteran and a longstanding community activist, while commendable, 10 A-4970-15T2 does not qualify him as "idiosyncratic." Compare, Jabbour, 118 N.J. at 8. Nor would his service-related illness alone overcome the presumption; at least in the absence of a medical prognosis or proof that his medical needs could not be adequately met while incarcerated. State v. Lebra, 357 N.J. Super. 500, 511-12 (App. Div. 2002). Therefore, we hold the judge's determination that the defendant's incarceration would constitute a serious injustice, based on the sentence record, was erroneous. In reaching our decision, we are mindful of the judge's familiarity with defendant's life circumstances. We are also mindful that the judge gave thoughtful consideration to his sentence decision. However, as in Evers, "[W]e cannot agree that the sum of [defendant's] circumstances is so rare and extraordinary that the 'human cost' of defendant's imprisonment exceeds society's imperative need to deter others . . . ." Id. at 401. We are therefore constrained to remand for re-sentencing. II. We next turn to defendant's appeal of the order denying the motion to dismiss the indictment. The standard for appellate review of a motion to dismiss an indictment is abuse of discretion. State v. Hogan, 144 N.J. 216, 229 (1996) (citing State v. Weleck, 10 N.J. 355, 364 (1952)). "A trial court's exercise of this 11 A-4970-15T2 discretionary power will not be disturbed on appeal unless it has been clearly abused." State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994) (quoting Weleck, 10 N.J. at 364), certif. denied, 140 N.J. 277 (1995). Defendant argues that the failure to investigate, the improper instructions to the grand jury, and the failure to present prima facie evidence constituted prosecutorial misconduct. We disagree. Although a prosecutor bears a responsibility to investigate, it is not the role of the prosecutor to make the defendant's case for him. Hogan, 144 N.J. at 238. While the information provided to the police by the bank regarding the foreclosure status of defendant's sister's former residence was erroneous, the error was not due to the conduct of the State. The State promptly notified defendant's counsel of the status of the foreclosure upon learning the error. Further, there can be no claim of prejudice by defendant as the State dismissed the charge relating to the misinformation pursuant to the plea agreement. Given our standard of review and the record before us, we conclude that defendant's remaining arguments, not specifically addressed herein, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Reversed in part. Affirmed in part. Remanded for re- 12 A-4970-15T2 sentence. We do not retain jurisdiction. 13 A-4970-15T2
Date: December 22, 2017
Docket Number: a4970-15 PER CURIAM In these consolidated appeals, the State appeals from the probationary sentence imposed by the Law Division on second-degree Graves Act charges. Defendant B.L. Thomas cross-appeals from the denial of his motion to dismiss the indictment. We reverse and remand for re-sentence. We affirm the denial of the motion to dismiss the indictment. On June 25, 2014, Monroe Township police officers responded to a suspicious person complaint regarding a private residence 2 A-4970-15T2 located on Trinidad Avenue. Upon arrival, police observed defendant on the property with two other men. Defendant stated that the property belonged to his deceased sister and that he was the executor of the estate. Defendant produced documentation to confirm his statement. Defendant further indicated that he did not possess a key to the residence and used a knife to split a window screen to gain entry into the residence. Defendant identified himself as a Special Agent for the United States Office of American Security and Intelligence Service and produced identification. Due to a suspicion that defendant provided false identification, police questioned defendant further regarding his employment. Defendant was unable to provide answers to the police inquiries and altered his statement multiple times regarding his employer and employment status. In addition to the knife seized by police, defendant voluntarily surrendered a firearm, holstered on his person, found to contain four hollow-point bullets. Defendant produced a Utah permit to carry. He did not have a permit to carry in New Jersey or in his home state of California. The police communicated by phone with a representative from Bank of America, who indicated that the house was foreclosed upon. Defendant was then arrested and searched, which yielded a pepper spray blaster attached to his belt. 3 A-4970-15T2 In December 2014, a Gloucester County grand jury charged defendant with: third-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one); second-degree unlawful possession of a weapon- handgun, N.J.S.A. 2C:39-5(b) (count two); fourth-degree unlawful possession of a deadly weapon, N.J.S.A. 2C:39-5(d), (counts three and seven); fourth-degree unlawful possession of certain weapons or device (dum-dum bullets), N.J.S.A. 2C:39-3(f) (count four); fourth-degree impersonating a law enforcement officer, N.J.S.A. 2C:28-8(b) (count five); and fourth-degree possession of a document falsely purported to be government issued identification, N.J.S.A. 2C:21-2.1(d) (count six).1 In October 2015, defendant filed a motion to dismiss the indictment arguing that there was improper instruction given to the grand jurors on the applicable law. It was further argued that several charges be dismissed due to failure to provide the grand jurors with exculpatory evidence that defendant had a right to be on the property. After hearing argument, the judge held the State presented a prima facie case to the grand jury and denied defendant's motion. 1 The State served two subpoenas duces tecum to Bank of America. In response to the second subpoena, after defendant's indictment, Bank of America responded that the property was not foreclosed upon. Rather, the property was owned by the Estate of Barbara Berry and was in the process of foreclosure. 4 A-4970-15T2 Pursuant to a negotiated plea agreement, defendant pled guilty to second-degree unlawful possession of a weapon in exchange for the State recommending a sentence of three years in New Jersey State Prison, with one year of parole ineligibility. The State, in order to allow for the departure from the mandatory minimum sentence under the Graves Act, filed a motion for a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2, which was granted by the assignment judge's designee, the criminal presiding judge. The matter was set down for sentence before the presiding judge. On the sentence date, after hearing from defendant, his counsel, and the State, the judge made findings regarding the applicable aggravating and mitigating factors N.J.S.A. 2C:44-1(a) and N.J.S.A. 2C:44-1(b). The judge found one aggravating factor (9), which he did not afford substantial weight. On the other hand, the judge found mitigating factors (2), (4), (7), (8), (9) and (10), which he afforded substantial weight. After weighing of the factors and after considering the defendant's prior military service, his service-related illness, his history of community involvement, and the character of the defendant, the judge held that it would be a serious injustice for defendant to receive a prison term. As such, the judge sentenced defendant to a two-year probationary term. All remaining charges were dismissed, appropriate fines were imposed, and defendant was 5 A-4970-15T2 credited with fifty-eight days' time served. On appeal, the State argues that the probationary sentence was erroneous as the judge was without authority to reduce the negotiated plea to probation under the Graves Act waiver. Given our Supreme Court's decision in State v. Nance, 228 N.J. 378, 397 (2017), which was decided after the filing of the appeal, this argument lacks merit. The State also argues that the sentence was illegal pursuant to N.J.S.A. 2C:43-6.2 and N.J.S.A. 2C:44-1(d) because the facts before the judge, as well as the findings, supported imposition of a prison sentence of not less than three years, which would require, under the waiver provision, a one-year parole disqualifier as a component of the sentence. For reasons set forth below, we conclude this argument has merit and compels reversal. Following the State's appeal, defendant cross-appealed the order denying dismissal of the indictment contending that the prosecutorial misconduct warranted its dismissal. We disagree. On appeal, defendant raises the following contention: POINT I PROSECUTORIAL MISCONDUCT AFFECTED THE FAIR AND IMPARTIAL DECISION-MAKING PROCESS OF THE GRAND JURY. A. FAILURE TO INVESTIGATE. 6 A-4970-15T2 B. INSTRUCTIONS TO THE GRAND JURY. C. FAILURE TO PRESENT PRIMA FACIE EVIDENCE AS TO EACH ELEMENT OF THE CRIMES CHARGED. Further, defendant raises the following points in response to the State's brief: POINT I THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION BY IMPOSING A CUSTODIAL PROBATIONARY SENTENCE UPON THIS DEFENDANT. POINT II DEFENDANT'S CHALLENGES TO THE INDICTMENT WERE RAISED BEFORE THE LOWER COURT. I. We commence our discussion by addressing whether the sentence imposed was in derogation of the exacting standards for deviation from the presumption of incarceration for a second-degree crime. N.J.S.A. 2C:44-1(d).2 In other words, we are called upon to determine whether this is the exceptional case where imprisonment will not serve any deterrence purpose and imprisonment would be a serious injustice. 2 The downgrading of a second-degree crime to a third-degree crime, as here, does not affect the applicability of the presumption of incarceration. See, State v. Salentre, 275 N.J. Super. 410, 415 (App. Div. 1994). 7 A-4970-15T2 In Nance, the Court addressed the serious injustice exception: N.J.S.A. 2C:44-1(d) provides: The court shall deal with a person who has been convicted of a crime of the first or second degree . . . by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. "The 'serious injustice' exception to the presumption of imprisonment applies only in 'truly extraordinary and unanticipated circumstances,'" State v. Jabbour, 118 N.J. 1, 7 (1990) (quoting State v. Roth, 95 N.J. 334, 358 (1984), "where the 'human cost' of punishing a particular defendant to deter others from committing his offense would be 'too great,'" State v. Evers, 175 N.J. 355, 389 (2003) (quoting State v. Rivera, 124 N.J. 122, 125 (1991)). N.J.S.A. 2C:44-1(d) thus imposes a high standard that must be overcome before a first or second-degree offender may be sentenced to a non-custodial term. [Nance, 228 N.J. at 395.] For a defendant to overcome the presumption of incarceration and forestall the deterrent effect of incarceration, the defendant must be "idiosyncratic." The exception only applies in the exceptional case. See Jabbour, 118 N.J. at 7-8. In Evers, the Court provided guidance to trial courts for 8 A-4970-15T2 determining whether the presumption has been overcome. [T]rial courts should look to the statutory sentencing mitigating factors and determine whether those factors are present to such an extraordinary degree and so greatly exceed the aggravating factors that a particular defendant is distinguished from the "heartland" of cases for the particular offense. (citation omitted). It is the quality of the extraordinary mitigating factors taken together that must be weighted in deciding whether the "serious injustice" standard has been met. The trial court also must look at the gravity of the offense with respect to the peculiar facts of a case to determine how paramount deterrence will be in the equation. Generally, for first- and second-degree crimes there will be an overwhelming presumption that deterrence will be of value. [Id. at 395-96.] Turning to the sentence herein, the judge found only aggravating factor (9) "the need for deterrence" but provided it little weight. The judge declined to find mitigating factor (1) "the defendant's conduct neither caused nor threatened serious harm." The judge stated, "[I] find that in any possession, unlawful possession of a weapon case, there's always a threat of serious harm that could result." We agree. Defendant was carrying a handgun on his person while at his sister's former residence under circumstances that resulted in the police responding to the scene. One can easily envision how the events of that encounter between the defendant and the police may 9 A-4970-15T2 have been different, resulting in "serious harm." Further, defendant's conduct in possessing the weapon without the required permit, without more, is conduct that the Graves Act seeks to deter. Clearly, the Legislature considered the harm caused by defendant's conduct when it graded the conduct as a second-degree crime. We disagree with the judge's finding that defendant possessed the weapon "lawfully" but "in the wrong jurisdiction" as that finding is in contravention of the facts and the controlling law. As such, the application of that finding to a determination of the applicability of mitigating factor (2) "defendant did not contemplate that his conduct would cause or threaten serious harm," is without support. We take no issue with the judge's findings as to the applicability of the remaining mitigating factors. Those mitigating factors are supported by the record. As well, we take no issue with the judge's findings relating to defendant's positive character. However, we do not conclude, even after acceptance of those findings, that defendant's character is of the type and the nature that qualifies as an exception to the presumption of incarceration. Defendant's status as a first-time offender, a military veteran and a longstanding community activist, while commendable, 10 A-4970-15T2 does not qualify him as "idiosyncratic." Compare, Jabbour, 118 N.J. at 8. Nor would his service-related illness alone overcome the presumption; at least in the absence of a medical prognosis or proof that his medical needs could not be adequately met while incarcerated. State v. Lebra, 357 N.J. Super. 500, 511-12 (App. Div. 2002). Therefore, we hold the judge's determination that the defendant's incarceration would constitute a serious injustice, based on the sentence record, was erroneous. In reaching our decision, we are mindful of the judge's familiarity with defendant's life circumstances. We are also mindful that the judge gave thoughtful consideration to his sentence decision. However, as in Evers, "[W]e cannot agree that the sum of [defendant's] circumstances is so rare and extraordinary that the 'human cost' of defendant's imprisonment exceeds society's imperative need to deter others . . . ." Id. at 401. We are therefore constrained to remand for re-sentencing. II. We next turn to defendant's appeal of the order denying the motion to dismiss the indictment. The standard for appellate review of a motion to dismiss an indictment is abuse of discretion. State v. Hogan, 144 N.J. 216, 229 (1996) (citing State v. Weleck, 10 N.J. 355, 364 (1952)). "A trial court's exercise of this 11 A-4970-15T2 discretionary power will not be disturbed on appeal unless it has been clearly abused." State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994) (quoting Weleck, 10 N.J. at 364), certif. denied, 140 N.J. 277 (1995). Defendant argues that the failure to investigate, the improper instructions to the grand jury, and the failure to present prima facie evidence constituted prosecutorial misconduct. We disagree. Although a prosecutor bears a responsibility to investigate, it is not the role of the prosecutor to make the defendant's case for him. Hogan, 144 N.J. at 238. While the information provided to the police by the bank regarding the foreclosure status of defendant's sister's former residence was erroneous, the error was not due to the conduct of the State. The State promptly notified defendant's counsel of the status of the foreclosure upon learning the error. Further, there can be no claim of prejudice by defendant as the State dismissed the charge relating to the misinformation pursuant to the plea agreement. Given our standard of review and the record before us, we conclude that defendant's remaining arguments, not specifically addressed herein, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Reversed in part. Affirmed in part. Remanded for re- 12 A-4970-15T2 sentence. We do not retain jurisdiction. 13 A-4970-15T2
PROCTOR PROPERTIES, LLC v. STATE OF NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF HOUSING
Date: December 22, 2017
Docket Number: a5425-15
Date: December 22, 2017
Docket Number: a5425-15
LEONEL SERIO v. FIDELITY & GUARANTY INSURANCE UNDERWRITERS, INC.
Date: December 21, 2017
Docket Number: a0055-16
Date: December 21, 2017
Docket Number: a0055-16
ANTHONY B. ELI v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Date: December 21, 2017
Docket Number: a0121-16
Date: December 21, 2017
Docket Number: a0121-16
JP MORGAN CHASE BANK NATIONAL ASSOCIATION v. MAGDY F. ANISE
Date: December 21, 2017
Docket Number: a0456-16
Date: December 21, 2017
Docket Number: a0456-16
LUCINDA BRACEY-COUNCIL v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT PNC BANK
Date: December 21, 2017
Docket Number: a0949-16
Date: December 21, 2017
Docket Number: a0949-16
HARRY SCHEELER v. STATE OF NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES
Date: December 21, 2017
Docket Number: a3023-15
Date: December 21, 2017
Docket Number: a3023-15
DEBORAH POSNER v. ERIC WEISS
Date: December 21, 2017
Docket Number: a4846-13 PER CURIAM Defendant Eric Weiss appeals from several post-judgment orders entered in this contentious matrimonial action.1 One of those orders awarded counsel fees to plaintiff Deborah Weiss despite her violation of a prior order. Because we find the Family Part judge erred in imposing sanctions against defendant for plaintiff's wrongful actions, we reverse the fee award. We affirm the remainder of the orders.2 The parties were divorced in 2009. A final judgment of divorce (FJOD) incorporated a two-page handwritten property settlement agreement (PSA). The PSA provided, among other things, that defendant was to retain "his LLC interests and his rights in the Richter[3] litigation," and that plaintiff was "to have no contact with the parties adverse to [defendant] in the Richter litigation." 1 We have consolidated these back-to-back appeals for the purposes of this opinion. 2 At the oral argument before this court, defendant stated that he was not aware that both appeals were being argued on that date. We gave defendant the opportunity to file a written supplemental argument addressing the second appeal. We have received defendant's submission and plaintiff's response and considered those submissions in this opinion. 3 According to the record, Richter was a former business partner of defendant, and the two were involved in ongoing litigation. 2 A-4846-13T3 After the parties had separated but before they were divorced, several family court judges issued three orders containing provisions pertinent to this appeal. A January 21, 2009 order barred the parties and their counsel from having ex parte communications "with the adverse parties or their attorneys in the Richter litigation." Five days later, the court granted temporary restraints in an Order to Show Cause (OTSC) application presented by defendant, preventing plaintiff, and all persons acting on her behalf, from disseminating any documents or information concerning the matrimonial case "to the adverse parties or their counsel in the Richter litigation." On the return date of the OTSC in February 2009, the court entered an order enjoining "[p]laintiff, her counsel and her representatives . . . from communicating in any way with the adverse parties in the Richter litigation or their counsel," and "from disseminating any information to anyone connected to the Richter litigation." After the parties' divorce, the court issued an order on May 10, 2010, prohibiting plaintiff from "giv[ing] information to . . . Richter." In March 2014, in connection with a civil action brought by defendant against Richter and his business entity, counsel for Richter served plaintiff with a subpoena duces tecum directing her to testify and produce documents at a deposition. Plaintiff's 3 A-4846-13T3 counsel responded by letter dated April 1, 2014, advising that in light of the PSA's no-contact provision, he was reluctant to produce plaintiff for the deposition without an opportunity for defendant to object. The letter enclosed a copy of the parties' FJOD and PSA. On April 4, 2014, plaintiff's counsel sent a second letter to Richter's attorney, stating that they "could have no further discussions" as he had been informed that defendant had filed a motion to quash the subpoena. Defendant was copied on both letters. Defendant filed an OTSC with temporary restraints on April 9, 2014, seeking to sanction plaintiff and her counsel for having communicated with Richter's attorney, and requesting a plenary hearing to determine the extent of the contact between plaintiff and the adverse parties in the Richter case. The court denied emergent relief and converted the OTSC into a motion to enforce litigant's rights, returnable May 8, 2014. On May 6, 2014, plaintiff filed a cross-motion for counsel fees and other relief. Counsel's certification of services detailed fees and costs of $4,624.50. Plaintiff also sought enforcement of a May 22, 2013 order awarding her $4,500 in counsel fees, reimbursement from defendant for his share of the children's medical expenses, and permission to enroll the children in a day camp during the following summer. Defendant wrote to the court 4 A-4846-13T3 on May 7, 2014, disputing the amount claimed by plaintiff for the children's medical expenses and asserting the court lacked jurisdiction "to modify the custody agreement" due to a pending appeal.4 On May 8, 2014, the family court judge heard argument on both applications. Defendant contended that plaintiff violated the no- contact provisions of the PSA and prior orders when her counsel sent the initial letter and its attachments to Richter's attorney. 5 In response to questioning by the judge to specify how Richter benefited from obtaining the PSA, defendant stated that Richter had become privy to information about defendant's other business interests and thereby acquired sufficient information to support a counterclaim in the civil case. Plaintiff's counsel argued in response that he intended to comply with the PSA by copying defendant on the first letter and 4 The appeal involved challenges to the May 2013 order – including its award of counsel fees. The order was affirmed. Weiss v. Weiss, No. A-5160-12 (App. Div. Jan. 23, 2015). 5 Defendant also argued that plaintiff's violation could be inferred from other evidence. He stated that the Richter Organization's bankruptcy trustee was in possession of a copy of defendant's matrimonial case information statement (CIS) which could only have been provided by plaintiff. He further asserted that the documents requested in the subpoenas were described in such detail that they must have already been acquired from plaintiff. 5 A-4846-13T3 informing him of his right to move to quash the subpoena. Counsel asserted that he did not divulge information that could not be obtained elsewhere. The judge issued an oral decision from the bench, denying defendant's motion and partially granting plaintiff's cross- motion. The judge advised that he had reviewed the relevant provisions of the PSA and previous orders. Although he stated that "it might have been better not to send the PSA," he found there were no harmful disclosures in the document and that plaintiff's counsel sent the PSA "in good faith," communicating his obligation to afford defendant an opportunity to quash the subpoena. He concluded that the proofs were "woefully insufficient" to establish a violation of defendant's rights. In partially granting plaintiff's cross-motion, the judge awarded her $4,624.50 in counsel fees. The judge reasoned that although he did not have information regarding the parties' financial circumstances, his ruling was based on "[t]he lack of proofs," the bad faith of defendant in filing "a frivolous motion," the protracted history of litigation between the parties, and the May 2013 order awarding $4,500 in counsel fees to plaintiff. He denied without prejudice plaintiff's remaining requests for relief because of the motion's untimely filing. The judge's decisions were memorialized in an order entered the same day. 6 A-4846-13T3 Thereafter, plaintiff filed a motion seeking the same relief that had been denied on May 8, 2014. On June 13, 2014, the judge entered an order – which provided that "neither party appear[ed] . . . for oral argument" and that the reasons for its entry were "stated on the record"6 – granting plaintiff's requests (1) to enforce the May 2013 order awarding her $4,500 in counsel fees; (2) for reimbursement of $451.61 for the children's medical expenses; and (3) for the children to attend day camp during the summer. The order "entitled [defendant] to make-up parenting time, to be determined by the parties." In a subsequent application, defendant requested that the court enforce the make-up parenting time and reconsider the June 13 order.7 On August 1, 2014, the family judge granted defendant an additional weekend of parenting time to make up for any time lost due to the children's attendance at day camp and denied reconsideration of its previous order. Defendant appeals from the May 8, June 13, and August 1, 2014 orders. He argues that the judge erred in denying his motion to enforce litigant's rights as plaintiff's counsel violated the PSA 6 Neither party provided us with a transcript of the judge's ruling on the record. 7 There were other requests in this application that are not pertinent to this appeal. 7 A-4846-13T3 and prior orders by sending a copy of the PSA to Richter's counsel. He further contends that the court erred in awarding counsel fees to plaintiff because he brought his action in good faith. As to the June order, defendant asserts that the judge improperly modified the parenting schedule by permitting the children to attend summer camp. With regard to the August order, he contends that the judge erred in denying his motion to reconsider the June order. We begin with a review of governing principles. We are required to accord deference to the Family Court’s decisions because of the court’s "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, we owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We begin with the May 2014 order. Absent "compelling reasons to depart from the clear, unambiguous, and mutually understood terms of the PSA," a court is generally bound to enforce the terms of a PSA. Quinn v. Quinn, 225 N.J. 34, 55 (2016). It is clear from the express terms of the PSA and orders addressing it that plaintiff was to "have no contact with the parties adverse to [defendant] in the Richter litigation." A plain reading of the 8 A-4846-13T3 PSA requires a finding of a violation of its terms when counsel responded twice to Richter's attorney. The family judge's finding otherwise was erroneous. However, in reviewing counsel's letters, we are satisfied that he did not intend to disclose any prohibited information. Counsel believed he was following the spirit of the PSA by advising Richter's counsel that he would not respond to the subpoena until defendant had an opportunity to request it be quashed. In hindsight, counsel now concedes his mistake in sending the PSA to demonstrate his client's inability to comply with the subpoena. In his application to the trial court, defendant asked for the imposition of sanctions against plaintiff for the violation of the PSA. In our review of the record, we are unable to discern what harm inured to defendant from the limited contacts of plaintiff's counsel and the disclosure of the PSA. Defendant's brief and his responses elicited at oral argument on the appeal provide only the unsubstantiated information that Richter may have used some information in his bankruptcy proceeding that served to diminish defendant's claim. Defendant, however, also states there was much more information provided to the bankruptcy court than was contained in the PSA, and he suspects plaintiff or her prior matrimonial counsel may have provided his CIS from the matrimonial litigation. 9 A-4846-13T3 He also accuses plaintiff's mother and a computer expert of hacking into his computer to procure information subsequently provided to Richter. Neither the CIS nor any other information was attached to the letters at issue here. Therefore, although we agree that plaintiff's counsel's actions violated the PSA, there is no support in the record before us for the imposition of sanctions as requested by defendant. In light of our determination that there was a violation of the terms of the PSA and orders addressing it, we must also overturn the award of counsel fees granted to plaintiff in the May 8, 2014 order. Ordinarily we will not disturb the trial court's decision to award counsel fees "absent a showing of an abuse of discretion involving a clear error in judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd o.b., 208 N.J. 409 (2011). Here, however, there is no support in the record for an award of counsel fees to plaintiff. The trial judge based his decision on "[t]he lack of proofs" and the bad faith of defendant in filing a "frivolous motion." Because of our determination that defendant's motion was made in good faith and was not entirely without merit, we reverse and vacate the counsel fee award under the May 8, 2014 order. In turning to defendant's arguments pertaining to the June 2014 order, defendant did not provide a transcript of the judge's 10 A-4846-13T3 ruling and therefore we cannot know the reasons for his decision. We note that, although the children were permitted to attend summer camp, defendant was accorded "make-up parenting time." We are satisfied, without further proffer, that the judge did not abuse his discretion in this determination.8 The remainder of defendant's arguments pertaining to the June 2014 order lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Defendant did not provide a transcript of the August 1, 2014 order either, despite the judge's notation that he placed his reasons on the record on that date. Defendant's appellate brief reveals a reiteration of the arguments previously made regarding the June application, which we have determined lack sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). We reverse the portion of the May 8, 2014 order awarding counsel fees to plaintiff. We affirm the remainder of that order as well as the June 13 and August 1, 2014 orders. Affirmed in part, reversed in part. 8 At oral argument, defendant advised that he has made his own arrangements with the summer camp in the ensuing summers and he is satisfied with his parenting time vis-a-vis the camp. 11 A-4846-13T3
Date: December 21, 2017
Docket Number: a4846-13 PER CURIAM Defendant Eric Weiss appeals from several post-judgment orders entered in this contentious matrimonial action.1 One of those orders awarded counsel fees to plaintiff Deborah Weiss despite her violation of a prior order. Because we find the Family Part judge erred in imposing sanctions against defendant for plaintiff's wrongful actions, we reverse the fee award. We affirm the remainder of the orders.2 The parties were divorced in 2009. A final judgment of divorce (FJOD) incorporated a two-page handwritten property settlement agreement (PSA). The PSA provided, among other things, that defendant was to retain "his LLC interests and his rights in the Richter[3] litigation," and that plaintiff was "to have no contact with the parties adverse to [defendant] in the Richter litigation." 1 We have consolidated these back-to-back appeals for the purposes of this opinion. 2 At the oral argument before this court, defendant stated that he was not aware that both appeals were being argued on that date. We gave defendant the opportunity to file a written supplemental argument addressing the second appeal. We have received defendant's submission and plaintiff's response and considered those submissions in this opinion. 3 According to the record, Richter was a former business partner of defendant, and the two were involved in ongoing litigation. 2 A-4846-13T3 After the parties had separated but before they were divorced, several family court judges issued three orders containing provisions pertinent to this appeal. A January 21, 2009 order barred the parties and their counsel from having ex parte communications "with the adverse parties or their attorneys in the Richter litigation." Five days later, the court granted temporary restraints in an Order to Show Cause (OTSC) application presented by defendant, preventing plaintiff, and all persons acting on her behalf, from disseminating any documents or information concerning the matrimonial case "to the adverse parties or their counsel in the Richter litigation." On the return date of the OTSC in February 2009, the court entered an order enjoining "[p]laintiff, her counsel and her representatives . . . from communicating in any way with the adverse parties in the Richter litigation or their counsel," and "from disseminating any information to anyone connected to the Richter litigation." After the parties' divorce, the court issued an order on May 10, 2010, prohibiting plaintiff from "giv[ing] information to . . . Richter." In March 2014, in connection with a civil action brought by defendant against Richter and his business entity, counsel for Richter served plaintiff with a subpoena duces tecum directing her to testify and produce documents at a deposition. Plaintiff's 3 A-4846-13T3 counsel responded by letter dated April 1, 2014, advising that in light of the PSA's no-contact provision, he was reluctant to produce plaintiff for the deposition without an opportunity for defendant to object. The letter enclosed a copy of the parties' FJOD and PSA. On April 4, 2014, plaintiff's counsel sent a second letter to Richter's attorney, stating that they "could have no further discussions" as he had been informed that defendant had filed a motion to quash the subpoena. Defendant was copied on both letters. Defendant filed an OTSC with temporary restraints on April 9, 2014, seeking to sanction plaintiff and her counsel for having communicated with Richter's attorney, and requesting a plenary hearing to determine the extent of the contact between plaintiff and the adverse parties in the Richter case. The court denied emergent relief and converted the OTSC into a motion to enforce litigant's rights, returnable May 8, 2014. On May 6, 2014, plaintiff filed a cross-motion for counsel fees and other relief. Counsel's certification of services detailed fees and costs of $4,624.50. Plaintiff also sought enforcement of a May 22, 2013 order awarding her $4,500 in counsel fees, reimbursement from defendant for his share of the children's medical expenses, and permission to enroll the children in a day camp during the following summer. Defendant wrote to the court 4 A-4846-13T3 on May 7, 2014, disputing the amount claimed by plaintiff for the children's medical expenses and asserting the court lacked jurisdiction "to modify the custody agreement" due to a pending appeal.4 On May 8, 2014, the family court judge heard argument on both applications. Defendant contended that plaintiff violated the no- contact provisions of the PSA and prior orders when her counsel sent the initial letter and its attachments to Richter's attorney. 5 In response to questioning by the judge to specify how Richter benefited from obtaining the PSA, defendant stated that Richter had become privy to information about defendant's other business interests and thereby acquired sufficient information to support a counterclaim in the civil case. Plaintiff's counsel argued in response that he intended to comply with the PSA by copying defendant on the first letter and 4 The appeal involved challenges to the May 2013 order – including its award of counsel fees. The order was affirmed. Weiss v. Weiss, No. A-5160-12 (App. Div. Jan. 23, 2015). 5 Defendant also argued that plaintiff's violation could be inferred from other evidence. He stated that the Richter Organization's bankruptcy trustee was in possession of a copy of defendant's matrimonial case information statement (CIS) which could only have been provided by plaintiff. He further asserted that the documents requested in the subpoenas were described in such detail that they must have already been acquired from plaintiff. 5 A-4846-13T3 informing him of his right to move to quash the subpoena. Counsel asserted that he did not divulge information that could not be obtained elsewhere. The judge issued an oral decision from the bench, denying defendant's motion and partially granting plaintiff's cross- motion. The judge advised that he had reviewed the relevant provisions of the PSA and previous orders. Although he stated that "it might have been better not to send the PSA," he found there were no harmful disclosures in the document and that plaintiff's counsel sent the PSA "in good faith," communicating his obligation to afford defendant an opportunity to quash the subpoena. He concluded that the proofs were "woefully insufficient" to establish a violation of defendant's rights. In partially granting plaintiff's cross-motion, the judge awarded her $4,624.50 in counsel fees. The judge reasoned that although he did not have information regarding the parties' financial circumstances, his ruling was based on "[t]he lack of proofs," the bad faith of defendant in filing "a frivolous motion," the protracted history of litigation between the parties, and the May 2013 order awarding $4,500 in counsel fees to plaintiff. He denied without prejudice plaintiff's remaining requests for relief because of the motion's untimely filing. The judge's decisions were memorialized in an order entered the same day. 6 A-4846-13T3 Thereafter, plaintiff filed a motion seeking the same relief that had been denied on May 8, 2014. On June 13, 2014, the judge entered an order – which provided that "neither party appear[ed] . . . for oral argument" and that the reasons for its entry were "stated on the record"6 – granting plaintiff's requests (1) to enforce the May 2013 order awarding her $4,500 in counsel fees; (2) for reimbursement of $451.61 for the children's medical expenses; and (3) for the children to attend day camp during the summer. The order "entitled [defendant] to make-up parenting time, to be determined by the parties." In a subsequent application, defendant requested that the court enforce the make-up parenting time and reconsider the June 13 order.7 On August 1, 2014, the family judge granted defendant an additional weekend of parenting time to make up for any time lost due to the children's attendance at day camp and denied reconsideration of its previous order. Defendant appeals from the May 8, June 13, and August 1, 2014 orders. He argues that the judge erred in denying his motion to enforce litigant's rights as plaintiff's counsel violated the PSA 6 Neither party provided us with a transcript of the judge's ruling on the record. 7 There were other requests in this application that are not pertinent to this appeal. 7 A-4846-13T3 and prior orders by sending a copy of the PSA to Richter's counsel. He further contends that the court erred in awarding counsel fees to plaintiff because he brought his action in good faith. As to the June order, defendant asserts that the judge improperly modified the parenting schedule by permitting the children to attend summer camp. With regard to the August order, he contends that the judge erred in denying his motion to reconsider the June order. We begin with a review of governing principles. We are required to accord deference to the Family Court’s decisions because of the court’s "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, we owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We begin with the May 2014 order. Absent "compelling reasons to depart from the clear, unambiguous, and mutually understood terms of the PSA," a court is generally bound to enforce the terms of a PSA. Quinn v. Quinn, 225 N.J. 34, 55 (2016). It is clear from the express terms of the PSA and orders addressing it that plaintiff was to "have no contact with the parties adverse to [defendant] in the Richter litigation." A plain reading of the 8 A-4846-13T3 PSA requires a finding of a violation of its terms when counsel responded twice to Richter's attorney. The family judge's finding otherwise was erroneous. However, in reviewing counsel's letters, we are satisfied that he did not intend to disclose any prohibited information. Counsel believed he was following the spirit of the PSA by advising Richter's counsel that he would not respond to the subpoena until defendant had an opportunity to request it be quashed. In hindsight, counsel now concedes his mistake in sending the PSA to demonstrate his client's inability to comply with the subpoena. In his application to the trial court, defendant asked for the imposition of sanctions against plaintiff for the violation of the PSA. In our review of the record, we are unable to discern what harm inured to defendant from the limited contacts of plaintiff's counsel and the disclosure of the PSA. Defendant's brief and his responses elicited at oral argument on the appeal provide only the unsubstantiated information that Richter may have used some information in his bankruptcy proceeding that served to diminish defendant's claim. Defendant, however, also states there was much more information provided to the bankruptcy court than was contained in the PSA, and he suspects plaintiff or her prior matrimonial counsel may have provided his CIS from the matrimonial litigation. 9 A-4846-13T3 He also accuses plaintiff's mother and a computer expert of hacking into his computer to procure information subsequently provided to Richter. Neither the CIS nor any other information was attached to the letters at issue here. Therefore, although we agree that plaintiff's counsel's actions violated the PSA, there is no support in the record before us for the imposition of sanctions as requested by defendant. In light of our determination that there was a violation of the terms of the PSA and orders addressing it, we must also overturn the award of counsel fees granted to plaintiff in the May 8, 2014 order. Ordinarily we will not disturb the trial court's decision to award counsel fees "absent a showing of an abuse of discretion involving a clear error in judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd o.b., 208 N.J. 409 (2011). Here, however, there is no support in the record for an award of counsel fees to plaintiff. The trial judge based his decision on "[t]he lack of proofs" and the bad faith of defendant in filing a "frivolous motion." Because of our determination that defendant's motion was made in good faith and was not entirely without merit, we reverse and vacate the counsel fee award under the May 8, 2014 order. In turning to defendant's arguments pertaining to the June 2014 order, defendant did not provide a transcript of the judge's 10 A-4846-13T3 ruling and therefore we cannot know the reasons for his decision. We note that, although the children were permitted to attend summer camp, defendant was accorded "make-up parenting time." We are satisfied, without further proffer, that the judge did not abuse his discretion in this determination.8 The remainder of defendant's arguments pertaining to the June 2014 order lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Defendant did not provide a transcript of the August 1, 2014 order either, despite the judge's notation that he placed his reasons on the record on that date. Defendant's appellate brief reveals a reiteration of the arguments previously made regarding the June application, which we have determined lack sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). We reverse the portion of the May 8, 2014 order awarding counsel fees to plaintiff. We affirm the remainder of that order as well as the June 13 and August 1, 2014 orders. Affirmed in part, reversed in part. 8 At oral argument, defendant advised that he has made his own arrangements with the summer camp in the ensuing summers and he is satisfied with his parenting time vis-a-vis the camp. 11 A-4846-13T3
DEUTSCHE BANK NATIONAL TRUST COMPANY v. RICA ENTERPRISES, INC.
Date: December 21, 2017
Docket Number: a5064-15
Date: December 21, 2017
Docket Number: a5064-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. ROBERT I. TANNER
Date: December 19, 2017
Docket Number: a0335-16
Date: December 19, 2017
Docket Number: a0335-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the NEW YORK PUBLIC RADIO d/b/a NEW JERSEY PUBLIC RADIO v. OFFICE OF THE GOVERNOR and ANDREW J. MCNALLY
Date: December 19, 2017
Docket Number: a0968-16
Date: December 19, 2017
Docket Number: a0968-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the JUERGEN HERMANNS v. PASTORIUS HOME ASSOCIATION, INC and BERNICE HICKS individually, and MEMBERS OF
Date: December 19, 2017
Docket Number: a1062-16
Date: December 19, 2017
Docket Number: a1062-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the ROSA PEREZ v. JOSEPH BATOR, JANE BATOR JOSE PARRAGUEZ and ROSALYNE ROCIO) PARRAGUEZ -
Date: December 19, 2017
Docket Number: a1264-16
Date: December 19, 2017
Docket Number: a1264-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. JEROME HOLLEY, a/k/a JEROME D GANDY, ROME HOLLEY, and JERMONE HOLLEY
Date: December 19, 2017
Docket Number: a1378-16
Date: December 19, 2017
Docket Number: a1378-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the CHEMISTRY COUNCIL OF NEW JERSEY v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION SOLVAY SPECIAL
Date: December 19, 2017
Docket Number: a1439-15a144 FUENTES, P.J.A.D. On the afternoon of November 25, 2015, the day before Thanksgiving, the New Jersey Department of Environmental Protection (DEP) posted on its website "Interim Specific Ground Water Quality Criteria" (ISGWQC) for a "toxic" substance named perfluorononanoic acid (PFNA). The DEP describes PFNA as "a perfluorinated compound (PFC) with harmful human health effects[.]" The DEP claims it took this action under the authority codified in N.J.A.C. 7:9C-1.7(c), in response to the discovery of PFNA in ground water. In these three related appeals, which we now consolidate for the purpose of this opinion, plaintiffs Chemistry Council of New Jersey, Solvay Specialty Polymers USA, LLC, and Arkema Inc., challenge the DEP's authority to issue the interim criteria that support this action. Plaintiffs argue the DEP's reliance on N.J.A.C. 7:9C-1.7(c)(2) for authority to take this action constitutes an ultra vires "rule-making short-cut" in violation of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-3, 4, 4.9 to -5, and the statutes governing this State agency. Even if we were to find N.J.A.C. 7:9C-1.7(c)(2) authorizes the DEP to take 3 A-1439-15T4 these interim measures, plaintiffs argue the approach adopted by the DEP here did not follow the rule. Finally, plaintiffs argue the ISGWQC adopted by the DEP for PFNA was arbitrary, capricious, and unreasonable because it is not supported by credible scientific evidence. Amicus Curie FluoroCouncil (Council) is a global organization administered by the American Chemistry Council. It claims to represent "the world's leading manufacturers of fluoropolymers, flurotelomers and other fluorinated surfactants and surface property modification agents (fluorotechnology)." The Council also argues that the remediation approach adopted by the DEP is not scientifically sound and thus legally unenforceable. After carefully reviewing the record before us and considering the arguments presented by the parties, we are satisfied that the ISGWQC have acquired a permanency which is facially inconsistent with the "interim" authority conferred to the DEP under N.J.A.C. 7:9C-1.7(c)(2). As judges, we are not in position to determine the scientific validity of these measures. Our conclusion here is based on well-settled principles of statutory construction in the context of administrative law. We will thus limit our factual recitation to the following undisputed procedural events. 4 A-1439-15T4 I On January 17, 2014, the DEP alerted the Borough of Paulsboro that it had discovered concentrations of PFNA at a level of 150 parts per trillion in the Borough's supply of potable water. A Technical Support Document dated June 24, 2014, prepared by the DEP Office of Science and authored by Dr. Gloria B. Post, revealed the presence of PFNA in certain public drinking water sources five years earlier in 2009. The study found 0.96 ppb (parts per billion) of PFNA in a municipal well "at a public water supply well (Paulsboro Water Department)" located two miles from Solvay's plant in the Township of West Deptford, Gloucester County. The DEP did not notify the public or Solvay of this sampling study in 2009. In a letter dated January 17, 2014, addressed to the Paulsboro Water Department and copied to the Borough's Mayor and another individual identified only as "Site Remediation Program," the DEP's Assistant Director of Water Supply Operations made the following statement: As you are aware, sampling of Paulsboro Water Department's water system for perfluorinated compounds (PFC) has been conducted by the New Jersey Department of Environmental Protection (Department), Paulsboro Water Department (Paulsboro), and Solvay Specialty Polymers (Solvay). One of those compounds, perfluorononanoic acid (PFNA), has been detected at levels of up to 150 parts per 5 A-1439-15T4 trillion in Well #7. While PFCs are considered to beemerging contaminants and there is currently no drinking water standard or guidance level for PFNA, the Department believes the concentrations found at Paulsboro's Well #7 warrant actions. The Department understands that it is currently necessary for Paulsboro to operate Well #7 because Paulsboro's other primary well, Well #8, is offline while treatment for radium is upgraded, and that Well #8 is expected to be online in March 2014. We also recognize that PFCs have been detected in Well #8 but at significantly lower levels. In order to address community concerns with reports of PFNA in the water supply, we have prepared the enclosed Fact Sheet to use for your communications with the public. While using Well #7, to ensure an abundance of caution, we recommend for the most sensitive population, infants and children up to age one, that bottled water or liquid prepared formula be used, including use of bottled water when preparing powdered or concentrate formula. The Department would like to work closely together with Paulsboro and Solvay to facilitate a simple remedy to reduce concentrations of PFNA in their water system, assist in communications with the public, and determine the need for the provision of bottled water as appropriate. Toward that end, I will be contacting you shortly to further discuss these matters. On March 14, 2014, the DEP posted on its website a draft ISGWQC for PFNA of 0.02 ppb, the equivalent of 20 parts per trillion. The DEP posted an updated Draft of Technical Support on April 17, 2014, which included six "focus questions" seeking 6 A-1439-15T4 public input on the draft ISGWQC. Appellants claim that this Draft was not scientifically sound because the author had not submitted her methodology, data, and conclusion to peer review. Once again we emphasize that, as appellate judges, we are not competent to determine the scientific validity of the approach adopted by the DEP. However, from a legal perspective, we note that DEP did not publish a notice of proposed rulemaking or the text of the March 2014 TSD in the New Jersey Register. Despite this omission, Solvay submitted comments and objections to the draft in a letter dated May 1, 2014, authored by its attorneys. Solvay's counsel argued that the proposed ISGWQC "would violate the New Jersey Administrative Procedures Act." Specifically, counsel made the following request: If the Department feels that the setting of a ground water criterion for PFNA is essential, and the Department believes that the science exists upon which the Department can reliably set such a criterion, Solvay respectfully requests that the Department invoke a process that fully complies with the APA, the enabling environmental statutes, and its own rules. Doing so would allow the public and interested parties to meaningfully participate and add credibility to the outcome. The DEP did not heed this request. The interim criteria posted on its website in March 2014 remained. On April 9, 2015, the DEP, acting in conjunction with the Drinking Water Quality Institute (DWQI) lowered the Target Human Serum Level established 7 A-1439-15T4 in March 2014 from 17 ppb to 5.2 ppb. Once again this action was announced to the public and the affected parties via a draft ISGWQC for PFNA posted on the Department's website. This cut the original proposal from 0.02 ppb to 0.01 ppb. The Department relied on the same scientific study. The DEP limited the public's response to the April 9, 2015 interim criteria to four questions addressing whether the public possessed technical information relevant to "the choice of uncertainty factors" and to the "choice of Relative Source Contribution factor." Appellants responded to the DEP's questions. Their responses challenged the scientific validity of the data and methodology used to reach the conclusions of the Department. In a document dated June 24, 2015, the DEP posted on its website a "Response Summary to the Requests for Public Input." This posting was done without any advance notice to the public and its legal consequences were immediately effective. Although the Department did not promulgate regulations to identify PFNA as a "hazardous substance," the PFNA ISGWQC is incorporated by reference as "minimum ground water remediation standards." This required the ground water to conform to a level of PFNA below 0.01 ppb.1 1 N.J.A.C. 7:26D-2.2(a)(1) sets the minimum remediation standards to which ground water shall be remediated pursuant to N.J.A.C. 7:9C-1.7(c) and (d). 8 A-1439-15T4 The DEP did not publish these standards in the New Jersey Register. In addition to a posting on its website, on November 30, 2015, the DEP sent email notice to a select segment of the regulated community and licensed site remediation professionals. According to Solvay, no laboratory located in this State is certified to analyze water for PFNA to the level required by these interim criteria. In fact, Solvay claims that there are only four laboratories certified to do this type of work in the continent of North America. Since the issuance of the ISGWQC for PFNA, the Department has identified fifty wells that exceed the ISGWQC for PFNA. These wells are located over a three-county area, spanning forty-one miles.2 II Appellants argue that the DEP adopted the ISGWQC for PFNA in violation of the rule-making procedures required under the APA and applicable statues. They also challenge as arbitrary and capricious the calculations and scientific methodology adopted by the DEP to reach its conclusion. Appellants also argue that the interim criteria violate the Brownfield and Contaminated Site Remediation Act. Amicus Curiae, FluroCouncil, takes issue with the scientific methodology used by the DEP to establish the ISGWQC 2 Pursuant to N.J.A.C. 7:26E-1.11, immediate remediation is required under the Site Remediation Standards. 9 A-1439-15T4 for PFNA. It claims that the remediation standards established by the DEP are "nearly impossible" to uphold by the regulated community. In response, the DEP argues that the use of interim specific criterion for PFNA is in accordance with the APA and applicable statutes. The DEP maintains that the equation and scientific methodology it used to establish PFNA interim criteria are reasonable, supported by substantial evidence in the record, and in accordance with N.J.A.C. 7:9C-1.7(c)(4). In support of this latter argument, the DEP emphasizes that this regulation enables the DEP to recognize and promptly respond to new constituents which pose a threat to public health. Thus, the use of the interim criteria at issue here "provides more certainty to the regulated community engaging in cleanup, prior to formal adoption of a specific criterion in the rule's appendix." The DEP also argues it went beyond what is required under N.J.A.C. 7:9C-1.7(c)(4) when it provided "significant and repeated opportunity for public participation" by soliciting comments on its website and considering the responses "to certain questions from interested parties on multiple occasions." On September 2015, the DEP received a "Petition for Rulemaking." In response, it "noted its intent to initiate a stakeholder process in 2016 to determine whether Ground Water Quality Standards should be 10 A-1439-15T4 updated." Finally, in the brief filed in this appeal, the DEP noted it "intends to move forward with this process and to formally adopt interim specific criteria, including PFNA, as specific criteria in the coming months." An administrative agency's authority to act is subject to the due process requirements of the APA, which defines a "rule" as [E]ach agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of any rule, but does not include: (1) statements concerning the internal management or discipline of any agency; (2) intra-agency and inter-agency statements; and (3) agency decisions and findings in contested cases. [N.J.S.A. 52:14B-2.] When issuing new rules and regulations, an administrative agency must "proceed in accordance with traditional rulemaking requirements for a rule proposal, including provision of notice and an opportunity to comment." I/M/O Provision of Basic Generation Serv., 205 N.J. 339, 349 (2011). The APA defines an "administrative rule" to include an "agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." N.J.S.A. 52:14B-2. 11 A-1439-15T4 This appeal turns on whether the ISGWQC adopted by the DEP for PFNA falls under N.J.A.C. 7:9C-1.7(c)(2)(ii), which provides as follows: (c) Ground water quality criteria for Class II-A areas are established as follows: 2. The Department may establish an interim specific criterion, pursuant to (c)3 below, for a constituent not listed in Appendix Table 1. ii. Interim specific criteria shall be replaced with specific criteria as soon as reasonably possible by rule. [Emphasis added.] The ISGWQC for PFNA adopted by the DEP as an "interim criteria" was posted on the Department's website on March 14, 2014. As far as we know, these interim measures remain in effect more than three years after they were first posted on the website. Whether this approach constitutes a valid exercise of the authority provided in the regulation or constitutes an invalid agency action in violation of the requirements of the APA is a judicial determination. In making this determination, we must apply the multi-factor analysis the Court established in Metromedia, Inc. v. Div. of Taxation, 97 N.J. 313 (1984): 12 A-1439-15T4 [A]n agency determination must be considered an administrative rule . . . if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. [Id. at 331-32] However, not all of these factors need to be present for an agency action to be considered to constitute an administrative rule. Id. at 332. The salient facts in the Court's decision in University Cottage Club of Princeton v. Dep't of Envtl. Prot., 191 N.J. 38 (2007), provide a blueprint of how to determine whether an agency's action constitutes rule making under Metromedia. In University Cottage Club the Commissioner of the DEP based his decision to deny the plaintiff's certification as a tax-exempt historic site based "on an intention to promulgate more stringent 13 A-1439-15T4 rules governing public access to such sites[.]" Id. at 41. Despite the absence of duly promulgated regulations, the Commissioner decided, in the interim, "to deny all applications that did not meet 'objectively reasonable standards of public accessibility.'" Ibid. This court affirmed the Commissioner's decision. Ibid. The Supreme Court reversed. Ibid. Writing for the Court, Justice Long identified the particular defects of the Commissioner's decision under the Metromedia paradigm: Here, the Commissioner's decision to reject what he had previously declared to be the applicable twelve-day public-access standard pending promulgation of his new and more stringent access requirement and to deny all pending applications that did not meet undisclosed "objectively reasonable standards" has all of the earmarks of rule- making. Plainly, the new scheme was intended to apply generally and uniformly to all similarly situated persons. Further, it was intended as a statement of an administrative position that had not been previously expressed, constituting a material change from a clear, past agency position on the subject. It was also intended to prescribe a standard, not clearly inferable from the enabling legislation, and was, in form and effect, a decision on administrative regulatory policy. [Id. at 54-55 (emphasis added).] The ISGWGC also has all the "earmarks of rule-making." It is a new standard for water quality, intended to apply universally, uniformly, and prospectively to the regulated community. The 14 A-1439-15T4 record also supports the applicability of the fifth Metromedia factor. Although ISGWQC for PFNA has been potentially subject to the interim generic criterion of ppb as a synthetic organic chemical,3 this is the first time the DEP has singled out PFNA as a constituent of ground water requiring attention. Furthermore, the ISGWQC is, in form and effect, "a decision on administrative regulatory policy." University Cottage Club, 191 N.J. at 55. N.J.A.C. 7:9C-1.7(c)(2)(ii) expressly limits the DEP's authority to establish "specific criteria" with the expectation that they "shall be replaced with specific criteria as soon as reasonably possible by rule." (Emphasis added). The record here shows that these interim criteria have become de facto a permanent regulatory scheme without the agency complying with the requirements of the APA. As such, these measures are declared invalid. However, the public interest requires that we give the DEP a reasonable opportunity to either initiate the process of complying with the APA or seek Supreme Court review of our decision. We therefore stay the implementation of this decision for thirty days to permit the DEP to file a petition for certification to the Supreme Court or a formal notice to this court that it has decided 3 N.J.A.C. 7:9C-1.7(c)(6) 15 A-1439-15T4 to start the process of compliance with the APA. In light of this decision, we decline to address the remaining arguments raised by appellants attacking the actions taken by the DEP. Reversed and remanded. 16 A-1439-15T4
Date: December 19, 2017
Docket Number: a1439-15a144 FUENTES, P.J.A.D. On the afternoon of November 25, 2015, the day before Thanksgiving, the New Jersey Department of Environmental Protection (DEP) posted on its website "Interim Specific Ground Water Quality Criteria" (ISGWQC) for a "toxic" substance named perfluorononanoic acid (PFNA). The DEP describes PFNA as "a perfluorinated compound (PFC) with harmful human health effects[.]" The DEP claims it took this action under the authority codified in N.J.A.C. 7:9C-1.7(c), in response to the discovery of PFNA in ground water. In these three related appeals, which we now consolidate for the purpose of this opinion, plaintiffs Chemistry Council of New Jersey, Solvay Specialty Polymers USA, LLC, and Arkema Inc., challenge the DEP's authority to issue the interim criteria that support this action. Plaintiffs argue the DEP's reliance on N.J.A.C. 7:9C-1.7(c)(2) for authority to take this action constitutes an ultra vires "rule-making short-cut" in violation of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-3, 4, 4.9 to -5, and the statutes governing this State agency. Even if we were to find N.J.A.C. 7:9C-1.7(c)(2) authorizes the DEP to take 3 A-1439-15T4 these interim measures, plaintiffs argue the approach adopted by the DEP here did not follow the rule. Finally, plaintiffs argue the ISGWQC adopted by the DEP for PFNA was arbitrary, capricious, and unreasonable because it is not supported by credible scientific evidence. Amicus Curie FluoroCouncil (Council) is a global organization administered by the American Chemistry Council. It claims to represent "the world's leading manufacturers of fluoropolymers, flurotelomers and other fluorinated surfactants and surface property modification agents (fluorotechnology)." The Council also argues that the remediation approach adopted by the DEP is not scientifically sound and thus legally unenforceable. After carefully reviewing the record before us and considering the arguments presented by the parties, we are satisfied that the ISGWQC have acquired a permanency which is facially inconsistent with the "interim" authority conferred to the DEP under N.J.A.C. 7:9C-1.7(c)(2). As judges, we are not in position to determine the scientific validity of these measures. Our conclusion here is based on well-settled principles of statutory construction in the context of administrative law. We will thus limit our factual recitation to the following undisputed procedural events. 4 A-1439-15T4 I On January 17, 2014, the DEP alerted the Borough of Paulsboro that it had discovered concentrations of PFNA at a level of 150 parts per trillion in the Borough's supply of potable water. A Technical Support Document dated June 24, 2014, prepared by the DEP Office of Science and authored by Dr. Gloria B. Post, revealed the presence of PFNA in certain public drinking water sources five years earlier in 2009. The study found 0.96 ppb (parts per billion) of PFNA in a municipal well "at a public water supply well (Paulsboro Water Department)" located two miles from Solvay's plant in the Township of West Deptford, Gloucester County. The DEP did not notify the public or Solvay of this sampling study in 2009. In a letter dated January 17, 2014, addressed to the Paulsboro Water Department and copied to the Borough's Mayor and another individual identified only as "Site Remediation Program," the DEP's Assistant Director of Water Supply Operations made the following statement: As you are aware, sampling of Paulsboro Water Department's water system for perfluorinated compounds (PFC) has been conducted by the New Jersey Department of Environmental Protection (Department), Paulsboro Water Department (Paulsboro), and Solvay Specialty Polymers (Solvay). One of those compounds, perfluorononanoic acid (PFNA), has been detected at levels of up to 150 parts per 5 A-1439-15T4 trillion in Well #7. While PFCs are considered to beemerging contaminants and there is currently no drinking water standard or guidance level for PFNA, the Department believes the concentrations found at Paulsboro's Well #7 warrant actions. The Department understands that it is currently necessary for Paulsboro to operate Well #7 because Paulsboro's other primary well, Well #8, is offline while treatment for radium is upgraded, and that Well #8 is expected to be online in March 2014. We also recognize that PFCs have been detected in Well #8 but at significantly lower levels. In order to address community concerns with reports of PFNA in the water supply, we have prepared the enclosed Fact Sheet to use for your communications with the public. While using Well #7, to ensure an abundance of caution, we recommend for the most sensitive population, infants and children up to age one, that bottled water or liquid prepared formula be used, including use of bottled water when preparing powdered or concentrate formula. The Department would like to work closely together with Paulsboro and Solvay to facilitate a simple remedy to reduce concentrations of PFNA in their water system, assist in communications with the public, and determine the need for the provision of bottled water as appropriate. Toward that end, I will be contacting you shortly to further discuss these matters. On March 14, 2014, the DEP posted on its website a draft ISGWQC for PFNA of 0.02 ppb, the equivalent of 20 parts per trillion. The DEP posted an updated Draft of Technical Support on April 17, 2014, which included six "focus questions" seeking 6 A-1439-15T4 public input on the draft ISGWQC. Appellants claim that this Draft was not scientifically sound because the author had not submitted her methodology, data, and conclusion to peer review. Once again we emphasize that, as appellate judges, we are not competent to determine the scientific validity of the approach adopted by the DEP. However, from a legal perspective, we note that DEP did not publish a notice of proposed rulemaking or the text of the March 2014 TSD in the New Jersey Register. Despite this omission, Solvay submitted comments and objections to the draft in a letter dated May 1, 2014, authored by its attorneys. Solvay's counsel argued that the proposed ISGWQC "would violate the New Jersey Administrative Procedures Act." Specifically, counsel made the following request: If the Department feels that the setting of a ground water criterion for PFNA is essential, and the Department believes that the science exists upon which the Department can reliably set such a criterion, Solvay respectfully requests that the Department invoke a process that fully complies with the APA, the enabling environmental statutes, and its own rules. Doing so would allow the public and interested parties to meaningfully participate and add credibility to the outcome. The DEP did not heed this request. The interim criteria posted on its website in March 2014 remained. On April 9, 2015, the DEP, acting in conjunction with the Drinking Water Quality Institute (DWQI) lowered the Target Human Serum Level established 7 A-1439-15T4 in March 2014 from 17 ppb to 5.2 ppb. Once again this action was announced to the public and the affected parties via a draft ISGWQC for PFNA posted on the Department's website. This cut the original proposal from 0.02 ppb to 0.01 ppb. The Department relied on the same scientific study. The DEP limited the public's response to the April 9, 2015 interim criteria to four questions addressing whether the public possessed technical information relevant to "the choice of uncertainty factors" and to the "choice of Relative Source Contribution factor." Appellants responded to the DEP's questions. Their responses challenged the scientific validity of the data and methodology used to reach the conclusions of the Department. In a document dated June 24, 2015, the DEP posted on its website a "Response Summary to the Requests for Public Input." This posting was done without any advance notice to the public and its legal consequences were immediately effective. Although the Department did not promulgate regulations to identify PFNA as a "hazardous substance," the PFNA ISGWQC is incorporated by reference as "minimum ground water remediation standards." This required the ground water to conform to a level of PFNA below 0.01 ppb.1 1 N.J.A.C. 7:26D-2.2(a)(1) sets the minimum remediation standards to which ground water shall be remediated pursuant to N.J.A.C. 7:9C-1.7(c) and (d). 8 A-1439-15T4 The DEP did not publish these standards in the New Jersey Register. In addition to a posting on its website, on November 30, 2015, the DEP sent email notice to a select segment of the regulated community and licensed site remediation professionals. According to Solvay, no laboratory located in this State is certified to analyze water for PFNA to the level required by these interim criteria. In fact, Solvay claims that there are only four laboratories certified to do this type of work in the continent of North America. Since the issuance of the ISGWQC for PFNA, the Department has identified fifty wells that exceed the ISGWQC for PFNA. These wells are located over a three-county area, spanning forty-one miles.2 II Appellants argue that the DEP adopted the ISGWQC for PFNA in violation of the rule-making procedures required under the APA and applicable statues. They also challenge as arbitrary and capricious the calculations and scientific methodology adopted by the DEP to reach its conclusion. Appellants also argue that the interim criteria violate the Brownfield and Contaminated Site Remediation Act. Amicus Curiae, FluroCouncil, takes issue with the scientific methodology used by the DEP to establish the ISGWQC 2 Pursuant to N.J.A.C. 7:26E-1.11, immediate remediation is required under the Site Remediation Standards. 9 A-1439-15T4 for PFNA. It claims that the remediation standards established by the DEP are "nearly impossible" to uphold by the regulated community. In response, the DEP argues that the use of interim specific criterion for PFNA is in accordance with the APA and applicable statutes. The DEP maintains that the equation and scientific methodology it used to establish PFNA interim criteria are reasonable, supported by substantial evidence in the record, and in accordance with N.J.A.C. 7:9C-1.7(c)(4). In support of this latter argument, the DEP emphasizes that this regulation enables the DEP to recognize and promptly respond to new constituents which pose a threat to public health. Thus, the use of the interim criteria at issue here "provides more certainty to the regulated community engaging in cleanup, prior to formal adoption of a specific criterion in the rule's appendix." The DEP also argues it went beyond what is required under N.J.A.C. 7:9C-1.7(c)(4) when it provided "significant and repeated opportunity for public participation" by soliciting comments on its website and considering the responses "to certain questions from interested parties on multiple occasions." On September 2015, the DEP received a "Petition for Rulemaking." In response, it "noted its intent to initiate a stakeholder process in 2016 to determine whether Ground Water Quality Standards should be 10 A-1439-15T4 updated." Finally, in the brief filed in this appeal, the DEP noted it "intends to move forward with this process and to formally adopt interim specific criteria, including PFNA, as specific criteria in the coming months." An administrative agency's authority to act is subject to the due process requirements of the APA, which defines a "rule" as [E]ach agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of any rule, but does not include: (1) statements concerning the internal management or discipline of any agency; (2) intra-agency and inter-agency statements; and (3) agency decisions and findings in contested cases. [N.J.S.A. 52:14B-2.] When issuing new rules and regulations, an administrative agency must "proceed in accordance with traditional rulemaking requirements for a rule proposal, including provision of notice and an opportunity to comment." I/M/O Provision of Basic Generation Serv., 205 N.J. 339, 349 (2011). The APA defines an "administrative rule" to include an "agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." N.J.S.A. 52:14B-2. 11 A-1439-15T4 This appeal turns on whether the ISGWQC adopted by the DEP for PFNA falls under N.J.A.C. 7:9C-1.7(c)(2)(ii), which provides as follows: (c) Ground water quality criteria for Class II-A areas are established as follows: 2. The Department may establish an interim specific criterion, pursuant to (c)3 below, for a constituent not listed in Appendix Table 1. ii. Interim specific criteria shall be replaced with specific criteria as soon as reasonably possible by rule. [Emphasis added.] The ISGWQC for PFNA adopted by the DEP as an "interim criteria" was posted on the Department's website on March 14, 2014. As far as we know, these interim measures remain in effect more than three years after they were first posted on the website. Whether this approach constitutes a valid exercise of the authority provided in the regulation or constitutes an invalid agency action in violation of the requirements of the APA is a judicial determination. In making this determination, we must apply the multi-factor analysis the Court established in Metromedia, Inc. v. Div. of Taxation, 97 N.J. 313 (1984): 12 A-1439-15T4 [A]n agency determination must be considered an administrative rule . . . if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. [Id. at 331-32] However, not all of these factors need to be present for an agency action to be considered to constitute an administrative rule. Id. at 332. The salient facts in the Court's decision in University Cottage Club of Princeton v. Dep't of Envtl. Prot., 191 N.J. 38 (2007), provide a blueprint of how to determine whether an agency's action constitutes rule making under Metromedia. In University Cottage Club the Commissioner of the DEP based his decision to deny the plaintiff's certification as a tax-exempt historic site based "on an intention to promulgate more stringent 13 A-1439-15T4 rules governing public access to such sites[.]" Id. at 41. Despite the absence of duly promulgated regulations, the Commissioner decided, in the interim, "to deny all applications that did not meet 'objectively reasonable standards of public accessibility.'" Ibid. This court affirmed the Commissioner's decision. Ibid. The Supreme Court reversed. Ibid. Writing for the Court, Justice Long identified the particular defects of the Commissioner's decision under the Metromedia paradigm: Here, the Commissioner's decision to reject what he had previously declared to be the applicable twelve-day public-access standard pending promulgation of his new and more stringent access requirement and to deny all pending applications that did not meet undisclosed "objectively reasonable standards" has all of the earmarks of rule- making. Plainly, the new scheme was intended to apply generally and uniformly to all similarly situated persons. Further, it was intended as a statement of an administrative position that had not been previously expressed, constituting a material change from a clear, past agency position on the subject. It was also intended to prescribe a standard, not clearly inferable from the enabling legislation, and was, in form and effect, a decision on administrative regulatory policy. [Id. at 54-55 (emphasis added).] The ISGWGC also has all the "earmarks of rule-making." It is a new standard for water quality, intended to apply universally, uniformly, and prospectively to the regulated community. The 14 A-1439-15T4 record also supports the applicability of the fifth Metromedia factor. Although ISGWQC for PFNA has been potentially subject to the interim generic criterion of ppb as a synthetic organic chemical,3 this is the first time the DEP has singled out PFNA as a constituent of ground water requiring attention. Furthermore, the ISGWQC is, in form and effect, "a decision on administrative regulatory policy." University Cottage Club, 191 N.J. at 55. N.J.A.C. 7:9C-1.7(c)(2)(ii) expressly limits the DEP's authority to establish "specific criteria" with the expectation that they "shall be replaced with specific criteria as soon as reasonably possible by rule." (Emphasis added). The record here shows that these interim criteria have become de facto a permanent regulatory scheme without the agency complying with the requirements of the APA. As such, these measures are declared invalid. However, the public interest requires that we give the DEP a reasonable opportunity to either initiate the process of complying with the APA or seek Supreme Court review of our decision. We therefore stay the implementation of this decision for thirty days to permit the DEP to file a petition for certification to the Supreme Court or a formal notice to this court that it has decided 3 N.J.A.C. 7:9C-1.7(c)(6) 15 A-1439-15T4 to start the process of compliance with the APA. In light of this decision, we decline to address the remaining arguments raised by appellants attacking the actions taken by the DEP. Reversed and remanded. 16 A-1439-15T4
IN THE MATTER OF THE REVOCATION OF THE CERTIFICATE OF CRAIG BELL BY THE NEW JERSEY STATE BOARD OF EXAMINERS
Date: December 19, 2017
Docket Number: a4135-14
Date: December 19, 2017
Docket Number: a4135-14
TRUSTEES OF THE ALPINE METHODIST EPISCOPAL CHURCH v. NEW JERSEY UNITED METHODIST CHURCH
Date: December 19, 2017
Docket Number: a4583-15
Date: December 19, 2017
Docket Number: a4583-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. DAJUAN COPPER, a/k/a DAJUAN COOPER
Date: December 18, 2017
Docket Number: a0134-16
Date: December 18, 2017
Docket Number: a0134-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STEVEN D'AGOSTINO v. CAPITAL ONE and GARY L. MASON
Date: December 18, 2017
Docket Number: a0431-15
Date: December 18, 2017
Docket Number: a0431-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the UNION COUNTY DIVISION OF SOCIAL SERVICES OBO DCF CENTRAL-OFFICE TRENTON v. J.D
Date: December 18, 2017
Docket Number: a0578-16
Date: December 18, 2017
Docket Number: a0578-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. LAWRENCE BROWN
Date: December 18, 2017
Docket Number: a0671-16
Date: December 18, 2017
Docket Number: a0671-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the FABIAN CZERWINSKI v. GERARD A. COMPITO
Date: December 18, 2017
Docket Number: a0692-16
Date: December 18, 2017
Docket Number: a0692-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the FIFTH THIRD BANK, a/k/a OLD KENT BANK v. R. MAXIMILIAN GOEPP, III BARRY J. FRY, ESTATE OF CARLA GOE
Date: December 18, 2017
Docket Number: a0943-16
Date: December 18, 2017
Docket Number: a0943-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the PAUL MAURICE BROWN v. MICHELE BROWN
Date: December 18, 2017
Docket Number: a1058-15a245 PER CURIAM In these three appeals, which we have consolidated for purpose of this opinion, plaintiff Paul Brown challenges a series of post- judgment orders entered by the Family Part. We affirm. In A-1058-15, plaintiff appeals from a September 24, 2015 order denying reconsideration of an order continuing his alimony obligation without reduction. Plaintiff sought a reduction in this obligation based upon changed circumstances.1 In A-2452-15, plaintiff appeals from a January 6, 2016 order which required that he provide previously ordered financial information. The order was entered after defendant, Michele Brown, moved to enforce litigant's rights. In A-4626-15, plaintiff appeals from an order granting defendant a stay of the sale of the marital home until plaintiff complied with all aspects of the settlement agreement. The parties were divorced on March 16, 2012. At the time of the divorce, the parties entered into a Property Settlement Agreement (PSA). Over the course of several years following their divorce, the parties have engaged in extensive post-judgment motion practice on a myriad of issues relating to enforcement or modification of the PSA. On these appeals, plaintiff raises numerous arguments including that the Family Part judge was biased in favor of defendant. After our review of the record, we conclude that 1 In plaintiff's motion he sought reconsideration of numerous orders. However, per Rule 4:49-2, only the order of July 27, 2015, was timely for reconsideration. 2 A-1058-15T3 plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Notwithstanding, we briefly address whether plaintiff was entitled to a reduction of his support obligation. At the outset, we note the precepts that guide our decision. First, we accord special deference to the family court because of its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Absent compelling circumstances, we are not free to substitute our judgment for that of the trial court, which has become familiar with the case. Schwartz v. Schwartz, 68 N.J. Super. 223, 232 (App. Div.), cert. denied, 36 N.J. 143 (1961). However, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, the judge had experience with both plaintiff and defendant from their numerous post-judgement motions. Second, reconsideration should only be used "for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Cummings v. Bahr, 295 N.J. Super. 3 A-1058-15T3 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)). Additionally, the decision to deny a motion for reconsideration falls within the sound discretion of the trial judge, to be exercised in the interest of justice. Ibid. "While the 'abuse of discretion standard defies precise definition,' we may find an abuse of discretion when a decision 'rest[s] on an impermissible basis' or was 'based upon a consideration of irrelevant or inappropriate factors.'" State v. Steele, 430 N.J. Super. 24, 34-35 (App. Div. 2013) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002). Plaintiff sought a reduction in his support obligation based upon changed circumstances. Plaintiff claimed that circumstances such as a new marriage and his non-permanent physical injury qualified as the bases for modification of alimony. Plaintiff argued that these "changed circumstances" decreased his income by twelve percent from his income at the time of the divorce. In denying plaintiff's motion, the judge held: The [c]ourt has reviewed [p]laintiff and [d]efendant's financial documentation in connection with [p]laintiff's claim of changed circumstances. The parties' [Judgement of Divorce] sets forth the income amounts that the parties utilized in determining the original alimony award of [$200] per week. Both parties' income are substantially similar to that which they were in 2010[,] as both 4 A-1058-15T3 parties are making within [$4000] of what they were making in 2010 or what they were imputed to. Defendant was imputed to [$22,000] and her current paychecks show that she makes $498.22 per week which amounts to $25,907.44. As to [p]laintiff's income, the [c]ourt notes from his paychecks that he makes [$480] weekly (at forty hours per week) and an average of $140.94 in overtime per month; utilizing these numbers and the [$497] in gross [Veterans Affairs] disability benefit that [p]laintiff receives per month [p]laintiff's annual income is $32,615.28. Therefore [,] the [c]ourt does not find that [p]laintiff has evinced a sufficient change in circumstances to warrant a modification of his alimony obligation. Plaintiff's application to modify support is governed by well-settled principles. A party seeking to modify support has the burden to present a prima facie showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157-58 (1980). Support orders are always subject to review and modification upon such a showing. Id. at 146. Lepis and its progeny generally address changed circumstances through the prism of a supporting spouse's ability to pay, usually premised upon a reduction of the payor's stream of income. See Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). After consideration of the record and controlling law, we discern no error in the determination to deny plaintiff's motion to reduce his alimony obligation. As well, we discern no abuse of discretion in the determination to deny reconsideration. 5 A-1058-15T3 Affirmed. 6 A-1058-15T3
Date: December 18, 2017
Docket Number: a1058-15a245 PER CURIAM In these three appeals, which we have consolidated for purpose of this opinion, plaintiff Paul Brown challenges a series of post- judgment orders entered by the Family Part. We affirm. In A-1058-15, plaintiff appeals from a September 24, 2015 order denying reconsideration of an order continuing his alimony obligation without reduction. Plaintiff sought a reduction in this obligation based upon changed circumstances.1 In A-2452-15, plaintiff appeals from a January 6, 2016 order which required that he provide previously ordered financial information. The order was entered after defendant, Michele Brown, moved to enforce litigant's rights. In A-4626-15, plaintiff appeals from an order granting defendant a stay of the sale of the marital home until plaintiff complied with all aspects of the settlement agreement. The parties were divorced on March 16, 2012. At the time of the divorce, the parties entered into a Property Settlement Agreement (PSA). Over the course of several years following their divorce, the parties have engaged in extensive post-judgment motion practice on a myriad of issues relating to enforcement or modification of the PSA. On these appeals, plaintiff raises numerous arguments including that the Family Part judge was biased in favor of defendant. After our review of the record, we conclude that 1 In plaintiff's motion he sought reconsideration of numerous orders. However, per Rule 4:49-2, only the order of July 27, 2015, was timely for reconsideration. 2 A-1058-15T3 plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Notwithstanding, we briefly address whether plaintiff was entitled to a reduction of his support obligation. At the outset, we note the precepts that guide our decision. First, we accord special deference to the family court because of its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Absent compelling circumstances, we are not free to substitute our judgment for that of the trial court, which has become familiar with the case. Schwartz v. Schwartz, 68 N.J. Super. 223, 232 (App. Div.), cert. denied, 36 N.J. 143 (1961). However, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, the judge had experience with both plaintiff and defendant from their numerous post-judgement motions. Second, reconsideration should only be used "for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Cummings v. Bahr, 295 N.J. Super. 3 A-1058-15T3 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)). Additionally, the decision to deny a motion for reconsideration falls within the sound discretion of the trial judge, to be exercised in the interest of justice. Ibid. "While the 'abuse of discretion standard defies precise definition,' we may find an abuse of discretion when a decision 'rest[s] on an impermissible basis' or was 'based upon a consideration of irrelevant or inappropriate factors.'" State v. Steele, 430 N.J. Super. 24, 34-35 (App. Div. 2013) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002). Plaintiff sought a reduction in his support obligation based upon changed circumstances. Plaintiff claimed that circumstances such as a new marriage and his non-permanent physical injury qualified as the bases for modification of alimony. Plaintiff argued that these "changed circumstances" decreased his income by twelve percent from his income at the time of the divorce. In denying plaintiff's motion, the judge held: The [c]ourt has reviewed [p]laintiff and [d]efendant's financial documentation in connection with [p]laintiff's claim of changed circumstances. The parties' [Judgement of Divorce] sets forth the income amounts that the parties utilized in determining the original alimony award of [$200] per week. Both parties' income are substantially similar to that which they were in 2010[,] as both 4 A-1058-15T3 parties are making within [$4000] of what they were making in 2010 or what they were imputed to. Defendant was imputed to [$22,000] and her current paychecks show that she makes $498.22 per week which amounts to $25,907.44. As to [p]laintiff's income, the [c]ourt notes from his paychecks that he makes [$480] weekly (at forty hours per week) and an average of $140.94 in overtime per month; utilizing these numbers and the [$497] in gross [Veterans Affairs] disability benefit that [p]laintiff receives per month [p]laintiff's annual income is $32,615.28. Therefore [,] the [c]ourt does not find that [p]laintiff has evinced a sufficient change in circumstances to warrant a modification of his alimony obligation. Plaintiff's application to modify support is governed by well-settled principles. A party seeking to modify support has the burden to present a prima facie showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157-58 (1980). Support orders are always subject to review and modification upon such a showing. Id. at 146. Lepis and its progeny generally address changed circumstances through the prism of a supporting spouse's ability to pay, usually premised upon a reduction of the payor's stream of income. See Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). After consideration of the record and controlling law, we discern no error in the determination to deny plaintiff's motion to reduce his alimony obligation. As well, we discern no abuse of discretion in the determination to deny reconsideration. 5 A-1058-15T3 Affirmed. 6 A-1058-15T3
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the FUTURE CARE CONSULTANTS LLC v. BARBARA ABRAHAM and IAN LIVINGSTONE -
Date: December 18, 2017
Docket Number: a1533-16
Date: December 18, 2017
Docket Number: a1533-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the ROBIN PARNESS, n/k/a ROBIN PARNESS LIPSON v. MARTIN PARNESS
Date: December 18, 2017
Docket Number: a1738-15
Date: December 18, 2017
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JOHN GIERCYK v. CITY OF ESTELL MANOR PLANNING ZONING BOARD
Date: December 18, 2017
Docket Number: a2729-15
Date: December 18, 2017
Docket Number: a2729-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the H.G v. E.G
Date: December 15, 2017
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Date: December 15, 2017
Docket Number: a0051-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the DAWN THOMAS v. BOARD OF TRUSTEES PUBLIC EMPLOYEES RETIREMENT SYSTEM -
Date: December 15, 2017
Docket Number: a0344-16
Date: December 15, 2017
Docket Number: a0344-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the OF CHILD PROTECTION AND PERMANENCY v. K.L. and H.R and A.M IN THE MATTER OF A.R. and A.M Minors.1
Date: December 15, 2017
Docket Number: a0610-16
Date: December 15, 2017
Docket Number: a0610-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. KEVIN FRANCO
Date: December 15, 2017
Docket Number: a0703-16
Date: December 15, 2017
Docket Number: a0703-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. KEITH BRAILEY
Date: December 15, 2017
Docket Number: a0745-16
Date: December 15, 2017
Docket Number: a0745-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the ANNETT RUFFIN and DENNIS RUFFIN v. STATE OF NEW JERSEY and NEW JERSEY PROPERTY-LIABILITY INSURANCE
Date: December 15, 2017
Docket Number: a1046-16
Date: December 15, 2017
Docket Number: a1046-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the MARIA LUISA BURDONI and MARIA BULDOY v. THE INGERMAN GROUP and PARKVIEW SENIOR HOUSING, LLC and PER
Date: December 15, 2017
Docket Number: a1171-16
Date: December 15, 2017
Docket Number: a1171-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. DONALD J. ROGERS
Date: December 15, 2017
Docket Number: a1525-15
Date: December 15, 2017
Docket Number: a1525-15
RAJESHWAR SINGH YADAV v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION LAND USE REGULATION
Date: December 15, 2017
Docket Number: a4035-15
Date: December 15, 2017
Docket Number: a4035-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the SHARON SEAMON v. STATE FARM INSURANCE COMPANY
Date: December 14, 2017
Docket Number: a0293-16
Date: December 14, 2017
Docket Number: a0293-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. A.W
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the TARLOCK SINGH v. GURMET SINGH
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Docket Number: a0340-16
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. L.O.T
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the S.S v. C.F
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Docket Number: a0482-16
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Docket Number: a0482-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. MUKHRAN UMSTEAD
Date: December 14, 2017
Docket Number: a1774-15
Date: December 14, 2017
Docket Number: a1774-15
DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.H.
Date: December 14, 2017
Docket Number: a3763-15 PER CURIAM Defendant M.H. appeals from an order entered after a Family Part judge found she abused and neglected her three children, and from an order entered by another Family Part judge terminating her parental rights. We have consolidated these matters and address both in this single opinion; we affirm both orders. M.H. is the mother of three girls, Nancy, Mildred and Jennifer,1 born in 2005, 2006 and 2012, respectively. The Division of Child Protection and Permanency removed the girls on October 31, 2014; thereafter the Division was granted custody, with weekly supervised visitation offered to the girls' parents. Following a Title 9 hearing on March 4, 2015, the judge found M.H. abused and neglected the children. M.H. contends the Title 9 judge erred because the Division failed to offer sufficient proof that: she "suffered from mental illness and that said mental illness prevented her from providing 1 The girls' pseudonyms used in defendant's Title 9 brief are repeated here to protect their privacy. 2 A-3763-15T4 adequate care to her children"; "the family's shortcomings, if any, were caused by [M.H.'s] mental illness as opposed to poverty"; M.H. "failed to comply with treatment or that her lack of compliance posed a real threat of harm to the children." She also avers the admission by the judge of an August 21, 2013 doctor's report as an adoptive admission was error. The children's law guardian submits the evidence presented by the Division did not establish abuse or neglect. The State counters that the proofs established M.H. failed to properly address her mental health and home management issues and, despite services provided to her, placed the girls at substantial risk of harm. The scope of our review of an order finding abuse or neglect is limited. New Jersey Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011). We must "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." New Jersey Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104; see also New Jersey Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). "[E]ven if we would not have made the same decision if we had heard the case in the first instance[,]" the trial court's factual findings 3 A-3763-15T4 should not be disturbed unless they "are 'so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007); see also N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014). An "abused or neglected child," is defined by N.J.S.A. 9:6- 8.21(c)(4), as a child who is less than eighteen years of age and whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[;] . . . or by any other acts of a similarly serious nature requiring the aid of the court. "'Whether a parent or guardian has failed to exercise a minimum degree of care' in protecting a child is determined on a case-by- case basis and 'analyzed in light of the dangers and risks associated with the situation.'" N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 614 (App. Div. 2010) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999)). "'[M]inimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., 157 4 A-3763-15T4 N.J. at 178. "[A] guardian [or parent] fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. This standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Moreover, a parent may be found to have abused or neglected a child when the parent creates a substantial risk of harm, since a court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Courts have recognized that a parent's inaction or unintentional conduct may amount to a finding of abuse or neglect, if there is evidence that the child was injured. G.S., 157 N.J. at 177-82. The judge recognized that poverty played a role in M.H.'s inability to provide furniture, food and a clean home. He noted, however, her reluctance to cooperate with the Division to address her long-standing mental health needs. The judge found reports that M.H. was medication compliant were belied by the condition of the children and home – and that there had been no change in that condition. He also found a "complete" lack of compliance with her mental health treatment led to a "psychotic episode" that 5 A-3763-15T4 occurred in the Division's office, presenting overlapping circumstances that resulted in a risk to the children's safety. Despite the provision of services by the Division, M.H.'s failure to comply left her unable to care for her children and placed them at substantial risk of harm. The record supports the judge's findings. The Division caseworker – the only witness to testify at the Title 9 hearing – and her reports, which were admitted into evidence, established that the Division, at the time this action was commenced in October 2014, had already assigned a parent-aide to assist M.H. in caring for the children because of issues involving the cleanliness of the home and the children, and a lack of food in the house. Despite favorable reports from the parent-aide, which led to the cessation of those services in April 2014, the caseworker, shortly thereafter, found the home ill-managed; the roach-infested residence was dirty and littered with trash, clothing and soiled dishes. The children's beds were devoid of linens, and the baths were devoid of toiletries. Although the Division had considered closing the family's case, M.H. was told that the case would remain open until she improved home conditions. Over the next few months, the Division noted M.H. was not cleaning the residence. It was still roach-infested and strewn with trash, including food left on the floors. Moreover, the 6 A-3763-15T4 children were unsupervised; the caseworker found Nancy and Mildred playing outside, wet and dressed only in their undergarments. Jennifer was seen without a diaper or underclothes. The children were not groomed. For months, M.H. did not take proactive steps to secure her food stamp entitlement in order to provide food for the children, despite previous exhortations from the parent-aide and a like concern from the caseworker. The caseworker described the amount of food in the house as "bare, bare minimum." The children did not attend school for a period because M.H. failed to buy clothes and school supplies, although she was given funds prior to the start of classes. In August 2014, M.H. showed the Division workers a psychiatrist's report and her prescription medication – Seroquel. Based on the prescription instructions, the date of the prescription and the amount of pills – both originally prescribed and left in the bottle – the caseworker was concerned that M.H. was not properly medicating. The doctor's report M.H. gave to the workers contained a diagnosis of bipolar disorder with occasional auditory hallucinations.2 The Division referred M.H. for a 2 The judge summarily admitted the report as an adoptive admission prior to any testimony establishing the requirements for admission under N.J.R.E. 803(b)(3). The record is unclear – if not barren – as to the judge's findings justifying admission of the report. We find no justification for admission. We note that the only 7 A-3763-15T4 psychological evaluation in order to assess her parenting capacity.3 The Division also referred M.H. to Family Preservation Services (FPS) to assist her four days per week with home care, financial management, community resource links and mental health care. The FPS services were discontinued after approximately one month due to noncompliance and a lack of progress; although M.H. appeared to make an effort at times, she was incapable of retaining any of the skills she was taught. After the psychological evaluation, the Division met with M.H. in an effort to set up a psychiatric evaluation and a partial- hospitalization program. Soon thereafter, M.H. appeared at the Division's office with Jennifer. Because she seemed emotional and delusional, she was referred for an emergency mental health screening. She was involuntarily committed on October 31, 2014 – possible reference to the report the judge made in his decision was that M.H. knew she had a mental health issue for some time, presumably based on the diagnosis in the report. We will not consider the report as evidence that could support the judge's findings. 3 The caseworker testified she had discussed the need for a psychological evaluation because of M.H.'s inability to care for the children and the home even though she had the services of a parent-aide, and because "just talking to [M.H.] and seeing that she wasn't getting it, we were starting to feel like . . . is it something else." 8 A-3763-15T4 the same day the children were removed4 – and remained in the hospital for about two weeks. Even absent expert testimony regarding M.H.'s psychiatric or psychological condition, her behavior and, more importantly, her failure to care for the children and their environment, notwithstanding services provided by the Division, present proof by a preponderance of the evidence that the girls were abused and neglected. N.J.S.A. 9:6-8.21(c)(4). Further, the proofs show that it was M.H.'s lack of care – not her poverty – that caused the abuse and neglect. She did not pursue entitlements which would have allowed her to provide sustenance for her children and cleaning supplies for the residence. She did not cooperate with the service providers in order to resolve her long-standing problems in caring for the children and the home. M.H. – not poverty – was the reason the children were unkempt and the residence was filthy for a protracted period. The balance of M.H.'s arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments. Despite protestations about the lack of competent evidence of M.H.'s mental illness, she 4 On the day of their removal, the caseworker testified that the two youngest children were in "the normal condition," "unkempt[,] [t]heir hair wasn't done. Their clothes were dirty. Neither one of them had on socks. [Mildred] didn't have on any undergarments." 9 A-3763-15T4 concedes in her merits brief "the record demonstrates that [she] complied with mental health services," and that she "self-reported that she was 'seeing a psychiatrist,'" specifically Dr. Cowen, whose report she presented to the caseworker – the very report she now contends was improperly considered by the judge. Her appearance at the Division's office and her subsequent hospitalization were evidence of M.H.'s mental health issues. As the judge concluded, although M.H. was aware of her mental health diagnosis, she did not avail herself of services to address that issue. There was sufficient evidence, even without Dr. Cowen's report, to establish M.H.'s condition. We affirm the order entered memorializing M.H.'s abuse and neglect. Subsequent to the entry of the Title 9 order, after finding M.H. was not capable of providing adequate child care because she had a history of noncompliance with mental health treatment and needed intensive psychiatric treatment, a reunification plan with the girls' fathers was approved at an October 2015 permanency hearing.5 That plan was scotched and the Division filed a complaint for guardianship in March 2016. 5 No plan to reunify the girls with M.H. was attempted because she was found to be incapable of parenting. 10 A-3763-15T4 Jennifer had been placed with a paternal aunt in Virginia in late August 2015. Mildred, after living in two resource homes, was also placed with the aunt in Virginia in July 2016. The Virginia aunt wanted to adopt both girls. Nancy was placed with another paternal aunt in New Jersey in November 2015. That aunt wanted to adopt Nancy. Judge James R. Paganelli, during a three-day trial, heard testimony from the Division caseworker who testified at the Title 9 hearing, and the adoption caseworker. He also heard testimony from Jonathan Mack, Psy.D., who was stipulated as an expert in neuropsychology. Dr. Mack conducted a neuropsychological evaluation of M.H. Dr. Mark Singer, Ed.D., also testified, after he was stipulated as an expert in psychology, about his evaluation of M.H. and the bonding evaluations he conducted of all three girls with M.H. and the paternal aunt with whom each was residing. The judge issued a written decision and entered a permanency order terminating M.H.'s parental rights to all three girls.6 M.H. contends that the trial court's conclusions were improper because the evidence did not clearly and convincingly establish the statutory factors required to be proved by the 6 The order also terminated the parental rights of Mildred's natural father. He has not appealed. Nancy's father and Jennifer's father executed voluntary identified surrenders of their rights. 11 A-3763-15T4 Division before parental rights can be terminated. N.J.S.A. 30:4C- 15.1(a). The Division and the law guardian aver that the court's determination was made after clear and convincing evidence as to each factor was established by the presented evidence. We affirm substantially for the reasons found by Judge Paganelli. "Our review of a trial judge's decision to terminate parental rights is limited." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, we accord even greater deference to the judge's fact-finding "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Id. at 413. We will not disturb the trial judge's factual findings unless they are "so wide of the mark that a mistake must have been made," even if we would not have made the same decision. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests 12 A-3763-15T4 of the child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Before parental rights may be terminated, the Division must prove the following four prongs by clear and convincing evidence: (1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).] The factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J. at 348. 13 A-3763-15T4 Judge Paganelli conducted a fact-sensitive analysis of each prong and made factual findings after an attentive consideration of the evidence. The judge's conclusions relevant to the first prong dovetailed with his findings supporting the second prong, a common occurrence resulting from the overlap of the two. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006). The record supports his ruling that the Division established these prongs. Judge Paganelli noted Dr. Mack's and Dr. Singer's findings that M.H. suffered from various mental disorders, and that the deficits attributed to those disorders – and to "issues related to substance abuse and antisocial tendencies" – rendered her an implausible parenting option. He also credited Dr. Mack's opinion that her dysfunction negated any treatment option that would make her "a minimally effective parent," and found M.H. was thus "unable to eliminate the harm facing the children." He also found her noncompliance with mental health treatment services indicated her unwillingness to remove the harm. He further concluded the "uncontroverted and credible expert testimony . . . reveals that separating these children from their resource family parents would cause serious and enduring emotional or psychological harm" that M.H. could not mitigate. 14 A-3763-15T4 Contrary to M.H.'s present argument, the judge's opinion that the Division met the first two prongs was not based solely on M.H.'s mental illness. The record is replete – as reflected by Judge Paganelli's findings – with evidence of M.H.'s noncompliance with treatment and services, and the deleterious impact of her protracted failure to provide for the children and their home. 7 Notwithstanding M.H.'s efforts at treatment, and occasional periods of appropriate parenting, she never sustained either. The judge properly ruled there was clear and convincing evidence to establish the first and second prongs. We determine M.H.'s argument with regard to the third prong is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that Judge Paganelli recognized the plethora of services offered to M.H. by the Division, and that those programs "were planned after expert evaluations of her various needs" and "were individualized and particular" to her needs. He recognized that although the Division provided M.H. with transportation to the Virginia location at which Mildred and Jasmine were fostered, it did not provide M.H. with housing. He considered M.H.'s argument that the Division's 7 Both doctors, whose opinions the judge considered, reviewed records and reports pertaining to M.H.; the judge particularly noted Dr. Singer's "extensive record review," as well as the doctors' interaction with M.H. 15 A-3763-15T4 failure to provide lodging evidenced a lack of reasonable efforts regarding visitation, but rejected the argument because it ignored (1) [M.H.'s] failure to complete services which would have resulted in the children being returned to her, (2) this was a relative resource placement, [the Division] was obligated to assess the relative . . . , (3) [the Division] attempted to assess closer, however, uncooperative relatives, (4) [M.H.'s] failure to utilize the transportation offered – she is required to make some effort in the reunification process . . . and (5) [M.H.] was happy that [Jennifer] was "ok" that [Mildred] would be staying with the paternal aunt. Inasmuch as the judge also fully considered all alternatives to termination, we conclude his findings as to the third prong were substantiated. In deciding whether the Division met its burden with regard to the fourth prong, the judge heeded the Court's mandate in K.H.O. and considered the "realistic likelihood that the [natural] parent will be capable of caring for the child in the near future," 161 N.J. at 357, and found none. The judge properly relied on Dr. Singer's unrefuted opinion that, although each girl would experience a negative reaction if removed from either M.H. or her prospective adoptive parent – her aunt – only the negative reaction to the loss of the adoptive parent would be significant and enduring. The determination of "whether, after considering and balancing the two relationships, 16 A-3763-15T4 the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster [or resource] parents," K.H.O., 161 N.J. at 355, "is an expert judgment," In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002). Bonding evaluations play an important role in this regard. In re Guardianship of J.C., 129 N.J. 1, 18-19 (1992). Psychologists and psychiatrists who perform the evaluations "play a critical role in reaching an ultimate decision in termination cases." Id. at 22. The judge, after reviewing Dr. Singer's opinion, reflected: Therefore, the court is left to consider a healthy relationship between the children and their paternal aunts that, if terminated, would cause harm that [M.H.] could not mitigate and would cause significant and enduring harm versus an unhealthy relationship with [M.H.] Further, although there would be harm in terminating [M.H.'s] parental rights, that harm can be mitigated by the paternal aunts. The judge also recognized that great harm can result if termination is ordered "without any compensating benefit, such as adoption," and that such harm may occur when a child is "cycled through multiple foster homes" following termination. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 109 (2008). He also considered that a child's need for permanency and stability is a "central factor" in these cases, K.H.O., 161 N.J. at 357, and 17 A-3763-15T4 concluded the girls would "have the benefit from termination and adoption by a loving family." We conclude the judge did not err in finding the Division provided clear and convincing evidence as to the fourth prong. The Division proved all four prongs and termination was properly ordered. Affirmed. 18 A-3763-15T4
Date: December 14, 2017
Docket Number: a3763-15 PER CURIAM Defendant M.H. appeals from an order entered after a Family Part judge found she abused and neglected her three children, and from an order entered by another Family Part judge terminating her parental rights. We have consolidated these matters and address both in this single opinion; we affirm both orders. M.H. is the mother of three girls, Nancy, Mildred and Jennifer,1 born in 2005, 2006 and 2012, respectively. The Division of Child Protection and Permanency removed the girls on October 31, 2014; thereafter the Division was granted custody, with weekly supervised visitation offered to the girls' parents. Following a Title 9 hearing on March 4, 2015, the judge found M.H. abused and neglected the children. M.H. contends the Title 9 judge erred because the Division failed to offer sufficient proof that: she "suffered from mental illness and that said mental illness prevented her from providing 1 The girls' pseudonyms used in defendant's Title 9 brief are repeated here to protect their privacy. 2 A-3763-15T4 adequate care to her children"; "the family's shortcomings, if any, were caused by [M.H.'s] mental illness as opposed to poverty"; M.H. "failed to comply with treatment or that her lack of compliance posed a real threat of harm to the children." She also avers the admission by the judge of an August 21, 2013 doctor's report as an adoptive admission was error. The children's law guardian submits the evidence presented by the Division did not establish abuse or neglect. The State counters that the proofs established M.H. failed to properly address her mental health and home management issues and, despite services provided to her, placed the girls at substantial risk of harm. The scope of our review of an order finding abuse or neglect is limited. New Jersey Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011). We must "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." New Jersey Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104; see also New Jersey Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). "[E]ven if we would not have made the same decision if we had heard the case in the first instance[,]" the trial court's factual findings 3 A-3763-15T4 should not be disturbed unless they "are 'so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007); see also N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014). An "abused or neglected child," is defined by N.J.S.A. 9:6- 8.21(c)(4), as a child who is less than eighteen years of age and whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[;] . . . or by any other acts of a similarly serious nature requiring the aid of the court. "'Whether a parent or guardian has failed to exercise a minimum degree of care' in protecting a child is determined on a case-by- case basis and 'analyzed in light of the dangers and risks associated with the situation.'" N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 614 (App. Div. 2010) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999)). "'[M]inimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., 157 4 A-3763-15T4 N.J. at 178. "[A] guardian [or parent] fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. This standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Moreover, a parent may be found to have abused or neglected a child when the parent creates a substantial risk of harm, since a court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Courts have recognized that a parent's inaction or unintentional conduct may amount to a finding of abuse or neglect, if there is evidence that the child was injured. G.S., 157 N.J. at 177-82. The judge recognized that poverty played a role in M.H.'s inability to provide furniture, food and a clean home. He noted, however, her reluctance to cooperate with the Division to address her long-standing mental health needs. The judge found reports that M.H. was medication compliant were belied by the condition of the children and home – and that there had been no change in that condition. He also found a "complete" lack of compliance with her mental health treatment led to a "psychotic episode" that 5 A-3763-15T4 occurred in the Division's office, presenting overlapping circumstances that resulted in a risk to the children's safety. Despite the provision of services by the Division, M.H.'s failure to comply left her unable to care for her children and placed them at substantial risk of harm. The record supports the judge's findings. The Division caseworker – the only witness to testify at the Title 9 hearing – and her reports, which were admitted into evidence, established that the Division, at the time this action was commenced in October 2014, had already assigned a parent-aide to assist M.H. in caring for the children because of issues involving the cleanliness of the home and the children, and a lack of food in the house. Despite favorable reports from the parent-aide, which led to the cessation of those services in April 2014, the caseworker, shortly thereafter, found the home ill-managed; the roach-infested residence was dirty and littered with trash, clothing and soiled dishes. The children's beds were devoid of linens, and the baths were devoid of toiletries. Although the Division had considered closing the family's case, M.H. was told that the case would remain open until she improved home conditions. Over the next few months, the Division noted M.H. was not cleaning the residence. It was still roach-infested and strewn with trash, including food left on the floors. Moreover, the 6 A-3763-15T4 children were unsupervised; the caseworker found Nancy and Mildred playing outside, wet and dressed only in their undergarments. Jennifer was seen without a diaper or underclothes. The children were not groomed. For months, M.H. did not take proactive steps to secure her food stamp entitlement in order to provide food for the children, despite previous exhortations from the parent-aide and a like concern from the caseworker. The caseworker described the amount of food in the house as "bare, bare minimum." The children did not attend school for a period because M.H. failed to buy clothes and school supplies, although she was given funds prior to the start of classes. In August 2014, M.H. showed the Division workers a psychiatrist's report and her prescription medication – Seroquel. Based on the prescription instructions, the date of the prescription and the amount of pills – both originally prescribed and left in the bottle – the caseworker was concerned that M.H. was not properly medicating. The doctor's report M.H. gave to the workers contained a diagnosis of bipolar disorder with occasional auditory hallucinations.2 The Division referred M.H. for a 2 The judge summarily admitted the report as an adoptive admission prior to any testimony establishing the requirements for admission under N.J.R.E. 803(b)(3). The record is unclear – if not barren – as to the judge's findings justifying admission of the report. We find no justification for admission. We note that the only 7 A-3763-15T4 psychological evaluation in order to assess her parenting capacity.3 The Division also referred M.H. to Family Preservation Services (FPS) to assist her four days per week with home care, financial management, community resource links and mental health care. The FPS services were discontinued after approximately one month due to noncompliance and a lack of progress; although M.H. appeared to make an effort at times, she was incapable of retaining any of the skills she was taught. After the psychological evaluation, the Division met with M.H. in an effort to set up a psychiatric evaluation and a partial- hospitalization program. Soon thereafter, M.H. appeared at the Division's office with Jennifer. Because she seemed emotional and delusional, she was referred for an emergency mental health screening. She was involuntarily committed on October 31, 2014 – possible reference to the report the judge made in his decision was that M.H. knew she had a mental health issue for some time, presumably based on the diagnosis in the report. We will not consider the report as evidence that could support the judge's findings. 3 The caseworker testified she had discussed the need for a psychological evaluation because of M.H.'s inability to care for the children and the home even though she had the services of a parent-aide, and because "just talking to [M.H.] and seeing that she wasn't getting it, we were starting to feel like . . . is it something else." 8 A-3763-15T4 the same day the children were removed4 – and remained in the hospital for about two weeks. Even absent expert testimony regarding M.H.'s psychiatric or psychological condition, her behavior and, more importantly, her failure to care for the children and their environment, notwithstanding services provided by the Division, present proof by a preponderance of the evidence that the girls were abused and neglected. N.J.S.A. 9:6-8.21(c)(4). Further, the proofs show that it was M.H.'s lack of care – not her poverty – that caused the abuse and neglect. She did not pursue entitlements which would have allowed her to provide sustenance for her children and cleaning supplies for the residence. She did not cooperate with the service providers in order to resolve her long-standing problems in caring for the children and the home. M.H. – not poverty – was the reason the children were unkempt and the residence was filthy for a protracted period. The balance of M.H.'s arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments. Despite protestations about the lack of competent evidence of M.H.'s mental illness, she 4 On the day of their removal, the caseworker testified that the two youngest children were in "the normal condition," "unkempt[,] [t]heir hair wasn't done. Their clothes were dirty. Neither one of them had on socks. [Mildred] didn't have on any undergarments." 9 A-3763-15T4 concedes in her merits brief "the record demonstrates that [she] complied with mental health services," and that she "self-reported that she was 'seeing a psychiatrist,'" specifically Dr. Cowen, whose report she presented to the caseworker – the very report she now contends was improperly considered by the judge. Her appearance at the Division's office and her subsequent hospitalization were evidence of M.H.'s mental health issues. As the judge concluded, although M.H. was aware of her mental health diagnosis, she did not avail herself of services to address that issue. There was sufficient evidence, even without Dr. Cowen's report, to establish M.H.'s condition. We affirm the order entered memorializing M.H.'s abuse and neglect. Subsequent to the entry of the Title 9 order, after finding M.H. was not capable of providing adequate child care because she had a history of noncompliance with mental health treatment and needed intensive psychiatric treatment, a reunification plan with the girls' fathers was approved at an October 2015 permanency hearing.5 That plan was scotched and the Division filed a complaint for guardianship in March 2016. 5 No plan to reunify the girls with M.H. was attempted because she was found to be incapable of parenting. 10 A-3763-15T4 Jennifer had been placed with a paternal aunt in Virginia in late August 2015. Mildred, after living in two resource homes, was also placed with the aunt in Virginia in July 2016. The Virginia aunt wanted to adopt both girls. Nancy was placed with another paternal aunt in New Jersey in November 2015. That aunt wanted to adopt Nancy. Judge James R. Paganelli, during a three-day trial, heard testimony from the Division caseworker who testified at the Title 9 hearing, and the adoption caseworker. He also heard testimony from Jonathan Mack, Psy.D., who was stipulated as an expert in neuropsychology. Dr. Mack conducted a neuropsychological evaluation of M.H. Dr. Mark Singer, Ed.D., also testified, after he was stipulated as an expert in psychology, about his evaluation of M.H. and the bonding evaluations he conducted of all three girls with M.H. and the paternal aunt with whom each was residing. The judge issued a written decision and entered a permanency order terminating M.H.'s parental rights to all three girls.6 M.H. contends that the trial court's conclusions were improper because the evidence did not clearly and convincingly establish the statutory factors required to be proved by the 6 The order also terminated the parental rights of Mildred's natural father. He has not appealed. Nancy's father and Jennifer's father executed voluntary identified surrenders of their rights. 11 A-3763-15T4 Division before parental rights can be terminated. N.J.S.A. 30:4C- 15.1(a). The Division and the law guardian aver that the court's determination was made after clear and convincing evidence as to each factor was established by the presented evidence. We affirm substantially for the reasons found by Judge Paganelli. "Our review of a trial judge's decision to terminate parental rights is limited." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, we accord even greater deference to the judge's fact-finding "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Id. at 413. We will not disturb the trial judge's factual findings unless they are "so wide of the mark that a mistake must have been made," even if we would not have made the same decision. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests 12 A-3763-15T4 of the child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Before parental rights may be terminated, the Division must prove the following four prongs by clear and convincing evidence: (1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).] The factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J. at 348. 13 A-3763-15T4 Judge Paganelli conducted a fact-sensitive analysis of each prong and made factual findings after an attentive consideration of the evidence. The judge's conclusions relevant to the first prong dovetailed with his findings supporting the second prong, a common occurrence resulting from the overlap of the two. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006). The record supports his ruling that the Division established these prongs. Judge Paganelli noted Dr. Mack's and Dr. Singer's findings that M.H. suffered from various mental disorders, and that the deficits attributed to those disorders – and to "issues related to substance abuse and antisocial tendencies" – rendered her an implausible parenting option. He also credited Dr. Mack's opinion that her dysfunction negated any treatment option that would make her "a minimally effective parent," and found M.H. was thus "unable to eliminate the harm facing the children." He also found her noncompliance with mental health treatment services indicated her unwillingness to remove the harm. He further concluded the "uncontroverted and credible expert testimony . . . reveals that separating these children from their resource family parents would cause serious and enduring emotional or psychological harm" that M.H. could not mitigate. 14 A-3763-15T4 Contrary to M.H.'s present argument, the judge's opinion that the Division met the first two prongs was not based solely on M.H.'s mental illness. The record is replete – as reflected by Judge Paganelli's findings – with evidence of M.H.'s noncompliance with treatment and services, and the deleterious impact of her protracted failure to provide for the children and their home. 7 Notwithstanding M.H.'s efforts at treatment, and occasional periods of appropriate parenting, she never sustained either. The judge properly ruled there was clear and convincing evidence to establish the first and second prongs. We determine M.H.'s argument with regard to the third prong is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that Judge Paganelli recognized the plethora of services offered to M.H. by the Division, and that those programs "were planned after expert evaluations of her various needs" and "were individualized and particular" to her needs. He recognized that although the Division provided M.H. with transportation to the Virginia location at which Mildred and Jasmine were fostered, it did not provide M.H. with housing. He considered M.H.'s argument that the Division's 7 Both doctors, whose opinions the judge considered, reviewed records and reports pertaining to M.H.; the judge particularly noted Dr. Singer's "extensive record review," as well as the doctors' interaction with M.H. 15 A-3763-15T4 failure to provide lodging evidenced a lack of reasonable efforts regarding visitation, but rejected the argument because it ignored (1) [M.H.'s] failure to complete services which would have resulted in the children being returned to her, (2) this was a relative resource placement, [the Division] was obligated to assess the relative . . . , (3) [the Division] attempted to assess closer, however, uncooperative relatives, (4) [M.H.'s] failure to utilize the transportation offered – she is required to make some effort in the reunification process . . . and (5) [M.H.] was happy that [Jennifer] was "ok" that [Mildred] would be staying with the paternal aunt. Inasmuch as the judge also fully considered all alternatives to termination, we conclude his findings as to the third prong were substantiated. In deciding whether the Division met its burden with regard to the fourth prong, the judge heeded the Court's mandate in K.H.O. and considered the "realistic likelihood that the [natural] parent will be capable of caring for the child in the near future," 161 N.J. at 357, and found none. The judge properly relied on Dr. Singer's unrefuted opinion that, although each girl would experience a negative reaction if removed from either M.H. or her prospective adoptive parent – her aunt – only the negative reaction to the loss of the adoptive parent would be significant and enduring. The determination of "whether, after considering and balancing the two relationships, 16 A-3763-15T4 the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster [or resource] parents," K.H.O., 161 N.J. at 355, "is an expert judgment," In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002). Bonding evaluations play an important role in this regard. In re Guardianship of J.C., 129 N.J. 1, 18-19 (1992). Psychologists and psychiatrists who perform the evaluations "play a critical role in reaching an ultimate decision in termination cases." Id. at 22. The judge, after reviewing Dr. Singer's opinion, reflected: Therefore, the court is left to consider a healthy relationship between the children and their paternal aunts that, if terminated, would cause harm that [M.H.] could not mitigate and would cause significant and enduring harm versus an unhealthy relationship with [M.H.] Further, although there would be harm in terminating [M.H.'s] parental rights, that harm can be mitigated by the paternal aunts. The judge also recognized that great harm can result if termination is ordered "without any compensating benefit, such as adoption," and that such harm may occur when a child is "cycled through multiple foster homes" following termination. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 109 (2008). He also considered that a child's need for permanency and stability is a "central factor" in these cases, K.H.O., 161 N.J. at 357, and 17 A-3763-15T4 concluded the girls would "have the benefit from termination and adoption by a loving family." We conclude the judge did not err in finding the Division provided clear and convincing evidence as to the fourth prong. The Division proved all four prongs and termination was properly ordered. Affirmed. 18 A-3763-15T4
STEVEN D'AGOSTINO v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
Date: December 14, 2017
Docket Number: a4912-15
Date: December 14, 2017
Docket Number: a4912-15
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Date: December 12, 2017
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DEBRA ALLYN NOWAKOWSKI v. SELECTIVE WAY INSURANCE COMPANY
Date: December 12, 2017
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Docket Number: a5613-15
GARY W. JACK v. CALVARY CEMETERY AND CHAPEL MAUSOLEUM
Date: December 11, 2017
Docket Number: a3082-15
Date: December 11, 2017
Docket Number: a3082-15
STATE OF NEW JERSEY v. JASON M. MYERS
Date: December 11, 2017
Docket Number: a4077-15 PER CURIAM Following the denial of their motions to suppress the contents of a backpack seized pursuant to a warrant obtained after a car stop, co-defendants Jason M. Myers and Yusef T. Myers, cousins, pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5b(3) and N.J.S.A. 2C:35-5a(1); and second-degree certain persons offenses, N.J.S.A. 2C:39-7b, and were sentenced in accordance with a negotiated agreement to terms of eight years in State prison with a sixty-month period of parole ineligibility. They appeal, raising the following issues. Jason Myers argues: DEFENDANT'S MOTION TO SUPPRESS THE ITEMS SEIZED SHOULD HAVE BEEN GRANTED; POLICE DID NOT HAVE REASONABLE SUSPICION THAT A CRIMINAL OFFENSE WAS BEING COMMITTED WHEN 2 A-4077-15T3 THEY STOPPED THE CAR IN WHICH DEFENDANT WAS A PASSENGER. Yusef Myers argues: POINT ONE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WAS IMPROPERLY DENIED. POINT TWO THE TRIAL COURT'S PROTECTIVE ORDER UNDULY LIMITED THE DEFENSE. Only one witness testified at the suppression hearing on defendants' motions, Plainfield Detective Fortunka, a nine-year veteran of the force assigned to the Narcotics and Vice Division of the Criminal Investigation Bureau. Fortunka testified he had been involved in hundreds of narcotics investigations and arrests and had specialized training in the area. According to Fortunka, he opened an investigation of Yusef Myers, approximately six months before his arrest with Jason Myers, after receiving a tip from a confidential informant in October 2013 that Yusef was dealing drugs in Plainfield. Fortunka had worked with the informant before and considered him reliable based on arrests and seizures in four other narcotics investigations. Between the time the informant tipped Fortunka off about Yusef Myers and the arrest of defendants in May 2014, leads the informant provided led to 3 A-4077-15T3 about a dozen other investigations, resulting in more arrests and seizures of narcotics and currency. The informant told Fortunka that Yusef Myers "was involved in distribution of heroin and marijuana through the City of Plainfield and the surrounding area." The informant claimed Yusef used two cars, a beige or tan Acura and a black BMW SUV, and three locations to run his operation: his address in Plainfield, another residence in that city and an apartment in Piscataway. Based on the informant's tip, Fortunka began an active investigation involving, among other things, a criminal records check, motor vehicle searches, property searches, interviews of arrestees and surveillance of Yusef. As a result of those efforts, Fortunka learned the Acura was registered to an elderly female relative of Yusef's, although Fortunka never saw her drive it. He did see Yusef, and sometimes Jason, driving the car between Yusef's home and an address on Watchung Avenue in Plainfield or the apartment in Piscataway. The detective testified those trips were consistent with how drug dealers conducted operations; short stays, brief meetings with different people and indirect routes between destinations. Yusef's name was also mentioned in interviews of arrestees as someone involved in the drug trade. Although Jason Myers was never the target of surveillance, he was surveilled 4 A-4077-15T3 either in the company of Yusef or driving the tan Acura. Fortunka's informant advised that Jason was a participant in Yusef's operation. On May 19, 2014 at about 2:30 in the afternoon, the confidential informant called Fortunka to advise that Yusef Myers was going to move a large quantity of narcotics, in the informant's words "a lot of shit," later that day. The informant advised that at some point in the early evening, Yusef Myers would arrive in the area, and either Yusef, Jason or both would move the drugs from a particular address on East 7th Street in the Acura. Fortunka, who was off that day, reported to work and alerted his supervisor, other detectives from the Narcotics and Vice Division and members of the High Intensity Drug Trafficking Organization. He also alerted the on-call Assistant Prosecutor that they might be looking for a search warrant and called the Sheriff's Department to ensure the availability of a K-9 unit. Following a briefing, the detective and a team of officers and detectives set up surveillance at the East 7th Street address. The team arrived while it was still daylight and observed Jason Myers on the porch of the East 7th Street address provided by the informant. Sometime after 5 p.m., Yusef drove up in the tan Acura and parked in front of the address. Yusef 5 A-4077-15T3 met Jason on the porch and moments later the two were observed walking toward the Acura. Jason was carrying a large dark colored backpack, which an officer described as appearing "extremely full." Yusef opened the trunk and Jason placed the backpack inside. Yusef got into the driver's seat and waited while Jason went back to the house for a few moments. The two then drove off in the Acura. Officers followed the two to Watchung Avenue where a take- down team pulled the car over at about 5:30 p.m., a few houses away from the house they had seen Yusef frequent. The detective observed an open Heineken bottle in the center console as he approached the Acura. He asked the men where they were coming from and who the bottle belonged to. Yusef told him he had just gotten off work and had picked Jason up at the East 7th Street address, and that the bottle belonged to Jason. Fortunka asked whether there was anything illegal in the car. Both men said no. When the detective asked about the bag in the trunk, both denied any knowledge of it. Fortunka had the men step out of the car, and another detective told them he had watched Yusef open the trunk and Jason put the bag inside. Fortunka testified Yusef responded that nobody had observed him put anything in the trunk, which caused Jason to "whip[] his head up, look[] at Yusef and just 6 A-4077-15T3 [say] 'What,'" angrily. After the men refused consent to search the car, a K-9 unit was called out. The unit appeared about fifteen minutes later and the dog indicated to its handler it smelled narcotics in the trunk. Before Fortunka left to obtain a search warrant, he asked Yusef about the house on Watchung Avenue. Yusef initially denied knowing anybody there. When the officers told him he had been observed there in the past, he said he used to date a woman who lived on the second floor, but they were no longer involved. A person answering the door advised that Yusef did not live there but might use the basement for storage. While Fortunka secured a search warrant for the Acura, other officers obtained permission from the homeowner to search the basement. There they discovered a large orange lockbox, which contained a bullet-proof vest, a large laundry bag with marijuana residue, a large shopping bag full of dry rice and a grinder. Fortunka testified that dry rice is used to package heroin. Searching the backpack pursuant to a warrant, the officers discovered three handguns, three large bags of marijuana, approximately fifty folds of heroin, a quantity of prescription narcotics, a bundle of cash secured by a rubber band and mail addressed to Yusef Myers. 7 A-4077-15T3 On cross-examination, Fortunka conceded that neither his record searches and interviews of arrestees nor surveillance provided any conclusive proof that Yusef Myers was engaged in narcotics distribution. He agreed with Yusef's counsel that "basically [Fortunka] heard a lot of chatter about Yusef Myers, but [Fortunka] never really saw him with drugs, caught him selling drugs to anyone, [or] found him to be in an area where people were buying drugs." When pressed by defense counsel to say "exactly what [he] did as part of [his] investigation that uncovered Yusef Myers being involved in criminal activity," the detective revealed his department had made controlled buys from Yusef in the past. The prosecutor objected to any inquiry regarding the controlled buys because of the risk it posed to the identity of the confidential informant, arguing they were irrelevant to the issue before the court. Specifically, the State noted the controlled transactions were not charged offenses, it had not relied on those purchases in its application for a search warrant for the Acura and was not relying on them as justification for the car stop. Defense counsel for both defendants sought discovery of the police reports of the controlled buys, which related only to Yusef Myers. Detective 8 A-4077-15T3 Fortunka testified there were no controlled purchases from Jason Myers. After hearing the detective testify in a brief in camera proceeding to consider the State's application for a protective order, Judge Donohue found Yusef Myers was not a street level dealer, but instead "he's very limited in the number of people that he does business with." The judge concluded that revealing any information about the controlled purchases would "distinctly narrow down" the identity of the confidential informant. Defense counsel objected to the limits the ruling placed on their cross-examination of the detective, arguing the buys were "part of the reasonable suspicion" for stopping the Acura. The court disagreed based on the State's representation that it was expressly not relying on the controlled buys as contributing to the detective's reasonable suspicion for the stop. The court noted the State had not elicited the information on direct, and that it was the defense that brought out the buys on cross- examination. The court advised counsel it was the State's choice to exclude the buys from the evidence on which it relied for the stop, and the State's risk as to whether its remaining evidence would be sufficient to justify the stop. Focusing on the tip the confidential informant provided him on the day of defendants' arrests, the detective agreed with 9 A-4077-15T3 defense counsel the informant had not specified what kind of drugs he claimed defendants would be moving, where they were moving them to, or what sort of container they would be moving them in. The informant also never told the detective how he came to acquire the information he provided. Although the informant said defendants would be using the tan Acura to move the drugs, the detective conceded Yusef drove the Acura more often than he drove the BMW. Defense counsel argued the tip by the informant on the day of the arrests was too general to support the car stop, and police had only been able to corroborate benign details. They also argued the six-month investigation preceding it, leaving aside the controlled buys on which the State was not relying, provided no conclusive evidence to augment the tip. Defendants contended the State's "proofs" were really no more than a series of hunches about what the detective thought was happening, not enough to support the reasonable suspicion necessary for the stop. Judge Donohue rejected those arguments in a clear and cogent opinion from the bench. We quote the parts pertinent to the issues defendants raise on appeal. I’ve had an opportunity to hear the testimony in this case, to hear the arguments of counsel. At the outset I would 10 A-4077-15T3 like to say that I believe that Detective Fortunka was a credible and believable witness. The manner of his testimony gave me absolute confidence that what he was saying was the truth. He didn’t try to add anything on when there was – when he was questioned about the lack of inculpatory[,] incriminatory actions on the part of [Yusef] Myers found during the course of his surveillance. He didn’t gild the lily at all. He said absolutely what he saw. He didn’t argue with defense counsel. He absolutely confirmed the points that they tried to make. I find him to be a credible and believable witness. It seems to me that defense counsels’ argument is that the surveillance, the investigation provided by the Plainfield Police Department didn’t show anything incriminatory, but that’s not really the issue. This stop is based upon the informant’s tip. And the corroboration of even non-incriminatory evidence can form the basis for a reasonable articulable suspicion. As I indicated [during the colloquy], in State v. Zutic at 155 N.J. 103,1 those type of non-incriminatory information goes to the totality of the circumstances. And I think perhaps that Zutic was written at the time when Aguilar2 and Spinelli3 was the law 1 State v. Zutic, 155 N.J. 103 (1998). 2 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), overruled by Illinois v. Gates, 462 U.S. 213, 238,103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). 3 Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), overruled by Illinois v. Gates, 11 A-4077-15T3 before Gates v. Illinois.4 But [Zutic] stands for the proposition that when the police get a CI tip and then they attempt to surveil and investigate it where – even where there is not enough information to find incriminatory [details], the fact that they corroborate non-incriminatory [details] can give rise to a reasonable articulable suspicion. So where a CI comes forward and just taking the information from the – from the May tip they say they are going to move a lot of shit and it’s going to be in the tan Acura and the police then see Jason and Yusef Myers, the targets of their investigation, in a tan Acura putting a bag that appears to be very full in the trunk of the vehicle. Now you have the corroboration. It’s not necessarily incriminatory, but that gives under the totality of the circumstances the police a reasonable suspicion to stop the motor vehicle. We agree. Our standard of review on a motion to suppress is limited. See State v. Gamble, 218 N.J. 412, 424 (2014). We defer to the trial court's factual findings on the motion, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). "Deference to these factual findings is 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). 4 Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). 12 A-4077-15T3 required because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Gamble, supra, 218 N.J. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Our review of the trial court's application of the law to the facts, of course, is plenary. State v. Hubbard, 222 N.J. 249, 263 (2015). The issue here is whether the police had reasonable suspicion to justify pulling over the Acura after earlier watching defendants place the backpack in the trunk. See State v. Golotta, 178 N.J. 205, 213 (2003) (describing reasonable suspicion as lower standard than probable cause to justify an arrest). All that is required was a "particularized suspicion" based upon objective observation that defendants were engaged or were "about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). That turns, in this case, on whether there was a substantial basis for crediting the informant's tip that defendants would be moving a large quantity of narcotics in the Acura at the time of the stop. See State v. Smith, 155 N.J. 83, 92 (1998). Although we decide that question based on the "totality of the circumstances," see State v. Novembrino, 105 N.J. 95, 122 (1987), two factors essential to the inquiry are the informant's 13 A-4077-15T3 "veracity" and his "basis of knowledge," Smith, supra, 155 N.J. at 93. An informant's "veracity" is often established by reliability in other investigations. See, e.g., Novembrino, 105 N.J. at 123. "Basis of knowledge" tests whether the information was acquired in a reliable way. Smith, supra, 155 N.J. at 94. A detailed tip or one "recounting information that could not otherwise be attributed to circulating rumors or be easily gleaned by a casual observer," implies a reliable basis of knowledge. Id. at 95. Similarly, "predicting hard-to-know future events" can establish reliability by implying "the informant derived that information directly as a witness or as one privy to a reliable witness or source." Ibid. However those two factors are established, "[i]ndependent corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip." Ibid. And while corroboration of innocuous details will not bolster a tip's reliability, Smith, supra, 155 N.J. at 99, corroboration of significant details, as Judge Donohue noted, even if non- incriminatory, will generate reasonable suspicion to justify an investigative stop. See Alabama v. White, 496 U.S. 325, 330-32, 110 S. Ct. 2412, 2416-17, 110 L. Ed. 2d 301, 309-10 (1990); State v. Zapata, 297 N.J. Super. 160, 172-74 (App. Div. 1997). 14 A-4077-15T3 Applying those standards, we have no hesitancy in holding, as Judge Donohue did, that viewed objectively from the standpoint of an experienced and knowledgeable police officer, the totality of the circumstances was sufficient to support an articulable and reasonable suspicion that defendants were engaged in criminal activity. Turning first to the informant, although Detective Fortunka did not provide detail about the informant's past contributions to investigations, the detective made clear that when the informant first mentioned Yusef Myers to him, the informant had already provided information in four other narcotics investigations that had resulted in arrests and seizures each time. By the time the informant provided the tip that led to defendants' arrest, the informant had provided information in a dozen more investigations with good results. While not conclusively establishing the informant's truthfulness in this case, the detective's testimony provided significant evidence of the informant's veracity. See Smith, supra, 155 N.J. at 96-97. As to his basis of knowledge, the informant did not tell the detective how he knew of defendants' plans to move the drugs. But implicit in the information he provided was some special familiarity with defendants' affairs. See White, supra, 496 U.S. at 332, 110 S. Ct. at 2417, 110 L. Ed. 2d at 310. The 15 A-4077-15T3 informant predicted that Yusef Myers would arrive at a particular address in the early evening, and that he and Jason Myers would then move a large quantity of drugs in the tan Acura. As defendants note, the tip was not flush with hard-to- know details, the informant did not tell the detective what the drugs were, what sort of container defendants would be moving the drugs in and where they were taking them to. But it suggested some reliable basis of knowledge, which, significantly, police were able to corroborate. Staking out the address the informant provided, the police saw Yusef appear at that residence in the early evening, as the informant predicted he would, and then watched as Jason carried a large backpack, described as appearing "extremely full," to the Acura. Yusef opened the trunk and Jason placed the backpack inside. Yusef got into the driver's seat and, joined by Jason, the two drove toward another residence on Watchung Avenue the informant claimed Yusef used for his narcotics operation. The police had been able to confirm the informant's information that Yusef Myers used that residence by surveilling Yusef and the tan Acura for many months. The State was not attempting to argue that those facts, either singly or in combination, were sufficient to establish probable cause for an arrest or search of defendants. All it 16 A-4077-15T3 needed show was that the circumstances generated reasonable articulable suspicion to justify the investigative stop. Zutic, supra, 155 N.J. at 113. Looking at the whole picture, we are confident the court was correct in finding the State established the necessary "minimal level of objective justification" required by the reasonable suspicion standard for the stop. State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989). Yusef Myers' additional contention that the trial court's protective order unduly limited the defense requires no extended discussion. N.J.R.E. 516 permits a witness to refuse to disclose the identity of an informant unless the judge finds that identity is already known or that disclosure is essential to a fair determination of the issues. See State v. Milligan, 71 N.J. 373, 383 (1976). The privilege belongs to the prosecution, State v. Williams, 356 N.J. Super. 599, 603 (App. Div. 2003), exists to protect "the public interest in a continuous flow of information to law enforcement officials," and extends to communications that would likely reveal the identity of the informant, Grodjesk v. Faghani, 104 N.J. 89, 96- 97 (1986). It is not, however, absolute, as the public interest must be balanced against a defendant's right to prepare a 17 A-4077-15T3 defense to the State's charges. Williams, supra, 356 N.J. Super. at 604. Yusef Myers contends information about the controlled buys was essential to his defense because "it went to the heart of the crucial issue" on the suppression motion, "the reliability of the C[onfidential] I[nformant]." He claims there was little evidence in the record to support the court's finding that Yusef was not a "street level drug dealer," and it abused its discretion in concluding that disclosure of the two controlled buys during the State's six-month surveillance could very well reveal the identity of the informant because defendant sold to so few people. In making that argument, Yusef Myers is clearly not suggesting the informant could exculpate him or his cousin Jason. See Roviaro v. United States, 353 U.S. 53, 63-64, 77 S. Ct. 623, 629, 1 L. Ed. 2d 639, 647 (1957) (holding informer's privilege must give way when the informant was a material witness on a basic issue of the trial, making his testimony highly relevant and possibly helpful to the defense). Defendants, previously-convicted felons known to the police, were in possession of three guns and a significant quantity of drugs when they were arrested. The informant was not present for those arrests and thus could offer nothing to cast doubt on the 18 A-4077-15T3 evidence offered by the State as to the identity of defendants or the contraband in their possession. Instead, Yusef Myers seeks to suppress that evidence establishing his guilt by arguing that if disclosure of the controlled buys had been ordered it might have revealed they were small transactions, which might, in some unexplained way, have undermined the reliability of the informant's tip that defendants were going to transport a large quantity of illegal narcotics, thereby suggesting the arresting officers lacked reasonable suspicion for the stop, in which case the search would be illegal and the resulting evidence inadmissible. His claims, besides being completely speculative, do not suggest how disclosure could realistically be helpful to his defense. See Milligan, supra, 71 N.J. at 387-88. Accordingly, he offers us no basis on which we could conclude the trial court abused its discretion in issuing the protective order shielding information about the controlled buys. See State v. Garcia, 131 N.J. 67, 81 (1993). Affirmed. 19 A-4077-15T3
Date: December 11, 2017
Docket Number: a4077-15 PER CURIAM Following the denial of their motions to suppress the contents of a backpack seized pursuant to a warrant obtained after a car stop, co-defendants Jason M. Myers and Yusef T. Myers, cousins, pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5b(3) and N.J.S.A. 2C:35-5a(1); and second-degree certain persons offenses, N.J.S.A. 2C:39-7b, and were sentenced in accordance with a negotiated agreement to terms of eight years in State prison with a sixty-month period of parole ineligibility. They appeal, raising the following issues. Jason Myers argues: DEFENDANT'S MOTION TO SUPPRESS THE ITEMS SEIZED SHOULD HAVE BEEN GRANTED; POLICE DID NOT HAVE REASONABLE SUSPICION THAT A CRIMINAL OFFENSE WAS BEING COMMITTED WHEN 2 A-4077-15T3 THEY STOPPED THE CAR IN WHICH DEFENDANT WAS A PASSENGER. Yusef Myers argues: POINT ONE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WAS IMPROPERLY DENIED. POINT TWO THE TRIAL COURT'S PROTECTIVE ORDER UNDULY LIMITED THE DEFENSE. Only one witness testified at the suppression hearing on defendants' motions, Plainfield Detective Fortunka, a nine-year veteran of the force assigned to the Narcotics and Vice Division of the Criminal Investigation Bureau. Fortunka testified he had been involved in hundreds of narcotics investigations and arrests and had specialized training in the area. According to Fortunka, he opened an investigation of Yusef Myers, approximately six months before his arrest with Jason Myers, after receiving a tip from a confidential informant in October 2013 that Yusef was dealing drugs in Plainfield. Fortunka had worked with the informant before and considered him reliable based on arrests and seizures in four other narcotics investigations. Between the time the informant tipped Fortunka off about Yusef Myers and the arrest of defendants in May 2014, leads the informant provided led to 3 A-4077-15T3 about a dozen other investigations, resulting in more arrests and seizures of narcotics and currency. The informant told Fortunka that Yusef Myers "was involved in distribution of heroin and marijuana through the City of Plainfield and the surrounding area." The informant claimed Yusef used two cars, a beige or tan Acura and a black BMW SUV, and three locations to run his operation: his address in Plainfield, another residence in that city and an apartment in Piscataway. Based on the informant's tip, Fortunka began an active investigation involving, among other things, a criminal records check, motor vehicle searches, property searches, interviews of arrestees and surveillance of Yusef. As a result of those efforts, Fortunka learned the Acura was registered to an elderly female relative of Yusef's, although Fortunka never saw her drive it. He did see Yusef, and sometimes Jason, driving the car between Yusef's home and an address on Watchung Avenue in Plainfield or the apartment in Piscataway. The detective testified those trips were consistent with how drug dealers conducted operations; short stays, brief meetings with different people and indirect routes between destinations. Yusef's name was also mentioned in interviews of arrestees as someone involved in the drug trade. Although Jason Myers was never the target of surveillance, he was surveilled 4 A-4077-15T3 either in the company of Yusef or driving the tan Acura. Fortunka's informant advised that Jason was a participant in Yusef's operation. On May 19, 2014 at about 2:30 in the afternoon, the confidential informant called Fortunka to advise that Yusef Myers was going to move a large quantity of narcotics, in the informant's words "a lot of shit," later that day. The informant advised that at some point in the early evening, Yusef Myers would arrive in the area, and either Yusef, Jason or both would move the drugs from a particular address on East 7th Street in the Acura. Fortunka, who was off that day, reported to work and alerted his supervisor, other detectives from the Narcotics and Vice Division and members of the High Intensity Drug Trafficking Organization. He also alerted the on-call Assistant Prosecutor that they might be looking for a search warrant and called the Sheriff's Department to ensure the availability of a K-9 unit. Following a briefing, the detective and a team of officers and detectives set up surveillance at the East 7th Street address. The team arrived while it was still daylight and observed Jason Myers on the porch of the East 7th Street address provided by the informant. Sometime after 5 p.m., Yusef drove up in the tan Acura and parked in front of the address. Yusef 5 A-4077-15T3 met Jason on the porch and moments later the two were observed walking toward the Acura. Jason was carrying a large dark colored backpack, which an officer described as appearing "extremely full." Yusef opened the trunk and Jason placed the backpack inside. Yusef got into the driver's seat and waited while Jason went back to the house for a few moments. The two then drove off in the Acura. Officers followed the two to Watchung Avenue where a take- down team pulled the car over at about 5:30 p.m., a few houses away from the house they had seen Yusef frequent. The detective observed an open Heineken bottle in the center console as he approached the Acura. He asked the men where they were coming from and who the bottle belonged to. Yusef told him he had just gotten off work and had picked Jason up at the East 7th Street address, and that the bottle belonged to Jason. Fortunka asked whether there was anything illegal in the car. Both men said no. When the detective asked about the bag in the trunk, both denied any knowledge of it. Fortunka had the men step out of the car, and another detective told them he had watched Yusef open the trunk and Jason put the bag inside. Fortunka testified Yusef responded that nobody had observed him put anything in the trunk, which caused Jason to "whip[] his head up, look[] at Yusef and just 6 A-4077-15T3 [say] 'What,'" angrily. After the men refused consent to search the car, a K-9 unit was called out. The unit appeared about fifteen minutes later and the dog indicated to its handler it smelled narcotics in the trunk. Before Fortunka left to obtain a search warrant, he asked Yusef about the house on Watchung Avenue. Yusef initially denied knowing anybody there. When the officers told him he had been observed there in the past, he said he used to date a woman who lived on the second floor, but they were no longer involved. A person answering the door advised that Yusef did not live there but might use the basement for storage. While Fortunka secured a search warrant for the Acura, other officers obtained permission from the homeowner to search the basement. There they discovered a large orange lockbox, which contained a bullet-proof vest, a large laundry bag with marijuana residue, a large shopping bag full of dry rice and a grinder. Fortunka testified that dry rice is used to package heroin. Searching the backpack pursuant to a warrant, the officers discovered three handguns, three large bags of marijuana, approximately fifty folds of heroin, a quantity of prescription narcotics, a bundle of cash secured by a rubber band and mail addressed to Yusef Myers. 7 A-4077-15T3 On cross-examination, Fortunka conceded that neither his record searches and interviews of arrestees nor surveillance provided any conclusive proof that Yusef Myers was engaged in narcotics distribution. He agreed with Yusef's counsel that "basically [Fortunka] heard a lot of chatter about Yusef Myers, but [Fortunka] never really saw him with drugs, caught him selling drugs to anyone, [or] found him to be in an area where people were buying drugs." When pressed by defense counsel to say "exactly what [he] did as part of [his] investigation that uncovered Yusef Myers being involved in criminal activity," the detective revealed his department had made controlled buys from Yusef in the past. The prosecutor objected to any inquiry regarding the controlled buys because of the risk it posed to the identity of the confidential informant, arguing they were irrelevant to the issue before the court. Specifically, the State noted the controlled transactions were not charged offenses, it had not relied on those purchases in its application for a search warrant for the Acura and was not relying on them as justification for the car stop. Defense counsel for both defendants sought discovery of the police reports of the controlled buys, which related only to Yusef Myers. Detective 8 A-4077-15T3 Fortunka testified there were no controlled purchases from Jason Myers. After hearing the detective testify in a brief in camera proceeding to consider the State's application for a protective order, Judge Donohue found Yusef Myers was not a street level dealer, but instead "he's very limited in the number of people that he does business with." The judge concluded that revealing any information about the controlled purchases would "distinctly narrow down" the identity of the confidential informant. Defense counsel objected to the limits the ruling placed on their cross-examination of the detective, arguing the buys were "part of the reasonable suspicion" for stopping the Acura. The court disagreed based on the State's representation that it was expressly not relying on the controlled buys as contributing to the detective's reasonable suspicion for the stop. The court noted the State had not elicited the information on direct, and that it was the defense that brought out the buys on cross- examination. The court advised counsel it was the State's choice to exclude the buys from the evidence on which it relied for the stop, and the State's risk as to whether its remaining evidence would be sufficient to justify the stop. Focusing on the tip the confidential informant provided him on the day of defendants' arrests, the detective agreed with 9 A-4077-15T3 defense counsel the informant had not specified what kind of drugs he claimed defendants would be moving, where they were moving them to, or what sort of container they would be moving them in. The informant also never told the detective how he came to acquire the information he provided. Although the informant said defendants would be using the tan Acura to move the drugs, the detective conceded Yusef drove the Acura more often than he drove the BMW. Defense counsel argued the tip by the informant on the day of the arrests was too general to support the car stop, and police had only been able to corroborate benign details. They also argued the six-month investigation preceding it, leaving aside the controlled buys on which the State was not relying, provided no conclusive evidence to augment the tip. Defendants contended the State's "proofs" were really no more than a series of hunches about what the detective thought was happening, not enough to support the reasonable suspicion necessary for the stop. Judge Donohue rejected those arguments in a clear and cogent opinion from the bench. We quote the parts pertinent to the issues defendants raise on appeal. I’ve had an opportunity to hear the testimony in this case, to hear the arguments of counsel. At the outset I would 10 A-4077-15T3 like to say that I believe that Detective Fortunka was a credible and believable witness. The manner of his testimony gave me absolute confidence that what he was saying was the truth. He didn’t try to add anything on when there was – when he was questioned about the lack of inculpatory[,] incriminatory actions on the part of [Yusef] Myers found during the course of his surveillance. He didn’t gild the lily at all. He said absolutely what he saw. He didn’t argue with defense counsel. He absolutely confirmed the points that they tried to make. I find him to be a credible and believable witness. It seems to me that defense counsels’ argument is that the surveillance, the investigation provided by the Plainfield Police Department didn’t show anything incriminatory, but that’s not really the issue. This stop is based upon the informant’s tip. And the corroboration of even non-incriminatory evidence can form the basis for a reasonable articulable suspicion. As I indicated [during the colloquy], in State v. Zutic at 155 N.J. 103,1 those type of non-incriminatory information goes to the totality of the circumstances. And I think perhaps that Zutic was written at the time when Aguilar2 and Spinelli3 was the law 1 State v. Zutic, 155 N.J. 103 (1998). 2 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), overruled by Illinois v. Gates, 462 U.S. 213, 238,103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). 3 Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), overruled by Illinois v. Gates, 11 A-4077-15T3 before Gates v. Illinois.4 But [Zutic] stands for the proposition that when the police get a CI tip and then they attempt to surveil and investigate it where – even where there is not enough information to find incriminatory [details], the fact that they corroborate non-incriminatory [details] can give rise to a reasonable articulable suspicion. So where a CI comes forward and just taking the information from the – from the May tip they say they are going to move a lot of shit and it’s going to be in the tan Acura and the police then see Jason and Yusef Myers, the targets of their investigation, in a tan Acura putting a bag that appears to be very full in the trunk of the vehicle. Now you have the corroboration. It’s not necessarily incriminatory, but that gives under the totality of the circumstances the police a reasonable suspicion to stop the motor vehicle. We agree. Our standard of review on a motion to suppress is limited. See State v. Gamble, 218 N.J. 412, 424 (2014). We defer to the trial court's factual findings on the motion, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). "Deference to these factual findings is 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). 4 Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). 12 A-4077-15T3 required because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Gamble, supra, 218 N.J. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Our review of the trial court's application of the law to the facts, of course, is plenary. State v. Hubbard, 222 N.J. 249, 263 (2015). The issue here is whether the police had reasonable suspicion to justify pulling over the Acura after earlier watching defendants place the backpack in the trunk. See State v. Golotta, 178 N.J. 205, 213 (2003) (describing reasonable suspicion as lower standard than probable cause to justify an arrest). All that is required was a "particularized suspicion" based upon objective observation that defendants were engaged or were "about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). That turns, in this case, on whether there was a substantial basis for crediting the informant's tip that defendants would be moving a large quantity of narcotics in the Acura at the time of the stop. See State v. Smith, 155 N.J. 83, 92 (1998). Although we decide that question based on the "totality of the circumstances," see State v. Novembrino, 105 N.J. 95, 122 (1987), two factors essential to the inquiry are the informant's 13 A-4077-15T3 "veracity" and his "basis of knowledge," Smith, supra, 155 N.J. at 93. An informant's "veracity" is often established by reliability in other investigations. See, e.g., Novembrino, 105 N.J. at 123. "Basis of knowledge" tests whether the information was acquired in a reliable way. Smith, supra, 155 N.J. at 94. A detailed tip or one "recounting information that could not otherwise be attributed to circulating rumors or be easily gleaned by a casual observer," implies a reliable basis of knowledge. Id. at 95. Similarly, "predicting hard-to-know future events" can establish reliability by implying "the informant derived that information directly as a witness or as one privy to a reliable witness or source." Ibid. However those two factors are established, "[i]ndependent corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip." Ibid. And while corroboration of innocuous details will not bolster a tip's reliability, Smith, supra, 155 N.J. at 99, corroboration of significant details, as Judge Donohue noted, even if non- incriminatory, will generate reasonable suspicion to justify an investigative stop. See Alabama v. White, 496 U.S. 325, 330-32, 110 S. Ct. 2412, 2416-17, 110 L. Ed. 2d 301, 309-10 (1990); State v. Zapata, 297 N.J. Super. 160, 172-74 (App. Div. 1997). 14 A-4077-15T3 Applying those standards, we have no hesitancy in holding, as Judge Donohue did, that viewed objectively from the standpoint of an experienced and knowledgeable police officer, the totality of the circumstances was sufficient to support an articulable and reasonable suspicion that defendants were engaged in criminal activity. Turning first to the informant, although Detective Fortunka did not provide detail about the informant's past contributions to investigations, the detective made clear that when the informant first mentioned Yusef Myers to him, the informant had already provided information in four other narcotics investigations that had resulted in arrests and seizures each time. By the time the informant provided the tip that led to defendants' arrest, the informant had provided information in a dozen more investigations with good results. While not conclusively establishing the informant's truthfulness in this case, the detective's testimony provided significant evidence of the informant's veracity. See Smith, supra, 155 N.J. at 96-97. As to his basis of knowledge, the informant did not tell the detective how he knew of defendants' plans to move the drugs. But implicit in the information he provided was some special familiarity with defendants' affairs. See White, supra, 496 U.S. at 332, 110 S. Ct. at 2417, 110 L. Ed. 2d at 310. The 15 A-4077-15T3 informant predicted that Yusef Myers would arrive at a particular address in the early evening, and that he and Jason Myers would then move a large quantity of drugs in the tan Acura. As defendants note, the tip was not flush with hard-to- know details, the informant did not tell the detective what the drugs were, what sort of container defendants would be moving the drugs in and where they were taking them to. But it suggested some reliable basis of knowledge, which, significantly, police were able to corroborate. Staking out the address the informant provided, the police saw Yusef appear at that residence in the early evening, as the informant predicted he would, and then watched as Jason carried a large backpack, described as appearing "extremely full," to the Acura. Yusef opened the trunk and Jason placed the backpack inside. Yusef got into the driver's seat and, joined by Jason, the two drove toward another residence on Watchung Avenue the informant claimed Yusef used for his narcotics operation. The police had been able to confirm the informant's information that Yusef Myers used that residence by surveilling Yusef and the tan Acura for many months. The State was not attempting to argue that those facts, either singly or in combination, were sufficient to establish probable cause for an arrest or search of defendants. All it 16 A-4077-15T3 needed show was that the circumstances generated reasonable articulable suspicion to justify the investigative stop. Zutic, supra, 155 N.J. at 113. Looking at the whole picture, we are confident the court was correct in finding the State established the necessary "minimal level of objective justification" required by the reasonable suspicion standard for the stop. State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989). Yusef Myers' additional contention that the trial court's protective order unduly limited the defense requires no extended discussion. N.J.R.E. 516 permits a witness to refuse to disclose the identity of an informant unless the judge finds that identity is already known or that disclosure is essential to a fair determination of the issues. See State v. Milligan, 71 N.J. 373, 383 (1976). The privilege belongs to the prosecution, State v. Williams, 356 N.J. Super. 599, 603 (App. Div. 2003), exists to protect "the public interest in a continuous flow of information to law enforcement officials," and extends to communications that would likely reveal the identity of the informant, Grodjesk v. Faghani, 104 N.J. 89, 96- 97 (1986). It is not, however, absolute, as the public interest must be balanced against a defendant's right to prepare a 17 A-4077-15T3 defense to the State's charges. Williams, supra, 356 N.J. Super. at 604. Yusef Myers contends information about the controlled buys was essential to his defense because "it went to the heart of the crucial issue" on the suppression motion, "the reliability of the C[onfidential] I[nformant]." He claims there was little evidence in the record to support the court's finding that Yusef was not a "street level drug dealer," and it abused its discretion in concluding that disclosure of the two controlled buys during the State's six-month surveillance could very well reveal the identity of the informant because defendant sold to so few people. In making that argument, Yusef Myers is clearly not suggesting the informant could exculpate him or his cousin Jason. See Roviaro v. United States, 353 U.S. 53, 63-64, 77 S. Ct. 623, 629, 1 L. Ed. 2d 639, 647 (1957) (holding informer's privilege must give way when the informant was a material witness on a basic issue of the trial, making his testimony highly relevant and possibly helpful to the defense). Defendants, previously-convicted felons known to the police, were in possession of three guns and a significant quantity of drugs when they were arrested. The informant was not present for those arrests and thus could offer nothing to cast doubt on the 18 A-4077-15T3 evidence offered by the State as to the identity of defendants or the contraband in their possession. Instead, Yusef Myers seeks to suppress that evidence establishing his guilt by arguing that if disclosure of the controlled buys had been ordered it might have revealed they were small transactions, which might, in some unexplained way, have undermined the reliability of the informant's tip that defendants were going to transport a large quantity of illegal narcotics, thereby suggesting the arresting officers lacked reasonable suspicion for the stop, in which case the search would be illegal and the resulting evidence inadmissible. His claims, besides being completely speculative, do not suggest how disclosure could realistically be helpful to his defense. See Milligan, supra, 71 N.J. at 387-88. Accordingly, he offers us no basis on which we could conclude the trial court abused its discretion in issuing the protective order shielding information about the controlled buys. See State v. Garcia, 131 N.J. 67, 81 (1993). Affirmed. 19 A-4077-15T3
STAPLE SEWING AIDS PENSION MONEY PURCHASE PLAN v. GEORGE ZAHODNICK
Date: December 8, 2017
Docket Number: a5018-15
Date: December 8, 2017
Docket Number: a5018-15
P.B. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: December 8, 2017
Docket Number: a5405-15
Date: December 8, 2017
Docket Number: a5405-15
WIDMAN, COONEY, WILSON MCGANN & FITTERER v. MAUREEN HECK
Date: December 6, 2017
Docket Number: a0011-16
Date: December 6, 2017
Docket Number: a0011-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.M.S.
Date: December 5, 2017
Docket Number: a0284-16
Date: December 5, 2017
Docket Number: a0284-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.C.
Date: December 5, 2017
Docket Number: a0934-16 PER CURIAM In these consolidated appeals, N.C. (Nancy) and R.S. (Roger) appeal the October 13, 2016 Family Part order terminating their parental rights to two children. We affirm substantially for the reasons set forth in Judge Daniel J. Yablonsky's September 19, 2016 comprehensive and well-reasoned written opinion. The evidence is set forth in detail in the judge's opinion. A summary will suffice here. Nancy and Roger are the parents of two children, Q.C. (Quenton), born in 2008, and M.S. (Mary), born in 2010.1 The most recent referral to the Division of Child Protection and Permanency (DCPP) occurred on June 3, 2013, when Nancy awoke in bed with her then partner to find her two-month old infant, dead, laying between them. She acknowledged going to sleep with the child on her chest 1 Nancy and Roger are the parents of other children with other partners, but Quenton and Mary are the only children involved in this case. 2 A-0934-16T1 after smoking marijuana. Roger was not present or involved with the incident. Following an emergency removal, the children were placed under the care, supervision and custody of the DCPP. The children were placed with a relative at first; but this person was not able to care for the children long-term. They then were placed with the maternal grandmother. Unfortunately, she allowed Nancy, whose parenting time was to be supervised, and her brother J.C., a convicted sex offender, to have unsupervised contact with the children. The children were removed in August 2013, and placed with K.C. (Katie), a maternal great aunt. They remained in her care until February 2014, when Katie, who was a military reservist, was deployed. The children were placed temporarily with a resource family we refer to here as the Cannons;2 but that placement was extended when Katie was injured while on assignment. Quenton complained to Ms. Cannon that Katie was abusive to him. When Katie came to visit the children, Ms. Cannon saw Katie hit Mary on the legs for discipline. Ms. Cannon reported this to DCPP. After an investigation, DCPP determined that Katie was not 2 We use a fictitious name to maintain confidentiality. 3 A-0934-16T1 an appropriate caretaker. The children remained with the Cannons, who have expressed an interest in adopting both children. The court initially rejected DCPP's plan for termination of Nancy's and Roger's parental rights, and extended the time to effect reunification. When that was not successful, DCPP filed a complaint seeking termination of their parental rights to both children. Following a twelve-day trial, Judge Yablonsky entered judgment on October 13, 2016, terminating Nancy and Roger's parental rights to the children. Judge Yablonsky recited his factual findings and legal conclusions in a memorandum of opinion. The court found that DCPP had proven by clear and convincing evidence all four prongs codified in N.J.S.A. 30:40C-15.1(a), which, in the best interests of the children, mandates termination of parental rights. In re Guardianship of K.H.O., 161 N.J. 337 (1999). He found the testimony of DCPP's caseworkers to be "credibl[e]" and "consistent with the [DCPP] record in this case." With respect to Nancy, the court found DCPP provided services including "parenting classes, substance abuse treatment, anger management classes, psychotherapy, and a psychiatric evaluation." She obtained drug treatment and was successfully discharged but relapsed within weeks. Although she maintained sobriety at the time of trial, based on expert testimony, she remained at risk to 4 A-0934-16T1 relapse because she did not "recognize her substance use as a potentially dangerous factor in her ability to care for her children." She received psychotherapy because of the death of her child. She had supervised visitation with the children, but at times she was "detached and elusive" toward them. Addressing Roger, the court found he did not attend any of the required counseling services. He was referred to "sex-offender specific therapy" but did not attend. His visitation with the children was "irregular" and he showed "[l]imited, if any, affection . . . at [those] visits." He was discharged from the visitation program for non-attendance. The court found that the children's safety, health or development was endangered by the parental relationship with Roger based on his "pattern of abandoning his children, non-engagement in [DCPP] recommended services, and continued absence in multiple visitation programs." The DCPP called Dr. Robert Miller, a psychologist, as an expert witness in parenting capacity and bonding. Dr. Miller opined that maintaining a relationship with Roger posed an "increasing and unnecessary risk of harm" to the children because he was unable or unwilling to remediate his parental deficit. Roger also was incarcerated at the time of trial, serving a four-year sentence for third-degree sexual 5 A-0934-16T1 assault under N.J.S.A. 2C:14-2(c)(4).3 As a convicted sex offender, Roger was required to comply with the registration provisions of N.J.S.A. 2C:7-2(b), commonly known as Megan's Law, and was subject to Parole Supervision for life, N.J.S.A. 2C:43- 6.4.4 With respect to Nancy, the judge found that her continued relationship would harm the children. Quenton's teeth had decayed under her care and the required tooth extractions affected his speech. The court found she remained "at risk for relapse" for continued drug use. The court noted that Nancy's pattern of unstable relationships, involving domestic violence, exposed the children to harm. The court noted that two experts had opined that Nancy was "not capable of safely parenting the minors now or in the foreseeable future, indicating the health and safety of the children would be put at risk if they were placed back in her care." The court found she had not overcome her parenting deficits. 3 An actor is guilty of sexual assault under N.J.S.A. 2C:14-2(c)(4) where the victim is less than sixteen years old but older than thirteen, and the actor is at least four years older than the victim. 4 Roger was also adjudicated delinquent in the Family Part as a juvenile based on a sexual offense. 6 A-0934-16T1 The court found that DCPP made reasonable efforts to help the parents through the provision of services. DCPP also "explored . . . multiple relative placements." With respect to Katie, she was ruled out by DCPP "due to follow up allegations and reports of abuse by the minors." The court noted she had been indicted on insurance fraud and was "facing significant jail time as well as fines." Her home would not be licensable by DCPP. The court found that termination of Nancy's and Roger's parental rights would not do more harm than good to the children based on the experts' testimony concerning the bonding evaluations. All of the experts, including Nancy's, testified that the children were securely attached to the Cannons. There was testimony that the children were thriving with them. Dr. Maureen Santina, Ph.D, an expert in psychology and bonding, testified for the Law Guardian. She and Dr. Miller testified that the children would be harmed if they returned to Nancy or Roger and that the resource parents were able to ameliorate any harm caused by termination of parental rights. Dr. Miller and Dr. Santina found the children's attachment to Nancy to be insecure or ambivalent. There was no bonding evaluation conducted involving Roger and the children. Roger does not contest the fourth prong of the best interests test on appeal. 7 A-0934-16T1 On appeal, Nancy does not dispute that DCPP provided services to her to assist in remediating the causes of removal. She does not argue that the children should be in her care; rather, she claims that she was prejudiced when the children were removed from Katie's care and placed with the Cannons. Roger contends on appeal that he was not offered appropriate services and that the evidence was not sufficient to prove the first three prongs of the best interests test. On appeal, our review of the judge's order terminating parental rights is limited. We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and are bound by his factual findings provided they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We conclude the factual findings of Judge Yablonsky are fully supported by the record and agree with the legal conclusions drawn therefrom. He carefully considered the proofs, which show that neither parent is capable of providing stable and adequate care for the children now or in the near future. Both parents were offered appropriate services but either did not utilize them or did not remediate the causes for removal of the children. We 8 A-0934-16T1 agree that termination of Nancy's and Roger's parental rights to Quenton and Mary is in the children's best interests and will help the children achieve permanency with their resource parents. We briefly comment on their specific arguments. We reject Nancy's contention that the trial court erred by not conducting a best interest hearing at some point earlier than the guardianship trial on Katie's "rule out" as a placement option. In N.J. Div. of Youth and Family Servs. v. J.S., 433 N.J. Super. 69, 75 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014), we held that "the Division's rule-out authority is always subject to the Family Part's ultimate assessment of that child's best interests." Because "[t]he satisfaction of the rule-out criteria in N.J.S.A. 30:4C-12.1 is, in essence, just one element of the requirements imposed by N.J.S.A. 30:4C-15.1(a)'s four-prong 'best interests' test," id. at 85, there was no error by the court in considering the issue as part of the guardianship trial. In addition, we find no error in the court's consideration of Katie's pending criminal charges, where she faced jail time if convicted. In making a best interests analysis, Judge Yablonsky appropriately took into consideration Katie’s predicament in determining the children's prospects for permanency. N.J. Div. 9 A-0934-16T1 of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 450 (App. Div. 2013). Nancy indicated that Quenton's claim of abuse was unsettled and lacked evidential support. We disagree. The record is clear that those allegations were made to multiple individuals, including doctors, therapists and DCPP caseworkers. It was entirely appropriate for the court to consider those allegations. We also disagree with Roger's contention that the court erred because he was not offered services appropriate for his level of cognitive abilities. A DCPP representative testified that the program to which he was referred would "get to know [their clients] and know at what level to service them." In any event, Roger did not participate in the services offered. Finally, we reject Roger's contention that the court terminated his parental rights because he was incarcerated. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 556 (2014) (holding that "incarceration alone—without particularized evidence of how a parent's incarceration affects each prong of the best-interests-of the-child-standard—-is an insufficient basis for terminating parental rights."). A fair reading of the judge's opinion shows that the decision to terminate Roger's parental 10 A-0934-16T1 rights was firmly based on findings well beyond the fact of Roger's incarceration. Affirmed. 11 A-0934-16T1
Date: December 5, 2017
Docket Number: a0934-16 PER CURIAM In these consolidated appeals, N.C. (Nancy) and R.S. (Roger) appeal the October 13, 2016 Family Part order terminating their parental rights to two children. We affirm substantially for the reasons set forth in Judge Daniel J. Yablonsky's September 19, 2016 comprehensive and well-reasoned written opinion. The evidence is set forth in detail in the judge's opinion. A summary will suffice here. Nancy and Roger are the parents of two children, Q.C. (Quenton), born in 2008, and M.S. (Mary), born in 2010.1 The most recent referral to the Division of Child Protection and Permanency (DCPP) occurred on June 3, 2013, when Nancy awoke in bed with her then partner to find her two-month old infant, dead, laying between them. She acknowledged going to sleep with the child on her chest 1 Nancy and Roger are the parents of other children with other partners, but Quenton and Mary are the only children involved in this case. 2 A-0934-16T1 after smoking marijuana. Roger was not present or involved with the incident. Following an emergency removal, the children were placed under the care, supervision and custody of the DCPP. The children were placed with a relative at first; but this person was not able to care for the children long-term. They then were placed with the maternal grandmother. Unfortunately, she allowed Nancy, whose parenting time was to be supervised, and her brother J.C., a convicted sex offender, to have unsupervised contact with the children. The children were removed in August 2013, and placed with K.C. (Katie), a maternal great aunt. They remained in her care until February 2014, when Katie, who was a military reservist, was deployed. The children were placed temporarily with a resource family we refer to here as the Cannons;2 but that placement was extended when Katie was injured while on assignment. Quenton complained to Ms. Cannon that Katie was abusive to him. When Katie came to visit the children, Ms. Cannon saw Katie hit Mary on the legs for discipline. Ms. Cannon reported this to DCPP. After an investigation, DCPP determined that Katie was not 2 We use a fictitious name to maintain confidentiality. 3 A-0934-16T1 an appropriate caretaker. The children remained with the Cannons, who have expressed an interest in adopting both children. The court initially rejected DCPP's plan for termination of Nancy's and Roger's parental rights, and extended the time to effect reunification. When that was not successful, DCPP filed a complaint seeking termination of their parental rights to both children. Following a twelve-day trial, Judge Yablonsky entered judgment on October 13, 2016, terminating Nancy and Roger's parental rights to the children. Judge Yablonsky recited his factual findings and legal conclusions in a memorandum of opinion. The court found that DCPP had proven by clear and convincing evidence all four prongs codified in N.J.S.A. 30:40C-15.1(a), which, in the best interests of the children, mandates termination of parental rights. In re Guardianship of K.H.O., 161 N.J. 337 (1999). He found the testimony of DCPP's caseworkers to be "credibl[e]" and "consistent with the [DCPP] record in this case." With respect to Nancy, the court found DCPP provided services including "parenting classes, substance abuse treatment, anger management classes, psychotherapy, and a psychiatric evaluation." She obtained drug treatment and was successfully discharged but relapsed within weeks. Although she maintained sobriety at the time of trial, based on expert testimony, she remained at risk to 4 A-0934-16T1 relapse because she did not "recognize her substance use as a potentially dangerous factor in her ability to care for her children." She received psychotherapy because of the death of her child. She had supervised visitation with the children, but at times she was "detached and elusive" toward them. Addressing Roger, the court found he did not attend any of the required counseling services. He was referred to "sex-offender specific therapy" but did not attend. His visitation with the children was "irregular" and he showed "[l]imited, if any, affection . . . at [those] visits." He was discharged from the visitation program for non-attendance. The court found that the children's safety, health or development was endangered by the parental relationship with Roger based on his "pattern of abandoning his children, non-engagement in [DCPP] recommended services, and continued absence in multiple visitation programs." The DCPP called Dr. Robert Miller, a psychologist, as an expert witness in parenting capacity and bonding. Dr. Miller opined that maintaining a relationship with Roger posed an "increasing and unnecessary risk of harm" to the children because he was unable or unwilling to remediate his parental deficit. Roger also was incarcerated at the time of trial, serving a four-year sentence for third-degree sexual 5 A-0934-16T1 assault under N.J.S.A. 2C:14-2(c)(4).3 As a convicted sex offender, Roger was required to comply with the registration provisions of N.J.S.A. 2C:7-2(b), commonly known as Megan's Law, and was subject to Parole Supervision for life, N.J.S.A. 2C:43- 6.4.4 With respect to Nancy, the judge found that her continued relationship would harm the children. Quenton's teeth had decayed under her care and the required tooth extractions affected his speech. The court found she remained "at risk for relapse" for continued drug use. The court noted that Nancy's pattern of unstable relationships, involving domestic violence, exposed the children to harm. The court noted that two experts had opined that Nancy was "not capable of safely parenting the minors now or in the foreseeable future, indicating the health and safety of the children would be put at risk if they were placed back in her care." The court found she had not overcome her parenting deficits. 3 An actor is guilty of sexual assault under N.J.S.A. 2C:14-2(c)(4) where the victim is less than sixteen years old but older than thirteen, and the actor is at least four years older than the victim. 4 Roger was also adjudicated delinquent in the Family Part as a juvenile based on a sexual offense. 6 A-0934-16T1 The court found that DCPP made reasonable efforts to help the parents through the provision of services. DCPP also "explored . . . multiple relative placements." With respect to Katie, she was ruled out by DCPP "due to follow up allegations and reports of abuse by the minors." The court noted she had been indicted on insurance fraud and was "facing significant jail time as well as fines." Her home would not be licensable by DCPP. The court found that termination of Nancy's and Roger's parental rights would not do more harm than good to the children based on the experts' testimony concerning the bonding evaluations. All of the experts, including Nancy's, testified that the children were securely attached to the Cannons. There was testimony that the children were thriving with them. Dr. Maureen Santina, Ph.D, an expert in psychology and bonding, testified for the Law Guardian. She and Dr. Miller testified that the children would be harmed if they returned to Nancy or Roger and that the resource parents were able to ameliorate any harm caused by termination of parental rights. Dr. Miller and Dr. Santina found the children's attachment to Nancy to be insecure or ambivalent. There was no bonding evaluation conducted involving Roger and the children. Roger does not contest the fourth prong of the best interests test on appeal. 7 A-0934-16T1 On appeal, Nancy does not dispute that DCPP provided services to her to assist in remediating the causes of removal. She does not argue that the children should be in her care; rather, she claims that she was prejudiced when the children were removed from Katie's care and placed with the Cannons. Roger contends on appeal that he was not offered appropriate services and that the evidence was not sufficient to prove the first three prongs of the best interests test. On appeal, our review of the judge's order terminating parental rights is limited. We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and are bound by his factual findings provided they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We conclude the factual findings of Judge Yablonsky are fully supported by the record and agree with the legal conclusions drawn therefrom. He carefully considered the proofs, which show that neither parent is capable of providing stable and adequate care for the children now or in the near future. Both parents were offered appropriate services but either did not utilize them or did not remediate the causes for removal of the children. We 8 A-0934-16T1 agree that termination of Nancy's and Roger's parental rights to Quenton and Mary is in the children's best interests and will help the children achieve permanency with their resource parents. We briefly comment on their specific arguments. We reject Nancy's contention that the trial court erred by not conducting a best interest hearing at some point earlier than the guardianship trial on Katie's "rule out" as a placement option. In N.J. Div. of Youth and Family Servs. v. J.S., 433 N.J. Super. 69, 75 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014), we held that "the Division's rule-out authority is always subject to the Family Part's ultimate assessment of that child's best interests." Because "[t]he satisfaction of the rule-out criteria in N.J.S.A. 30:4C-12.1 is, in essence, just one element of the requirements imposed by N.J.S.A. 30:4C-15.1(a)'s four-prong 'best interests' test," id. at 85, there was no error by the court in considering the issue as part of the guardianship trial. In addition, we find no error in the court's consideration of Katie's pending criminal charges, where she faced jail time if convicted. In making a best interests analysis, Judge Yablonsky appropriately took into consideration Katie’s predicament in determining the children's prospects for permanency. N.J. Div. 9 A-0934-16T1 of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 450 (App. Div. 2013). Nancy indicated that Quenton's claim of abuse was unsettled and lacked evidential support. We disagree. The record is clear that those allegations were made to multiple individuals, including doctors, therapists and DCPP caseworkers. It was entirely appropriate for the court to consider those allegations. We also disagree with Roger's contention that the court erred because he was not offered services appropriate for his level of cognitive abilities. A DCPP representative testified that the program to which he was referred would "get to know [their clients] and know at what level to service them." In any event, Roger did not participate in the services offered. Finally, we reject Roger's contention that the court terminated his parental rights because he was incarcerated. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 556 (2014) (holding that "incarceration alone—without particularized evidence of how a parent's incarceration affects each prong of the best-interests-of the-child-standard—-is an insufficient basis for terminating parental rights."). A fair reading of the judge's opinion shows that the decision to terminate Roger's parental 10 A-0934-16T1 rights was firmly based on findings well beyond the fact of Roger's incarceration. Affirmed. 11 A-0934-16T1
34 LABEL STREET ASSOCIATES v. RICHARD CECERE
Date: December 4, 2017
Docket Number: a0836-14 PER CURIAM To quote one of our earlier opinions: "This is a convoluted commercial landlord/tenant" dispute. Defendant Richard Cecere, individually and through a corporation he controlled, leased portions of property owned by plaintiff 34 Label Street Associates (34 Label). The dispute among the parties has engendered several lawsuits and multiple appeals. In this consolidated opinion, we address three appeals: two filed by Cecere, and one filed by Cecere's lawyers, Cozzarelli Law, LLP and Frank J. Cozzarelli (collectively, Cozzarelli). Cecere appeals from three judgments, entered after two trials, that (1) awarded 34 Label monetary damages for Cecere's repeated breaches of a ground lease, and (2) rescinded the lease because Cecere failed to pay the judgments, failed to comply with the terms of the ground lease, and failed to comply with court orders. We affirm the judgments entered on August 25, 2014, September 8, 2014, and August 26, 2015, because the facts found at trial established that Cecere materially breached the ground lease from 2007 until 2015, and intentionally failed to cure those breaches. Therefore, rescission was an appropriate equitable remedy. 2 A-0836-14T1 Cozzarelli appeals from partial judgments that extinguished a mortgage and security interest that it took in one of Cecere's leased properties. Cozzarelli obtained that mortgage and security interest after judgment had been entered against Cecere for breach of that lease. Cozzarelli also appeals from an August 28, 2015 order denying its motion to intervene in the lawsuit between 34 Label and Cecere. We affirm the July 23, 2015 partial judgment, the August 6, 2015 amended partial judgment, and the August 28, 2015 order, because the trial court acted within its discretion in denying Cozzarelli the right to intervene due to its failure to make a timely application. I. 34 Label owns real property in Montclair. It leased portions of that property to Cecere and R.C. Search Co., Inc. (R.C. Search), a company wholly owned and controlled by Cecere. The disputes giving rise to these appeals concern a lease for property on which Cecere operated a restaurant (the Restaurant Property). Cecere initially leased the Restaurant Property under a ten-year lease. In 2002, 34 Label and Cecere entered into a ninety-nine-year ground lease for the Restaurant Property (the Ground Lease). Thereafter, Cecere operated a restaurant on the property until 2012, and he continued to occupy the property until 34 Label took possession in September 2015. 3 A-0836-14T1 Cecere prepaid the full rent of $387,199.20 when the Ground Lease was executed in 2002. It was the parties' intent to transfer ownership of the Restaurant Property to Cecere. In that regard, the Ground Lease provided: It is the Lessor's intent to deed to the Lessee the entire premises, Fee Simple, referred to above (property) upon the Lessee's obtaining subdivision approval as described in the attached exhibit A. The Ground Lease also provided that, pending the subdivision, Cecere was required to pay his proportional share of the property taxes, and 100 percent of any increase in the taxes resulting from improvements to the Restaurant Property. Cecere was also required to pay his proportional share of other expenses. Finally, the Ground Lease required Cecere to obtain $2 million in insurance and name 34 Label as an additional insured party. Since executing the Ground Lease, Cecere has failed to satisfy several obligations. Cecere has not paid any taxes or expenses under the Ground Lease since 2007. Cecere also failed to obtain insurance. Finally, Cecere never obtained subdivision approval. These failures, as well as disputes over other leases between 34 Label, Cecere, and his company, R.C. Search, resulted in three lawsuits. 4 A-0836-14T1 A. The First Lawsuit Separate from the Restaurant Property, in 1993, 34 Label leased an office to R.C. Search (the Office Property). In 1996, 34 Label also leased a garage unit to Cecere (the Garage Property). When Cecere stopped making tax and expense payments for the Restaurant Property, he and R.C. Search also stopped paying rents for the Office and Garage Properties. Accordingly, 34 Label brought a summary disposition action against Cecere and R.C. Search for possession of the Office and Garage Properties. The Special Civil Part granted 34 Label possession, and we affirmed that order. 34 Label St. Assocs. v. R.C. Search Co., No. A-4556-08 (App. Div. Apr. 8, 2010).1 B. The Second Lawsuit In 2009, Cecere and R.C. Search sued 34 Label, its principal, Howard Silver, and its accountant, Emer Featherstone. Cecere and R.C. Search claimed that they were overcharged for rents on the Office Property and that Silver and Featherstone engaged in fraud. 34 Label filed a counterclaim seeking to recover past due rents for the Office and Garage Properties and past due taxes and expenses for the Restaurant Property. 1 Cecere appealed from the judgment for possession of the Garage Property, but that appeal was dismissed for failure to prosecute. 34 Label St. Assocs. v. Cecere, No. A-0574-09, order entered on June 10, 2010. 5 A-0836-14T1 On January 5, 2011, the trial court entered an order directing Cecere to file an application to subdivide the Restaurant Property. The court also ordered Cecere to "diligently pursue" the subdivision application to conclusion. Cecere failed to comply with that order. Thereafter, all of the claims by Cecere and R.C. Search were dismissed, and in March 2011, the trial court entered a judgment in favor of 34 Label (the March 2011 Judgment). Under the March 2011 Judgment, R.C. Search was ordered to pay $190,501.32 for unpaid rents on the Office Property, and Cecere was ordered to pay $22,126.51 for unpaid rents on the Garage Property and $149,468.96 for unpaid taxes and expenses on the Restaurant Property. The trial court also denied 34 Label's application for attorney's fees. In May 2011, shortly after the entry of the March 2011 Judgment, Cecere gave Cozzarelli a mortgage and security interest in the Restaurant Property for $350,000 that Cecere owed to Cozzarelli for legal services. Cecere and R.C. Search appealed from the March 2011 Judgment, and 34 Label cross-appealed from the denial of its application for attorney's fees. We affirmed the March 2011 Judgment against Cecere and R.C. Search for the unpaid rents on the Office and Garage Properties, and for the unpaid taxes and expenses on the 6 A-0836-14T1 Restaurant Property. We reversed the portion of the March 2011 Judgment denying 34 Label's application for attorney's fees and remanded that part of the case for further proceedings. R.C. Search Co., Inc. v. Silver, No. A-4332-10 (App. Div. July 19, 2012).2 Thereafter, Cecere did not pay any portion of the March 2011 Judgment. He also failed to pay the taxes and other property expenses that continued to accrue under the Ground Lease. C. The Third Lawsuit In January 2012, while the March 2011 Judgment was pending appeal, 34 Label sued Cecere for his continued breaches of the Ground Lease. 34 Label also asserted a claim for rescission. The third lawsuit was stayed for several months when Cecere filed for bankruptcy. In June 2014, after Cecere's bankruptcy case was dismissed, the trial court found Cecere in contempt for his failure to file a subdivision application as required by the January 5, 2011 order. Cecere finally filed the subdivision application in May 2014. In June 2014, the trial court conducted a four-day bench trial on the claims in the third lawsuit. After hearing the 2 Cecere has filed a separate appeal from the order that granted 34 Label attorney's fees following the remand proceedings. That appeal is addressed in a separate opinion. R.C. Search Co., Inc. v. Silver, No. A-4512-14 (App. Div. Dec. 4, 2017). 7 A-0836-14T1 evidence, the trial court issued an oral decision on July 11, 2014. The court found that Cecere (1) failed to pay any of the March 2011 Judgment; (2) failed to pay the ongoing expenses, including taxes, for the Restaurant Property under the Ground Lease; (3) failed to obtain insurance as required by the Ground Lease; and (4) failed to comply with the January 5, 2011 order that required him to file for subdivision of the Restaurant Property. The court also found that 34 Label paid all of the taxes and expenses on the Restaurant Property since 2007. Thus, the trial court found that Cecere breached the Ground Lease in three material respects, by failing to (1) pay taxes and expenses, (2) obtain insurance, and (3) diligently pursue a subdivision of the Restaurant Property. Turning to 34 Label's claim for rescission, the court decided it would give Cecere one last chance to cure his defaults. Accordingly, the court directed that Cecere would have until January 1, 2015, to cure his defaults, either by paying what he owed and subdividing the property, or by selling the property. The court embodied its rulings in a judgment filed on August 25, 2014 (the August 2014 Judgment). The August 2014 Judgment ordered Cecere to pay 34 Label $163,510.62 plus interest and costs, which was the amount of unpaid taxes and fees accrued on the Restaurant Property since the March 2011 Judgment. The August 8 A-0836-14T1 2014 Judgment also ordered a conditional rescission, which provided that if Cecere failed to pay the judgments owed to 34 Label and failed to obtain subdivision approval for the Restaurant Property, the court would conduct further hearings to implement the rescission of the Ground Lease. On September 8, 2014, the August 2014 Judgment was amended to include $13,542.46 in additional property taxes accrued through August 31, 2014. Thus, the monetary judgment increased to $177,053.08. Cecere moved for reconsideration, but the court denied that application in an order entered on September 19, 2014. On October 8, 2014, Cecere filed a notice of appeal from the August 2014 Judgment, and the September 8, 2014 amended judgment. Thereafter, Cecere filed an amended notice of appeal, adding the September 19, 2014 order denying his motion for reconsideration. In November 2014, the Montclair Planning Board denied Cecere's subdivision application. The Planning Board issued a resolution finding that the application was incomplete primarily because Cecere failed to explain how he would provide parking for the restaurant if the property was subdivided and the Ground Lease ended. By January 2015, Cecere had failed to satisfy the conditions imposed by the court in the August 2014 Judgment. In that regard, Cecere had not paid any of the monetary judgments entered against 9 A-0836-14T1 him, continued to fail to pay new taxes and expenses on the Restaurant Property, and had not subdivided the Restaurant Property. Therefore, 34 Label filed an order to show cause seeking rescission of the Ground Lease. The trial court entered an order on January 13, 2015, scheduling a hearing on rescission and related damages for February 6, 2015. In response, Cecere filed an emergent motion for leave to appeal, arguing that the trial court did not have jurisdiction because of the pending appeal. In a January 30, 2015 order, we denied the motion and explained that the trial court had "continuing jurisdiction to enforce judgments and orders." Following the denial of Cecere's emergent motion, the trial court ordered him to allow 34 Label to inspect the Restaurant Property to evaluate the improvements that he made. Cecere never allowed that inspection. As a result, the trial court found Cecere in contempt and entered an order barring him from presenting a claim based on his improvements to the Restaurant Property. The court entered that sanction because of "Cecere's history of intentional non-compliance with court orders and the apparent inadequacy of monetary sanctions[.]" That order did not preclude Cecere from using an expert to appraise the property, but he ultimately chose not to present an expert at trial. 10 A-0836-14T1 In March 2015, Cozzarelli assigned its rights under the mortgage and security agreement to an entity known as "Ice Pick, Inc." An associate of Cozzarelli, who works at the law firm, owns Ice Pick. A trial on the remedy of rescission and related damages began in July 2015. 34 Label presented an expert on the fair market rental value of the Restaurant Property. After counsel for Cecere cross-examined 34 Label's expert for approximately six hours, the court took a lunch break. Following the lunch break, counsel for Cecere announced that Cecere had discharged her. The trial court denied an application for a mistrial, but granted a continuance to allow Cecere to either retain new counsel or proceed self- represented. At that time, the trial court entered a partial judgment granting 34 Label immediate possession of the property. In awarding immediate possession, the trial court noted "the long and tortured history of this case and Cecere's continuous use of delay tactics and flouting of court orders." The partial judgment, entered on July 23, 2015, also extinguished Cozzarelli's mortgage and security interest in the Restaurant Property. On August 5, 2015, Cozzarelli filed a motion to intervene. The following day, the court issued an amended partial judgment, and an opinion explaining its ruling. Thereafter, on August 28, 2015, the trial 11 A-0836-14T1 court entered an order denying Cozzarelli's motion to intervene. Cozzarelli filed a motion with us for a stay, which we denied. In the meantime, on August 17, 2015, the rescission trial resumed, with Cecere representing himself. 34 Label presented its accountant who testified as to the amount of property taxes and expenses that 34 Label had paid on the Restaurant Property. The trial court found the accountant to be credible. On August 26, 2015, the trial court entered a judgment rescinding the Ground Lease, and entered a monetary judgment to restore the parties to their status quo as much as possible (the August 2015 Judgment). When the Ground Lease was executed in 2002, Cecere prepaid rent of $387,199.20. Using evidence submitted by Cecere, the court found that the present value of Cecere's prepaid rent (as of 2015) was $531,663.22. The court found that 34 Label was entitled to $716,481 for Cecere's use and possession of the Restaurant Property. The court also awarded 34 Label $49,530.23 in other expenses. Accordingly, the court found that 34 Label was entitled to rents and expenses totaling $766,011.23, and Cecere was entitled to reimbursement of his prepaid rent in the present value of $531,633.22. Offsetting those two amounts, the court entered a net judgment in favor of 34 Label for $234,348.01. 12 A-0836-14T1 In addition, the court found that the March 2011 and August 2014 Judgments established the correct amount of taxes and expenses owed by Cecere to 34 Label for the time between October 2007 and August 2014. In that regard, the court found that the rent credited to 34 Label did not include property taxes and expenses. Thus, the August 2015 Judgment left the March 2011 and August 2014 Judgments "in full force and effect[.]" On September 2, 2015, 34 Label executed the writ of possession and took possession of the Restaurant Property. As already noted, Cecere and Cozzarelli have filed three separate appeals. In A-0836-14, Cecere appeals from the August 2014 Judgment, the September 8, 2014 amended judgment, and the September 19, 2014 order denying reconsideration. In A-0307-15, Cecere appeals from the August 2015 Judgment. In A-0183-15, proposed intervenor, Cozzarelli, appeals from the July 23, 2015 partial judgment, the August 6, 2015 amended partial judgment, and the August 28, 2015 order denying his motion to intervene. II. In his appeals, Cecere primarily contends that rescission was an improper remedy and challenges, on various grounds, the August 2015 Judgment granting rescission. Cecere also challenges the adequacy of the trial court's factual findings throughout the litigations, arguing that (1) the trial court erred in admitting 13 A-0836-14T1 expert testimony on behalf of 34 Label; (2) the trial judge should have recused herself; (3) 34 Label frustrated the subdivision process; (4) the trial court lacked jurisdiction to issue the August 2015 Judgment; (5) the trial court exceeded its authority by holding Cecere in contempt; (6) the trial court's findings were not based on adequate credible evidence; and (7) the trial court improperly restrained Cecere from use of his assets. Cozzarelli makes six arguments on appeal: (1) the trial court lacked personal jurisdiction over it; (2) it should have been allowed to intervene; (3) the trial court lacked jurisdiction after Cecere appealed the August 2014 Judgment; (4) it had viable defenses to the extinguishment of its mortgage; (5) any claims against it should have been dismissed due to 34 Label's violation of Rule 4:5-1; and (6) 34 Label's claims for payments made after May 5, 2011, lack priority over its mortgage. These arguments lack merit and, for the reasons set forth below, we reject them. We will first address Cecere's arguments, focusing principally on rescission. We will then address Cozzarelli's arguments. A. The Judgment of Rescission We begin our analysis with the August 2015 Judgment granting rescission, because that was the final judgment entered against Cecere. 14 A-0836-14T1 As an equitable remedy, rescission lies within the inherent discretion of the trial court. First Am. Title Ins. Co. v. Lawson, 177 N.J. 125, 140 (2003). Accordingly, we review an equitable judgment granting rescission for abuse of discretion. Sears Mortg. Corp. v. Rose, 134 N.J. 326, 353-54 (1993); Civil S. Factors Corp. v. Bonat, 65 N.J. 329, 333 (1974). Moreover, the trial court's factual findings will be upheld if they are supported by substantial credible evidence in the record. MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). Such deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998). The remedy of rescission is rooted in considerations of equity. Rutgers Cas. Ins. Co. v. LaCroix, 194 N.J. 515, 527 (2008). Where monetary damages alone will not satisfy the injury sustained by the aggrieved party, courts can look to the equitable remedy of rescission to provide adequate relief. Ibid. Accordingly, our Supreme Court has explained: Rescission remains a form of equitable relief in whatever setting its need arises, and courts wielding that remedy retain the discretion and judgment required to ensure that equity is done. In furtherance of that objective, a court may shape the rescission remedy in order to serve substantial justice. 15 A-0836-14T1 [Id. at 528-29.] Ordinarily, rescission serves as a remedy for fraud, mistake, or misrepresentation. E. Newark Realty Corp. v. Dolan, 15 N.J. Super. 288, 292-93 (App. Div. 1951). Nevertheless, rescission can be granted even in the absence of fraud, mistake, or misrepresentation. See ibid. ("The equitable remedy of cancellation of documents is generally based on fraud or mistake in the inception of the document, but on occasion the remedy is applied even though fraud and mistake are absent."). Where a party materially breaches a contract and there is no adequate monetary remedy, rescission may be appropriate. Contracts may be rescinded where there is "original invalidity, fraud, failure of consideration or a material breach." Farris v. Cty. of Camden, 61 F. Supp. 2d 307, 336 (D.N.J. 1999) (quoting Notch View Assocs. v. Smith, 260 N.J. Super. 190, 197 (Law Div. 1992)). The trial court should mold the rescission remedy to restore the parties to the positions that they would have been in had the contract never been formed, and to prevent the breaching party from gaining a benefit. LaCroix, supra, 194 N.J. at 527 (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 612 (1989)). In short, as an equitable remedy, the availability of rescission 16 A-0836-14T1 depends on the totality of the circumstances in a given case. Lawson, supra, 177 N.J. at 143. Here, the factual findings of the trial court support the equitable remedy of rescission. In that regard, Cecere materially breached the Ground Lease and those breaches could not be remedied by monetary judgments. Specifically, the trial court conducted two trials and made the following factual findings, many of which were not in dispute: 1. Cecere had been in breach of the Ground Lease since 2007, when he stopped paying taxes and expenses on the Restaurant Property; 2. Two judgments were entered against Cecere in 2011 and 2014, but he failed to pay either judgment; 3. Cecere also continued to occupy the Restaurant Property, but continued to fail to pay the newly accruing property taxes and expenses; and 4. Cecere initially refused to obey the order requiring him to seek subdivision of the Restaurant Property; was found to be in contempt of that order; and ultimately failed to get the subdivision because he had no plan regarding parking accommodations for the restaurant. In light of those findings, the trial court determined that Cecere would never comply with his obligations under the Ground Lease. Indeed, the trial court stated: "[I]t's clear to this [c]ourt based upon the testimony of Mr. Cecere, his demeanor, his 17 A-0836-14T1 attitude which this [c]ourt had the ability to observe firsthand over the period of . . . a full day of testimony that [Cecere] has no intention of making those payments." The trial court initially entered conditional rescission and gave Cecere an additional six months to avoid rescission by complying with his obligations. It was only after Cecere failed to satisfy the conditions imposed by the court that the trial court, after a further trial, entered a final judgment of rescission. Those facts and proceedings support the equitable remedy of rescission. We also hold that the factual findings made during the 2015 rescission trial were supported by substantial credible evidence. The court determined that the present value of the rent that Cecere paid in 2002 was $531,663.22. In making that finding, the court relied on evidence submitted by Cecere. The court also found that 34 Label was entitled to compensation from Cecere for use and possession of the Restaurant Property from 2002 to 2015. The court based that finding on expert testimony, which it found to be credible. Accordingly, the court found that 34 Label was entitled to rents and expenses totaling $766,011.23. Offsetting those two amounts, the court entered a net judgment in favor of 34 Label for $234,348.01. In addition, the court found that the March 2011 and August 2014 Judgments established the correct amount 18 A-0836-14T1 of taxes and expenses owed by Cecere to 34 Label through August 2014. All of the court's findings are supported by substantial credible evidence in the record and we find no basis to disturb those findings. Moreover, the court's rulings restored the parties to their original positions in light of the rescission. See LaCroix, supra, 197 N.J. at 527. Cecere makes a series of arguments challenging the remedy of rescission. None of those arguments are persuasive. First, Cecere contends that rescission requires findings of clear and convincing evidence and that the trial court failed to apply such a standard. In making that argument, Cecere relies on a case that discusses proving fraud by clear and convincing evidence. See Armel v. Crewick, 71 N.J. Super. 213, 217 (App. Div. 1961) (stating that a "court of equity has frequently applied the 'clear and convincing' quantum to averments of fraud"). Here, however, 34 Label's claim was not based on equitable fraud. Instead, the claim was based on material breaches of the Ground Lease, which Cecere refused to cure. Consequently, clear and convincing evidence was not required. Even if we were to apply that standard, it has been met. Cecere himself acknowledged that he was not paying the taxes and that he had not obtained insurance. Those admissions clearly and convincingly established the breaches of the Ground Lease. 19 A-0836-14T1 Second, Cecere argues that rescission was barred by judicial estoppel and the entire controversy doctrine. 34 Label never took a position that estopped it from seeking rescission. See Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606 (App. Div. 2000) ("A threat to the integrity of the judicial system sufficient to invoke the judicial estoppel doctrine only arises when a party advocates a position contrary to a position it successfully asserted in the same or a prior proceeding."). Instead, 34 Label initially tried to enforce the lease, but even after judgments were entered against Cecere, he continued to breach the Ground Lease. Consequently, 34 Label did not change its position; rather, Cecere refused to comply with court judgments. For similar reasons, the entire controversy doctrine does not apply against 34 Label. See Oliver v. Ambrose, 152 N.J. 383, 392 (1998) ("For over sixty years, it has been established in New Jersey that the entire controversy doctrine requires the mandatory joinder of all claims to a single transaction."). 34 Label only sought rescission after Cecere failed to comply with the March 2011 Judgment that ordered him to pay the taxes and expenses for the Restaurant Property. Moreover, Cecere continued to possess the Restaurant Property, but refused to pay the ongoing property taxes and expenses. 20 A-0836-14T1 Third, Cecere argues that rescission was barred by the statute of limitations and the doctrine of laches. Cecere never asserted those defenses before the trial court. Therefore, he waived them. See Pressler & Verniero, Current N.J. Court Rules, cmt. 1.2.1 on R. 4:5-4 (2018) ("While the rule does not expressly so state, it is clear that ordinarily an affirmative defense that is not pleaded or otherwise timely raised is deemed to have been waived."); see also Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super. 517, 520 (App. Div. 2004) (declining to consider an issue on appeal because appellant failed to properly raise it before the trial court). Even if we considered these arguments substantively, however, they lack merit. The applicable statute of limitations for claims of rescission is six years. N.J.S.A. 2A:14-1. Cecere breached the Ground Lease in 2007, and 34 Label obtained a judgment in March 2011. After Cecere refused to pay that judgment, 34 Label filed its claim for rescission in 2012. All of that took place within the applicable six years. Cecere's claim for laches fails for the same reasons. In short, 34 Label acted timely in responding to Cecere's ongoing breaches of the Ground Lease. Fourth, Cecere contends that there is no such thing as conditional rescission. That argument lacks merit because by putting conditions on the rescission, the trial court was giving Cecere one last opportunity to cure his long-standing material 21 A-0836-14T1 breaches of the Ground Lease. As already explained, it is within the court's discretion to mold the rescission remedy to provide adequate relief based upon the totality of the circumstances. See Lawson, supra, 177 N.J. at 143. Cecere's continued non-compliance with both the requirements of the Ground Lease and court judgments demonstrates that the trial court acted within its discretion in granting conditional rescission. B. Cecere's Other Arguments on Appeal Cecere also makes a series of arguments to challenge the adequacy of the trial court's factual findings. Having found that rescission was an appropriate remedy, and that it was correctly implemented, we will briefly analyze why we reject the remainder of his arguments. Cecere contends that the trial court improperly relied upon certain evidence. Specifically, he contends that the trial court should not have admitted and relied upon expert testimony of Charles Blau regarding the fair rental value of the Restaurant Property, and a summary document of the expenses incurred by 34 Label. We review such evidentiary issues for abuse of discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007). Having evaluated the court's evidentiary rulings in light of the applicable rules of evidence, we find no such abuse. 22 A-0836-14T1 Next, Cecere argues that the judge who conducted the 2015 rescission trial was biased and should have recused herself. In support of this argument, Cecere cites nothing that would demonstrate any biased or improper conduct by the trial judge. Instead, Cecere simply points to statements that the judge made based on the facts presented during the litigation. The judge did not engage in conduct warranting recusal. See Panitch v. Panitch, 339 N.J. Super. 63, 68-71 (App. Div. 2001) (reviewing the denial of a motion for recusal for abuse of discretion, and stating that a judge's comments do not, by themselves, require recusal). Here, we find no abuse of discretion. Indeed, Cecere's arguments are based on factual assertions not supported by the record. Cecere also contends that 34 Label frustrated his efforts to subdivide the property. Here again, the record does not support his contention. As part of Cecere's subdivision application, the Montclair Planning Board requested that he clarify how he would provide parking for the restaurant if the property was subdivided and the Ground Lease ended. Cecere asserted that he could continue to use the garage as permitted under the Ground Lease. Counsel for 34 Label informed the Planning Board that if the property was subdivided, the Ground Lease would no longer exist and, therefore, Cecere would not have access to the parking garage. The trial 23 A-0836-14T1 court reviewed this issue and found that 34 Label did not act improperly. That finding is amply supported by the record. Cecere argues that the trial court lacked jurisdiction to conduct the rescission trial in 2015, while his appeal from the August 2014 Judgment was pending. That argument fails because the rescission trial was a proceeding to enforce the August 2014 Judgment. Consequently, the trial court had "continuing jurisdiction to enforce judgments and orders . . . ." R. 2:9- 1(a). Indeed, we clarified that point in denying Cecere's emergent motion seeking leave to appeal the January 13, 2015 order to show cause. Further, as the procedural history of this case unfolded, it now can be argued that the August 2014 Judgment was an interlocutory judgment. That judgment was specifically conditioned on certain events taking place before January 2015. The judgment also provided that the court would conduct further proceedings regarding rescission if those conditions were not met. Consequently, when Cecere failed to comply with the August 2014 Judgment, the court conducted further proceedings, including another trial, to implement rescission of the Ground Lease. Thus, although Cecere now has the right to appeal the August 2014 Judgment, that right arose after the August 2015 Judgment granting rescission was entered. We have not required Cecere to amend his 24 A-0836-14T1 notice of appeal and have already addressed and rejected his arguments challenging the August 2014 Judgment, as well as the September 8, 2014 amended judgment and September 19, 2014 order denying reconsideration. Cecere also claims that the trial court improperly held him in contempt twice; once in June 2014, and again in May 2015. We review a trial court's order of contempt for abuse of discretion. Gonzalez v. Safe & Sound Sec. Corp., 368 N.J. Super. 203, 209 (App. Div. 2004), rev'd on other grounds, 185 N.J. 100 (2005). Given the detailed factual findings regarding Cecere's actions, we find no such abuse. Both times the trial court held Cecere in contempt, it noted that he had ignored clear prior court orders. Indeed, Cecere was first found in contempt after he failed to comply with the January 5, 2011 order directing him to submit an application for subdivision. The second time Cecere was held in contempt, the court stated that it was imposing contempt because of his blatant disregard of discovery obligations to his adversary, including his deliberate refusal to provide 34 Label access to the Restaurant Property, and his long-standing history of "flouting" court orders. Those sanctions were appropriate given Cecere's prior actions and refusal to obey prior court orders. 25 A-0836-14T1 Finally, Cecere's remaining arguments lack sufficient merit to warrant discussion in a written opinion and, therefore, we reject them without further comment. R. 2:11-3(e)(1)(E). C. Cozzarelli's Appeal Only one of the issues that Cozzarelli raises on appeal is properly before us: whether the trial court correctly denied its request to intervene. We hold that the trial court did not abuse its discretion in denying Cozzarelli's belated motion to intervene. See Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 172 (App. Div. 2005) (reviewing a trial court's denial of permissive intervention pursuant to Rule 4:33-2 for abuse of discretion). Lacking status as a party, Cozzarelli does not have standing to make its other arguments. Williams v. State, 375 N.J. Super. 485, 530 (App. Div. 2005) (recognizing that intervenors are not parties in the action until a motion to intervene is granted). Moreover, by failing to timely intervene, Cozzarelli effectively waived its right to challenge the trial court's ruling that extinguished its mortgage. J.L.B. Equities v. Dumont, 310 N.J. Super. 366, 374 (App. Div. 1998). Rule 4:33-1 governs applications for intervention as of right, and Rule 4:33-2 addresses permissive intervention. Both rules require a "timely application." Here, the trial court found that Cozzarelli's motion to intervene was not timely. 26 A-0836-14T1 Specifically, the trial court found that Cozzarelli had notice of the rescission claim starting in 2012, but waited until August 2015, to seek intervention. In making that determination, the trial court relied on the following factual findings. Cozzarelli represented Cecere in the lawsuit that resulted in the March 2011 Judgment. Cozzarelli then took the mortgage and security interest in the Restaurant Property in May 2011. Notably, the mortgage and security agreement both required Cecere to be in compliance with his obligations under the Ground Lease. Cozzarelli, however, knew that Cecere was in breach of those obligations and had been in continuous breach since 2007. Cozzarelli was also on notice when 34 Label filed the third lawsuit in 2012 seeking rescission of the Ground Lease. Despite knowing that 34 Label sought rescission, Cozzarelli chose not to intervene at that time. Cozzarelli continued to delay even after the trial court entered the August 2014 Judgment. That judgment granted 34 Label conditional rescission and spelled out the exact conditions that needed to be met within six months. It is undisputed that those conditions were not satisfied by January 2015. Thereafter, the trial court conducted proceedings to implement the final rescission. Those proceedings included a trial in July 2015, during which an associate of Cozzarelli Law represented Cecere. 27 A-0836-14T1 Accordingly, from January 2012 through July 2015, Cozzarelli had actual notice that 34 Label was seeking rescission of the Ground Lease. An obvious component of rescission would be the extinguishment of any interest in the Restaurant Property transferred by Cecere, including Cozzarelli's mortgage and security interest. Nevertheless, Cozzarelli did not move to intervene until August 2015. Based on those facts, the trial court acted well within its discretion in denying Cozzarelli's motion to intervene. On appeal, Cozzarelli suggests that there are differences between Cozzarelli Law, associates of the firm, and Frank J. Cozzarelli in his individual capacity. Whatever distinctions there may be for other purposes, the individuals and entities with a mortgage and security interest in the Restaurant Property indisputably knew in January 2012 that 34 Label was seeking rescission of the Ground Lease. Thus, they are all precluded by the trial court's judgments. While we need not address Cozzarelli's other arguments, we note that even if we were to reach them, they lack merit. The court clearly had jurisdiction over Cecere and the Ground Lease. Consequently, when the court granted rescission, it had the jurisdiction and authority to extinguish Cecere's property interests under the Ground Lease and any interest that Cecere had 28 A-0836-14T1 transferred, including the mortgage and security interest transferred to Cozzarelli, which were subsequently transferred to Ice Pick. Having carefully reviewed this entire record, and the myriad of arguments put forward both by Cecere and Cozzarelli, we see no viable defense that Cozzarelli could have asserted to the extinguishment of the mortgage and security interest in the Restaurant Property. Finally, as our prior analysis has established, given the way the mortgage and security interest were created, and Cozzarelli's clear notice of the rescission claim, 34 Label had no obligation to identify, much less move to join, Cozzarelli. Thus, we see no violation of Rule 4:5-1. In summary, we affirm the judgments and orders entered on August 25, 2014, September 8, 2014, September 19, 2014, July 22, 2015, August 6, 2015, August 26, 2015, and August 28, 2015. Affirmed. 29 A-0836-14T1
Date: December 4, 2017
Docket Number: a0836-14 PER CURIAM To quote one of our earlier opinions: "This is a convoluted commercial landlord/tenant" dispute. Defendant Richard Cecere, individually and through a corporation he controlled, leased portions of property owned by plaintiff 34 Label Street Associates (34 Label). The dispute among the parties has engendered several lawsuits and multiple appeals. In this consolidated opinion, we address three appeals: two filed by Cecere, and one filed by Cecere's lawyers, Cozzarelli Law, LLP and Frank J. Cozzarelli (collectively, Cozzarelli). Cecere appeals from three judgments, entered after two trials, that (1) awarded 34 Label monetary damages for Cecere's repeated breaches of a ground lease, and (2) rescinded the lease because Cecere failed to pay the judgments, failed to comply with the terms of the ground lease, and failed to comply with court orders. We affirm the judgments entered on August 25, 2014, September 8, 2014, and August 26, 2015, because the facts found at trial established that Cecere materially breached the ground lease from 2007 until 2015, and intentionally failed to cure those breaches. Therefore, rescission was an appropriate equitable remedy. 2 A-0836-14T1 Cozzarelli appeals from partial judgments that extinguished a mortgage and security interest that it took in one of Cecere's leased properties. Cozzarelli obtained that mortgage and security interest after judgment had been entered against Cecere for breach of that lease. Cozzarelli also appeals from an August 28, 2015 order denying its motion to intervene in the lawsuit between 34 Label and Cecere. We affirm the July 23, 2015 partial judgment, the August 6, 2015 amended partial judgment, and the August 28, 2015 order, because the trial court acted within its discretion in denying Cozzarelli the right to intervene due to its failure to make a timely application. I. 34 Label owns real property in Montclair. It leased portions of that property to Cecere and R.C. Search Co., Inc. (R.C. Search), a company wholly owned and controlled by Cecere. The disputes giving rise to these appeals concern a lease for property on which Cecere operated a restaurant (the Restaurant Property). Cecere initially leased the Restaurant Property under a ten-year lease. In 2002, 34 Label and Cecere entered into a ninety-nine-year ground lease for the Restaurant Property (the Ground Lease). Thereafter, Cecere operated a restaurant on the property until 2012, and he continued to occupy the property until 34 Label took possession in September 2015. 3 A-0836-14T1 Cecere prepaid the full rent of $387,199.20 when the Ground Lease was executed in 2002. It was the parties' intent to transfer ownership of the Restaurant Property to Cecere. In that regard, the Ground Lease provided: It is the Lessor's intent to deed to the Lessee the entire premises, Fee Simple, referred to above (property) upon the Lessee's obtaining subdivision approval as described in the attached exhibit A. The Ground Lease also provided that, pending the subdivision, Cecere was required to pay his proportional share of the property taxes, and 100 percent of any increase in the taxes resulting from improvements to the Restaurant Property. Cecere was also required to pay his proportional share of other expenses. Finally, the Ground Lease required Cecere to obtain $2 million in insurance and name 34 Label as an additional insured party. Since executing the Ground Lease, Cecere has failed to satisfy several obligations. Cecere has not paid any taxes or expenses under the Ground Lease since 2007. Cecere also failed to obtain insurance. Finally, Cecere never obtained subdivision approval. These failures, as well as disputes over other leases between 34 Label, Cecere, and his company, R.C. Search, resulted in three lawsuits. 4 A-0836-14T1 A. The First Lawsuit Separate from the Restaurant Property, in 1993, 34 Label leased an office to R.C. Search (the Office Property). In 1996, 34 Label also leased a garage unit to Cecere (the Garage Property). When Cecere stopped making tax and expense payments for the Restaurant Property, he and R.C. Search also stopped paying rents for the Office and Garage Properties. Accordingly, 34 Label brought a summary disposition action against Cecere and R.C. Search for possession of the Office and Garage Properties. The Special Civil Part granted 34 Label possession, and we affirmed that order. 34 Label St. Assocs. v. R.C. Search Co., No. A-4556-08 (App. Div. Apr. 8, 2010).1 B. The Second Lawsuit In 2009, Cecere and R.C. Search sued 34 Label, its principal, Howard Silver, and its accountant, Emer Featherstone. Cecere and R.C. Search claimed that they were overcharged for rents on the Office Property and that Silver and Featherstone engaged in fraud. 34 Label filed a counterclaim seeking to recover past due rents for the Office and Garage Properties and past due taxes and expenses for the Restaurant Property. 1 Cecere appealed from the judgment for possession of the Garage Property, but that appeal was dismissed for failure to prosecute. 34 Label St. Assocs. v. Cecere, No. A-0574-09, order entered on June 10, 2010. 5 A-0836-14T1 On January 5, 2011, the trial court entered an order directing Cecere to file an application to subdivide the Restaurant Property. The court also ordered Cecere to "diligently pursue" the subdivision application to conclusion. Cecere failed to comply with that order. Thereafter, all of the claims by Cecere and R.C. Search were dismissed, and in March 2011, the trial court entered a judgment in favor of 34 Label (the March 2011 Judgment). Under the March 2011 Judgment, R.C. Search was ordered to pay $190,501.32 for unpaid rents on the Office Property, and Cecere was ordered to pay $22,126.51 for unpaid rents on the Garage Property and $149,468.96 for unpaid taxes and expenses on the Restaurant Property. The trial court also denied 34 Label's application for attorney's fees. In May 2011, shortly after the entry of the March 2011 Judgment, Cecere gave Cozzarelli a mortgage and security interest in the Restaurant Property for $350,000 that Cecere owed to Cozzarelli for legal services. Cecere and R.C. Search appealed from the March 2011 Judgment, and 34 Label cross-appealed from the denial of its application for attorney's fees. We affirmed the March 2011 Judgment against Cecere and R.C. Search for the unpaid rents on the Office and Garage Properties, and for the unpaid taxes and expenses on the 6 A-0836-14T1 Restaurant Property. We reversed the portion of the March 2011 Judgment denying 34 Label's application for attorney's fees and remanded that part of the case for further proceedings. R.C. Search Co., Inc. v. Silver, No. A-4332-10 (App. Div. July 19, 2012).2 Thereafter, Cecere did not pay any portion of the March 2011 Judgment. He also failed to pay the taxes and other property expenses that continued to accrue under the Ground Lease. C. The Third Lawsuit In January 2012, while the March 2011 Judgment was pending appeal, 34 Label sued Cecere for his continued breaches of the Ground Lease. 34 Label also asserted a claim for rescission. The third lawsuit was stayed for several months when Cecere filed for bankruptcy. In June 2014, after Cecere's bankruptcy case was dismissed, the trial court found Cecere in contempt for his failure to file a subdivision application as required by the January 5, 2011 order. Cecere finally filed the subdivision application in May 2014. In June 2014, the trial court conducted a four-day bench trial on the claims in the third lawsuit. After hearing the 2 Cecere has filed a separate appeal from the order that granted 34 Label attorney's fees following the remand proceedings. That appeal is addressed in a separate opinion. R.C. Search Co., Inc. v. Silver, No. A-4512-14 (App. Div. Dec. 4, 2017). 7 A-0836-14T1 evidence, the trial court issued an oral decision on July 11, 2014. The court found that Cecere (1) failed to pay any of the March 2011 Judgment; (2) failed to pay the ongoing expenses, including taxes, for the Restaurant Property under the Ground Lease; (3) failed to obtain insurance as required by the Ground Lease; and (4) failed to comply with the January 5, 2011 order that required him to file for subdivision of the Restaurant Property. The court also found that 34 Label paid all of the taxes and expenses on the Restaurant Property since 2007. Thus, the trial court found that Cecere breached the Ground Lease in three material respects, by failing to (1) pay taxes and expenses, (2) obtain insurance, and (3) diligently pursue a subdivision of the Restaurant Property. Turning to 34 Label's claim for rescission, the court decided it would give Cecere one last chance to cure his defaults. Accordingly, the court directed that Cecere would have until January 1, 2015, to cure his defaults, either by paying what he owed and subdividing the property, or by selling the property. The court embodied its rulings in a judgment filed on August 25, 2014 (the August 2014 Judgment). The August 2014 Judgment ordered Cecere to pay 34 Label $163,510.62 plus interest and costs, which was the amount of unpaid taxes and fees accrued on the Restaurant Property since the March 2011 Judgment. The August 8 A-0836-14T1 2014 Judgment also ordered a conditional rescission, which provided that if Cecere failed to pay the judgments owed to 34 Label and failed to obtain subdivision approval for the Restaurant Property, the court would conduct further hearings to implement the rescission of the Ground Lease. On September 8, 2014, the August 2014 Judgment was amended to include $13,542.46 in additional property taxes accrued through August 31, 2014. Thus, the monetary judgment increased to $177,053.08. Cecere moved for reconsideration, but the court denied that application in an order entered on September 19, 2014. On October 8, 2014, Cecere filed a notice of appeal from the August 2014 Judgment, and the September 8, 2014 amended judgment. Thereafter, Cecere filed an amended notice of appeal, adding the September 19, 2014 order denying his motion for reconsideration. In November 2014, the Montclair Planning Board denied Cecere's subdivision application. The Planning Board issued a resolution finding that the application was incomplete primarily because Cecere failed to explain how he would provide parking for the restaurant if the property was subdivided and the Ground Lease ended. By January 2015, Cecere had failed to satisfy the conditions imposed by the court in the August 2014 Judgment. In that regard, Cecere had not paid any of the monetary judgments entered against 9 A-0836-14T1 him, continued to fail to pay new taxes and expenses on the Restaurant Property, and had not subdivided the Restaurant Property. Therefore, 34 Label filed an order to show cause seeking rescission of the Ground Lease. The trial court entered an order on January 13, 2015, scheduling a hearing on rescission and related damages for February 6, 2015. In response, Cecere filed an emergent motion for leave to appeal, arguing that the trial court did not have jurisdiction because of the pending appeal. In a January 30, 2015 order, we denied the motion and explained that the trial court had "continuing jurisdiction to enforce judgments and orders." Following the denial of Cecere's emergent motion, the trial court ordered him to allow 34 Label to inspect the Restaurant Property to evaluate the improvements that he made. Cecere never allowed that inspection. As a result, the trial court found Cecere in contempt and entered an order barring him from presenting a claim based on his improvements to the Restaurant Property. The court entered that sanction because of "Cecere's history of intentional non-compliance with court orders and the apparent inadequacy of monetary sanctions[.]" That order did not preclude Cecere from using an expert to appraise the property, but he ultimately chose not to present an expert at trial. 10 A-0836-14T1 In March 2015, Cozzarelli assigned its rights under the mortgage and security agreement to an entity known as "Ice Pick, Inc." An associate of Cozzarelli, who works at the law firm, owns Ice Pick. A trial on the remedy of rescission and related damages began in July 2015. 34 Label presented an expert on the fair market rental value of the Restaurant Property. After counsel for Cecere cross-examined 34 Label's expert for approximately six hours, the court took a lunch break. Following the lunch break, counsel for Cecere announced that Cecere had discharged her. The trial court denied an application for a mistrial, but granted a continuance to allow Cecere to either retain new counsel or proceed self- represented. At that time, the trial court entered a partial judgment granting 34 Label immediate possession of the property. In awarding immediate possession, the trial court noted "the long and tortured history of this case and Cecere's continuous use of delay tactics and flouting of court orders." The partial judgment, entered on July 23, 2015, also extinguished Cozzarelli's mortgage and security interest in the Restaurant Property. On August 5, 2015, Cozzarelli filed a motion to intervene. The following day, the court issued an amended partial judgment, and an opinion explaining its ruling. Thereafter, on August 28, 2015, the trial 11 A-0836-14T1 court entered an order denying Cozzarelli's motion to intervene. Cozzarelli filed a motion with us for a stay, which we denied. In the meantime, on August 17, 2015, the rescission trial resumed, with Cecere representing himself. 34 Label presented its accountant who testified as to the amount of property taxes and expenses that 34 Label had paid on the Restaurant Property. The trial court found the accountant to be credible. On August 26, 2015, the trial court entered a judgment rescinding the Ground Lease, and entered a monetary judgment to restore the parties to their status quo as much as possible (the August 2015 Judgment). When the Ground Lease was executed in 2002, Cecere prepaid rent of $387,199.20. Using evidence submitted by Cecere, the court found that the present value of Cecere's prepaid rent (as of 2015) was $531,663.22. The court found that 34 Label was entitled to $716,481 for Cecere's use and possession of the Restaurant Property. The court also awarded 34 Label $49,530.23 in other expenses. Accordingly, the court found that 34 Label was entitled to rents and expenses totaling $766,011.23, and Cecere was entitled to reimbursement of his prepaid rent in the present value of $531,633.22. Offsetting those two amounts, the court entered a net judgment in favor of 34 Label for $234,348.01. 12 A-0836-14T1 In addition, the court found that the March 2011 and August 2014 Judgments established the correct amount of taxes and expenses owed by Cecere to 34 Label for the time between October 2007 and August 2014. In that regard, the court found that the rent credited to 34 Label did not include property taxes and expenses. Thus, the August 2015 Judgment left the March 2011 and August 2014 Judgments "in full force and effect[.]" On September 2, 2015, 34 Label executed the writ of possession and took possession of the Restaurant Property. As already noted, Cecere and Cozzarelli have filed three separate appeals. In A-0836-14, Cecere appeals from the August 2014 Judgment, the September 8, 2014 amended judgment, and the September 19, 2014 order denying reconsideration. In A-0307-15, Cecere appeals from the August 2015 Judgment. In A-0183-15, proposed intervenor, Cozzarelli, appeals from the July 23, 2015 partial judgment, the August 6, 2015 amended partial judgment, and the August 28, 2015 order denying his motion to intervene. II. In his appeals, Cecere primarily contends that rescission was an improper remedy and challenges, on various grounds, the August 2015 Judgment granting rescission. Cecere also challenges the adequacy of the trial court's factual findings throughout the litigations, arguing that (1) the trial court erred in admitting 13 A-0836-14T1 expert testimony on behalf of 34 Label; (2) the trial judge should have recused herself; (3) 34 Label frustrated the subdivision process; (4) the trial court lacked jurisdiction to issue the August 2015 Judgment; (5) the trial court exceeded its authority by holding Cecere in contempt; (6) the trial court's findings were not based on adequate credible evidence; and (7) the trial court improperly restrained Cecere from use of his assets. Cozzarelli makes six arguments on appeal: (1) the trial court lacked personal jurisdiction over it; (2) it should have been allowed to intervene; (3) the trial court lacked jurisdiction after Cecere appealed the August 2014 Judgment; (4) it had viable defenses to the extinguishment of its mortgage; (5) any claims against it should have been dismissed due to 34 Label's violation of Rule 4:5-1; and (6) 34 Label's claims for payments made after May 5, 2011, lack priority over its mortgage. These arguments lack merit and, for the reasons set forth below, we reject them. We will first address Cecere's arguments, focusing principally on rescission. We will then address Cozzarelli's arguments. A. The Judgment of Rescission We begin our analysis with the August 2015 Judgment granting rescission, because that was the final judgment entered against Cecere. 14 A-0836-14T1 As an equitable remedy, rescission lies within the inherent discretion of the trial court. First Am. Title Ins. Co. v. Lawson, 177 N.J. 125, 140 (2003). Accordingly, we review an equitable judgment granting rescission for abuse of discretion. Sears Mortg. Corp. v. Rose, 134 N.J. 326, 353-54 (1993); Civil S. Factors Corp. v. Bonat, 65 N.J. 329, 333 (1974). Moreover, the trial court's factual findings will be upheld if they are supported by substantial credible evidence in the record. MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). Such deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998). The remedy of rescission is rooted in considerations of equity. Rutgers Cas. Ins. Co. v. LaCroix, 194 N.J. 515, 527 (2008). Where monetary damages alone will not satisfy the injury sustained by the aggrieved party, courts can look to the equitable remedy of rescission to provide adequate relief. Ibid. Accordingly, our Supreme Court has explained: Rescission remains a form of equitable relief in whatever setting its need arises, and courts wielding that remedy retain the discretion and judgment required to ensure that equity is done. In furtherance of that objective, a court may shape the rescission remedy in order to serve substantial justice. 15 A-0836-14T1 [Id. at 528-29.] Ordinarily, rescission serves as a remedy for fraud, mistake, or misrepresentation. E. Newark Realty Corp. v. Dolan, 15 N.J. Super. 288, 292-93 (App. Div. 1951). Nevertheless, rescission can be granted even in the absence of fraud, mistake, or misrepresentation. See ibid. ("The equitable remedy of cancellation of documents is generally based on fraud or mistake in the inception of the document, but on occasion the remedy is applied even though fraud and mistake are absent."). Where a party materially breaches a contract and there is no adequate monetary remedy, rescission may be appropriate. Contracts may be rescinded where there is "original invalidity, fraud, failure of consideration or a material breach." Farris v. Cty. of Camden, 61 F. Supp. 2d 307, 336 (D.N.J. 1999) (quoting Notch View Assocs. v. Smith, 260 N.J. Super. 190, 197 (Law Div. 1992)). The trial court should mold the rescission remedy to restore the parties to the positions that they would have been in had the contract never been formed, and to prevent the breaching party from gaining a benefit. LaCroix, supra, 194 N.J. at 527 (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 612 (1989)). In short, as an equitable remedy, the availability of rescission 16 A-0836-14T1 depends on the totality of the circumstances in a given case. Lawson, supra, 177 N.J. at 143. Here, the factual findings of the trial court support the equitable remedy of rescission. In that regard, Cecere materially breached the Ground Lease and those breaches could not be remedied by monetary judgments. Specifically, the trial court conducted two trials and made the following factual findings, many of which were not in dispute: 1. Cecere had been in breach of the Ground Lease since 2007, when he stopped paying taxes and expenses on the Restaurant Property; 2. Two judgments were entered against Cecere in 2011 and 2014, but he failed to pay either judgment; 3. Cecere also continued to occupy the Restaurant Property, but continued to fail to pay the newly accruing property taxes and expenses; and 4. Cecere initially refused to obey the order requiring him to seek subdivision of the Restaurant Property; was found to be in contempt of that order; and ultimately failed to get the subdivision because he had no plan regarding parking accommodations for the restaurant. In light of those findings, the trial court determined that Cecere would never comply with his obligations under the Ground Lease. Indeed, the trial court stated: "[I]t's clear to this [c]ourt based upon the testimony of Mr. Cecere, his demeanor, his 17 A-0836-14T1 attitude which this [c]ourt had the ability to observe firsthand over the period of . . . a full day of testimony that [Cecere] has no intention of making those payments." The trial court initially entered conditional rescission and gave Cecere an additional six months to avoid rescission by complying with his obligations. It was only after Cecere failed to satisfy the conditions imposed by the court that the trial court, after a further trial, entered a final judgment of rescission. Those facts and proceedings support the equitable remedy of rescission. We also hold that the factual findings made during the 2015 rescission trial were supported by substantial credible evidence. The court determined that the present value of the rent that Cecere paid in 2002 was $531,663.22. In making that finding, the court relied on evidence submitted by Cecere. The court also found that 34 Label was entitled to compensation from Cecere for use and possession of the Restaurant Property from 2002 to 2015. The court based that finding on expert testimony, which it found to be credible. Accordingly, the court found that 34 Label was entitled to rents and expenses totaling $766,011.23. Offsetting those two amounts, the court entered a net judgment in favor of 34 Label for $234,348.01. In addition, the court found that the March 2011 and August 2014 Judgments established the correct amount 18 A-0836-14T1 of taxes and expenses owed by Cecere to 34 Label through August 2014. All of the court's findings are supported by substantial credible evidence in the record and we find no basis to disturb those findings. Moreover, the court's rulings restored the parties to their original positions in light of the rescission. See LaCroix, supra, 197 N.J. at 527. Cecere makes a series of arguments challenging the remedy of rescission. None of those arguments are persuasive. First, Cecere contends that rescission requires findings of clear and convincing evidence and that the trial court failed to apply such a standard. In making that argument, Cecere relies on a case that discusses proving fraud by clear and convincing evidence. See Armel v. Crewick, 71 N.J. Super. 213, 217 (App. Div. 1961) (stating that a "court of equity has frequently applied the 'clear and convincing' quantum to averments of fraud"). Here, however, 34 Label's claim was not based on equitable fraud. Instead, the claim was based on material breaches of the Ground Lease, which Cecere refused to cure. Consequently, clear and convincing evidence was not required. Even if we were to apply that standard, it has been met. Cecere himself acknowledged that he was not paying the taxes and that he had not obtained insurance. Those admissions clearly and convincingly established the breaches of the Ground Lease. 19 A-0836-14T1 Second, Cecere argues that rescission was barred by judicial estoppel and the entire controversy doctrine. 34 Label never took a position that estopped it from seeking rescission. See Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606 (App. Div. 2000) ("A threat to the integrity of the judicial system sufficient to invoke the judicial estoppel doctrine only arises when a party advocates a position contrary to a position it successfully asserted in the same or a prior proceeding."). Instead, 34 Label initially tried to enforce the lease, but even after judgments were entered against Cecere, he continued to breach the Ground Lease. Consequently, 34 Label did not change its position; rather, Cecere refused to comply with court judgments. For similar reasons, the entire controversy doctrine does not apply against 34 Label. See Oliver v. Ambrose, 152 N.J. 383, 392 (1998) ("For over sixty years, it has been established in New Jersey that the entire controversy doctrine requires the mandatory joinder of all claims to a single transaction."). 34 Label only sought rescission after Cecere failed to comply with the March 2011 Judgment that ordered him to pay the taxes and expenses for the Restaurant Property. Moreover, Cecere continued to possess the Restaurant Property, but refused to pay the ongoing property taxes and expenses. 20 A-0836-14T1 Third, Cecere argues that rescission was barred by the statute of limitations and the doctrine of laches. Cecere never asserted those defenses before the trial court. Therefore, he waived them. See Pressler & Verniero, Current N.J. Court Rules, cmt. 1.2.1 on R. 4:5-4 (2018) ("While the rule does not expressly so state, it is clear that ordinarily an affirmative defense that is not pleaded or otherwise timely raised is deemed to have been waived."); see also Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super. 517, 520 (App. Div. 2004) (declining to consider an issue on appeal because appellant failed to properly raise it before the trial court). Even if we considered these arguments substantively, however, they lack merit. The applicable statute of limitations for claims of rescission is six years. N.J.S.A. 2A:14-1. Cecere breached the Ground Lease in 2007, and 34 Label obtained a judgment in March 2011. After Cecere refused to pay that judgment, 34 Label filed its claim for rescission in 2012. All of that took place within the applicable six years. Cecere's claim for laches fails for the same reasons. In short, 34 Label acted timely in responding to Cecere's ongoing breaches of the Ground Lease. Fourth, Cecere contends that there is no such thing as conditional rescission. That argument lacks merit because by putting conditions on the rescission, the trial court was giving Cecere one last opportunity to cure his long-standing material 21 A-0836-14T1 breaches of the Ground Lease. As already explained, it is within the court's discretion to mold the rescission remedy to provide adequate relief based upon the totality of the circumstances. See Lawson, supra, 177 N.J. at 143. Cecere's continued non-compliance with both the requirements of the Ground Lease and court judgments demonstrates that the trial court acted within its discretion in granting conditional rescission. B. Cecere's Other Arguments on Appeal Cecere also makes a series of arguments to challenge the adequacy of the trial court's factual findings. Having found that rescission was an appropriate remedy, and that it was correctly implemented, we will briefly analyze why we reject the remainder of his arguments. Cecere contends that the trial court improperly relied upon certain evidence. Specifically, he contends that the trial court should not have admitted and relied upon expert testimony of Charles Blau regarding the fair rental value of the Restaurant Property, and a summary document of the expenses incurred by 34 Label. We review such evidentiary issues for abuse of discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007). Having evaluated the court's evidentiary rulings in light of the applicable rules of evidence, we find no such abuse. 22 A-0836-14T1 Next, Cecere argues that the judge who conducted the 2015 rescission trial was biased and should have recused herself. In support of this argument, Cecere cites nothing that would demonstrate any biased or improper conduct by the trial judge. Instead, Cecere simply points to statements that the judge made based on the facts presented during the litigation. The judge did not engage in conduct warranting recusal. See Panitch v. Panitch, 339 N.J. Super. 63, 68-71 (App. Div. 2001) (reviewing the denial of a motion for recusal for abuse of discretion, and stating that a judge's comments do not, by themselves, require recusal). Here, we find no abuse of discretion. Indeed, Cecere's arguments are based on factual assertions not supported by the record. Cecere also contends that 34 Label frustrated his efforts to subdivide the property. Here again, the record does not support his contention. As part of Cecere's subdivision application, the Montclair Planning Board requested that he clarify how he would provide parking for the restaurant if the property was subdivided and the Ground Lease ended. Cecere asserted that he could continue to use the garage as permitted under the Ground Lease. Counsel for 34 Label informed the Planning Board that if the property was subdivided, the Ground Lease would no longer exist and, therefore, Cecere would not have access to the parking garage. The trial 23 A-0836-14T1 court reviewed this issue and found that 34 Label did not act improperly. That finding is amply supported by the record. Cecere argues that the trial court lacked jurisdiction to conduct the rescission trial in 2015, while his appeal from the August 2014 Judgment was pending. That argument fails because the rescission trial was a proceeding to enforce the August 2014 Judgment. Consequently, the trial court had "continuing jurisdiction to enforce judgments and orders . . . ." R. 2:9- 1(a). Indeed, we clarified that point in denying Cecere's emergent motion seeking leave to appeal the January 13, 2015 order to show cause. Further, as the procedural history of this case unfolded, it now can be argued that the August 2014 Judgment was an interlocutory judgment. That judgment was specifically conditioned on certain events taking place before January 2015. The judgment also provided that the court would conduct further proceedings regarding rescission if those conditions were not met. Consequently, when Cecere failed to comply with the August 2014 Judgment, the court conducted further proceedings, including another trial, to implement rescission of the Ground Lease. Thus, although Cecere now has the right to appeal the August 2014 Judgment, that right arose after the August 2015 Judgment granting rescission was entered. We have not required Cecere to amend his 24 A-0836-14T1 notice of appeal and have already addressed and rejected his arguments challenging the August 2014 Judgment, as well as the September 8, 2014 amended judgment and September 19, 2014 order denying reconsideration. Cecere also claims that the trial court improperly held him in contempt twice; once in June 2014, and again in May 2015. We review a trial court's order of contempt for abuse of discretion. Gonzalez v. Safe & Sound Sec. Corp., 368 N.J. Super. 203, 209 (App. Div. 2004), rev'd on other grounds, 185 N.J. 100 (2005). Given the detailed factual findings regarding Cecere's actions, we find no such abuse. Both times the trial court held Cecere in contempt, it noted that he had ignored clear prior court orders. Indeed, Cecere was first found in contempt after he failed to comply with the January 5, 2011 order directing him to submit an application for subdivision. The second time Cecere was held in contempt, the court stated that it was imposing contempt because of his blatant disregard of discovery obligations to his adversary, including his deliberate refusal to provide 34 Label access to the Restaurant Property, and his long-standing history of "flouting" court orders. Those sanctions were appropriate given Cecere's prior actions and refusal to obey prior court orders. 25 A-0836-14T1 Finally, Cecere's remaining arguments lack sufficient merit to warrant discussion in a written opinion and, therefore, we reject them without further comment. R. 2:11-3(e)(1)(E). C. Cozzarelli's Appeal Only one of the issues that Cozzarelli raises on appeal is properly before us: whether the trial court correctly denied its request to intervene. We hold that the trial court did not abuse its discretion in denying Cozzarelli's belated motion to intervene. See Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 172 (App. Div. 2005) (reviewing a trial court's denial of permissive intervention pursuant to Rule 4:33-2 for abuse of discretion). Lacking status as a party, Cozzarelli does not have standing to make its other arguments. Williams v. State, 375 N.J. Super. 485, 530 (App. Div. 2005) (recognizing that intervenors are not parties in the action until a motion to intervene is granted). Moreover, by failing to timely intervene, Cozzarelli effectively waived its right to challenge the trial court's ruling that extinguished its mortgage. J.L.B. Equities v. Dumont, 310 N.J. Super. 366, 374 (App. Div. 1998). Rule 4:33-1 governs applications for intervention as of right, and Rule 4:33-2 addresses permissive intervention. Both rules require a "timely application." Here, the trial court found that Cozzarelli's motion to intervene was not timely. 26 A-0836-14T1 Specifically, the trial court found that Cozzarelli had notice of the rescission claim starting in 2012, but waited until August 2015, to seek intervention. In making that determination, the trial court relied on the following factual findings. Cozzarelli represented Cecere in the lawsuit that resulted in the March 2011 Judgment. Cozzarelli then took the mortgage and security interest in the Restaurant Property in May 2011. Notably, the mortgage and security agreement both required Cecere to be in compliance with his obligations under the Ground Lease. Cozzarelli, however, knew that Cecere was in breach of those obligations and had been in continuous breach since 2007. Cozzarelli was also on notice when 34 Label filed the third lawsuit in 2012 seeking rescission of the Ground Lease. Despite knowing that 34 Label sought rescission, Cozzarelli chose not to intervene at that time. Cozzarelli continued to delay even after the trial court entered the August 2014 Judgment. That judgment granted 34 Label conditional rescission and spelled out the exact conditions that needed to be met within six months. It is undisputed that those conditions were not satisfied by January 2015. Thereafter, the trial court conducted proceedings to implement the final rescission. Those proceedings included a trial in July 2015, during which an associate of Cozzarelli Law represented Cecere. 27 A-0836-14T1 Accordingly, from January 2012 through July 2015, Cozzarelli had actual notice that 34 Label was seeking rescission of the Ground Lease. An obvious component of rescission would be the extinguishment of any interest in the Restaurant Property transferred by Cecere, including Cozzarelli's mortgage and security interest. Nevertheless, Cozzarelli did not move to intervene until August 2015. Based on those facts, the trial court acted well within its discretion in denying Cozzarelli's motion to intervene. On appeal, Cozzarelli suggests that there are differences between Cozzarelli Law, associates of the firm, and Frank J. Cozzarelli in his individual capacity. Whatever distinctions there may be for other purposes, the individuals and entities with a mortgage and security interest in the Restaurant Property indisputably knew in January 2012 that 34 Label was seeking rescission of the Ground Lease. Thus, they are all precluded by the trial court's judgments. While we need not address Cozzarelli's other arguments, we note that even if we were to reach them, they lack merit. The court clearly had jurisdiction over Cecere and the Ground Lease. Consequently, when the court granted rescission, it had the jurisdiction and authority to extinguish Cecere's property interests under the Ground Lease and any interest that Cecere had 28 A-0836-14T1 transferred, including the mortgage and security interest transferred to Cozzarelli, which were subsequently transferred to Ice Pick. Having carefully reviewed this entire record, and the myriad of arguments put forward both by Cecere and Cozzarelli, we see no viable defense that Cozzarelli could have asserted to the extinguishment of the mortgage and security interest in the Restaurant Property. Finally, as our prior analysis has established, given the way the mortgage and security interest were created, and Cozzarelli's clear notice of the rescission claim, 34 Label had no obligation to identify, much less move to join, Cozzarelli. Thus, we see no violation of Rule 4:5-1. In summary, we affirm the judgments and orders entered on August 25, 2014, September 8, 2014, September 19, 2014, July 22, 2015, August 6, 2015, August 26, 2015, and August 28, 2015. Affirmed. 29 A-0836-14T1
KATHLEEN LANE v. ANDREW F. LANE, JR
Date: December 4, 2017
Docket Number: a1392-14 PER CURIAM These three appeals, which were calendared back-to-back and which we consolidate in this opinion, represent the parties' seventh, eighth and ninth appeals since they settled their divorce with the filing of a comprehensive marital settlement agreement in 2004.1 The appeals addressed in this opinion relate to custody and parenting time issues regarding the couple's two eldest children, now both young women, ages twenty-two and twenty.2 In A-1392-14, defendant Andrew F. Lane, Jr. challenges an August 4, 2014 order denying his request to enforce his parenting time with the parties' younger daughter and a temporary transfer of custody of the two youngest children to him; an August 15, 2014 order for attorneys' fees to plaintiff Kathleen Lane; and an October 31, 2014 order denying reconsideration of those two orders. 1 Lane v. Lane (Lane I), Nos. A-5645-09 and A-3401-10 (App. Div. Apr. 16), certif. denied, 212 N.J. 199 (2012); Lane v. Lane (Lane II), No. A-1582-11 (App. Div. Apr. 8, 2013); Lane v. Lane (Lane III), Nos. A-2952-12 and A-1623-13 (App. Div. Nov. 10, 2014), certif. denied, 221 N.J. 220 (2015); In re Adoption of an Adult by A.S.C. (Lane IV), No. A-5447-14 (App. Div. Mar. 30), certif. denied, 227 N.J. 246 (2016). 2 The couple also has a seventeen-year-old son, who is not the focus of these appeals. 2 A-1392-14T1 In A-5553-14, defendant challenges a June 30, 2015 order denying his request for a temporary custody change, his request that plaintiff's parenting time be supervised, and the enforcement of prior orders pertaining to custody and parenting time; access to the children's financial records and attorneys' fees. In A-3474-15, defendant challenges aspects of a March 18, 2016 order cancelling a pending plenary hearing, directing plaintiff to pay $1500 in monetary sanctions, awarding him $8064 in attorneys' fees, and rejecting his contention that the trial court's position that it could not decide custody and parenting time issues involving the couple's two adult children prevented it from granting the relief he requested concerning custody and parenting time. Having considered the parties' arguments, we affirm all three orders. The parties divorced in 2004 when their three children were ages nine, seven and four. Although their 50/50 shared custody arrangement apparently worked well for the first two years, their relationship deteriorated after defendant succeeded in terminating his $80,000 per year alimony obligation to plaintiff when she began cohabiting with the man to whom she is now married, and plaintiff lost her motion to increase defendant's 3 A-1392-14T1 $30,000 annual child support obligation. As we noted in Lane III, [s]ince then, whether attributable to plaintiff's and her husband's reactions to the 2007 litigation, as defendant argues, or attributable to defendant's parenting style and insistence upon strict enforcement of the parties' custody arrangement, as plaintiff argues, to varying degrees and at different times, one or more of the parties' daughters has resisted spending parenting time with defendant. [Lane III, supra, slip op. at 3.] We have no need, and thus do not attempt, to chronicle the almost ten years of litigation over the parties' shared-physical custody arrangement that followed. We summarized a great deal of it in Lane III. See id. at 3-8, 14-38, 48-50. We concluded in that opinion that repeated post-judgment applications to enforce shared-physical custody make it clear that if they ever existed, the essential circumstances for shared parenting no longer exist. These parties have demonstrated their inability to set their conflicts aside in the best interests of their children. To put it mildly, the children clearly have not been spared their parents' resentments and rancor. Indeed, they have become the focal point of the rancor. Perhaps out of concern about being the one to lose, neither party has urged a best interests' hearing based on changed circumstances apart from the narrow question of the second child's new schedule. 4 A-1392-14T1 Plaintiff has apparently been well-served by simply allowing her children to dictate their schedule without regard to the court's orders. Defendant has opted to respond by taking a different approach, seeking to obtain sole custody not on a showing of the children's best interests but as a sanction for Plaintiff's well-established disregard of her obligation to support the children's relationship with their father. [Id. at 49-50.] Confronted with a record of an obvious breakdown in the parties' shared custody arrangement regarding their daughters, yet another enforcement motion pending unheard in the trial court and without the facts necessary to assess whether a change in custody would serve the children's best interests, we remanded for a plenary hearing. We noted that [j]ust as a judge may order shared custody where the parties do not request it, a judge may and should order a hearing to determine what custodial arrangement would be in the children's best interests when the post- judgment motion practice of their parents makes it clear that the arrangement in place is not serving their children's best interests. [Id. at 50.] Notwithstanding our order, no plenary hearing has occurred. Both parties have continued to employ the same tactics in their ever-escalating warfare – plaintiff "apparently well-served by simply allowing her children to dictate their schedule without 5 A-1392-14T1 regard to the court's orders," and defendant "opt[ing] to respond by . . . seeking to obtain sole custody not on a showing of the children's best interests but as a sanction for plaintiff's well-established disregard of her obligation to support the children's relationship with their father." While Lane III was pending and since our opinion in that matter, the trial court denied the eldest child's application to intervene in her parents' divorce; defendant refused to provide consent to the parties' younger daughter to attend a community service trip abroad, causing a further rift in their relationship; plaintiff's husband adopted the parties' eldest daughter with the consent of plaintiff and without notice to defendant; the trial court denied defendant's request to permit him to intervene and vacate the adoption and to recuse the trial judge; another panel of this court rejected defendant's appeal of those proceedings, Lane IV, supra, slip op. at 14; the trial court scheduled a plenary hearing to address violations of defendant's parenting time, whether he should receive make up time, whether custody should be transferred temporarily to him and counsel fees among other issues; that hearing was never held and plaintiff subsequently moved to dismiss the one we ordered on remand with defendant's acquiescence, if not agreement; the 6 A-1392-14T1 parties' younger daughter turned eighteen; and the court entered the orders in the present appeals. We address them as follows. A-1392-14 The court's August 4, 2014 order arose out of the eldest child's motion to intervene in her parents' divorce, filed after she attained her majority. Following a consented adjournment, defendant opposed the motion and filed what he termed a "cross- motion" seeking relief against plaintiff for alleged violations of the parenting time schedule and a transfer of custody of the two younger children to him. Defendant's counsel refused requests for an adjournment to permit plaintiff time to respond to his cross-motion. The court heard argument on the return date on the child's motion, which it denied, but adjourned the "cross-motion" to permit plaintiff an opportunity to respond. At argument on the child's motion, defendant's counsel complained the parties' younger daughter had not spent time with defendant in months, necessitating his cross-motion be heard immediately. The court advised that plaintiff would be permitted a week to respond and the motion would be heard fourteen days later. Defendant thereafter filed an order to show cause seeking the same relief he sought in his cross-motion. Plaintiff filed 7 A-1392-14T1 opposition detailing the younger daughter's reasons for not attending parenting time with defendant, including his failure to consent to the child's community service trip. She subsequently opposed his cross-motion and cross-moved for fees for having to respond to both the cross-motion and the order to show cause regarding the same matters. The court denied defendant's request for entry of an order to show cause, reserved on his motion temporarily transferring custody of the two younger children to him pending a plenary hearing, denied without prejudice any relief requested by either party "that is or may be affected by the matters presently before the Appellate Division," and awarded plaintiff her fees on the motion. In a statement of reasons accompanying the August 4, 2014 order, the court found the facts as to why the younger daughter was not attending parenting time with her father to be in dispute. The court noted defendant's "supposition, perhaps well-reasoned in light of past statements by the plaintiff" is that his younger daughter would not see him "'due to the plaintiff's refusal to abide by [the parties'] court-ordered 50/50 parenting time agreement, and [plaintiff and her husband's] relentless violations of multiple court orders and restraints.'" The court noted plaintiff countered with a 8 A-1392-14T1 certification averring that despite her encouragement, the child "refuses to see [her father] and that her resistance started when [he] prevented [the child] from going on the community service trip." The court found: Standing alone, the defendant's obstruction of [the child's] trip might not seem to be sufficient to cause a 16 year old girl to refuse to see her father. Against the backdrop in this case, it appears more than plausible and therein lies the factual dispute. Resolving this factual dispute will also resolve whether the plaintiff is acting to alienate the defendant, whether the defendant caused [the child] to resist seeing him, or whether they each are the cause of [the child's] refusal to see the defendant. It accordingly ordered counsel to appear for a case management conference to identify witnesses, establish a discovery schedule and set a date for a plenary hearing. The court also awarded plaintiff her counsel fees, finding defendant's filing of his "cross-motion" and subsequent order to show cause seeking the same relief establish that the defendant seeks to set his own schedule and had no regard for the court's direction, nor the dilemma created by his filing an improperly designated cross-motion, leaving the plaintiff no chance to timely oppose same, and then objecting to an adjournment to allow [her] to have the time to respond. 9 A-1392-14T1 After reviewing plaintiff's counsel's affidavit of services, the court awarded plaintiff fees of $3150 in an August 15, 2014 order and denied reconsideration of both orders on October 31, 2014. Defendant contends the court erred when it failed to take any enforcement action on hundreds of "irrefutable proofs" that plaintiff and her husband violated the parties' shared parenting plan. He argues his parent-child relationship with his younger daughter was at risk and that she was at risk of harm by the court's refusal to transfer her custody to him. He further claims the court should have rejected plaintiff's claim for fees and should have awarded him his fees on the motion. We reject those arguments as without merit. Leaving aside our deferential view of a Family Part order on an enforcement motion, Milne v. Goldenberg, 428 N.J. Super. 184, 197-99 (App. Div. 2012), the law is clear that removing a child from a parent in violation of a custody order or agreement is a "remedy of last resort," which may only be imposed based on a finding it is in the child's best interests. Beck v. Beck, 86 N.J. 480, 499 (1981) ("Despite the obvious unfairness of allowing an uncooperative parent to flout a court decree, we are unwilling to sanction punishment of a recalcitrant parent if the welfare of the child will also suffer.") 10 A-1392-14T1 Although there was apparently no dispute that the parties' younger daughter was refusing to spend time with her father when the parties filed their motions, cross-motions and orders to show cause, there was certainly no agreement as to why. The court was not hostile to defendant's position that plaintiff and her husband were at fault, characterizing his supposition as "perhaps well-reasoned in light of past statements made by the plaintiff." Expressing its willingness to resolve the parties' factual dispute over why the child was refusing to see her father, the court ordered a plenary hearing. Nothing more was appropriate at that juncture, certainly not a change of custody. See Entress v. Entress, 376 N.J. Super. 125, 132-33 (App. Div. 2005) (finding a change of custody to compel compliance with court orders without an evidentiary hearing and no imminent threat to the child "clearly and unequivocally reversible error"). The court's denial of defendant's request for counsel fees given his lack of success on the motion, and the $3150 fee award to plaintiff to compensate her for having to respond to defendant's voluminous and nearly identical filings was reasonable and obviously well-within the court's considerable discretion. See Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000). 11 A-1392-14T1 A-5553-14 The court's June 30, 2015 order arose out of a motion defendant filed before a different judge to sanction plaintiff for her part in her husband's adult adoption of the parties' eldest child. Defendant sought an order: 1) referring plaintiff to the Bergen County Prosecutor's Office for colluding and consenting in the adoption; 2) holding plaintiff in contempt of court and in violation of litigant's rights for her part in the adoption; 3) holding plaintiff's husband in contempt of court and referring him to the Bergen County Prosecutor's Office for adopting the parties' eldest child; 4) compelling plaintiff to produce records of all money, property or other assets given, loaned or provided in trust to the parties' three children; 5) compelling plaintiff to produce financial and billing records for legal services provided to her husband and eldest child in connection with the adoption; 6) restraining plaintiff's husband from any contact with the parties' three children; 7) granting defendant temporary sole legal and residential custody of the parties' two youngest children; 8) or, alternatively supervising plaintiff's parenting time and restraining her from electronic contact of any kind with the two youngest children; 9) authorizing defendant to provide confidential therapy on an as 12 A-1392-14T1 needed basis to all three children by a therapist selected by defendant; and 10) awarding defendant his counsel fees. In a comprehensive written opinion addressing each one of defendant's claims, the court denied defendant relief. The court noted it had already determined the adoption to be both voluntary and valid (a decision we affirmed in Lane IV), and found defendant had not offered any evidence that the adoption of the eldest child was "anything but [the child's] own desires." Because the court deemed the adoption valid, it found no basis to hold plaintiff or her husband in contempt of orders prohibiting them from interfering with defendant's parenting time by consenting to and effecting the adoption. The court likewise rejected defendant's request for billing records and money or other things of value to the eldest child as an inappropriate attempt to re-litigate the adoption. It rejected production of documents referencing gifts to the youngest children as irrelevant and unnecessary. Based on defendant's admission "that regular parenting time with [the two youngest children] has continued even after the adoption of [the eldest child]," although his parenting time with his then seventeen-year-old youngest daughter was "sometimes sporadic," the court found no basis to restrain plaintiff's husband from any contact with the youngest children 13 A-1392-14T1 and continued the restraints prohibiting him from interfering with defendant's parenting time. Based on the same reasoning, the court denied defendant's request for an immediate transfer of custody of the two youngest children to him. The court found defendant had not offered any basis on which to supervise plaintiff's parenting time. The court refused to order the eldest child, now an adult, into therapy and found no basis for ordering therapy for the youngest children in light of "their regular to near-regular" parenting time with defendant. The court denied fees to both parties. Defendant appeals, contending the court erred in failing to hold plaintiff and her husband in contempt for their failure to abide by the court's orders, to issue remedies and sanctions for their conduct, to order a temporary change in custody or supervising plaintiff's parenting time, in failing to restrain plaintiff's husband from contact with the children, in refusing to compel the production of the children's financial documents and in denying counsel fees. Our review of the record convinces us that none of these arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We held in Lane IV that the parties' eldest child "had a fundamental right under the adult adoption statute to seek to be adopted without [her father's] interference, and was free to 14 A-1392-14T1 make her own decisions without regard to [his] wishes, views, or pre-adulthood parental rights." Lane IV, supra, slip op. at 12. Given that holding, we find no error in the trial court's refusal to sanction plaintiff or her husband for their part in that adoption or modify the custody arrangement of the two younger children. A-3474-15 The court's March 18, 2016 order arose out of our November 10, 2014 decision in Lane III, in which we remanded defendant's motion for "a temporary transfer of custody, enforcement of prior orders, relief in the form of monetary sanctions and additional make-up parenting time, all as relief for alleged violations of the parenting orders in place," which the trial court declined to hear in its order of October 25, 2013 because of defendant's pending appeals on other issues. Lane III, supra, slip op. at 47-48. The court did not convene a conference on the issues remanded until September 18, 2015, ten months after we issued our decision. Although the trial court correctly attributed some of the delay to the litigation over the eldest child's adoption by plaintiff's husband, culminating in Lane IV, we cannot help but observe that a prompt plenary hearing on remand may have avoided the opening of that new front in the parties' ever escalating war over their children. 15 A-1392-14T1 When the court finally convened that remand conference in September 2015 to address violations of defendant's parenting time from two years before, the parties' youngest daughter was two weeks shy of her eighteenth birthday. The remand did not implicate the parties' son, their youngest child. Plaintiff took the position that there was no point to a plenary hearing because the issues on remand were moot. She argued the court lacked jurisdiction to order make-up parenting time for defendant with a child no longer a minor and any economic sanctions would be punitive because they were no longer necessary to coerce her compliance with parenting time orders for the two eldest children. Defendant asserted the documented days of missed parenting time constituted per se violations of prior court orders by plaintiff that the court could resolve without testimony, and that he was not seeking a best interests hearing. The court set a discovery schedule and a date for the plenary hearing, but permitted plaintiff the opportunity to file a motion arguing the hearing was not necessary. Plaintiff filed her motion to dismiss the hearing, arguing the issues were moot. Defendant cross-moved opposing the motion but arguing that all proceedings relating to the remand in Lane III should be stayed until all of defendant's pending appeals were decided, and that the children should not participate "in 16 A-1392-14T1 any way in the trial proceedings." Alternatively, defendant asked the court to find that it could not adjudicate the custody and parenting time issues remanded in Lane III based on 1) its position that the law deprives it of jurisdiction over the unemancipated children of litigants in the Family Part once those children turn eighteen; 2) that it has no parens patriae duty to prevent harm to such children; and 3) that all custody and parenting time rights are automatically terminated in New Jersey once an unemancipated teenager reaches eighteen. After the motion was ready for oral argument, the parties agreed the court could decide it on the papers. In its order of March 18, 2016, the court granted plaintiff's motion to dismiss the plenary hearing based on the parties' agreement that no hearing was necessary. The court imposed a $1500 sanction against plaintiff for her violations of parenting time orders, noting the modest sum reflected its inability to determine bad faith or plaintiff's ability to comply with parenting time orders in light of the parties' insistence that the children not testify. It also awarded defendant the $8064 in counsel fees he sought on the motion remanded in Lane III. Although acknowledging that none of the parties' children was emancipated, the court declined defendant's request for 17 A-1392-14T1 make-up parenting time with the parties' youngest daughter, finding "[a]s an adult, she is not within the purview of this court's capacity to enter Orders involving her custody arrangements. Nor does this court believe that requiring an adult child to attend parenting time is in her best interests." The court denied all other relief. Defendant appeals, arguing the court erred in dismissing the remand, in not making "findings on hundreds of remanded matters," in "not adjudicating issues where no dispute over material facts existed such that a hearing was unnecessary," and misapplied the law, including by finding it could not "enforce custody orders, act as parens patriae, or adjudicate remands" once an unemancipated child turns eighteen. We reject these arguments as lacking sufficient merit to warrant any extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We need not immerse ourselves in exploring the contours of the court's jurisdiction in matters of custody and parenting time involving the unemancipated young adult children of litigants in the Family Part or consider whether we agree with the court's reliance on R. 4:6-2 in deciding plaintiff's motion to dismiss the scheduled plenary hearing, because neither was central to the court's decision here. 18 A-1392-14T1 The parties agreed they did not want the court to hold a plenary hearing. Notwithstanding defendant's insistence that any missed parenting time constituted a per se violation by plaintiff of prior court orders the court could resolve without testimony, that was never the case. Defendant's position on appeal – that the court failed to make findings and adjudicate issues – while having opposed a plenary hearing necessary to make those findings and adjudicate the issues, is simply untenable. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (explaining that "'[t]he doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error'") (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996)). The disputed issues in this case essentially never changed. The parties agreed their daughters missed parenting time with their father, they disagreed over why that was so. As another judge explained to the parties over three years ago in August 2014, "[r]esolving this factual dispute will also resolve whether the plaintiff is acting to alienate the defendant, whether the defendant caused [the child] to resist seeing him, 19 A-1392-14T1 or whether they each are the cause of [the child's] refusal to see the defendant." Neither party has attempted to have the court hear testimony that could resolve that central factual dispute. As Judge Grall observed in Lane III: Plaintiff has apparently been well-served by simply allowing her children to dictate their schedule without regard to the court's orders. Defendant has opted to respond by taking a different approach, seeking to obtain sole custody not on a showing of the children's best interests but as a sanction for plaintiff's well-established disregard of her obligation to support the children's relationship with their father. [Lane III, supra, slip op. at 49-50.] The parties have persisted so long in these entrenched patterns that their daughters, not teenagers when the hostilities between their parents erupted in 2007, have become young adults. While their daughters have grown up, the parties appear to continue, as their court-appointed custody evaluator concluded in 2012, to "fail[] to appreciate the impact that the litigation and their inability to accept any responsibility for their own contributions to the problem [have] on their children." Lane III, supra, slip op. at 25. Affirmed. 20 A-1392-14T1
Date: December 4, 2017
Docket Number: a1392-14 PER CURIAM These three appeals, which were calendared back-to-back and which we consolidate in this opinion, represent the parties' seventh, eighth and ninth appeals since they settled their divorce with the filing of a comprehensive marital settlement agreement in 2004.1 The appeals addressed in this opinion relate to custody and parenting time issues regarding the couple's two eldest children, now both young women, ages twenty-two and twenty.2 In A-1392-14, defendant Andrew F. Lane, Jr. challenges an August 4, 2014 order denying his request to enforce his parenting time with the parties' younger daughter and a temporary transfer of custody of the two youngest children to him; an August 15, 2014 order for attorneys' fees to plaintiff Kathleen Lane; and an October 31, 2014 order denying reconsideration of those two orders. 1 Lane v. Lane (Lane I), Nos. A-5645-09 and A-3401-10 (App. Div. Apr. 16), certif. denied, 212 N.J. 199 (2012); Lane v. Lane (Lane II), No. A-1582-11 (App. Div. Apr. 8, 2013); Lane v. Lane (Lane III), Nos. A-2952-12 and A-1623-13 (App. Div. Nov. 10, 2014), certif. denied, 221 N.J. 220 (2015); In re Adoption of an Adult by A.S.C. (Lane IV), No. A-5447-14 (App. Div. Mar. 30), certif. denied, 227 N.J. 246 (2016). 2 The couple also has a seventeen-year-old son, who is not the focus of these appeals. 2 A-1392-14T1 In A-5553-14, defendant challenges a June 30, 2015 order denying his request for a temporary custody change, his request that plaintiff's parenting time be supervised, and the enforcement of prior orders pertaining to custody and parenting time; access to the children's financial records and attorneys' fees. In A-3474-15, defendant challenges aspects of a March 18, 2016 order cancelling a pending plenary hearing, directing plaintiff to pay $1500 in monetary sanctions, awarding him $8064 in attorneys' fees, and rejecting his contention that the trial court's position that it could not decide custody and parenting time issues involving the couple's two adult children prevented it from granting the relief he requested concerning custody and parenting time. Having considered the parties' arguments, we affirm all three orders. The parties divorced in 2004 when their three children were ages nine, seven and four. Although their 50/50 shared custody arrangement apparently worked well for the first two years, their relationship deteriorated after defendant succeeded in terminating his $80,000 per year alimony obligation to plaintiff when she began cohabiting with the man to whom she is now married, and plaintiff lost her motion to increase defendant's 3 A-1392-14T1 $30,000 annual child support obligation. As we noted in Lane III, [s]ince then, whether attributable to plaintiff's and her husband's reactions to the 2007 litigation, as defendant argues, or attributable to defendant's parenting style and insistence upon strict enforcement of the parties' custody arrangement, as plaintiff argues, to varying degrees and at different times, one or more of the parties' daughters has resisted spending parenting time with defendant. [Lane III, supra, slip op. at 3.] We have no need, and thus do not attempt, to chronicle the almost ten years of litigation over the parties' shared-physical custody arrangement that followed. We summarized a great deal of it in Lane III. See id. at 3-8, 14-38, 48-50. We concluded in that opinion that repeated post-judgment applications to enforce shared-physical custody make it clear that if they ever existed, the essential circumstances for shared parenting no longer exist. These parties have demonstrated their inability to set their conflicts aside in the best interests of their children. To put it mildly, the children clearly have not been spared their parents' resentments and rancor. Indeed, they have become the focal point of the rancor. Perhaps out of concern about being the one to lose, neither party has urged a best interests' hearing based on changed circumstances apart from the narrow question of the second child's new schedule. 4 A-1392-14T1 Plaintiff has apparently been well-served by simply allowing her children to dictate their schedule without regard to the court's orders. Defendant has opted to respond by taking a different approach, seeking to obtain sole custody not on a showing of the children's best interests but as a sanction for Plaintiff's well-established disregard of her obligation to support the children's relationship with their father. [Id. at 49-50.] Confronted with a record of an obvious breakdown in the parties' shared custody arrangement regarding their daughters, yet another enforcement motion pending unheard in the trial court and without the facts necessary to assess whether a change in custody would serve the children's best interests, we remanded for a plenary hearing. We noted that [j]ust as a judge may order shared custody where the parties do not request it, a judge may and should order a hearing to determine what custodial arrangement would be in the children's best interests when the post- judgment motion practice of their parents makes it clear that the arrangement in place is not serving their children's best interests. [Id. at 50.] Notwithstanding our order, no plenary hearing has occurred. Both parties have continued to employ the same tactics in their ever-escalating warfare – plaintiff "apparently well-served by simply allowing her children to dictate their schedule without 5 A-1392-14T1 regard to the court's orders," and defendant "opt[ing] to respond by . . . seeking to obtain sole custody not on a showing of the children's best interests but as a sanction for plaintiff's well-established disregard of her obligation to support the children's relationship with their father." While Lane III was pending and since our opinion in that matter, the trial court denied the eldest child's application to intervene in her parents' divorce; defendant refused to provide consent to the parties' younger daughter to attend a community service trip abroad, causing a further rift in their relationship; plaintiff's husband adopted the parties' eldest daughter with the consent of plaintiff and without notice to defendant; the trial court denied defendant's request to permit him to intervene and vacate the adoption and to recuse the trial judge; another panel of this court rejected defendant's appeal of those proceedings, Lane IV, supra, slip op. at 14; the trial court scheduled a plenary hearing to address violations of defendant's parenting time, whether he should receive make up time, whether custody should be transferred temporarily to him and counsel fees among other issues; that hearing was never held and plaintiff subsequently moved to dismiss the one we ordered on remand with defendant's acquiescence, if not agreement; the 6 A-1392-14T1 parties' younger daughter turned eighteen; and the court entered the orders in the present appeals. We address them as follows. A-1392-14 The court's August 4, 2014 order arose out of the eldest child's motion to intervene in her parents' divorce, filed after she attained her majority. Following a consented adjournment, defendant opposed the motion and filed what he termed a "cross- motion" seeking relief against plaintiff for alleged violations of the parenting time schedule and a transfer of custody of the two younger children to him. Defendant's counsel refused requests for an adjournment to permit plaintiff time to respond to his cross-motion. The court heard argument on the return date on the child's motion, which it denied, but adjourned the "cross-motion" to permit plaintiff an opportunity to respond. At argument on the child's motion, defendant's counsel complained the parties' younger daughter had not spent time with defendant in months, necessitating his cross-motion be heard immediately. The court advised that plaintiff would be permitted a week to respond and the motion would be heard fourteen days later. Defendant thereafter filed an order to show cause seeking the same relief he sought in his cross-motion. Plaintiff filed 7 A-1392-14T1 opposition detailing the younger daughter's reasons for not attending parenting time with defendant, including his failure to consent to the child's community service trip. She subsequently opposed his cross-motion and cross-moved for fees for having to respond to both the cross-motion and the order to show cause regarding the same matters. The court denied defendant's request for entry of an order to show cause, reserved on his motion temporarily transferring custody of the two younger children to him pending a plenary hearing, denied without prejudice any relief requested by either party "that is or may be affected by the matters presently before the Appellate Division," and awarded plaintiff her fees on the motion. In a statement of reasons accompanying the August 4, 2014 order, the court found the facts as to why the younger daughter was not attending parenting time with her father to be in dispute. The court noted defendant's "supposition, perhaps well-reasoned in light of past statements by the plaintiff" is that his younger daughter would not see him "'due to the plaintiff's refusal to abide by [the parties'] court-ordered 50/50 parenting time agreement, and [plaintiff and her husband's] relentless violations of multiple court orders and restraints.'" The court noted plaintiff countered with a 8 A-1392-14T1 certification averring that despite her encouragement, the child "refuses to see [her father] and that her resistance started when [he] prevented [the child] from going on the community service trip." The court found: Standing alone, the defendant's obstruction of [the child's] trip might not seem to be sufficient to cause a 16 year old girl to refuse to see her father. Against the backdrop in this case, it appears more than plausible and therein lies the factual dispute. Resolving this factual dispute will also resolve whether the plaintiff is acting to alienate the defendant, whether the defendant caused [the child] to resist seeing him, or whether they each are the cause of [the child's] refusal to see the defendant. It accordingly ordered counsel to appear for a case management conference to identify witnesses, establish a discovery schedule and set a date for a plenary hearing. The court also awarded plaintiff her counsel fees, finding defendant's filing of his "cross-motion" and subsequent order to show cause seeking the same relief establish that the defendant seeks to set his own schedule and had no regard for the court's direction, nor the dilemma created by his filing an improperly designated cross-motion, leaving the plaintiff no chance to timely oppose same, and then objecting to an adjournment to allow [her] to have the time to respond. 9 A-1392-14T1 After reviewing plaintiff's counsel's affidavit of services, the court awarded plaintiff fees of $3150 in an August 15, 2014 order and denied reconsideration of both orders on October 31, 2014. Defendant contends the court erred when it failed to take any enforcement action on hundreds of "irrefutable proofs" that plaintiff and her husband violated the parties' shared parenting plan. He argues his parent-child relationship with his younger daughter was at risk and that she was at risk of harm by the court's refusal to transfer her custody to him. He further claims the court should have rejected plaintiff's claim for fees and should have awarded him his fees on the motion. We reject those arguments as without merit. Leaving aside our deferential view of a Family Part order on an enforcement motion, Milne v. Goldenberg, 428 N.J. Super. 184, 197-99 (App. Div. 2012), the law is clear that removing a child from a parent in violation of a custody order or agreement is a "remedy of last resort," which may only be imposed based on a finding it is in the child's best interests. Beck v. Beck, 86 N.J. 480, 499 (1981) ("Despite the obvious unfairness of allowing an uncooperative parent to flout a court decree, we are unwilling to sanction punishment of a recalcitrant parent if the welfare of the child will also suffer.") 10 A-1392-14T1 Although there was apparently no dispute that the parties' younger daughter was refusing to spend time with her father when the parties filed their motions, cross-motions and orders to show cause, there was certainly no agreement as to why. The court was not hostile to defendant's position that plaintiff and her husband were at fault, characterizing his supposition as "perhaps well-reasoned in light of past statements made by the plaintiff." Expressing its willingness to resolve the parties' factual dispute over why the child was refusing to see her father, the court ordered a plenary hearing. Nothing more was appropriate at that juncture, certainly not a change of custody. See Entress v. Entress, 376 N.J. Super. 125, 132-33 (App. Div. 2005) (finding a change of custody to compel compliance with court orders without an evidentiary hearing and no imminent threat to the child "clearly and unequivocally reversible error"). The court's denial of defendant's request for counsel fees given his lack of success on the motion, and the $3150 fee award to plaintiff to compensate her for having to respond to defendant's voluminous and nearly identical filings was reasonable and obviously well-within the court's considerable discretion. See Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000). 11 A-1392-14T1 A-5553-14 The court's June 30, 2015 order arose out of a motion defendant filed before a different judge to sanction plaintiff for her part in her husband's adult adoption of the parties' eldest child. Defendant sought an order: 1) referring plaintiff to the Bergen County Prosecutor's Office for colluding and consenting in the adoption; 2) holding plaintiff in contempt of court and in violation of litigant's rights for her part in the adoption; 3) holding plaintiff's husband in contempt of court and referring him to the Bergen County Prosecutor's Office for adopting the parties' eldest child; 4) compelling plaintiff to produce records of all money, property or other assets given, loaned or provided in trust to the parties' three children; 5) compelling plaintiff to produce financial and billing records for legal services provided to her husband and eldest child in connection with the adoption; 6) restraining plaintiff's husband from any contact with the parties' three children; 7) granting defendant temporary sole legal and residential custody of the parties' two youngest children; 8) or, alternatively supervising plaintiff's parenting time and restraining her from electronic contact of any kind with the two youngest children; 9) authorizing defendant to provide confidential therapy on an as 12 A-1392-14T1 needed basis to all three children by a therapist selected by defendant; and 10) awarding defendant his counsel fees. In a comprehensive written opinion addressing each one of defendant's claims, the court denied defendant relief. The court noted it had already determined the adoption to be both voluntary and valid (a decision we affirmed in Lane IV), and found defendant had not offered any evidence that the adoption of the eldest child was "anything but [the child's] own desires." Because the court deemed the adoption valid, it found no basis to hold plaintiff or her husband in contempt of orders prohibiting them from interfering with defendant's parenting time by consenting to and effecting the adoption. The court likewise rejected defendant's request for billing records and money or other things of value to the eldest child as an inappropriate attempt to re-litigate the adoption. It rejected production of documents referencing gifts to the youngest children as irrelevant and unnecessary. Based on defendant's admission "that regular parenting time with [the two youngest children] has continued even after the adoption of [the eldest child]," although his parenting time with his then seventeen-year-old youngest daughter was "sometimes sporadic," the court found no basis to restrain plaintiff's husband from any contact with the youngest children 13 A-1392-14T1 and continued the restraints prohibiting him from interfering with defendant's parenting time. Based on the same reasoning, the court denied defendant's request for an immediate transfer of custody of the two youngest children to him. The court found defendant had not offered any basis on which to supervise plaintiff's parenting time. The court refused to order the eldest child, now an adult, into therapy and found no basis for ordering therapy for the youngest children in light of "their regular to near-regular" parenting time with defendant. The court denied fees to both parties. Defendant appeals, contending the court erred in failing to hold plaintiff and her husband in contempt for their failure to abide by the court's orders, to issue remedies and sanctions for their conduct, to order a temporary change in custody or supervising plaintiff's parenting time, in failing to restrain plaintiff's husband from contact with the children, in refusing to compel the production of the children's financial documents and in denying counsel fees. Our review of the record convinces us that none of these arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We held in Lane IV that the parties' eldest child "had a fundamental right under the adult adoption statute to seek to be adopted without [her father's] interference, and was free to 14 A-1392-14T1 make her own decisions without regard to [his] wishes, views, or pre-adulthood parental rights." Lane IV, supra, slip op. at 12. Given that holding, we find no error in the trial court's refusal to sanction plaintiff or her husband for their part in that adoption or modify the custody arrangement of the two younger children. A-3474-15 The court's March 18, 2016 order arose out of our November 10, 2014 decision in Lane III, in which we remanded defendant's motion for "a temporary transfer of custody, enforcement of prior orders, relief in the form of monetary sanctions and additional make-up parenting time, all as relief for alleged violations of the parenting orders in place," which the trial court declined to hear in its order of October 25, 2013 because of defendant's pending appeals on other issues. Lane III, supra, slip op. at 47-48. The court did not convene a conference on the issues remanded until September 18, 2015, ten months after we issued our decision. Although the trial court correctly attributed some of the delay to the litigation over the eldest child's adoption by plaintiff's husband, culminating in Lane IV, we cannot help but observe that a prompt plenary hearing on remand may have avoided the opening of that new front in the parties' ever escalating war over their children. 15 A-1392-14T1 When the court finally convened that remand conference in September 2015 to address violations of defendant's parenting time from two years before, the parties' youngest daughter was two weeks shy of her eighteenth birthday. The remand did not implicate the parties' son, their youngest child. Plaintiff took the position that there was no point to a plenary hearing because the issues on remand were moot. She argued the court lacked jurisdiction to order make-up parenting time for defendant with a child no longer a minor and any economic sanctions would be punitive because they were no longer necessary to coerce her compliance with parenting time orders for the two eldest children. Defendant asserted the documented days of missed parenting time constituted per se violations of prior court orders by plaintiff that the court could resolve without testimony, and that he was not seeking a best interests hearing. The court set a discovery schedule and a date for the plenary hearing, but permitted plaintiff the opportunity to file a motion arguing the hearing was not necessary. Plaintiff filed her motion to dismiss the hearing, arguing the issues were moot. Defendant cross-moved opposing the motion but arguing that all proceedings relating to the remand in Lane III should be stayed until all of defendant's pending appeals were decided, and that the children should not participate "in 16 A-1392-14T1 any way in the trial proceedings." Alternatively, defendant asked the court to find that it could not adjudicate the custody and parenting time issues remanded in Lane III based on 1) its position that the law deprives it of jurisdiction over the unemancipated children of litigants in the Family Part once those children turn eighteen; 2) that it has no parens patriae duty to prevent harm to such children; and 3) that all custody and parenting time rights are automatically terminated in New Jersey once an unemancipated teenager reaches eighteen. After the motion was ready for oral argument, the parties agreed the court could decide it on the papers. In its order of March 18, 2016, the court granted plaintiff's motion to dismiss the plenary hearing based on the parties' agreement that no hearing was necessary. The court imposed a $1500 sanction against plaintiff for her violations of parenting time orders, noting the modest sum reflected its inability to determine bad faith or plaintiff's ability to comply with parenting time orders in light of the parties' insistence that the children not testify. It also awarded defendant the $8064 in counsel fees he sought on the motion remanded in Lane III. Although acknowledging that none of the parties' children was emancipated, the court declined defendant's request for 17 A-1392-14T1 make-up parenting time with the parties' youngest daughter, finding "[a]s an adult, she is not within the purview of this court's capacity to enter Orders involving her custody arrangements. Nor does this court believe that requiring an adult child to attend parenting time is in her best interests." The court denied all other relief. Defendant appeals, arguing the court erred in dismissing the remand, in not making "findings on hundreds of remanded matters," in "not adjudicating issues where no dispute over material facts existed such that a hearing was unnecessary," and misapplied the law, including by finding it could not "enforce custody orders, act as parens patriae, or adjudicate remands" once an unemancipated child turns eighteen. We reject these arguments as lacking sufficient merit to warrant any extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We need not immerse ourselves in exploring the contours of the court's jurisdiction in matters of custody and parenting time involving the unemancipated young adult children of litigants in the Family Part or consider whether we agree with the court's reliance on R. 4:6-2 in deciding plaintiff's motion to dismiss the scheduled plenary hearing, because neither was central to the court's decision here. 18 A-1392-14T1 The parties agreed they did not want the court to hold a plenary hearing. Notwithstanding defendant's insistence that any missed parenting time constituted a per se violation by plaintiff of prior court orders the court could resolve without testimony, that was never the case. Defendant's position on appeal – that the court failed to make findings and adjudicate issues – while having opposed a plenary hearing necessary to make those findings and adjudicate the issues, is simply untenable. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (explaining that "'[t]he doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error'") (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996)). The disputed issues in this case essentially never changed. The parties agreed their daughters missed parenting time with their father, they disagreed over why that was so. As another judge explained to the parties over three years ago in August 2014, "[r]esolving this factual dispute will also resolve whether the plaintiff is acting to alienate the defendant, whether the defendant caused [the child] to resist seeing him, 19 A-1392-14T1 or whether they each are the cause of [the child's] refusal to see the defendant." Neither party has attempted to have the court hear testimony that could resolve that central factual dispute. As Judge Grall observed in Lane III: Plaintiff has apparently been well-served by simply allowing her children to dictate their schedule without regard to the court's orders. Defendant has opted to respond by taking a different approach, seeking to obtain sole custody not on a showing of the children's best interests but as a sanction for plaintiff's well-established disregard of her obligation to support the children's relationship with their father. [Lane III, supra, slip op. at 49-50.] The parties have persisted so long in these entrenched patterns that their daughters, not teenagers when the hostilities between their parents erupted in 2007, have become young adults. While their daughters have grown up, the parties appear to continue, as their court-appointed custody evaluator concluded in 2012, to "fail[] to appreciate the impact that the litigation and their inability to accept any responsibility for their own contributions to the problem [have] on their children." Lane III, supra, slip op. at 25. Affirmed. 20 A-1392-14T1
MORGAN STANLEY PRIVATE BANK NATIONAL ASSOCIATION v. BRUCE P. EARLE
Date: December 4, 2017
Docket Number: a4992-15
Date: December 4, 2017
Docket Number: a4992-15
MICHAEL MASSARO v. PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Date: December 4, 2017
Docket Number: a5071-15
Date: December 4, 2017
Docket Number: a5071-15
NEW JERSEY CHINESE COMMUNITY CENTER v. CENTRAL JERSEY COLLEGE PREP CHARTER SCHOOL
Date: December 1, 2017
Docket Number: a0769-16
Date: December 1, 2017
Docket Number: a0769-16
MARK SMITH v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Date: December 1, 2017
Docket Number: a1684-14
Date: December 1, 2017
Docket Number: a1684-14
MAXINE WAGNER v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Date: December 1, 2017
Docket Number: a2114-15
Date: December 1, 2017
Docket Number: a2114-15
STATE OF NEW JERSEY v. ELNARDO CHANDLER
Date: December 1, 2017
Docket Number: a4812-14 PER CURIAM Elnardo Chandler appeals from his conviction for second- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Rick Hazelwood appeals from his convictions for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree certain person not to have weapons, N.J.S.A. 2C:39-7(b). We reverse and remand for a new trial. Jersey City police received a 9-1-1 call at 2:19 a.m. After providing an address and phone number, the 9-1-1 caller – self- identified as Mike – and the dispatcher conversed: [Mike]: I am just calling cause I see some guys outside they look like they got guns and they are standing in front of some people house[.] [9-1-1]: Did you see guns? [M]: Yeah[.] 2 A-4812-14T2 [9-1-1]: You saw, okay give me a description of the person who you[] saw holding the gun. [M]: I just see they got on all black that's why I am calling now so you could get somebody over there. [9-1-1]: Okay is he[,] they black, white or Hispanic? [M]: They look black. [9-1-1]: You see a black male wearing all black is holding a gun? [M]: Yeah[.] [9-1-1]: Where is he holding the gun? [M]: I just saw it across the street; I am not getting back in the window, That's why I called you[.] Officer Joseph Cossolini responded to a dispatch that informed of a black male, dressed in all black, with a gun outside of 230 Linden Avenue, and saw two men – later identified as the defendants, Chandler and Hazelwood – near 233 Linden Avenue. When officers in a radio car drove past where the men were standing, Cossolini lost sight of them after they disappeared behind a van parked on the street. The men reappeared, and both walked a short distance down Linden Avenue before they were stopped by the police. Police found the gun with which defendants were charged with on the tire of the van behind which defendants disappeared. Defendants were charged with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count One); second- degree possession of a community gun, N.J.S.A. 2C:39-4(a)(2) (Count Two); and first-degree gang criminality, N.J.S.A. 2C:33- 3 A-4812-14T2 29(a) (Count Three). Hazelwood was also charged with second- degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (Count Four). The jury found both defendants guilty of second-degree unlawful possession of a weapon. Hazelwood was also found guilty of second-degree certain persons not to have weapons.2 Chandler was sentenced to a term of fourteen years with a seven-year period of parole ineligibility. Hazelwood was sentenced to twenty years with ten years of parole ineligibility on the second-degree certain persons offense, concurrent to ten years with five years of parole ineligibility on the second-degree unlawful possession of a weapon offense. On appeal, Chandler argues: POINT I THE COURT'S FAILURE TO GIVE AN INSTRUCTION ON "MERE PRESENCE" AS AN ESSENTIAL PART OF THE DEFINITION OF CONSTRUCTIVE POSSESSION DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Partially Raised Below). A. The Court Committed Prejudicial Error By Failing to Give, Sua Sponte, A Mere Presence Instruction And By Denying Defendant's Post-Trial Motions On This Point. B. Defense Counsel Was Ineffective In Failing To Request A Mere-Presence Instruction At The Charge Conference. 2 Prior to trial, the State dismissed the charges of possession of a community gun and gang criminality. 4 A-4812-14T2 POINT II BECAUSE THE DEFENDANT NEVER CHALLENGED THE PROPRIETY OF THE POLICE PROCEEDING TO THE CRIME SCENE, THE STATE VIOLATED THE PRINCIPLES OF BANKSTON WHEN IT INTRODUCED A 911 CALL AND INFORMATION PROVIDED BY DISPATCH TO THE RESPONDING OFFICER INTO EVIDENCE. (Partially Raised Below). A. The Court Committed Prejudicial Error By Admitting The 911 Call, Even For A Limited Purpose. B. The Court Committed Prejudicial Error by Allowing Hearsay Testimony That Violated Defendant's Confrontation Rights. POINT III DEFENDANT'S SENTENCE IS EXCESSIVE AND MUST BE VACATED BECAUSE THE COURT IMPOSED AN ILLEGAL EXTENDED TERM, FAILED TO CREDIT AND WEIGH AGGRAVATING AND MITIGATING FACTORS, AND MISUNDERSTOOD WHICH VERSION OF THE GRAVES ACT APPLIED IN IMPOSING A PAROLE INELIGIBILITY PERIOD. (Partially Raised Below). Hazelwood argues: POINT [I] DETECTIVE COSSOLINI'S HUNCH THAT THE DEFENDANT DISCARDED A WEAPON WHEN THE POLICE OFFICER LOST SIGHT OF HIM BEHIND A VAN FOR A FEW SECONDS DID NOT JUSTIFY THE DETENTION AND SUBSEQUENT SEARCH OF THE VAN WHERE, AFTER THE INVESTIGATORY STOP, THE ENCOUNTER BETWEEN THE DEFENDANT AND POLICE DID NOT ESCALATE AND PROBABLE CAUSE DID NOT ARISE. POINT [II] REFERENCE TO A 911 CALL WHICH WAS NOT RELIED ON BY DETECTIVE COSSOLINI TO STOP BOTH MEN 5 A-4812-14T2 UNFAIRLY DIVERTED THE JURORS' ATTENTION FROM THE POLICE OFFICER'S JUSTIFICATION FOR INITIALLY DETAINING THEM. POINT [III] THE VERDICT AS TO THE POSSESSORY WEAPONS OFFENSE SHOULD BE SET ASIDE WHERE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH BEYOND A REASONABLE DOUBT THAT THE DEFENDANT CONSTRUCTIVELY POSSESSED THE HANDGUN. POINT [IV] THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT THE DEFENDANT'S MERE PRESENCE AT OR NEAR THE SCENE IS PLAIN ERROR. (NOT RAISED BELOW). POINT [V] WHEN CONSIDERED IN CONNECTION WITH THE SENTENCE IMPOSED ON THE CO-DEFENDANT, THE DEFENDANT'S SENTENCE IS EXCESSIVE. I. Both defendants argue the admission of the 9-1-1 call was error. Hazelwood contends the 9-1-1 call was irrelevant because Cossolini heard not the call, but rather truncated information from the caller, relayed by the dispatcher. He also argues that the "reference" to the 9-1-1 call "unfairly diverted the jurors' attention from the information within the police officers' knowledge at the time, especially for the limited purpose as to why they were investigating the alleged crime." Chandler asserts the admission of the 9-1-1 call violated the principles of State v. Bankston, 63 N.J. 263 (1973), and his Confrontation Clause 6 A-4812-14T2 rights. We agree the admission of the 9-1-1 call violated the tenets of Bankston and its progeny, and reverse. The State moved in limine to admit the 9-1-1 call at trial.3 In a pretrial ruling, the judge initially admitted the call as an excited utterance, N.J.R.E. 803(c)(2), and a present sense impression, N.J.R.E. 803(c)(1). Just prior to opening statements, however, the judge notified the parties that before the presentation of the 9-1-1 call, he would issue a limiting instruction to the jury, in line with the requirements of Bankston. The record reflects the judge noted the State's objection to the limiting instruction, and rejected the State's argument that the recording of the call was offered for the truth of the matter asserted; he ruled the recording was "not going in for that." The State asked the court to reconsider; the judge denied the request in a written opinion. He also orally clarified that he had changed his mind from his original ruling and was admitting the recording for the limited purpose of "explain[ing] why the police were there and what they did." The entire 9-1-1 call was played before the jury, without objection from either defendant. 3 We were not provided a copy of the motion. The trial judge did not hold a hearing on the motion; counsel for both defendants were allowed an opportunity to respond to the State's motion and agreed to accept the court's decision without oral argument. We were not provided with either defendant's response to the State's motion. 7 A-4812-14T2 "[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (quoting Marrero, supra, 148 N.J. at 484). In Bankston, a detective testified that "before defendant was arrested[,] the officers had been talking to an informer[,] and that based on information received," Bankston, supra, 63 N.J. at 266, they proceeded to a tavern and located defendant, "the person [they] were looking for," and found him in possession of drugs, id. at 266-67. The Court ruled a police officer does not violate the hearsay rule by testifying he took certain actions during an investigation based on "information received," but "when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused[,] the testimony violates the hearsay rule[,]" id. at 268, and the defendant's right of confrontation under the Sixth Amendment, id. at 269. The Court, in State v. Branch, 182 N.J. 338, 352 (2005), reiterated that an officer could reference "information received" to explain 8 A-4812-14T2 his actions, "but only if necessary to rebut a suggestion that [he] acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person." Chandler argues because he "never challenged the propriety of the police proceeding to the crime scene, the State violated the principles of Bankston." The use of explanatory testimony by police to justify their actions has been circumscribed. See Branch, supra, 182 N.J. at 352 (finding an exception only where "the defendant . . . opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive"); see also State v. Baker, 228 N.J. Super. 135, 139-40 (App. Div. 1988) (finding there is "seldom any justification" to admit evidence under the Bankston exception absent a claim by the defendant "that the police acted arbitrarily in approaching him"). The trial judge did not find either defendant suggested that any officer acted arbitrarily in approaching the defendants on the street. Although Hazelwood's counsel cross-examined Cossolini about his reasons for stopping the defendants and telling them to put their hands up, neither he nor Chandler's counsel contended or implied any officer acted arbitrarily. Further, the 9-1-1 call was admitted and played prior to that questioning. Even if a brief reference was warranted under Bankston because 9 A-4812-14T2 of defense counsel's questions, the quantum of evidence presented to the jury went well beyond that permitted to explain that the police acted "on information and belief" in order to rebut a suggestion of police arbitrariness. Furthermore, it not only created an inference that a non-testifying witness implicated the defendants, it was direct evidence of their guilt. The prosecutor recounted the detailed information contained in the 9-1-1 call in his summation: So it's very early in the morning, and this person, who identifies himself as Mike, says -- and provides a phone number indicates that across the street, there are individuals that were in black with guns, and he describes them as black males. And he was not willing to look outside the window because they were -- they were standing there. So you know that people were standing across the street from the location of 230 Linden Avenue. And you know this individual had seen them, according to him, with actual possession of guns. "When evidence is admitted that contravenes not only the hearsay rule but also a constitutional right, an appellate court must determine whether the error impacted the verdict." State v. Weaver, 219 N.J. 131, 154 (2014). Since neither defendant objected, we consider whether the admission of the 9-1-1 recording impacted the verdict under the plain error standard. We will not reverse unless the testimony was "clearly capable of producing an unjust result." R. 2:10-2; see Branch, supra, 182 N.J. at 353 10 A-4812-14T2 (applying the plain error standard where there was no objection to testimony that violated defendant's right to confrontation). More specifically, we will reverse only where there is a possibility of an unjust result "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). No trial witness saw either defendant in possession of a handgun; and no fingerprint or DNA evidence linked defendants to the gun that was found. The only potential evidence that placed a gun in defendants' hands was the observations made by the non- testifying 9-1-1 caller. Absent those observations, the State's only incriminatory evidence was limited to Cossolini's testimony that, when he responded to the scene, he saw the defendants crouching near the vehicle's wheel on which the gun was found. The practical impact is that the State obtained the benefit of the 9-1-1 caller's testimony without calling him as a witness. The admission of that evidence – compounded by the prosecutor's use of that evidence in summation – in a case where there was scant proof of possession, was plain error. The admission of the 9-1-1 recording, and the prosecutor's reference in summation to the details contained therein, require reversal notwithstanding the judge's limiting instruction. Chandler also argues that the admission of the 9-1-1 recording 11 A-4812-14T2 violated his Confrontation Clause rights. No such objection was raised at trial. "[G]enerally, a defendant must attempt to exercise his confrontation right and object when necessary, if he wishes later to claim that he was denied that right." State v. Williams, 219 N.J. 89, 93 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). We conclude, however, the failure to object was "so patently unreasonable and so clearly erroneous that no rational counsel acting within the wide range of professional norms would pursue such a course." Id. at 99. The admission of the 9-1-1 recording, as stated, was clearly capable of unfairly impacting the jury's finding. As such, we conclude there was no confrontation right waiver. Playing the recording of the 9-1-1 caller's observations precluded defendants' right to confront the caller at trial, requiring reversal. II. Although we are reversing these convictions, we address issues that may arise after remand to the trial court. Hazelwood contends the trial judge committed plain error by failing to instruct the jury on "mere presence." Chandler, relying on State v. Randolph, 441 N.J. Super. 533 (App. Div. 2015), aff'd, 228 N.J. 566 (2017), also argues the judge erred by failing to sua sponte add the "mere presence" charge to the instruction on constructive possession; he also claims his trial counsel was 12 A-4812-14T2 ineffective for failing to request the charge until after the trial was completed. We apply the plain error standard because no request for the charge was made at trial. State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)). Reversal is warranted "on the basis of unchallenged error" if that error "was 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2). "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Ibid. (alteration in the original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singelton, 211 N.J. 157, 182 (2012) (citing Macon, supra, 57 N.J. 325, 333-34 (1971)). An alleged unchallenged error in the jury charge is analyzed "in light of 'the totality of the entire charge, not in isolation.'" Burns, supra, 192 N.J. at 341 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). 13 A-4812-14T2 There is no model charge on "mere presence"; it is a part of the accomplice liability charge, and is sometimes excised and used alone, after any reference to "accomplice" is deleted. The instruction reads: Mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him/her a participant in the crime. It is, however, a circumstance to be considered with the other evidence in determining whether he/she was present as an accomplice. Presence is not in itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt there must exist a community of purpose and actual participation in the crime committed. While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission of the crime, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is possible for the jury to infer that he/she assented thereto, lent to it his/her countenance and approval and was thereby aiding the same. It depends upon the totality of the circumstances as those circumstances appear from the evidence. [Model Jury Charge (Criminal), "Liability for Another's Conduct" (1995).] The instruction was not warranted in this case. Each defendant contended at trial that he did not possess the gun. Neither defendant was seen by a testifying witness with the gun. No forensic evidence linked either defendant to the gun. The 14 A-4812-14T2 standard possession charge, setting forth the elements of possession, particularly constructive possession,4 provided sufficient instruction to the jury to allow defendants to demonstrate the State's failure of proof. The mere presence charge is more apt when a crime has been committed and defendant contends he merely watched the criminal act. The first paragraph of the mere presence charge has the capacity to confuse a jury because "spectators" are rare in most possession cases. The second paragraph of the charge could, 4 The portion of the charge relating to constructive possession provides: Possession may be constructive instead of actual. As I just stated, a person who, with knowledge of its character, knowingly has direct physical control over an item at a given time is in actual possession of it. Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to and has the intention to exercise control over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item. [Model Jury Charge (Criminal), "Possession" (2014).] 15 A-4812-14T2 likewise, confuse a jury in a possession case because a person can't readily disapprove or oppose a possessory offense as he can a crime such as robbery – a crime that requires affirmative action. Failing to give the charge sua sponte was not error, and if it were, it was not capable of producing an unjust result. Chandler's reliance on Randolph is misplaced. That case is distinguishable because there, unlike here, the defendant in Randolph requested the mere presence charge during the charge conference, Randolph, supra, 441 N.J. Super. at 557; further the trial judge did not properly respond to the jury's question regarding the relationship of the defendant to the location where the item he was alleged to possess was located, id. at 558-61. We determined although "an accurate and complete charge on possession and constructive possession" ordinarily leaves "no room to doubt that 'mere presence' [is] insufficient to bring about a finding of the necessary elements of possession[,]" the facts in Randolph presented a "limited circumstance[]" that required the jury charge to include an instruction on mere presence. Id. at 559 (quoting State v. Montesano, 298 N.J. Super. 597, 615 (App. Div.), certif. denied, 150 N.J. 27 (1997)). We concluded that given the paucity of proofs connecting defendant to the CDS found in the apartment, and the jury question suggesting that jurors had concerns about the issue, it was incumbent upon the judge to clearly apprise the jury on 16 A-4812-14T2 the law pertaining to defendant's 'mere presence' in the building. The failure to do so invited the jury to speculate about a legal issue that required a clear instruction by the judge. [Ibid.] We cannot conclude the failure to give the charge denied defendants a fair trial. The jury was told the State had to prove beyond a reasonable doubt that each defendant, actually or constructively, knowingly possessed – solely or jointly – the handgun, and was given specific instructions about those concepts as per the Model Jury Charge on possession. Even in the absence of the mere presence instruction, the jury knew in order to convict a defendant, it would have to find more than his mere presence on the street that night. See State v. Randolph, 228 N.J. 566, 592 (2017) (finding "the charge, as a whole, sufficiently informed the jury – without using the words 'mere presence' – that the defendant's presence in the building, standing alone, would be insufficient to establish guilt"). We will not entertain Chandler's claim that trial counsel was ineffective on direct appeal. "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Courts "routinely decline to 17 A-4812-14T2 entertain ineffective-assistance-of-counsel claims on direct appeal." State v. Hess, 207 N.J. 123, 145 (2011). The trial record is not sufficiently developed to allow us to determine this issue. The resolution of Chandler's argument requires an inquiry into why counsel did not request the charge, and whether that decision was the result of a trial strategy. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 695 (1984). Accordingly, this claim would be better raised in a petition for post-conviction relief. We deem defendants' other arguments regarding the 9-1-1 call to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Hazelwood's argument that "reference to a [9-1-1] call which was not relied on by Detective Cossolini to stop both men unfairly diverted the jurors' attention from the police officer's justification for initially detaining them," relates to his trial court motion to suppress his arrest, an issue not raised here. Likewise, Hazelwood's argument that police lacked a reasonable and articulable suspicion to effectuate a stop of the defendants, which he contends led to the unconstitutional search and seizure of the handgun from the wheel well of the vehicle, is meritless. R. 2:11-3(e)(2). Neither Hazelwood nor Chandler filed a motion to suppress evidence. Chandler's counsel clarified on 18 A-4812-14T2 the record that his motion to suppress involved his arrest, not the search or seizure; Hazelwood joined in that motion. Under similar circumstances our Supreme Court "conclude[d] that it would be unfair, and contrary to our established rules" to decide a suppression issue not raised at the trial level, and that, "with few exceptions . . . appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available." State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). Defendants' failure to raise this issue before the trial court deprived the State of the chance to establish a full factual record in support of the warrantless seizure of the handgun, and deprived the court of the opportunity to find facts and rule on this issue. As such, we deem this issue waived and decline to address it. We also reject Hazelwood's argument that the unlawful stop of the defendants led to the seizure of the handgun. The gun was seized when Cossolini went to the van – parked on a public street – behind which he lost sight of the defendants. The gun was on the wheel of the parked van, a location in which the defendants had no reasonable expectation of privacy. There is no link between the stop that Hazelwood claims was unlawful and the discovery and seizure of the gun. Further, the record discloses that Cossolini, 19 A-4812-14T2 when responding to the 9-1-1 call, saw two men in the described area, one of whom matched the description given by the 9-1-1 caller. Cossolini's observations, combined with the surreptitious movements of the men disappearing behind the parked van when a radio car drove by, justified the stop. In light of our reversal, we need not address Hazelwood's contention that the evidence was insufficient to establish his constructive possession of the handgun. The evidence used to determine defendant's motion for judgment notwithstanding the verdict, Rule 3:18-2, and motion for a new trial, Rule 3:20-1, in light of our ruling that the 9-1-1 recording was improperly introduced, will be different from that considered by the trial judge. As such, and in light of our remand, we will not decide that issue. Although defendants' sentences are vacated, we find no merit in their arguments that their respective sentences were excessive, nor in Chandler's contention that his extended term sentence was illegal. R. 2:11-3(e)(2). We briefly add, as to Chandler, the judge did not specifically set forth his reasons for imposing an extended term sentence, and may have added confusion to the record by failing to specify the sections of N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3 to which he referred in imposing an extended term; notwithstanding his mention of defendant's two prior gun 20 A-4812-14T2 convictions, however, it is clear the extended term was based on the judge's finding that Chandler was a persistent offender. The State moved to sentence Chandler to an extended term only as a persistent offender. Chandler has no sustainable basis to contend that the extended term was imposed under the Graves Act. Hazelwood did not challenge the extended term sentence imposed on his certain persons conviction. In his pro se submission, he seems to challenge the applicability of the Graves Act and his sentencing as a repeat Graves offender. His extended term sentence, however, was clearly based on the judge's conclusion that he was a persistent offender – not a repeat Graves offender. Because the judge, before imposing sentence, considered and weighed the applicable aggravating and mitigating factors as to each defendant – which were supported by competent, credible evidence in the record – and because the sentences do not "shock the judicial conscience," we would have applied our deferential standard of review and affirmed the base term sentences but for our decision to reverse their convictions. State v. O'Donnell, 117 N.J. 210, 215-16 (1989). The same holds true for the challenged period of parole ineligibility imposed on Chandler. State v. Martelli, 201 N.J. Super. 378, 382 (App. Div. 1985). Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain 21 A-4812-14T2 jurisdiction. 22 A-4812-14T2
Date: December 1, 2017
Docket Number: a4812-14 PER CURIAM Elnardo Chandler appeals from his conviction for second- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Rick Hazelwood appeals from his convictions for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree certain person not to have weapons, N.J.S.A. 2C:39-7(b). We reverse and remand for a new trial. Jersey City police received a 9-1-1 call at 2:19 a.m. After providing an address and phone number, the 9-1-1 caller – self- identified as Mike – and the dispatcher conversed: [Mike]: I am just calling cause I see some guys outside they look like they got guns and they are standing in front of some people house[.] [9-1-1]: Did you see guns? [M]: Yeah[.] 2 A-4812-14T2 [9-1-1]: You saw, okay give me a description of the person who you[] saw holding the gun. [M]: I just see they got on all black that's why I am calling now so you could get somebody over there. [9-1-1]: Okay is he[,] they black, white or Hispanic? [M]: They look black. [9-1-1]: You see a black male wearing all black is holding a gun? [M]: Yeah[.] [9-1-1]: Where is he holding the gun? [M]: I just saw it across the street; I am not getting back in the window, That's why I called you[.] Officer Joseph Cossolini responded to a dispatch that informed of a black male, dressed in all black, with a gun outside of 230 Linden Avenue, and saw two men – later identified as the defendants, Chandler and Hazelwood – near 233 Linden Avenue. When officers in a radio car drove past where the men were standing, Cossolini lost sight of them after they disappeared behind a van parked on the street. The men reappeared, and both walked a short distance down Linden Avenue before they were stopped by the police. Police found the gun with which defendants were charged with on the tire of the van behind which defendants disappeared. Defendants were charged with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count One); second- degree possession of a community gun, N.J.S.A. 2C:39-4(a)(2) (Count Two); and first-degree gang criminality, N.J.S.A. 2C:33- 3 A-4812-14T2 29(a) (Count Three). Hazelwood was also charged with second- degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (Count Four). The jury found both defendants guilty of second-degree unlawful possession of a weapon. Hazelwood was also found guilty of second-degree certain persons not to have weapons.2 Chandler was sentenced to a term of fourteen years with a seven-year period of parole ineligibility. Hazelwood was sentenced to twenty years with ten years of parole ineligibility on the second-degree certain persons offense, concurrent to ten years with five years of parole ineligibility on the second-degree unlawful possession of a weapon offense. On appeal, Chandler argues: POINT I THE COURT'S FAILURE TO GIVE AN INSTRUCTION ON "MERE PRESENCE" AS AN ESSENTIAL PART OF THE DEFINITION OF CONSTRUCTIVE POSSESSION DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Partially Raised Below). A. The Court Committed Prejudicial Error By Failing to Give, Sua Sponte, A Mere Presence Instruction And By Denying Defendant's Post-Trial Motions On This Point. B. Defense Counsel Was Ineffective In Failing To Request A Mere-Presence Instruction At The Charge Conference. 2 Prior to trial, the State dismissed the charges of possession of a community gun and gang criminality. 4 A-4812-14T2 POINT II BECAUSE THE DEFENDANT NEVER CHALLENGED THE PROPRIETY OF THE POLICE PROCEEDING TO THE CRIME SCENE, THE STATE VIOLATED THE PRINCIPLES OF BANKSTON WHEN IT INTRODUCED A 911 CALL AND INFORMATION PROVIDED BY DISPATCH TO THE RESPONDING OFFICER INTO EVIDENCE. (Partially Raised Below). A. The Court Committed Prejudicial Error By Admitting The 911 Call, Even For A Limited Purpose. B. The Court Committed Prejudicial Error by Allowing Hearsay Testimony That Violated Defendant's Confrontation Rights. POINT III DEFENDANT'S SENTENCE IS EXCESSIVE AND MUST BE VACATED BECAUSE THE COURT IMPOSED AN ILLEGAL EXTENDED TERM, FAILED TO CREDIT AND WEIGH AGGRAVATING AND MITIGATING FACTORS, AND MISUNDERSTOOD WHICH VERSION OF THE GRAVES ACT APPLIED IN IMPOSING A PAROLE INELIGIBILITY PERIOD. (Partially Raised Below). Hazelwood argues: POINT [I] DETECTIVE COSSOLINI'S HUNCH THAT THE DEFENDANT DISCARDED A WEAPON WHEN THE POLICE OFFICER LOST SIGHT OF HIM BEHIND A VAN FOR A FEW SECONDS DID NOT JUSTIFY THE DETENTION AND SUBSEQUENT SEARCH OF THE VAN WHERE, AFTER THE INVESTIGATORY STOP, THE ENCOUNTER BETWEEN THE DEFENDANT AND POLICE DID NOT ESCALATE AND PROBABLE CAUSE DID NOT ARISE. POINT [II] REFERENCE TO A 911 CALL WHICH WAS NOT RELIED ON BY DETECTIVE COSSOLINI TO STOP BOTH MEN 5 A-4812-14T2 UNFAIRLY DIVERTED THE JURORS' ATTENTION FROM THE POLICE OFFICER'S JUSTIFICATION FOR INITIALLY DETAINING THEM. POINT [III] THE VERDICT AS TO THE POSSESSORY WEAPONS OFFENSE SHOULD BE SET ASIDE WHERE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH BEYOND A REASONABLE DOUBT THAT THE DEFENDANT CONSTRUCTIVELY POSSESSED THE HANDGUN. POINT [IV] THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT THE DEFENDANT'S MERE PRESENCE AT OR NEAR THE SCENE IS PLAIN ERROR. (NOT RAISED BELOW). POINT [V] WHEN CONSIDERED IN CONNECTION WITH THE SENTENCE IMPOSED ON THE CO-DEFENDANT, THE DEFENDANT'S SENTENCE IS EXCESSIVE. I. Both defendants argue the admission of the 9-1-1 call was error. Hazelwood contends the 9-1-1 call was irrelevant because Cossolini heard not the call, but rather truncated information from the caller, relayed by the dispatcher. He also argues that the "reference" to the 9-1-1 call "unfairly diverted the jurors' attention from the information within the police officers' knowledge at the time, especially for the limited purpose as to why they were investigating the alleged crime." Chandler asserts the admission of the 9-1-1 call violated the principles of State v. Bankston, 63 N.J. 263 (1973), and his Confrontation Clause 6 A-4812-14T2 rights. We agree the admission of the 9-1-1 call violated the tenets of Bankston and its progeny, and reverse. The State moved in limine to admit the 9-1-1 call at trial.3 In a pretrial ruling, the judge initially admitted the call as an excited utterance, N.J.R.E. 803(c)(2), and a present sense impression, N.J.R.E. 803(c)(1). Just prior to opening statements, however, the judge notified the parties that before the presentation of the 9-1-1 call, he would issue a limiting instruction to the jury, in line with the requirements of Bankston. The record reflects the judge noted the State's objection to the limiting instruction, and rejected the State's argument that the recording of the call was offered for the truth of the matter asserted; he ruled the recording was "not going in for that." The State asked the court to reconsider; the judge denied the request in a written opinion. He also orally clarified that he had changed his mind from his original ruling and was admitting the recording for the limited purpose of "explain[ing] why the police were there and what they did." The entire 9-1-1 call was played before the jury, without objection from either defendant. 3 We were not provided a copy of the motion. The trial judge did not hold a hearing on the motion; counsel for both defendants were allowed an opportunity to respond to the State's motion and agreed to accept the court's decision without oral argument. We were not provided with either defendant's response to the State's motion. 7 A-4812-14T2 "[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (quoting Marrero, supra, 148 N.J. at 484). In Bankston, a detective testified that "before defendant was arrested[,] the officers had been talking to an informer[,] and that based on information received," Bankston, supra, 63 N.J. at 266, they proceeded to a tavern and located defendant, "the person [they] were looking for," and found him in possession of drugs, id. at 266-67. The Court ruled a police officer does not violate the hearsay rule by testifying he took certain actions during an investigation based on "information received," but "when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused[,] the testimony violates the hearsay rule[,]" id. at 268, and the defendant's right of confrontation under the Sixth Amendment, id. at 269. The Court, in State v. Branch, 182 N.J. 338, 352 (2005), reiterated that an officer could reference "information received" to explain 8 A-4812-14T2 his actions, "but only if necessary to rebut a suggestion that [he] acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person." Chandler argues because he "never challenged the propriety of the police proceeding to the crime scene, the State violated the principles of Bankston." The use of explanatory testimony by police to justify their actions has been circumscribed. See Branch, supra, 182 N.J. at 352 (finding an exception only where "the defendant . . . opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive"); see also State v. Baker, 228 N.J. Super. 135, 139-40 (App. Div. 1988) (finding there is "seldom any justification" to admit evidence under the Bankston exception absent a claim by the defendant "that the police acted arbitrarily in approaching him"). The trial judge did not find either defendant suggested that any officer acted arbitrarily in approaching the defendants on the street. Although Hazelwood's counsel cross-examined Cossolini about his reasons for stopping the defendants and telling them to put their hands up, neither he nor Chandler's counsel contended or implied any officer acted arbitrarily. Further, the 9-1-1 call was admitted and played prior to that questioning. Even if a brief reference was warranted under Bankston because 9 A-4812-14T2 of defense counsel's questions, the quantum of evidence presented to the jury went well beyond that permitted to explain that the police acted "on information and belief" in order to rebut a suggestion of police arbitrariness. Furthermore, it not only created an inference that a non-testifying witness implicated the defendants, it was direct evidence of their guilt. The prosecutor recounted the detailed information contained in the 9-1-1 call in his summation: So it's very early in the morning, and this person, who identifies himself as Mike, says -- and provides a phone number indicates that across the street, there are individuals that were in black with guns, and he describes them as black males. And he was not willing to look outside the window because they were -- they were standing there. So you know that people were standing across the street from the location of 230 Linden Avenue. And you know this individual had seen them, according to him, with actual possession of guns. "When evidence is admitted that contravenes not only the hearsay rule but also a constitutional right, an appellate court must determine whether the error impacted the verdict." State v. Weaver, 219 N.J. 131, 154 (2014). Since neither defendant objected, we consider whether the admission of the 9-1-1 recording impacted the verdict under the plain error standard. We will not reverse unless the testimony was "clearly capable of producing an unjust result." R. 2:10-2; see Branch, supra, 182 N.J. at 353 10 A-4812-14T2 (applying the plain error standard where there was no objection to testimony that violated defendant's right to confrontation). More specifically, we will reverse only where there is a possibility of an unjust result "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). No trial witness saw either defendant in possession of a handgun; and no fingerprint or DNA evidence linked defendants to the gun that was found. The only potential evidence that placed a gun in defendants' hands was the observations made by the non- testifying 9-1-1 caller. Absent those observations, the State's only incriminatory evidence was limited to Cossolini's testimony that, when he responded to the scene, he saw the defendants crouching near the vehicle's wheel on which the gun was found. The practical impact is that the State obtained the benefit of the 9-1-1 caller's testimony without calling him as a witness. The admission of that evidence – compounded by the prosecutor's use of that evidence in summation – in a case where there was scant proof of possession, was plain error. The admission of the 9-1-1 recording, and the prosecutor's reference in summation to the details contained therein, require reversal notwithstanding the judge's limiting instruction. Chandler also argues that the admission of the 9-1-1 recording 11 A-4812-14T2 violated his Confrontation Clause rights. No such objection was raised at trial. "[G]enerally, a defendant must attempt to exercise his confrontation right and object when necessary, if he wishes later to claim that he was denied that right." State v. Williams, 219 N.J. 89, 93 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). We conclude, however, the failure to object was "so patently unreasonable and so clearly erroneous that no rational counsel acting within the wide range of professional norms would pursue such a course." Id. at 99. The admission of the 9-1-1 recording, as stated, was clearly capable of unfairly impacting the jury's finding. As such, we conclude there was no confrontation right waiver. Playing the recording of the 9-1-1 caller's observations precluded defendants' right to confront the caller at trial, requiring reversal. II. Although we are reversing these convictions, we address issues that may arise after remand to the trial court. Hazelwood contends the trial judge committed plain error by failing to instruct the jury on "mere presence." Chandler, relying on State v. Randolph, 441 N.J. Super. 533 (App. Div. 2015), aff'd, 228 N.J. 566 (2017), also argues the judge erred by failing to sua sponte add the "mere presence" charge to the instruction on constructive possession; he also claims his trial counsel was 12 A-4812-14T2 ineffective for failing to request the charge until after the trial was completed. We apply the plain error standard because no request for the charge was made at trial. State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)). Reversal is warranted "on the basis of unchallenged error" if that error "was 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2). "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Ibid. (alteration in the original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singelton, 211 N.J. 157, 182 (2012) (citing Macon, supra, 57 N.J. 325, 333-34 (1971)). An alleged unchallenged error in the jury charge is analyzed "in light of 'the totality of the entire charge, not in isolation.'" Burns, supra, 192 N.J. at 341 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). 13 A-4812-14T2 There is no model charge on "mere presence"; it is a part of the accomplice liability charge, and is sometimes excised and used alone, after any reference to "accomplice" is deleted. The instruction reads: Mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him/her a participant in the crime. It is, however, a circumstance to be considered with the other evidence in determining whether he/she was present as an accomplice. Presence is not in itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt there must exist a community of purpose and actual participation in the crime committed. While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission of the crime, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is possible for the jury to infer that he/she assented thereto, lent to it his/her countenance and approval and was thereby aiding the same. It depends upon the totality of the circumstances as those circumstances appear from the evidence. [Model Jury Charge (Criminal), "Liability for Another's Conduct" (1995).] The instruction was not warranted in this case. Each defendant contended at trial that he did not possess the gun. Neither defendant was seen by a testifying witness with the gun. No forensic evidence linked either defendant to the gun. The 14 A-4812-14T2 standard possession charge, setting forth the elements of possession, particularly constructive possession,4 provided sufficient instruction to the jury to allow defendants to demonstrate the State's failure of proof. The mere presence charge is more apt when a crime has been committed and defendant contends he merely watched the criminal act. The first paragraph of the mere presence charge has the capacity to confuse a jury because "spectators" are rare in most possession cases. The second paragraph of the charge could, 4 The portion of the charge relating to constructive possession provides: Possession may be constructive instead of actual. As I just stated, a person who, with knowledge of its character, knowingly has direct physical control over an item at a given time is in actual possession of it. Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to and has the intention to exercise control over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item. [Model Jury Charge (Criminal), "Possession" (2014).] 15 A-4812-14T2 likewise, confuse a jury in a possession case because a person can't readily disapprove or oppose a possessory offense as he can a crime such as robbery – a crime that requires affirmative action. Failing to give the charge sua sponte was not error, and if it were, it was not capable of producing an unjust result. Chandler's reliance on Randolph is misplaced. That case is distinguishable because there, unlike here, the defendant in Randolph requested the mere presence charge during the charge conference, Randolph, supra, 441 N.J. Super. at 557; further the trial judge did not properly respond to the jury's question regarding the relationship of the defendant to the location where the item he was alleged to possess was located, id. at 558-61. We determined although "an accurate and complete charge on possession and constructive possession" ordinarily leaves "no room to doubt that 'mere presence' [is] insufficient to bring about a finding of the necessary elements of possession[,]" the facts in Randolph presented a "limited circumstance[]" that required the jury charge to include an instruction on mere presence. Id. at 559 (quoting State v. Montesano, 298 N.J. Super. 597, 615 (App. Div.), certif. denied, 150 N.J. 27 (1997)). We concluded that given the paucity of proofs connecting defendant to the CDS found in the apartment, and the jury question suggesting that jurors had concerns about the issue, it was incumbent upon the judge to clearly apprise the jury on 16 A-4812-14T2 the law pertaining to defendant's 'mere presence' in the building. The failure to do so invited the jury to speculate about a legal issue that required a clear instruction by the judge. [Ibid.] We cannot conclude the failure to give the charge denied defendants a fair trial. The jury was told the State had to prove beyond a reasonable doubt that each defendant, actually or constructively, knowingly possessed – solely or jointly – the handgun, and was given specific instructions about those concepts as per the Model Jury Charge on possession. Even in the absence of the mere presence instruction, the jury knew in order to convict a defendant, it would have to find more than his mere presence on the street that night. See State v. Randolph, 228 N.J. 566, 592 (2017) (finding "the charge, as a whole, sufficiently informed the jury – without using the words 'mere presence' – that the defendant's presence in the building, standing alone, would be insufficient to establish guilt"). We will not entertain Chandler's claim that trial counsel was ineffective on direct appeal. "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Courts "routinely decline to 17 A-4812-14T2 entertain ineffective-assistance-of-counsel claims on direct appeal." State v. Hess, 207 N.J. 123, 145 (2011). The trial record is not sufficiently developed to allow us to determine this issue. The resolution of Chandler's argument requires an inquiry into why counsel did not request the charge, and whether that decision was the result of a trial strategy. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 695 (1984). Accordingly, this claim would be better raised in a petition for post-conviction relief. We deem defendants' other arguments regarding the 9-1-1 call to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Hazelwood's argument that "reference to a [9-1-1] call which was not relied on by Detective Cossolini to stop both men unfairly diverted the jurors' attention from the police officer's justification for initially detaining them," relates to his trial court motion to suppress his arrest, an issue not raised here. Likewise, Hazelwood's argument that police lacked a reasonable and articulable suspicion to effectuate a stop of the defendants, which he contends led to the unconstitutional search and seizure of the handgun from the wheel well of the vehicle, is meritless. R. 2:11-3(e)(2). Neither Hazelwood nor Chandler filed a motion to suppress evidence. Chandler's counsel clarified on 18 A-4812-14T2 the record that his motion to suppress involved his arrest, not the search or seizure; Hazelwood joined in that motion. Under similar circumstances our Supreme Court "conclude[d] that it would be unfair, and contrary to our established rules" to decide a suppression issue not raised at the trial level, and that, "with few exceptions . . . appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available." State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). Defendants' failure to raise this issue before the trial court deprived the State of the chance to establish a full factual record in support of the warrantless seizure of the handgun, and deprived the court of the opportunity to find facts and rule on this issue. As such, we deem this issue waived and decline to address it. We also reject Hazelwood's argument that the unlawful stop of the defendants led to the seizure of the handgun. The gun was seized when Cossolini went to the van – parked on a public street – behind which he lost sight of the defendants. The gun was on the wheel of the parked van, a location in which the defendants had no reasonable expectation of privacy. There is no link between the stop that Hazelwood claims was unlawful and the discovery and seizure of the gun. Further, the record discloses that Cossolini, 19 A-4812-14T2 when responding to the 9-1-1 call, saw two men in the described area, one of whom matched the description given by the 9-1-1 caller. Cossolini's observations, combined with the surreptitious movements of the men disappearing behind the parked van when a radio car drove by, justified the stop. In light of our reversal, we need not address Hazelwood's contention that the evidence was insufficient to establish his constructive possession of the handgun. The evidence used to determine defendant's motion for judgment notwithstanding the verdict, Rule 3:18-2, and motion for a new trial, Rule 3:20-1, in light of our ruling that the 9-1-1 recording was improperly introduced, will be different from that considered by the trial judge. As such, and in light of our remand, we will not decide that issue. Although defendants' sentences are vacated, we find no merit in their arguments that their respective sentences were excessive, nor in Chandler's contention that his extended term sentence was illegal. R. 2:11-3(e)(2). We briefly add, as to Chandler, the judge did not specifically set forth his reasons for imposing an extended term sentence, and may have added confusion to the record by failing to specify the sections of N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3 to which he referred in imposing an extended term; notwithstanding his mention of defendant's two prior gun 20 A-4812-14T2 convictions, however, it is clear the extended term was based on the judge's finding that Chandler was a persistent offender. The State moved to sentence Chandler to an extended term only as a persistent offender. Chandler has no sustainable basis to contend that the extended term was imposed under the Graves Act. Hazelwood did not challenge the extended term sentence imposed on his certain persons conviction. In his pro se submission, he seems to challenge the applicability of the Graves Act and his sentencing as a repeat Graves offender. His extended term sentence, however, was clearly based on the judge's conclusion that he was a persistent offender – not a repeat Graves offender. Because the judge, before imposing sentence, considered and weighed the applicable aggravating and mitigating factors as to each defendant – which were supported by competent, credible evidence in the record – and because the sentences do not "shock the judicial conscience," we would have applied our deferential standard of review and affirmed the base term sentences but for our decision to reverse their convictions. State v. O'Donnell, 117 N.J. 210, 215-16 (1989). The same holds true for the challenged period of parole ineligibility imposed on Chandler. State v. Martelli, 201 N.J. Super. 378, 382 (App. Div. 1985). Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain 21 A-4812-14T2 jurisdiction. 22 A-4812-14T2
KARL LAVIN v. MARY KAY LAVIN
Date: December 1, 2017
Docket Number: a4996-14 PER CURIAM In this matrimonial matter, plaintiff Karl Lavin appeals two orders, contending that the Family Part judge erred in denying his request to terminate his alimony obligation and in assessing counsel fees against him.1 After a review of the record and applicable principles of law, we affirm. The parties were divorced in 2007. The Property Settlement Agreement required plaintiff to pay defendant Mary Kay Lavin alimony of $1250 per month. In September 2013, plaintiff filed the first of several motions to terminate his alimony obligation. In denying the motion in January 2014, the family judge noted that the application was deficient in its failure to include supporting financial documentation. Plaintiff appealed and requested the trial judge stay her order. The judge denied the motion to stay and granted counsel fees to defendant. Plaintiff later withdrew his appeal. Plaintiff filed a second motion to terminate alimony in December 2014. Judge Kathleen A. Sheedy2 denied the motion and granted defendant's cross-motion for counsel fees in an order and written decision on February 20, 2015. The judge noted the 1 We have consolidated the appeals for the purposes of this opinion. 2 Judge Sheedy was not the judge who decided the September 2013 motion. 2 A-4996-14T4 procedural deficiencies in the application, which lacked numerous required documents, such as the prior case information statements (CIS), current tax returns, W2s, or any paystubs. Judge Sheedy observed that without these financial documents, she could not compare plaintiff's "current financial status with his financial position at the time of the divorce." Although plaintiff also asserted a worsening medical condition in support of his application, the judge noted that he had also failed to provide any medical documentation to support that claim. She, therefore, concluded that plaintiff had failed "to present a prima facie showing of changed circumstances that would warrant a modification of his alimony." Defendant's cross-motion seeking counsel fees was granted. Judge Sheedy stated: [Plaintiff] has brought deficient applications before and has been warned that future deficient requests will be denied. [Defendant] has had to respond to [plaintiff's] similar motions in the past and is again faced with opposing the exact same application that was denied in January 2014. This [c]ourt finds that [plaintiff] has brought this application in bad faith for failing to provide documents that he was told he must file. She awarded counsel fees in the amount of $1750. Plaintiff moved for reconsideration of the counsel fee award. In response, defendant requested that the court enforce the two 3 A-4996-14T4 prior awards of counsel fees and grant fees on the reconsideration application. In a written decision and order issued on May 8, 2015, Judge Sheedy denied the motion for reconsideration, finding that no new information had been provided to demonstrate that the matter had been improperly decided. She determined that the application lacked merit and had not been brought in good faith. She, therefore, awarded an additional $750 in counsel fees to defendant. The total outstanding counsel fees from the previous motions was $4375. Judge Sheedy denied plaintiff's subsequent motion for a stay and imposed a sanction of $100 per day for each day that plaintiff failed to comply with the previous orders requiring him to pay counsel fees. Plaintiff appealed from the May 8, 2015 order. In September 2015, while the appeal was pending, plaintiff filed a third motion for termination of alimony. Judge Sheedy denied the motion on December 11, 2015. In her written decision, she noted the recurrent deficiencies in the application, and plaintiff's continuing failure to include tax returns, W2s and paystubs. Despite these shortcomings, the judge undertook a substantive review of the motion and found that plaintiff had failed to provide adequate proof to support a termination or modification of his alimony obligation. The CIS revealed plaintiff had far superior financial assets than defendant. There was no 4 A-4996-14T4 support for plaintiff's assertion that he was "being pressured" to retire nor was there any documentation of his alleged worsening medical condition. Judge Sheedy granted defendant's motion to enforce the prior orders and awarded counsel fees of $2000. She stated: "[Plaintiff] was advised many times . . . that he had not provided sufficient financial and medical documentation, and therefore knew that filing the same information would most likely yield the same results. [Plaintiff] however, files an identical application without providing the necessary documentation required by the [c]ourt." Plaintiff filed an appeal from the December 2015 order. In these appeals, plaintiff argues that the Family Part judge abused her discretion in finding he failed to make a prima facie showing of changed circumstances sufficient to require termination or modification of alimony, and in awarding defendant counsel fees. We disagree. We are mindful that our scope of review of Family Part orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family Part judges have broad discretion when considering an application to modify or terminate alimony. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Martindell v. Martindell, 21 N.J. 341, 355 (1956)). We owe substantial deference to these types of decisions. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. 5 A-4996-14T4 Div. 2009). Thus, an alimony determination will not be overturned on appeal absent an abuse of discretion. See Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (holding that in order to vacate a trial court's findings as to modification of alimony, "an appellate court must conclude that the trial court clearly abused its discretion"). Similarly, "fee determinations by trial courts will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). After reviewing the record, we conclude that Judge Sheedy's factual findings are fully supported by the record and, in light of those facts, her legal conclusions are unassailable. We therefore affirm, substantially for the reasons expressed in her several well-reasoned opinions. We add the following brief comments. All of plaintiff's applications lacked support for his request to terminate or even modify his alimony obligation. Although apprised by the court of the deficiencies, plaintiff nevertheless filed several identical defective applications. There was no demonstration of any changed circumstances warranting a modification or termination of the alimony obligation. 6 A-4996-14T4 The fees awarded to defendant are a miniscule fraction of what she has paid her counsel to defend plaintiff's deficient applications. Judge Sheedy did not abuse her discretion in the enforcement of prior orders or awarding additional fees to defendant in the May and December 2015 orders. Affirmed. 7 A-4996-14T4
Date: December 1, 2017
Docket Number: a4996-14 PER CURIAM In this matrimonial matter, plaintiff Karl Lavin appeals two orders, contending that the Family Part judge erred in denying his request to terminate his alimony obligation and in assessing counsel fees against him.1 After a review of the record and applicable principles of law, we affirm. The parties were divorced in 2007. The Property Settlement Agreement required plaintiff to pay defendant Mary Kay Lavin alimony of $1250 per month. In September 2013, plaintiff filed the first of several motions to terminate his alimony obligation. In denying the motion in January 2014, the family judge noted that the application was deficient in its failure to include supporting financial documentation. Plaintiff appealed and requested the trial judge stay her order. The judge denied the motion to stay and granted counsel fees to defendant. Plaintiff later withdrew his appeal. Plaintiff filed a second motion to terminate alimony in December 2014. Judge Kathleen A. Sheedy2 denied the motion and granted defendant's cross-motion for counsel fees in an order and written decision on February 20, 2015. The judge noted the 1 We have consolidated the appeals for the purposes of this opinion. 2 Judge Sheedy was not the judge who decided the September 2013 motion. 2 A-4996-14T4 procedural deficiencies in the application, which lacked numerous required documents, such as the prior case information statements (CIS), current tax returns, W2s, or any paystubs. Judge Sheedy observed that without these financial documents, she could not compare plaintiff's "current financial status with his financial position at the time of the divorce." Although plaintiff also asserted a worsening medical condition in support of his application, the judge noted that he had also failed to provide any medical documentation to support that claim. She, therefore, concluded that plaintiff had failed "to present a prima facie showing of changed circumstances that would warrant a modification of his alimony." Defendant's cross-motion seeking counsel fees was granted. Judge Sheedy stated: [Plaintiff] has brought deficient applications before and has been warned that future deficient requests will be denied. [Defendant] has had to respond to [plaintiff's] similar motions in the past and is again faced with opposing the exact same application that was denied in January 2014. This [c]ourt finds that [plaintiff] has brought this application in bad faith for failing to provide documents that he was told he must file. She awarded counsel fees in the amount of $1750. Plaintiff moved for reconsideration of the counsel fee award. In response, defendant requested that the court enforce the two 3 A-4996-14T4 prior awards of counsel fees and grant fees on the reconsideration application. In a written decision and order issued on May 8, 2015, Judge Sheedy denied the motion for reconsideration, finding that no new information had been provided to demonstrate that the matter had been improperly decided. She determined that the application lacked merit and had not been brought in good faith. She, therefore, awarded an additional $750 in counsel fees to defendant. The total outstanding counsel fees from the previous motions was $4375. Judge Sheedy denied plaintiff's subsequent motion for a stay and imposed a sanction of $100 per day for each day that plaintiff failed to comply with the previous orders requiring him to pay counsel fees. Plaintiff appealed from the May 8, 2015 order. In September 2015, while the appeal was pending, plaintiff filed a third motion for termination of alimony. Judge Sheedy denied the motion on December 11, 2015. In her written decision, she noted the recurrent deficiencies in the application, and plaintiff's continuing failure to include tax returns, W2s and paystubs. Despite these shortcomings, the judge undertook a substantive review of the motion and found that plaintiff had failed to provide adequate proof to support a termination or modification of his alimony obligation. The CIS revealed plaintiff had far superior financial assets than defendant. There was no 4 A-4996-14T4 support for plaintiff's assertion that he was "being pressured" to retire nor was there any documentation of his alleged worsening medical condition. Judge Sheedy granted defendant's motion to enforce the prior orders and awarded counsel fees of $2000. She stated: "[Plaintiff] was advised many times . . . that he had not provided sufficient financial and medical documentation, and therefore knew that filing the same information would most likely yield the same results. [Plaintiff] however, files an identical application without providing the necessary documentation required by the [c]ourt." Plaintiff filed an appeal from the December 2015 order. In these appeals, plaintiff argues that the Family Part judge abused her discretion in finding he failed to make a prima facie showing of changed circumstances sufficient to require termination or modification of alimony, and in awarding defendant counsel fees. We disagree. We are mindful that our scope of review of Family Part orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family Part judges have broad discretion when considering an application to modify or terminate alimony. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Martindell v. Martindell, 21 N.J. 341, 355 (1956)). We owe substantial deference to these types of decisions. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. 5 A-4996-14T4 Div. 2009). Thus, an alimony determination will not be overturned on appeal absent an abuse of discretion. See Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (holding that in order to vacate a trial court's findings as to modification of alimony, "an appellate court must conclude that the trial court clearly abused its discretion"). Similarly, "fee determinations by trial courts will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). After reviewing the record, we conclude that Judge Sheedy's factual findings are fully supported by the record and, in light of those facts, her legal conclusions are unassailable. We therefore affirm, substantially for the reasons expressed in her several well-reasoned opinions. We add the following brief comments. All of plaintiff's applications lacked support for his request to terminate or even modify his alimony obligation. Although apprised by the court of the deficiencies, plaintiff nevertheless filed several identical defective applications. There was no demonstration of any changed circumstances warranting a modification or termination of the alimony obligation. 6 A-4996-14T4 The fees awarded to defendant are a miniscule fraction of what she has paid her counsel to defend plaintiff's deficient applications. Judge Sheedy did not abuse her discretion in the enforcement of prior orders or awarding additional fees to defendant in the May and December 2015 orders. Affirmed. 7 A-4996-14T4
RUIRU JI v. HANSON LO
Date: December 1, 2017
Docket Number: a5206-14 SUTER, J.A.D. In these consolidated appeals, defendant Hanson Lo appeals portions of post-judgment matrimonial orders entered by the Family Part on May 29, 2015; June 5, 2015; July 24, 2015; and September 1, 2015. His appeal of the July 24, 2015 order was out of time and we decline to consider it.2 We reverse and remand the June 5, 2015 order that required pre-screening of the parties' motions and is the subject of A-5206-14. We direct the court to apply the holding in Parish v. Parish, 412 N.J. Super. 39, 51 (App. Div. 2010), should there be the need for any future order to control the applications for relief made by one or both of the parties. We affirm the portions of the other orders that defendant appeals in A-0747-15. I. Plaintiff Rui-Ru Ji and defendant Hanson Shuen Lo were married in 1998. Following a lengthy trial, the Family Part entered a dual judgment of divorce (DJOD) on May 31, 2013. 2 We also decline to consider any argument regarding paragraph 24 of the June 5, 2015 order because it was not listed on defendant's notice of appeal. 2 A-5206-14T3 They have two daughters, Annie and May,3 who were twelve and eight at the time of the divorce. Among other issues, the DJOD addressed custody and parenting time. The DJOD provided for the appointment of a parenting time coordinator to "resolve parenting time disputes between the parties." Among the reasons given for appointing the parenting coordinator was the need to "streamline the resolution of parenting disputes." The parties were ordered to submit all disputes to the parenting coordinator before "involving the court by motion." The parties were to include the recommendation of the parenting coordinator in their post-judgment motions. There have been more than thirty post-judgment motions, with multiple requests for relief, and orders to show cause filed since entry of the DJOD. Because we write for parties who are familiar with the procedural and factual history of their litigation, we discuss only such portions of the orders as relate to these appeals. Defendant appeals portions of four orders: May 29, 2015, paragraph 2; June 5, 2015 (the June 5 order) paragraphs 4, 5, 7, 21, 22 and 28; June 5, 2015 that required prior approval before a filing can be treated as a motion (the June 5 prior approval 3 We have used fictitious names to preserve the children's privacy. 3 A-5206-14T3 order); and September 1, 2015, paragraphs 1, 9, 13, 14, 20, 21 and 22.4 The June 5 prior approval order is appealed under A-5206-14 and addressed in section IV, infra. II. A. Under the DJOD, defendant exercised parenting time with May during the week and overnight every other weekend. Defendant was not to "sleep in the same bedroom . . . during his visitation sessions." Defendant's parenting time with Annie was suspended until he and Annie "attend[ed] therapy together concerning their relationship issues." In April 2014, defendant's overnights with May were suspended until he could provide proof to the parenting coordinator of his living arrangements. His weekly parenting time continued. That order is not part of this appeal. In July 2014, defendant's request for reinstatement of his overnight parenting time with May 4 We address the May 29 and June 5 orders in this appeal because the record does not permit our determination that they were untimely appealed. Defendant filed a motion for reconsideration as to both of the orders on June 22, 2015, which motion was decided on September 1, 2015. This tolled the time for appeal. R. 2:4- 3(e). Defendant's notice of appeal was filed October 5, 2015, and amended October 9, 2015, within forty-five days of September 1. We can not determine from the record when the underlying orders were served. 4 A-5206-14T3 was denied because he still had not obtained a "simple home inspection." That order also is not part of this appeal. In 2015, plaintiff sought to amend the parties' parenting schedule to reflect recommendations by the parenting coordinator, which included visitation on Thursday, some Saturdays and Sundays, but no overnights. Defendant requested additional time with May on Sunday during the day. He did not ask for overnight visitation. He also asked that the court conduct an in camera interview with May to "gauge her opinions on how she likes to be treated and the parenting time schedule." Defendant did not ask for parenting time with Annie. On May 29, 2015, the Family Part judge ordered parenting time for defendant consistent with the recommendation of the parenting coordinator. Defendant's overnight parenting time remained suspended because he had not submitted to an inspection of his residence as previously ordered. Defendant subsequently renewed his request that the court conduct an in camera interview, now with both children, about a number of issues including parenting time. He did not ask for overnight parenting time with May or Annie. In the June 5, 2015 order, the court denied that request because there was "no custody determination being made . . . – there is only an on-going dispute between the parties regarding parenting time." 5 A-5206-14T3 Defendant asked to resume overnight visitation with May once he rented a two-bedroom apartment. In the July 24, 2015 order, the court found defendant showed changed circumstances warranting a modification. Because safety issues were now satisfied, which had led to suspension of defendant's parenting time, the court ordered that defendant could resume overnight parenting time with May. However, the court found it was not in May's best interest to revert "immediately" to the DJOD parenting time schedule, and modified the parenting time schedule to include only one overnight every other weekend rather than two. Future requests for modification could be made, consistent with the DJOD, after first presenting the request to the parenting coordinator. Defendant did not request parenting time with Annie. Defendant sought reconsideration of his overnight parenting time with May because he contended he had not been ordered to submit to a home inspection and was penalized by having not complied. On September 1, 2015, the court denied defendant's request for reconsideration. Defendant contends on appeal that the court permanently modified his parenting time without conducting a best interest analysis, without making findings of fact or considering relevant, credible evidence and by simply accepting the recommendation of the parenting coordinator. 6 A-5206-14T3 B. Defendant requested that the court hold plaintiff in contempt because he claimed she made false statements in some of her motion papers submitted to the court. He alleged that she "falsely accused me of stealing monies from our joint bank account" had "stolen my identity" and then tried to "frame me." Defendant alleged Bank of America commenced an investigation and that the police were investigating the issue. On June 5, 2015, the court denied defendant's request for entry of a contempt order noting that defendant had involved the local police and county prosecutor and "law enforcement . . . already subpoenaed the relevant account statements." Defendant's request for reconsideration of this issue was denied on September 1, 2015, because defendant did not provide any new information or demonstrate that the decision was palpably incorrect or irrational. Defendant appeals the June 5 and September 1 orders, contending the court failed to make appropriate findings of fact or consider relevant, credible evidence about the merits of his underlying contentions and plaintiff's alleged misrepresentations. C. Annie "threatened to harm herself" in November 2012 and "resisted visiting with defendant since that time." Defendant's 7 A-5206-14T3 parenting time with Annie was suspended under the DJOD until they could "attend therapy together concerning their relationship issues." Annie was hospitalized 2014 following a suicide attempt. The DJOD provided that "with regard to medical choices," plaintiff had "full custody" of the children. In entering the DJOD, the court found that giving plaintiff full medical authority regarding the children was in the "best interests" of the children and that plaintiff was "better equipped to make these decisions on her own." Defendant contended that plaintiff's "abusive" parenting style related to Annie's suicide attempt and that her neglect was putting the children at risk by ignoring her need for therapy. He wanted Annie to continue with a particular therapist who was identified in the DJOD. He requested an order to stop plaintiff from interfering with Annie's therapy, to cooperate with her therapy and for the court to appoint an expert to assess any acts or symptoms of parental alienation by plaintiff. The court denied these requests in the June 5, 2015 order. Noting that the DJOD required Annie to attend therapy with a specific therapist "on an as needed basis as she reasonably determines," the court found defendant had not shown that therapy with this doctor was needed. In addition, defendant had not shown the suicide attempt was related to plaintiff's parenting, or that 8 A-5206-14T3 she interfered with or was not cooperating with Annie's therapy. The court denied defendant's request to appoint an expert to assess whether there was parental alienation because he had not shown evidence of alienation. The court denied defendant's request to conduct an in camera interview with the children because there was no pending request to change custody. Defendant's request for reconsideration of these issues was denied on September 1, 2015. On appeal, defendant contends plaintiff is not in compliance with the DJOD by not continuing therapy with the doctor identified therein. Although acknowledging that Annie had therapy with three other doctors, he contends that plaintiff did not show the court that they were superior physicians for Annie. He alleged he was not apprised of the children's welfare and broadly alleged evidence of "alienation tactics." He contends the court should determine the cause of the suicide attempt under its "parens patriae interest" and blamed plaintiff's parenting. III. We review the Family Part judge's findings in accordance with a deferential standard of review, recognizing the court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Thus, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. 9 A-5206-14T3 v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). However, "[a]lthough a family court's factual findings are entitled to considerable deference, we do not pay special deference to its interpretation of the law. [T]he trial court is in no better position than [an appellate court] when interpreting a statute or divining the meaning of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012) (citations omitted). We have no necessity to consider whether the court abdicated its authority to the parenting coordinator, as alleged by defendant, when it adopted her recommendation about parenting time in the May 29, 2015 order. Although defendant contends this was done without "conduct[ing] any sort of factual finding as to whether [modification of the parties' custody and parenting time agreement] would be in the best interests of the children," that issue is moot. The May 29 order was modified by the July 24, 2015 order. See City of Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999) (providing that "courts of this state do not resolve issues that have become moot due to the passage of time or intervening events."). The July 24 order allowed overnight parenting time with May. Although defendant contends the court abused its discretion by entering that order, defendant's overnight parenting time with May is not squarely before us because defendant did not timely appeal that order. Even if he had, we 10 A-5206-14T3 find no abuse of discretion by the court in ordering overnight parenting time with May that was not "immediately" what it had been in the DJOD, given the suspension of overnight parenting with her for nearly fifteen months and the high conflict nature of the family. We similarly find no abuse of discretion by the court's entry of the other orders that are appealed in A-0747-15. We agree with the court that defendant did not show plaintiff "has failed to comply with her obligations under the terms of the [DJOD] with respect to her duties as the sole legal custodian in the domain of medical and other related choices." There was no evidence that therapy was not being provided for Annie by competent physicians or that plaintiff was not cooperating in obtaining or providing those services. We agree with the court that defendant's proofs did not demonstrate the necessity for the court to appoint an expert on parental alienation. See R. 5:3-3(a) (providing that appointment of experts by the court is within the court's discretion to assist in disposition of an issue). We agree there was no necessity to interview the children in camera when the issues involved parenting time and not custody. The court did not abuse its discretion by not holding plaintiff in contempt. Defendant asked for reconsideration of the court's orders. We agree with the court that defendant presented no new evidence 11 A-5206-14T3 for the court's consideration nor did he show that the court's decision was based on incorrect reasoning. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.) (citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (providing that reconsideration is "granted only under very narrow circumstances . . . in which either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.")), certif. denied, 174 N.J. 544 (2002). After carefully reviewing the record and the applicable legal principles, we conclude that defendant's further arguments in A- 0747-15 are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). IV. The court's June 5, 2015 prior approval order precluded both plaintiff and defendant "from filing any further applications for relief without obtaining prior authorization from this [c]ourt." That order allowed the parties to submit requests for relief but they were to be "pre-approved" before "converting" them to become motions in the Family Part. The court explained in its written statement of reasons that the parties repeatedly filed motions for relief since the divorce. The multiple applications often were 12 A-5206-14T3 "procedurally deficient" and included claims that the court already had decided. Considering this a misuse of motion practice, the court described their actions as the "repetitive filing of deficient and frivolous motions." In A-5206-14, defendant appeals the June 5, 2015 prior approval order. He contends the court erred because there had never been a finding that the parties' motions were frivolous or filed for an abusive purpose, nor had the courts, who heard the motions, imposed sanctions. Our review of the June 5, 2015 prior approval order and accompanying statement of reasons reveals that it was entered without application of our holding in Parish, supra, 412 N.J. Super. at 54, where we described the findings required before a court could enjoin litigants from presenting their claims. Specifically, In those limited instances where appropriate, an injunction should be issued only after the judge (1) makes a finding that past pleadings were frivolous or designed for an abusive purpose; (2) fully scrutinizes the newly filed pleadings and determines them to be repetitive and within the scope of the proscribed vexatious matters; and (3) has unsuccessfully attempted to abate the abuse by employing sanctions such as those provided by Rule 1:10- 3 or Rule 5:3-7. Additionally, any restraint entered must be circumscribed, not global, and narrowly focus on the issues shown to warrant restraint. 13 A-5206-14T3 [Parish, supra, 412 N.J. Super. at 54.] As we said there, "[t]he business of the courts is to finalize disputes. Any discretionary exercise of the extreme remedy of enjoining or conditioning a litigant's ability to present his or her claim to the court must be used sparingly; it is not a remedy of first or even second resort." Ibid. Here, the June 5 prior approval order applied broadly to any application made by either plaintiff or defendant; it was not narrowly focused on specific issues. The order required pre- screening before an application could be considered a motion, but it did not identify who would screen the applications or what criteria would be applied. The court did not identify other motions that previously were deemed to be frivolous. The court did not make reference to any prior sanctions. As such, we reverse the June 5, 2015 prior approval order that required pre-screening and remand the issue for consideration in light of Parish. A-0747-15 is affirmed; A-5206-14 is reversed and remanded. 14 A-5206-14T3
Date: December 1, 2017
Docket Number: a5206-14 SUTER, J.A.D. In these consolidated appeals, defendant Hanson Lo appeals portions of post-judgment matrimonial orders entered by the Family Part on May 29, 2015; June 5, 2015; July 24, 2015; and September 1, 2015. His appeal of the July 24, 2015 order was out of time and we decline to consider it.2 We reverse and remand the June 5, 2015 order that required pre-screening of the parties' motions and is the subject of A-5206-14. We direct the court to apply the holding in Parish v. Parish, 412 N.J. Super. 39, 51 (App. Div. 2010), should there be the need for any future order to control the applications for relief made by one or both of the parties. We affirm the portions of the other orders that defendant appeals in A-0747-15. I. Plaintiff Rui-Ru Ji and defendant Hanson Shuen Lo were married in 1998. Following a lengthy trial, the Family Part entered a dual judgment of divorce (DJOD) on May 31, 2013. 2 We also decline to consider any argument regarding paragraph 24 of the June 5, 2015 order because it was not listed on defendant's notice of appeal. 2 A-5206-14T3 They have two daughters, Annie and May,3 who were twelve and eight at the time of the divorce. Among other issues, the DJOD addressed custody and parenting time. The DJOD provided for the appointment of a parenting time coordinator to "resolve parenting time disputes between the parties." Among the reasons given for appointing the parenting coordinator was the need to "streamline the resolution of parenting disputes." The parties were ordered to submit all disputes to the parenting coordinator before "involving the court by motion." The parties were to include the recommendation of the parenting coordinator in their post-judgment motions. There have been more than thirty post-judgment motions, with multiple requests for relief, and orders to show cause filed since entry of the DJOD. Because we write for parties who are familiar with the procedural and factual history of their litigation, we discuss only such portions of the orders as relate to these appeals. Defendant appeals portions of four orders: May 29, 2015, paragraph 2; June 5, 2015 (the June 5 order) paragraphs 4, 5, 7, 21, 22 and 28; June 5, 2015 that required prior approval before a filing can be treated as a motion (the June 5 prior approval 3 We have used fictitious names to preserve the children's privacy. 3 A-5206-14T3 order); and September 1, 2015, paragraphs 1, 9, 13, 14, 20, 21 and 22.4 The June 5 prior approval order is appealed under A-5206-14 and addressed in section IV, infra. II. A. Under the DJOD, defendant exercised parenting time with May during the week and overnight every other weekend. Defendant was not to "sleep in the same bedroom . . . during his visitation sessions." Defendant's parenting time with Annie was suspended until he and Annie "attend[ed] therapy together concerning their relationship issues." In April 2014, defendant's overnights with May were suspended until he could provide proof to the parenting coordinator of his living arrangements. His weekly parenting time continued. That order is not part of this appeal. In July 2014, defendant's request for reinstatement of his overnight parenting time with May 4 We address the May 29 and June 5 orders in this appeal because the record does not permit our determination that they were untimely appealed. Defendant filed a motion for reconsideration as to both of the orders on June 22, 2015, which motion was decided on September 1, 2015. This tolled the time for appeal. R. 2:4- 3(e). Defendant's notice of appeal was filed October 5, 2015, and amended October 9, 2015, within forty-five days of September 1. We can not determine from the record when the underlying orders were served. 4 A-5206-14T3 was denied because he still had not obtained a "simple home inspection." That order also is not part of this appeal. In 2015, plaintiff sought to amend the parties' parenting schedule to reflect recommendations by the parenting coordinator, which included visitation on Thursday, some Saturdays and Sundays, but no overnights. Defendant requested additional time with May on Sunday during the day. He did not ask for overnight visitation. He also asked that the court conduct an in camera interview with May to "gauge her opinions on how she likes to be treated and the parenting time schedule." Defendant did not ask for parenting time with Annie. On May 29, 2015, the Family Part judge ordered parenting time for defendant consistent with the recommendation of the parenting coordinator. Defendant's overnight parenting time remained suspended because he had not submitted to an inspection of his residence as previously ordered. Defendant subsequently renewed his request that the court conduct an in camera interview, now with both children, about a number of issues including parenting time. He did not ask for overnight parenting time with May or Annie. In the June 5, 2015 order, the court denied that request because there was "no custody determination being made . . . – there is only an on-going dispute between the parties regarding parenting time." 5 A-5206-14T3 Defendant asked to resume overnight visitation with May once he rented a two-bedroom apartment. In the July 24, 2015 order, the court found defendant showed changed circumstances warranting a modification. Because safety issues were now satisfied, which had led to suspension of defendant's parenting time, the court ordered that defendant could resume overnight parenting time with May. However, the court found it was not in May's best interest to revert "immediately" to the DJOD parenting time schedule, and modified the parenting time schedule to include only one overnight every other weekend rather than two. Future requests for modification could be made, consistent with the DJOD, after first presenting the request to the parenting coordinator. Defendant did not request parenting time with Annie. Defendant sought reconsideration of his overnight parenting time with May because he contended he had not been ordered to submit to a home inspection and was penalized by having not complied. On September 1, 2015, the court denied defendant's request for reconsideration. Defendant contends on appeal that the court permanently modified his parenting time without conducting a best interest analysis, without making findings of fact or considering relevant, credible evidence and by simply accepting the recommendation of the parenting coordinator. 6 A-5206-14T3 B. Defendant requested that the court hold plaintiff in contempt because he claimed she made false statements in some of her motion papers submitted to the court. He alleged that she "falsely accused me of stealing monies from our joint bank account" had "stolen my identity" and then tried to "frame me." Defendant alleged Bank of America commenced an investigation and that the police were investigating the issue. On June 5, 2015, the court denied defendant's request for entry of a contempt order noting that defendant had involved the local police and county prosecutor and "law enforcement . . . already subpoenaed the relevant account statements." Defendant's request for reconsideration of this issue was denied on September 1, 2015, because defendant did not provide any new information or demonstrate that the decision was palpably incorrect or irrational. Defendant appeals the June 5 and September 1 orders, contending the court failed to make appropriate findings of fact or consider relevant, credible evidence about the merits of his underlying contentions and plaintiff's alleged misrepresentations. C. Annie "threatened to harm herself" in November 2012 and "resisted visiting with defendant since that time." Defendant's 7 A-5206-14T3 parenting time with Annie was suspended under the DJOD until they could "attend therapy together concerning their relationship issues." Annie was hospitalized 2014 following a suicide attempt. The DJOD provided that "with regard to medical choices," plaintiff had "full custody" of the children. In entering the DJOD, the court found that giving plaintiff full medical authority regarding the children was in the "best interests" of the children and that plaintiff was "better equipped to make these decisions on her own." Defendant contended that plaintiff's "abusive" parenting style related to Annie's suicide attempt and that her neglect was putting the children at risk by ignoring her need for therapy. He wanted Annie to continue with a particular therapist who was identified in the DJOD. He requested an order to stop plaintiff from interfering with Annie's therapy, to cooperate with her therapy and for the court to appoint an expert to assess any acts or symptoms of parental alienation by plaintiff. The court denied these requests in the June 5, 2015 order. Noting that the DJOD required Annie to attend therapy with a specific therapist "on an as needed basis as she reasonably determines," the court found defendant had not shown that therapy with this doctor was needed. In addition, defendant had not shown the suicide attempt was related to plaintiff's parenting, or that 8 A-5206-14T3 she interfered with or was not cooperating with Annie's therapy. The court denied defendant's request to appoint an expert to assess whether there was parental alienation because he had not shown evidence of alienation. The court denied defendant's request to conduct an in camera interview with the children because there was no pending request to change custody. Defendant's request for reconsideration of these issues was denied on September 1, 2015. On appeal, defendant contends plaintiff is not in compliance with the DJOD by not continuing therapy with the doctor identified therein. Although acknowledging that Annie had therapy with three other doctors, he contends that plaintiff did not show the court that they were superior physicians for Annie. He alleged he was not apprised of the children's welfare and broadly alleged evidence of "alienation tactics." He contends the court should determine the cause of the suicide attempt under its "parens patriae interest" and blamed plaintiff's parenting. III. We review the Family Part judge's findings in accordance with a deferential standard of review, recognizing the court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Thus, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. 9 A-5206-14T3 v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). However, "[a]lthough a family court's factual findings are entitled to considerable deference, we do not pay special deference to its interpretation of the law. [T]he trial court is in no better position than [an appellate court] when interpreting a statute or divining the meaning of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012) (citations omitted). We have no necessity to consider whether the court abdicated its authority to the parenting coordinator, as alleged by defendant, when it adopted her recommendation about parenting time in the May 29, 2015 order. Although defendant contends this was done without "conduct[ing] any sort of factual finding as to whether [modification of the parties' custody and parenting time agreement] would be in the best interests of the children," that issue is moot. The May 29 order was modified by the July 24, 2015 order. See City of Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999) (providing that "courts of this state do not resolve issues that have become moot due to the passage of time or intervening events."). The July 24 order allowed overnight parenting time with May. Although defendant contends the court abused its discretion by entering that order, defendant's overnight parenting time with May is not squarely before us because defendant did not timely appeal that order. Even if he had, we 10 A-5206-14T3 find no abuse of discretion by the court in ordering overnight parenting time with May that was not "immediately" what it had been in the DJOD, given the suspension of overnight parenting with her for nearly fifteen months and the high conflict nature of the family. We similarly find no abuse of discretion by the court's entry of the other orders that are appealed in A-0747-15. We agree with the court that defendant did not show plaintiff "has failed to comply with her obligations under the terms of the [DJOD] with respect to her duties as the sole legal custodian in the domain of medical and other related choices." There was no evidence that therapy was not being provided for Annie by competent physicians or that plaintiff was not cooperating in obtaining or providing those services. We agree with the court that defendant's proofs did not demonstrate the necessity for the court to appoint an expert on parental alienation. See R. 5:3-3(a) (providing that appointment of experts by the court is within the court's discretion to assist in disposition of an issue). We agree there was no necessity to interview the children in camera when the issues involved parenting time and not custody. The court did not abuse its discretion by not holding plaintiff in contempt. Defendant asked for reconsideration of the court's orders. We agree with the court that defendant presented no new evidence 11 A-5206-14T3 for the court's consideration nor did he show that the court's decision was based on incorrect reasoning. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.) (citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (providing that reconsideration is "granted only under very narrow circumstances . . . in which either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.")), certif. denied, 174 N.J. 544 (2002). After carefully reviewing the record and the applicable legal principles, we conclude that defendant's further arguments in A- 0747-15 are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). IV. The court's June 5, 2015 prior approval order precluded both plaintiff and defendant "from filing any further applications for relief without obtaining prior authorization from this [c]ourt." That order allowed the parties to submit requests for relief but they were to be "pre-approved" before "converting" them to become motions in the Family Part. The court explained in its written statement of reasons that the parties repeatedly filed motions for relief since the divorce. The multiple applications often were 12 A-5206-14T3 "procedurally deficient" and included claims that the court already had decided. Considering this a misuse of motion practice, the court described their actions as the "repetitive filing of deficient and frivolous motions." In A-5206-14, defendant appeals the June 5, 2015 prior approval order. He contends the court erred because there had never been a finding that the parties' motions were frivolous or filed for an abusive purpose, nor had the courts, who heard the motions, imposed sanctions. Our review of the June 5, 2015 prior approval order and accompanying statement of reasons reveals that it was entered without application of our holding in Parish, supra, 412 N.J. Super. at 54, where we described the findings required before a court could enjoin litigants from presenting their claims. Specifically, In those limited instances where appropriate, an injunction should be issued only after the judge (1) makes a finding that past pleadings were frivolous or designed for an abusive purpose; (2) fully scrutinizes the newly filed pleadings and determines them to be repetitive and within the scope of the proscribed vexatious matters; and (3) has unsuccessfully attempted to abate the abuse by employing sanctions such as those provided by Rule 1:10- 3 or Rule 5:3-7. Additionally, any restraint entered must be circumscribed, not global, and narrowly focus on the issues shown to warrant restraint. 13 A-5206-14T3 [Parish, supra, 412 N.J. Super. at 54.] As we said there, "[t]he business of the courts is to finalize disputes. Any discretionary exercise of the extreme remedy of enjoining or conditioning a litigant's ability to present his or her claim to the court must be used sparingly; it is not a remedy of first or even second resort." Ibid. Here, the June 5 prior approval order applied broadly to any application made by either plaintiff or defendant; it was not narrowly focused on specific issues. The order required pre- screening before an application could be considered a motion, but it did not identify who would screen the applications or what criteria would be applied. The court did not identify other motions that previously were deemed to be frivolous. The court did not make reference to any prior sanctions. As such, we reverse the June 5, 2015 prior approval order that required pre-screening and remand the issue for consideration in light of Parish. A-0747-15 is affirmed; A-5206-14 is reversed and remanded. 14 A-5206-14T3
IN RE NEWARK ENERGY CENTER PROPOSED AIR POLLUTION CONTROL OPERATING PERMIT MODIFICATION
Date: December 1, 2017
Docket Number: a5794-14
Date: December 1, 2017
Docket Number: a5794-14
SCHIFFMAN, ABRAHAM KAUFMAN & RITTER, PC v. MEREDITH FISHER
Date: November 30, 2017
Docket Number: a0259-16
Date: November 30, 2017
Docket Number: a0259-16
LIONELL MILLER v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Date: November 30, 2017
Docket Number: a5038-13
Date: November 30, 2017
Docket Number: a5038-13
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. v. RAOUL NIAMIEN
Date: November 30, 2017
Docket Number: a5054-15
Date: November 30, 2017
Docket Number: a5054-15
BOROUGH OF BARRINGTON v. BLOCK 57, LOTS 7.01, 8.01 9.01 ASSESSED AND RECORDED OWNER, STEPHEN RABINOWITZ
Date: November 30, 2017
Docket Number: a5070-15
Date: November 30, 2017
Docket Number: a5070-15
IN THE MATTER OF THE ESTATE OF MILDRED SUESSER, deceased
Date: November 29, 2017
Docket Number: a0098-16
Date: November 29, 2017
Docket Number: a0098-16
MERVIN ALLEN v. HAGEN CONSTRUCTION/MBA ENTERPRISES JOINT VENTURE LLC
Date: November 29, 2017
Docket Number: a2759-15
Date: November 29, 2017
Docket Number: a2759-15
DEWANE PARKER v. ATLANTIC CITY BOARD OF EDUCATION
Date: November 29, 2017
Docket Number: a3472-15 PER CURIAM The Atlantic City Board of Education (Board) appeals from Special Civil Part orders dated March 1, 2016, and March 15, 2016, granting summary judgment in favor of two Board employees, Dewane Parker and Gary Adair. These matters involve the recovery of money paid to Parker and Adair for their emergency shelter work during Hurricane Sandy. Parker and Adair were both supervisors who were paid annual salaries under individual contracts. The Board contends that the motion judge erred in allowing Parker and Adair to retain money paid to them for their work during the storm. We affirm. During Hurricane Sandy, the City of Atlantic City (City) asked to use the Board's schools as shelters for residents who had not evacuated in advance of the storm. The Atlantic City Board 1 We have consolidated these two appeals for purposes of this opinion. 2 A-3472-15T3 of Education agreed, and the City paid the Board to use the schools as emergency shelters. The Board's superintendent of operations, Barry Caldwell, testified at his deposition that he contacted Parker about staffing the emergency shelters. Caldwell also testified that when Board employees were asked to assist with the Hurricane Sandy emergency shelters, he was aware they were not obligated to perform the work. Moreover, Caldwell assured Parker that those who worked during the storm would get paid for their work, either by the Board or by the City. On the weekend preceding the storm, and for the duration of the storm, Parker and other school staff prepared and staffed the school buildings for use as emergency shelters. Schools were not in session during this time period, and Parker and Adair were not working in their capacity as school supervisors. There were no issues related to the school facilities, such as leaking roofs or broken windows, requiring repair to ensure that the school buildings would be operational when school resumed. After the storm event, in accordance with Caldwell's instructions, Parker and Adair submitted timesheets reflecting their work at the emergency shelters. Caldwell approved the timesheets. After payroll processed the timesheets, they were returned to Caldwell or the superintendent of schools, who gave 3 A-3472-15T3 them final approval. For their emergency shelter work, Adair was paid $3,174.32 and Parker was paid $13,999.59. More than two years later, the New Jersey State Office of Fiscal Accountability and Compliance (OFAC) investigated possible overpayment to Board employees during Hurricane Sandy. In its investigative report, OFAC concluded that "payments issued to [administrators, such as Parker and Adair,] were not authorized by the respective employment contracts." OFAC found that administrators were not entitled to overtime pay as they were exempt under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201-219. OFAC recommended that the Board consider recovering the money paid to Parker and Adair for their Hurricane Sandy work. In accordance with the OFAC report, the Board was instructed to adopt a corrective action plan or appeal OFAC's findings within thirty days. The Board elected to adopt a corrective action plan whereby the Board demanded that all administrators, including Parker and Adair, reimburse the money paid to them during Hurricane Sandy. Parker and Adair declined to repay the money, but three other administrators reimbursed the Board. The Board filed suit against Adair demanding reimbursement of the money paid during Hurricane Sandy. Because Parker was terminated as a Board employee, the Board unilaterally elected to withhold $13,999.59 from his accrued vacation pay and paid Parker 4 A-3472-15T3 the difference in the amount of $3,081.41. Parker had no notice of the Board's action until he received his unused vacation pay. Parker then sued the Board for withholding his accrued vacation pay. The parties moved for summary judgment. The motion judge granted summary judgment in favor of Parker and Adair on the bases of quantum merit and unjust enrichment. Under the highly unusual and unique circumstances of Hurricane Sandy, the motion judge concluded that Parker and Adair were entitled to compensation based upon their performance of extraordinary and unexpected work with the expectation of remuneration. He also observed that the Board was paid by the City for the emergency shelter work performed by Parker and Adair, and concluded that the Board would be unjustly enriched if it kept the City's payment and, simultaneously, recouped the money it paid Parker and Adair. In Parker's case, the motion judge held that the Board's unilateral decision to offset his vacation pay was a deprivation of property without due process of law. In Adair's case, the same motion judge specifically found that Adair's Hurricane Sandy work was outside the scope of his employment contract. Our review of orders granting summary judgment is de novo, and we apply the same standard employed by the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). 5 A-3472-15T3 Accordingly, we must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). The Board argues the motion judge failed to consider the law compelling it to respond to OFAC. The Board contends that N.J.A.C. 6A:23A-5.6 requires adoption of a corrective action plan. The Board claims it was legally required to recoup the money paid to Parker and Adair and the Board fulfilled its legal responsibilities by filing suit against Adair and withholding Parker's accrued vacation pay. However, the Board failed to cite any legal authority in support of this argument. The OFAC report only recommended the Board consider seeking reimbursement. Rather than dispute OFAC's findings by filing an appeal, the Board decided to pursue reimbursement from Parker and Adair as its corrective action plan. 6 A-3472-15T3 The Board's primary argument is that it was effectively compelled to recover the monies paid to Parker, Adair, and three other administrators based on the OFAC report. The OFAC report, however, was not a legal mandate to institute legal actions against Parker and Adair. Instead, the report evaluated whether administrators were entitled to overtime under their contracts. OFAC concluded that administrators were not entitled to overtime. That conclusion does not control in these cases because the undisputed facts established that Parker and Adair were not doing work as Board employees; rather, they were doing work outside their contractual duties by assisting the City in setting up shelters for people displaced by Hurricane Sandy. The Board next argues the motion judge erred because Parker and Adair were not entitled to overtime wages under the FLSA and New Jersey Minimum Wage Law (MWL), N.J.S.A. 34:11-56a to -56a38. The Board misunderstands Parker and Adair's position. Parker and Adair do not dispute that they are ineligible for overtime in conjunction with their contractual job duties. Parker and Adair argue that the work they performed during Hurricane Sandy was extra-contractual and, thus, compensable under a quasi-contract theory. Adair was in charge of maintaining the facilities for educational use. Parker was head of security and truancy and 7 A-3472-15T3 tasked with ensuring the safety of students and teachers as well as monitoring student truancy. We concur with the motion judge's determination that Adair's "labor during Hurricane Sandy [did] not fall within the scope of his job description" and that Parker "bore the tremendous burden of coordinating and supervising Hurricane Sandy relief," such that Parker's and Adair's efforts were outside their employment contracts. Parker's and Adair's job duties were clearly related to school functions and the schools were closed when Parker and Adair worked at the emergency shelters. Thus, Parker and Adair were not performing work within their contractual scope during Hurricane Sandy. The work performed by Parker and Adair under the unique circumstances of the storm event constituted completely different work – emergency shelter work – for a completely different entity – the City. The Board also argues that the motion judge erred in denying its motion based upon unjust enrichment. To prove a claim for unjust enrichment, a party must demonstrate that the opposing party "received a benefit and that retention of that benefit without payment would be unjust." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007) (quoting VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554, (1994)). A quasi-contract theory "requires that plaintiff show that it expected remuneration from 8 A-3472-15T3 the defendant at the time it performed or conferred a benefit on defendant and that the failure of remuneration enriched defendant beyond its contractual rights." Ibid. (quoting VRG Corp., supra, 135 N.J. at 554). The Board was paid approximately $168,000 by the City for emergency shelter services provided by Board employees, including Parker and Adair. The Board has not reimbursed the City for any sums it recouped from employees who worked at the emergency shelters during Hurricane Sandy. There is nothing in the record to indicate that the City has demanded reimbursement from the Board or that the State has withheld school funding due to the Board's payment of Parker and Adair. Consequently, we agree with the motion judge that the Board has been enriched by the work of Parker and Adair in satisfaction of their unjust enrichment claim. Nor did the Board dispute Parker's and Adair's expectation of pay for their work during Hurricane Sandy. Parker was advised by Caldwell that he would be paid for his time. Parker and Adair kept track of the hours they worked, submitted their time to the Board, and were issued checks for their work. Thus, the Board was unjustly enriched by withholding Parker's accrued vacation pay, and would be unjustly enriched if reimbursed by Adair. Based upon the undisputed and competent evidential materials, involving a rare, 100-year storm event, the motion judge correctly 9 A-3472-15T3 determined that the Board would be unjustly enriched if Parker and Adair, who were working outside of their school contractual obligations, were required to return the money paid for their work at the emergency shelters. Affirmed. 10 A-3472-15T3
Date: November 29, 2017
Docket Number: a3472-15 PER CURIAM The Atlantic City Board of Education (Board) appeals from Special Civil Part orders dated March 1, 2016, and March 15, 2016, granting summary judgment in favor of two Board employees, Dewane Parker and Gary Adair. These matters involve the recovery of money paid to Parker and Adair for their emergency shelter work during Hurricane Sandy. Parker and Adair were both supervisors who were paid annual salaries under individual contracts. The Board contends that the motion judge erred in allowing Parker and Adair to retain money paid to them for their work during the storm. We affirm. During Hurricane Sandy, the City of Atlantic City (City) asked to use the Board's schools as shelters for residents who had not evacuated in advance of the storm. The Atlantic City Board 1 We have consolidated these two appeals for purposes of this opinion. 2 A-3472-15T3 of Education agreed, and the City paid the Board to use the schools as emergency shelters. The Board's superintendent of operations, Barry Caldwell, testified at his deposition that he contacted Parker about staffing the emergency shelters. Caldwell also testified that when Board employees were asked to assist with the Hurricane Sandy emergency shelters, he was aware they were not obligated to perform the work. Moreover, Caldwell assured Parker that those who worked during the storm would get paid for their work, either by the Board or by the City. On the weekend preceding the storm, and for the duration of the storm, Parker and other school staff prepared and staffed the school buildings for use as emergency shelters. Schools were not in session during this time period, and Parker and Adair were not working in their capacity as school supervisors. There were no issues related to the school facilities, such as leaking roofs or broken windows, requiring repair to ensure that the school buildings would be operational when school resumed. After the storm event, in accordance with Caldwell's instructions, Parker and Adair submitted timesheets reflecting their work at the emergency shelters. Caldwell approved the timesheets. After payroll processed the timesheets, they were returned to Caldwell or the superintendent of schools, who gave 3 A-3472-15T3 them final approval. For their emergency shelter work, Adair was paid $3,174.32 and Parker was paid $13,999.59. More than two years later, the New Jersey State Office of Fiscal Accountability and Compliance (OFAC) investigated possible overpayment to Board employees during Hurricane Sandy. In its investigative report, OFAC concluded that "payments issued to [administrators, such as Parker and Adair,] were not authorized by the respective employment contracts." OFAC found that administrators were not entitled to overtime pay as they were exempt under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201-219. OFAC recommended that the Board consider recovering the money paid to Parker and Adair for their Hurricane Sandy work. In accordance with the OFAC report, the Board was instructed to adopt a corrective action plan or appeal OFAC's findings within thirty days. The Board elected to adopt a corrective action plan whereby the Board demanded that all administrators, including Parker and Adair, reimburse the money paid to them during Hurricane Sandy. Parker and Adair declined to repay the money, but three other administrators reimbursed the Board. The Board filed suit against Adair demanding reimbursement of the money paid during Hurricane Sandy. Because Parker was terminated as a Board employee, the Board unilaterally elected to withhold $13,999.59 from his accrued vacation pay and paid Parker 4 A-3472-15T3 the difference in the amount of $3,081.41. Parker had no notice of the Board's action until he received his unused vacation pay. Parker then sued the Board for withholding his accrued vacation pay. The parties moved for summary judgment. The motion judge granted summary judgment in favor of Parker and Adair on the bases of quantum merit and unjust enrichment. Under the highly unusual and unique circumstances of Hurricane Sandy, the motion judge concluded that Parker and Adair were entitled to compensation based upon their performance of extraordinary and unexpected work with the expectation of remuneration. He also observed that the Board was paid by the City for the emergency shelter work performed by Parker and Adair, and concluded that the Board would be unjustly enriched if it kept the City's payment and, simultaneously, recouped the money it paid Parker and Adair. In Parker's case, the motion judge held that the Board's unilateral decision to offset his vacation pay was a deprivation of property without due process of law. In Adair's case, the same motion judge specifically found that Adair's Hurricane Sandy work was outside the scope of his employment contract. Our review of orders granting summary judgment is de novo, and we apply the same standard employed by the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). 5 A-3472-15T3 Accordingly, we must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). The Board argues the motion judge failed to consider the law compelling it to respond to OFAC. The Board contends that N.J.A.C. 6A:23A-5.6 requires adoption of a corrective action plan. The Board claims it was legally required to recoup the money paid to Parker and Adair and the Board fulfilled its legal responsibilities by filing suit against Adair and withholding Parker's accrued vacation pay. However, the Board failed to cite any legal authority in support of this argument. The OFAC report only recommended the Board consider seeking reimbursement. Rather than dispute OFAC's findings by filing an appeal, the Board decided to pursue reimbursement from Parker and Adair as its corrective action plan. 6 A-3472-15T3 The Board's primary argument is that it was effectively compelled to recover the monies paid to Parker, Adair, and three other administrators based on the OFAC report. The OFAC report, however, was not a legal mandate to institute legal actions against Parker and Adair. Instead, the report evaluated whether administrators were entitled to overtime under their contracts. OFAC concluded that administrators were not entitled to overtime. That conclusion does not control in these cases because the undisputed facts established that Parker and Adair were not doing work as Board employees; rather, they were doing work outside their contractual duties by assisting the City in setting up shelters for people displaced by Hurricane Sandy. The Board next argues the motion judge erred because Parker and Adair were not entitled to overtime wages under the FLSA and New Jersey Minimum Wage Law (MWL), N.J.S.A. 34:11-56a to -56a38. The Board misunderstands Parker and Adair's position. Parker and Adair do not dispute that they are ineligible for overtime in conjunction with their contractual job duties. Parker and Adair argue that the work they performed during Hurricane Sandy was extra-contractual and, thus, compensable under a quasi-contract theory. Adair was in charge of maintaining the facilities for educational use. Parker was head of security and truancy and 7 A-3472-15T3 tasked with ensuring the safety of students and teachers as well as monitoring student truancy. We concur with the motion judge's determination that Adair's "labor during Hurricane Sandy [did] not fall within the scope of his job description" and that Parker "bore the tremendous burden of coordinating and supervising Hurricane Sandy relief," such that Parker's and Adair's efforts were outside their employment contracts. Parker's and Adair's job duties were clearly related to school functions and the schools were closed when Parker and Adair worked at the emergency shelters. Thus, Parker and Adair were not performing work within their contractual scope during Hurricane Sandy. The work performed by Parker and Adair under the unique circumstances of the storm event constituted completely different work – emergency shelter work – for a completely different entity – the City. The Board also argues that the motion judge erred in denying its motion based upon unjust enrichment. To prove a claim for unjust enrichment, a party must demonstrate that the opposing party "received a benefit and that retention of that benefit without payment would be unjust." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007) (quoting VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554, (1994)). A quasi-contract theory "requires that plaintiff show that it expected remuneration from 8 A-3472-15T3 the defendant at the time it performed or conferred a benefit on defendant and that the failure of remuneration enriched defendant beyond its contractual rights." Ibid. (quoting VRG Corp., supra, 135 N.J. at 554). The Board was paid approximately $168,000 by the City for emergency shelter services provided by Board employees, including Parker and Adair. The Board has not reimbursed the City for any sums it recouped from employees who worked at the emergency shelters during Hurricane Sandy. There is nothing in the record to indicate that the City has demanded reimbursement from the Board or that the State has withheld school funding due to the Board's payment of Parker and Adair. Consequently, we agree with the motion judge that the Board has been enriched by the work of Parker and Adair in satisfaction of their unjust enrichment claim. Nor did the Board dispute Parker's and Adair's expectation of pay for their work during Hurricane Sandy. Parker was advised by Caldwell that he would be paid for his time. Parker and Adair kept track of the hours they worked, submitted their time to the Board, and were issued checks for their work. Thus, the Board was unjustly enriched by withholding Parker's accrued vacation pay, and would be unjustly enriched if reimbursed by Adair. Based upon the undisputed and competent evidential materials, involving a rare, 100-year storm event, the motion judge correctly 9 A-3472-15T3 determined that the Board would be unjustly enriched if Parker and Adair, who were working outside of their school contractual obligations, were required to return the money paid for their work at the emergency shelters. Affirmed. 10 A-3472-15T3
SHREE RIDDHI SIDDHI HOSPITALITY, LLC v. SCOTTSDALE INSURANCE COMPANY
Date: November 29, 2017
Docket Number: a5210-15
Date: November 29, 2017
Docket Number: a5210-15
MICHAEL LEFKOWITZ v. THE STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF CAMDEN CAMDEN COUNTY, NEW JERSEY
Date: November 29, 2017
Docket Number: a5433-15
Date: November 29, 2017
Docket Number: a5433-15
IN THE MATTER OF THE ESTATE OF MELVIN SILVERMAN, DECEASED
Date: November 28, 2017
Docket Number: a1763-16
Date: November 28, 2017
Docket Number: a1763-16
NAN JIN SUH KIM v. REDSTONE TREMATORE WESTAMPTON LLC
Date: November 27, 2017
Docket Number: a3265-15
Date: November 27, 2017
Docket Number: a3265-15
SCOTT KENNEDY v. MONTCLAIR CENTER CORPORATION BUSINESS IMPROVEMENT DISTRICT
Date: November 27, 2017
Docket Number: a5422-14
Date: November 27, 2017
Docket Number: a5422-14
LOUIS NARVAEZ v. STATE OF NEW JERSEY JUDICIARY VICINAGE 4
Date: November 22, 2017
Docket Number: a3166-16
Date: November 22, 2017
Docket Number: a3166-16
MARIE ROGAN v. CHRISTOPHER LEIBLE
Date: November 22, 2017
Docket Number: a3757-14 PER CURIAM Defendants Christopher Leible and Patricia Zengel separately appeal from a judgment the trial court entered against them after suppressing their answers with prejudice for failure to make discovery.2 The trial court suppressed defendants' answers under the authority of Rule 4:23-5, even though the rule's procedural safeguards had not been followed. The ensuing proof hearing culminated in the entry of a substantial judgment that in part had no basis in fact or in law. For these reasons, we vacate the suppression orders and judgment, reinstate defendants' answers and affirmative defenses, and remand for further proceedings. Underlying the procedural issues on this appeal is an unconsummated contract for the sale of a residential condominium unit. Plaintiff Marie Rogan contracted to buy the unit from its 2 Because the judgment was not entered against Garibaldi, and because he has not filed an appeal, we do not include him when we refer to "defendants" throughout this opinion. 2 A-3757-14T2 owner, defendant Leible. Leible's real estate agent was defendant Zengel. Robert Garibaldi, an attorney, acted as the escrow agent for plaintiff's $40,000 deposit. Things went awry when plaintiff was unable to obtain a mortgage. The parties disputed the reason plaintiff could not get a mortgage. Plaintiff claimed the reason was the condominium association's involvement in litigation, a fact Garibaldi and defendants did not disclose to plaintiff when she signed the contract. Garibaldi and defendants, or at least defendant Leible, claimed plaintiff was not creditworthy. In any event, when plaintiff was unable to get a mortgage, she invoked the contract's mortgage contingency clause and demanded return of her deposit. When Garibaldi refused to return the deposit — because his "client [was] not willing to release the deposit at [that] time" — plaintiff commenced this action by filing a complaint against him and defendants. The complaint's four counts included causes of action for fraudulent misrepresentation, consumer fraud, breach of contract, and conversion. The breach of contract count alleged that Garibaldi and defendant Leible, not defendant Zengel, breached by refusing to return the deposit. Defendant Zengel was not a party 3 A-3757-14T2 to the contract. Similarly, the complaint's conversion count was based on defendant Leible's refusal to return the deposit. Garibaldi was a party as well as a potential witness, having informed plaintiff her deposit would not be returned. Notwithstanding these roles and the potential conflicts between defendants based on the complaint's allegations, Garibaldi undertook his own and defendants' representation. He filed an answer on behalf of himself and the others, and he filed a counterclaim on behalf of Leible. In response, plaintiff's attorney sent Garibaldi a letter demanding defendants withdraw their frivolous counterclaim pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1. They declined to do so. Plaintiff filed an answer to the counterclaim, asserting, among other things, defendants filed the counterclaim in bad faith, thus violating the Frivolous Action Statute, N.J.S.A. 2A:15-59.1. Plaintiff served defendants with discovery requests. When they did not timely respond, she filed a motion to compel discovery, as authorized by Rule 4:23-5(c). Defendants did not oppose the motion and the trial court granted it, ordering defendants to serve discovery responses within ten days or risk having their answer "stricken by the [c]ourt upon an ex parte application to this [c]ourt." Nonetheless, plaintiff filed a 4 A-3757-14T2 motion to suppress defendants' answer without prejudice, as authorized by Rule 4:23-5(a)(1). The court granted the motion. Plaintiff served Garibaldi with the suppression order. Garibaldi neither sent the order to his clients, defendants, nor notified them "in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore." R. 4:23-5(a)(1). A week after the court granted plaintiff's suppression motion, Garibaldi moved to deposit plaintiff's $40,000 into court and to be dismissed from the case as he was no longer acting as an escrow agent. R. 4:57-1. Plaintiff opposed Garibaldi's motion to be dismissed from the suit and cross-moved to disqualify Garibaldi from representing defendants based on his status as a witness. The court granted Garibaldi's motion to deposit the escrowed funds, denied without prejudice his motion to be dismissed from the suit, and granted plaintiff's motion to disqualify Garibaldi from representing defendants. The same day, defendant Zengel responded to plaintiff's request for production of documents. The response included general objections, assertions of "to be provided," and claims certain requests were not applicable to the case. In addition, defendant 5 A-3757-14T2 Zengel completed her interrogatory answers, but they were not given to plaintiff. When defendants did not timely file a motion to reinstate their answer, plaintiff filed a motion to suppress their answer with prejudice as authorized by Rule 4:23-5(a)(2). Because defendants were now unrepresented, plaintiff's counsel sent them copies of the motion and a letter, as required by the rule, "in the form prescribed by Appendix II-B, of the pendency of the motion to . . . suppress with prejudice." Ibid. Defendants did not oppose the motion and did not appear in court on its return date. The court granted the motion "FOR REASONS SET FORTH BY MOVANT." Shortly after the court suppressed defendants' answer with prejudice, defendants retained new counsel. Defendants subsequently served the delinquent discovery and filed a motion to reinstate their answer. The parties disputed the adequacy of defendants' discovery responses. The court denied the motion and scheduled a proof hearing. After further motion practice, the court ordered the deposited funds returned to plaintiff. Following the proof hearing, at which plaintiff and her accountant testified, the court entered judgment against defendants for $140,105: $38,172 for compensatory damages, trebled to $114,516 pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 6 A-3757-14T2 56:8-1 to -204; and $25,589 for counsel fees and costs. The trial court determined that defendant Leible had wrongfully exercised control over the deposit when he refused to refund it, and his conduct constituted an act of conversion. The court further found defendants had committed consumer fraud by failing to disclose the condominium association was in litigation. In doing so, the court made findings of fact as to defendant Leible's knowledge of the condominium association litigation, but none as to defendant Zengel's knowledge of the litigation. Lastly, the trial court awarded attorney's fees to plaintiff, finding plaintiff was entitled to fees under the CFA. The court noted Rule 1:4-8 also supported the award of fees. The court entered an order of judgment. Defendants appealed. On appeal, defendants contend the trial court abused its discretion by suppressing their answer with prejudice without adhering to the requirements of Rule 4:23-5, and by denying their motion to reinstate the answer after they served discovery responses. They also contend the trial court committed numerous errors in entering judgment, particularly under the CFA. Plaintiff disputes the trial court erred in any way. She insists defendants utterly disregarded their discovery obligations, thus warranting the suppression of their answer with 7 A-3757-14T2 prejudice. She further insists she produced ample evidence at the proof hearing to support the court's consumer fraud award as well as its award of fees and costs. We begin with defendants' challenges to the trial court's suppression of their answer with prejudice. We review the trial court's ruling under an abuse of discretion standard. A & M Farm & Garden Ctr. v. Am. Sprinkler Mech., LLC, 423 N.J. Super. 528, 534 (App. Div. 2012); Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 22-23 (App. Div. 2007). Rule 4:23-5 establishes a two-step process that a party must follow to obtain an order dismissing or suppressing with prejudice the pleading of an adversary who has failed to make discovery. The moving party must first "move, on notice, for an order dismissing or suppressing the pleading of the delinquent party" without prejudice. R. 4:23-5(a)(1).3 If the court has not vacated an order of dismissal or suppression without prejudice, "the party entitled to the discovery may, after the expiration of [sixty] days from the date of the order, move on notice for an order of dismissal or suppression with prejudice." R. 4:23-5(a)(2). 3 "Prior to moving to dismiss pursuant to subparagraph (a)(1) of this rule, a party may move for an order compelling discovery demanded pursuant to R. 4:14 [depositions], R. 4:18 [discovery and inspection of documents] and R. 4:19 [physical and mental examinations]." R. 4:23-5(c). 8 A-3757-14T2 Rule 4:23-5 contains procedural safeguards to bolster its main objective, which "is to compel discovery responses rather than to dismiss the case." A & M Farm, supra, 423 N.J. Super. at 534. Rule 4:23-5(a)(1) provides: Upon being served with the order of dismissal or suppression without prejudice, counsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore. The filing and service of the subsequent motion to dismiss or suppress with prejudice triggers additional safeguards. Rule 4:23-5(a)(2) provides: The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client's whereabouts have not been able to be determined and such service on the client was therefore not made. If the delinquent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices or, in lieu thereof, a certification as to why service was 9 A-3757-14T2 not made. Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party. In addition to the attorneys' obligations, Rule 4:23-5(a)(3) imposes obligations on the court: If the attorney for the delinquent party fails to timely serve the client with the original order of dismissal or suppression without prejudice, fails to file and serve the affidavit and the notifications required by this rule, or fails to appear on the return date of the motion to dismiss or suppress with prejudice, the court shall, unless exceptional circumstances are demonstrated, proceed by order to show cause or take such other appropriate action as may be necessary to obtain compliance with the requirements of this rule. This judicial obligation "was designed as a fail-safe measure to ensure that the ultimate sanction is not needlessly imposed." A & M Farm, supra, 423 N.J. Super. at 537. "The requirement that the court take 'appropriate action as may be necessary to obtain compliance' calls upon the court to exercise its inherent authority to make certain its decision to terminate the litigation is an informed one." Id. at 537-38 (quoting R. 4:23-5(b)(3)). Thus, in cases where "there is nothing before the court showing that a litigant has received notice of its exposure to the ultimate sanction, the court must take some action to obtain compliance with the requirements of the rule before entering an order of 10 A-3757-14T2 dismissal or suppression with prejudice." Id. at 539. In addition, "the court must set forth what effort was made to secure compliance on the record or on the order." Ibid. Here, Garibaldi did not send defendants the required notice after their answer was suppressed without prejudice. He did not even send them a copy of the order. Although plaintiff's attorney sent defendants copies of the motion to dismiss with prejudice, their attorney had been disqualified from representing them and they apparently did not appear on the return date of the motion. Rule 4:23-5(a)(3) requires that a court take action if the attorney for the delinquent party has not served that party with the order of dismissal or suppression without prejudice, fails to file and serve the affidavit and notifications required by the rule, or fails to appear on the return date of the motion. Here, it is undisputed Garibaldi did not comply with the requirements of Rule 4:23-5(a)(1). Neither an attorney nor defendants appeared on the return date of the motion to dismiss with prejudice. Rule 4:23-5(a)(3) required the court to take some action to obtain compliance with the requirements of the rule before entering the order of suppression. The court was also required to set forth on the record or on the suppression order what effort was made to secure compliance. The court did neither. The oversight is 11 A-3757-14T2 particularly troublesome in view of the court's disqualification of defendants' counsel a month before plaintiff filed the motion to suppress with prejudice. The court could have had its clerk contact Garibaldi or compelled Garibaldi's appearance to determine if he had complied with Rule 4:23-5 while representing defendants. Either action would have disclosed several pertinent facts: Garibaldi's non- compliance with Rule 4:23-5(a)(1); when, or if, Garibaldi had informed defendants of his disqualification; and perhaps why defendants had yet to retain new counsel or take any action to avoid the suppression of their answer with prejudice. We conclude the court misapplied its discretion by imposing the ultimate sanction without attempting to determine compliance with Rule 4:23-5 under these circumstances. Plaintiff insists the trial court did not abuse its discretion in view of defendants' prolonged non-compliance with their discovery obligations and plaintiff's notification to defendants as required by Rule 4:23-5(a)(2). Although not entirely without merit, these arguments overlook the injustice that appears to have occurred, warranting reversal. See Abtrax Pharm., Inc. v. Elkins- Sinn, Inc., 139 N.J. 499, 517 (1995) (noting appellate courts 12 A-3757-14T2 should not interfere with a trial court's sanction for discovery misconduct "unless an injustice appears to have been done"). First, defendants were prejudiced by their attorney's undertaking their representation when he should have known he would be a witness, by his disqualification at a critical time during plaintiff's motion practice, and by his non-compliance with Rule 4:23-5. These circumstances contributed to the suppression of defendants' answer and ultimately to the judgment entered against them; a substantial judgment that in large part was unsupported by facts and contrary to law. The judgment entered against defendant Leible included treble damages and attorney's fees under the CFA, despite well-settled law that the CFA does not apply to a homeowner, such as defendant Leible in these circumstances. See, e.g., Zaman v. Felton, 219 N.J. 199, 223 (2014) (noting "our courts have declined to impose the CFA remedies upon the non-professional, casual seller of real estate"); Byrne v. Weichert Realtors, 290 N.J. Super. 126, 134 (App. Div.) (explaining that the provisions of the CFA "do[] not apply . . . to non-professional sellers of real estate, i.e. to the homeowner who sells a house in the normal course of events"), certif. denied, 147 N.J. 259 (1996). 13 A-3757-14T2 The CFA judgment against defendant Zengel is also questionable. Plaintiff alleged a combination of defendants' non- disclosure of the condominium association's litigation and the non-return of the deposit constituted consumer fraud and caused her damages. The trial court cited no evidence to support its conclusion that defendant Zengel was aware of the condominium association's litigation when plaintiff contracted to purchase the condominium unit. Moreover, defendant Zengel was not a party to the contract of sale and plaintiff produced no evidence at the proof hearing that Zengel participated in or influenced defendant Leible's decision not to return the security deposit. When a trial court requires a plaintiff to provide proof of liability as to a defaulting defendant, the plaintiff need only establish a prima facie case. Kolczycki v. City of E. Orange, 317 N.J. Super. 505, 514 (App. Div. 1999); Heimbach v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988); see also Pressler & Verniero, Current N.J. Court Rules, comment 2.2.2 on R. 4:43-2 (2018) (stating that "unless there is intervening consideration of public policy or other requirement of fundamental justice, the judge should ordinarily apply to plaintiff's proofs the prima facie case standard of R. 4:37-2(b) and R. 4:40-1, thus not weighing evidence or finding facts but only determining bare sufficiency"). Judgment 14 A-3757-14T2 should be denied if "some necessary element of plaintiff's prima facie case [is] missing or because plaintiff's claim [is] barred by some rule of law whose applicability [is] evident either from the pleadings or from the proofs presented." Heimbach, supra, 229 N.J. Super. at 23-24. Here, established precedent barred plaintiff's CFA claim against Leible, and plaintiff's claim against Zengel was missing elements of a prima facie case. Yet, the court entered a judgment that included treble damages and attorney's fees against defendants.4 We vacate the suppression orders and the judgment and remand for further proceedings. We do so because trial counsel did not comply with the requirements of Rule 4:23-5, the trial court made no attempt to comply with its obligation under the rule, defendants were left unrepresented by an attorney when the motion to suppress with prejudice was filed, and the consequence was the entry of a judgment in large part unsupported by facts or law. On remand, the trial court should conduct a management conference, within thirty days if practical, and enter a discovery order specifying the remaining discovery needed and the deadlines 4 Although the trial court stated plaintiff was entitled to attorney's fees under Rule 1:4-8, the court provided no analysis or explanation for this determination. 15 A-3757-14T2 for completion. Defendants will thus have explicit notice of their discovery obligations and the consequences of failing to timely discharge them. The merits of the causes of action pleaded in the complaint shall be decided following completion of discovery, by motion or at a trial, but not on the basis of the previous proof hearing or this opinion. Our opinion should not be read as precluding plaintiff from seeking fees or appropriate sanctions as a result of motion practice necessitated by defendants' failure to timely make discovery and Garibaldi's non-compliance with Rule 4:23-5. See R. 4:23-5(a)(3). Nor should our opinion be construed as suggesting that Leible's withholding of the deposit and his defenses to plaintiff's suit for its return either do or do not have merit. The suppression orders and judgment are vacated. Defendants' answer is reinstated. This matter is remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction. 16 A-3757-14T2
Date: November 22, 2017
Docket Number: a3757-14 PER CURIAM Defendants Christopher Leible and Patricia Zengel separately appeal from a judgment the trial court entered against them after suppressing their answers with prejudice for failure to make discovery.2 The trial court suppressed defendants' answers under the authority of Rule 4:23-5, even though the rule's procedural safeguards had not been followed. The ensuing proof hearing culminated in the entry of a substantial judgment that in part had no basis in fact or in law. For these reasons, we vacate the suppression orders and judgment, reinstate defendants' answers and affirmative defenses, and remand for further proceedings. Underlying the procedural issues on this appeal is an unconsummated contract for the sale of a residential condominium unit. Plaintiff Marie Rogan contracted to buy the unit from its 2 Because the judgment was not entered against Garibaldi, and because he has not filed an appeal, we do not include him when we refer to "defendants" throughout this opinion. 2 A-3757-14T2 owner, defendant Leible. Leible's real estate agent was defendant Zengel. Robert Garibaldi, an attorney, acted as the escrow agent for plaintiff's $40,000 deposit. Things went awry when plaintiff was unable to obtain a mortgage. The parties disputed the reason plaintiff could not get a mortgage. Plaintiff claimed the reason was the condominium association's involvement in litigation, a fact Garibaldi and defendants did not disclose to plaintiff when she signed the contract. Garibaldi and defendants, or at least defendant Leible, claimed plaintiff was not creditworthy. In any event, when plaintiff was unable to get a mortgage, she invoked the contract's mortgage contingency clause and demanded return of her deposit. When Garibaldi refused to return the deposit — because his "client [was] not willing to release the deposit at [that] time" — plaintiff commenced this action by filing a complaint against him and defendants. The complaint's four counts included causes of action for fraudulent misrepresentation, consumer fraud, breach of contract, and conversion. The breach of contract count alleged that Garibaldi and defendant Leible, not defendant Zengel, breached by refusing to return the deposit. Defendant Zengel was not a party 3 A-3757-14T2 to the contract. Similarly, the complaint's conversion count was based on defendant Leible's refusal to return the deposit. Garibaldi was a party as well as a potential witness, having informed plaintiff her deposit would not be returned. Notwithstanding these roles and the potential conflicts between defendants based on the complaint's allegations, Garibaldi undertook his own and defendants' representation. He filed an answer on behalf of himself and the others, and he filed a counterclaim on behalf of Leible. In response, plaintiff's attorney sent Garibaldi a letter demanding defendants withdraw their frivolous counterclaim pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1. They declined to do so. Plaintiff filed an answer to the counterclaim, asserting, among other things, defendants filed the counterclaim in bad faith, thus violating the Frivolous Action Statute, N.J.S.A. 2A:15-59.1. Plaintiff served defendants with discovery requests. When they did not timely respond, she filed a motion to compel discovery, as authorized by Rule 4:23-5(c). Defendants did not oppose the motion and the trial court granted it, ordering defendants to serve discovery responses within ten days or risk having their answer "stricken by the [c]ourt upon an ex parte application to this [c]ourt." Nonetheless, plaintiff filed a 4 A-3757-14T2 motion to suppress defendants' answer without prejudice, as authorized by Rule 4:23-5(a)(1). The court granted the motion. Plaintiff served Garibaldi with the suppression order. Garibaldi neither sent the order to his clients, defendants, nor notified them "in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore." R. 4:23-5(a)(1). A week after the court granted plaintiff's suppression motion, Garibaldi moved to deposit plaintiff's $40,000 into court and to be dismissed from the case as he was no longer acting as an escrow agent. R. 4:57-1. Plaintiff opposed Garibaldi's motion to be dismissed from the suit and cross-moved to disqualify Garibaldi from representing defendants based on his status as a witness. The court granted Garibaldi's motion to deposit the escrowed funds, denied without prejudice his motion to be dismissed from the suit, and granted plaintiff's motion to disqualify Garibaldi from representing defendants. The same day, defendant Zengel responded to plaintiff's request for production of documents. The response included general objections, assertions of "to be provided," and claims certain requests were not applicable to the case. In addition, defendant 5 A-3757-14T2 Zengel completed her interrogatory answers, but they were not given to plaintiff. When defendants did not timely file a motion to reinstate their answer, plaintiff filed a motion to suppress their answer with prejudice as authorized by Rule 4:23-5(a)(2). Because defendants were now unrepresented, plaintiff's counsel sent them copies of the motion and a letter, as required by the rule, "in the form prescribed by Appendix II-B, of the pendency of the motion to . . . suppress with prejudice." Ibid. Defendants did not oppose the motion and did not appear in court on its return date. The court granted the motion "FOR REASONS SET FORTH BY MOVANT." Shortly after the court suppressed defendants' answer with prejudice, defendants retained new counsel. Defendants subsequently served the delinquent discovery and filed a motion to reinstate their answer. The parties disputed the adequacy of defendants' discovery responses. The court denied the motion and scheduled a proof hearing. After further motion practice, the court ordered the deposited funds returned to plaintiff. Following the proof hearing, at which plaintiff and her accountant testified, the court entered judgment against defendants for $140,105: $38,172 for compensatory damages, trebled to $114,516 pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 6 A-3757-14T2 56:8-1 to -204; and $25,589 for counsel fees and costs. The trial court determined that defendant Leible had wrongfully exercised control over the deposit when he refused to refund it, and his conduct constituted an act of conversion. The court further found defendants had committed consumer fraud by failing to disclose the condominium association was in litigation. In doing so, the court made findings of fact as to defendant Leible's knowledge of the condominium association litigation, but none as to defendant Zengel's knowledge of the litigation. Lastly, the trial court awarded attorney's fees to plaintiff, finding plaintiff was entitled to fees under the CFA. The court noted Rule 1:4-8 also supported the award of fees. The court entered an order of judgment. Defendants appealed. On appeal, defendants contend the trial court abused its discretion by suppressing their answer with prejudice without adhering to the requirements of Rule 4:23-5, and by denying their motion to reinstate the answer after they served discovery responses. They also contend the trial court committed numerous errors in entering judgment, particularly under the CFA. Plaintiff disputes the trial court erred in any way. She insists defendants utterly disregarded their discovery obligations, thus warranting the suppression of their answer with 7 A-3757-14T2 prejudice. She further insists she produced ample evidence at the proof hearing to support the court's consumer fraud award as well as its award of fees and costs. We begin with defendants' challenges to the trial court's suppression of their answer with prejudice. We review the trial court's ruling under an abuse of discretion standard. A & M Farm & Garden Ctr. v. Am. Sprinkler Mech., LLC, 423 N.J. Super. 528, 534 (App. Div. 2012); Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 22-23 (App. Div. 2007). Rule 4:23-5 establishes a two-step process that a party must follow to obtain an order dismissing or suppressing with prejudice the pleading of an adversary who has failed to make discovery. The moving party must first "move, on notice, for an order dismissing or suppressing the pleading of the delinquent party" without prejudice. R. 4:23-5(a)(1).3 If the court has not vacated an order of dismissal or suppression without prejudice, "the party entitled to the discovery may, after the expiration of [sixty] days from the date of the order, move on notice for an order of dismissal or suppression with prejudice." R. 4:23-5(a)(2). 3 "Prior to moving to dismiss pursuant to subparagraph (a)(1) of this rule, a party may move for an order compelling discovery demanded pursuant to R. 4:14 [depositions], R. 4:18 [discovery and inspection of documents] and R. 4:19 [physical and mental examinations]." R. 4:23-5(c). 8 A-3757-14T2 Rule 4:23-5 contains procedural safeguards to bolster its main objective, which "is to compel discovery responses rather than to dismiss the case." A & M Farm, supra, 423 N.J. Super. at 534. Rule 4:23-5(a)(1) provides: Upon being served with the order of dismissal or suppression without prejudice, counsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore. The filing and service of the subsequent motion to dismiss or suppress with prejudice triggers additional safeguards. Rule 4:23-5(a)(2) provides: The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client's whereabouts have not been able to be determined and such service on the client was therefore not made. If the delinquent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices or, in lieu thereof, a certification as to why service was 9 A-3757-14T2 not made. Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party. In addition to the attorneys' obligations, Rule 4:23-5(a)(3) imposes obligations on the court: If the attorney for the delinquent party fails to timely serve the client with the original order of dismissal or suppression without prejudice, fails to file and serve the affidavit and the notifications required by this rule, or fails to appear on the return date of the motion to dismiss or suppress with prejudice, the court shall, unless exceptional circumstances are demonstrated, proceed by order to show cause or take such other appropriate action as may be necessary to obtain compliance with the requirements of this rule. This judicial obligation "was designed as a fail-safe measure to ensure that the ultimate sanction is not needlessly imposed." A & M Farm, supra, 423 N.J. Super. at 537. "The requirement that the court take 'appropriate action as may be necessary to obtain compliance' calls upon the court to exercise its inherent authority to make certain its decision to terminate the litigation is an informed one." Id. at 537-38 (quoting R. 4:23-5(b)(3)). Thus, in cases where "there is nothing before the court showing that a litigant has received notice of its exposure to the ultimate sanction, the court must take some action to obtain compliance with the requirements of the rule before entering an order of 10 A-3757-14T2 dismissal or suppression with prejudice." Id. at 539. In addition, "the court must set forth what effort was made to secure compliance on the record or on the order." Ibid. Here, Garibaldi did not send defendants the required notice after their answer was suppressed without prejudice. He did not even send them a copy of the order. Although plaintiff's attorney sent defendants copies of the motion to dismiss with prejudice, their attorney had been disqualified from representing them and they apparently did not appear on the return date of the motion. Rule 4:23-5(a)(3) requires that a court take action if the attorney for the delinquent party has not served that party with the order of dismissal or suppression without prejudice, fails to file and serve the affidavit and notifications required by the rule, or fails to appear on the return date of the motion. Here, it is undisputed Garibaldi did not comply with the requirements of Rule 4:23-5(a)(1). Neither an attorney nor defendants appeared on the return date of the motion to dismiss with prejudice. Rule 4:23-5(a)(3) required the court to take some action to obtain compliance with the requirements of the rule before entering the order of suppression. The court was also required to set forth on the record or on the suppression order what effort was made to secure compliance. The court did neither. The oversight is 11 A-3757-14T2 particularly troublesome in view of the court's disqualification of defendants' counsel a month before plaintiff filed the motion to suppress with prejudice. The court could have had its clerk contact Garibaldi or compelled Garibaldi's appearance to determine if he had complied with Rule 4:23-5 while representing defendants. Either action would have disclosed several pertinent facts: Garibaldi's non- compliance with Rule 4:23-5(a)(1); when, or if, Garibaldi had informed defendants of his disqualification; and perhaps why defendants had yet to retain new counsel or take any action to avoid the suppression of their answer with prejudice. We conclude the court misapplied its discretion by imposing the ultimate sanction without attempting to determine compliance with Rule 4:23-5 under these circumstances. Plaintiff insists the trial court did not abuse its discretion in view of defendants' prolonged non-compliance with their discovery obligations and plaintiff's notification to defendants as required by Rule 4:23-5(a)(2). Although not entirely without merit, these arguments overlook the injustice that appears to have occurred, warranting reversal. See Abtrax Pharm., Inc. v. Elkins- Sinn, Inc., 139 N.J. 499, 517 (1995) (noting appellate courts 12 A-3757-14T2 should not interfere with a trial court's sanction for discovery misconduct "unless an injustice appears to have been done"). First, defendants were prejudiced by their attorney's undertaking their representation when he should have known he would be a witness, by his disqualification at a critical time during plaintiff's motion practice, and by his non-compliance with Rule 4:23-5. These circumstances contributed to the suppression of defendants' answer and ultimately to the judgment entered against them; a substantial judgment that in large part was unsupported by facts and contrary to law. The judgment entered against defendant Leible included treble damages and attorney's fees under the CFA, despite well-settled law that the CFA does not apply to a homeowner, such as defendant Leible in these circumstances. See, e.g., Zaman v. Felton, 219 N.J. 199, 223 (2014) (noting "our courts have declined to impose the CFA remedies upon the non-professional, casual seller of real estate"); Byrne v. Weichert Realtors, 290 N.J. Super. 126, 134 (App. Div.) (explaining that the provisions of the CFA "do[] not apply . . . to non-professional sellers of real estate, i.e. to the homeowner who sells a house in the normal course of events"), certif. denied, 147 N.J. 259 (1996). 13 A-3757-14T2 The CFA judgment against defendant Zengel is also questionable. Plaintiff alleged a combination of defendants' non- disclosure of the condominium association's litigation and the non-return of the deposit constituted consumer fraud and caused her damages. The trial court cited no evidence to support its conclusion that defendant Zengel was aware of the condominium association's litigation when plaintiff contracted to purchase the condominium unit. Moreover, defendant Zengel was not a party to the contract of sale and plaintiff produced no evidence at the proof hearing that Zengel participated in or influenced defendant Leible's decision not to return the security deposit. When a trial court requires a plaintiff to provide proof of liability as to a defaulting defendant, the plaintiff need only establish a prima facie case. Kolczycki v. City of E. Orange, 317 N.J. Super. 505, 514 (App. Div. 1999); Heimbach v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988); see also Pressler & Verniero, Current N.J. Court Rules, comment 2.2.2 on R. 4:43-2 (2018) (stating that "unless there is intervening consideration of public policy or other requirement of fundamental justice, the judge should ordinarily apply to plaintiff's proofs the prima facie case standard of R. 4:37-2(b) and R. 4:40-1, thus not weighing evidence or finding facts but only determining bare sufficiency"). Judgment 14 A-3757-14T2 should be denied if "some necessary element of plaintiff's prima facie case [is] missing or because plaintiff's claim [is] barred by some rule of law whose applicability [is] evident either from the pleadings or from the proofs presented." Heimbach, supra, 229 N.J. Super. at 23-24. Here, established precedent barred plaintiff's CFA claim against Leible, and plaintiff's claim against Zengel was missing elements of a prima facie case. Yet, the court entered a judgment that included treble damages and attorney's fees against defendants.4 We vacate the suppression orders and the judgment and remand for further proceedings. We do so because trial counsel did not comply with the requirements of Rule 4:23-5, the trial court made no attempt to comply with its obligation under the rule, defendants were left unrepresented by an attorney when the motion to suppress with prejudice was filed, and the consequence was the entry of a judgment in large part unsupported by facts or law. On remand, the trial court should conduct a management conference, within thirty days if practical, and enter a discovery order specifying the remaining discovery needed and the deadlines 4 Although the trial court stated plaintiff was entitled to attorney's fees under Rule 1:4-8, the court provided no analysis or explanation for this determination. 15 A-3757-14T2 for completion. Defendants will thus have explicit notice of their discovery obligations and the consequences of failing to timely discharge them. The merits of the causes of action pleaded in the complaint shall be decided following completion of discovery, by motion or at a trial, but not on the basis of the previous proof hearing or this opinion. Our opinion should not be read as precluding plaintiff from seeking fees or appropriate sanctions as a result of motion practice necessitated by defendants' failure to timely make discovery and Garibaldi's non-compliance with Rule 4:23-5. See R. 4:23-5(a)(3). Nor should our opinion be construed as suggesting that Leible's withholding of the deposit and his defenses to plaintiff's suit for its return either do or do not have merit. The suppression orders and judgment are vacated. Defendants' answer is reinstated. This matter is remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction. 16 A-3757-14T2
DR. AURORA BAIRAN v. BOROUGH OF CLOSTER ZONING BOARD OF ADJUSTMENT
Date: November 21, 2017
Docket Number: a3114-14
Date: November 21, 2017
Docket Number: a3114-14
PER CURIAM The State of New Jersey appeals from a September 24, 2015 final agency decision issued by the Public Employee Relations Commission (PERC) determining that the development of procedures for tenure-upon-hire in accordance
Date: November 21, 2017
Docket Number: a4948-15
Date: November 21, 2017
Docket Number: a4948-15
HENRY SAMINSKI v. KATHLEEN NEVILLE
Date: November 21, 2017
Docket Number: a5528-15 PER CURIAM These matters having been amicably adjusted and the parties having stipulated to the dismissal of these appeals, it is hereby ordered that the appeals are dismissed with prejudice and without costs. 2 A-5528-15T1
Date: November 21, 2017
Docket Number: a5528-15 PER CURIAM These matters having been amicably adjusted and the parties having stipulated to the dismissal of these appeals, it is hereby ordered that the appeals are dismissed with prejudice and without costs. 2 A-5528-15T1
E.T. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: November 20, 2017
Docket Number: a0403-16
Date: November 20, 2017
Docket Number: a0403-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.C.J.
Date: November 20, 2017
Docket Number: a1620-16
Date: November 20, 2017
Docket Number: a1620-16
IN THE MATTER OF THE PETITION OF 500 BROADWAY, LLC FOR DECLARATORY RULING UNDER N.J.S.A. 5:12-82
Date: November 20, 2017
Docket Number: a2980-16
Date: November 20, 2017
Docket Number: a2980-16
SOUTH JERSEY TRANSPORTATION AUTHORITY v. IFPTE, LOCAL 196, CHAPTER 2
Date: November 20, 2017
Docket Number: a3898-15
Date: November 20, 2017
Docket Number: a3898-15
PER CURIAM Tried by a jury, defendant Bernard Jones was convicted of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39- 5(b), and fourth-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(a). On January 19, 2016, h
Date: November 20, 2017
Docket Number: a4211-15
Date: November 20, 2017
Docket Number: a4211-15
NEW JERSEY SPORTS AND EXPOSITION AUTHORITY v. TOWN OF KEARNY
Date: November 20, 2017
Docket Number: a5152-15
Date: November 20, 2017
Docket Number: a5152-15
DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.J.
Date: November 17, 2017
Docket Number: a0583-15 PER CURIAM A mother and father appeal from an August 12, 2014 order finding that they abused or neglected their two young children by exposing them to a substantial risk of harm resulting from the ongoing domestic violence between the parents, the father's substance abuse, and the parents' violations of a child safety protection plan and court order. We affirm because the findings of abuse or neglect were supported by substantial credible evidence. I. A.C. (Alice),1 the mother, and J.J. (James), the father, are the parents of two children: J.J., Jr. (Jake), born in September 2010, and N.J. (Nora), born in September 2011. The family has an extensive history with the Division of Child Protection and Permanency (Division). The abuse or neglect findings in this case 1 To protect privacy interests and for ease of reading, we use initials and fictitious names for the parents and child. See R. 1:38-3(d)(12). 2 A-0583-15T2 focused on the two young children, who were three and two years old in 2014 when the abuse or neglect occurred. In January 2014, the Division received a referral regarding a domestic dispute between Alice and James. Each of the parents had consumed a forty-ounce container of beer and, thereafter, they got into an argument, which turned physical. During that altercation, Alice bit James on both his arms. As a result, Alice was arrested. An ensuing investigation revealed that the parents had a history of domestic violence. At the time of the incident in January 2014, James was on probation for an aggravated assault of Alice and he admitted that he had assaulted her on another occasion. Certified police records revealed ten investigations of the parents, most of which involved domestic violence. The children were reportedly present during some of those domestic violence incidents. Those police reports also revealed that Alice reported that James repeatedly hit her and punched her in the face. In January 2014, Alice told a Division worker that she understood that her children could be harmed by growing up in a home with domestic violence. During its investigation, the Division also learned that James had a history of crack cocaine abuse. Alice acknowledged that she was aware of James's substance abuse. Nevertheless, she 3 A-0583-15T2 informed the Division that she left James as the sole caretaker of the children when she went to work. In February 2014, James tested positive for cocaine and ultimately admitted to using cocaine. Thereafter, the Division implemented a safety protection plan under which James's contact with the children was to be supervised by his grandmother. Both Alice and James signed the safety plan. After the safety plan was put in place, the Family court entered an order enforcing the plan. The court order also prohibited James and Alice from being in the same place at the same time with the children, and provided that James could not be in Alice's home with the children except when Alice is not present and James's grandmother was present. Alice and James were found to be in violation of the safety plan and court order twice. On February 27, 2014, the owner and manager of a bar below Alice's apartment reported that he found James in the apartment with Alice and the children. A responding police officer reported that there was only one bed in the apartment, and the officer believed that the parents had been sleeping in the same bed with the children. Alice and James violated the safety plan and order again on March 6, 2014. Alice admitted that James had been in her home where the children reside without supervision by his grandmother. 4 A-0583-15T2 Simultaneous with these incidents, James reported to the Division that he was in full relapse, had been discharged from his treatment program, and could not control his substance abuse. James was, thereafter, admitted into an inpatient treatment program for several weeks. While in treatment, James was diagnosed with cocaine and alcohol dependency, depressive disorder, and hypertension. James's attending physician from the program testified that James had a high probability of relapsing because he lacked coping skills and he was in a poor environment for recovery. In May 2014, after James completed the inpatient program, a police officer responded to a report of a man wandering in the middle of an intersection. The officer identified the man as James and testified that he appeared to be highly intoxicated and could not explain why or what he was doing in the middle of the street. In response to the parents' violations of the safety plan and court order, and James's continued substance abuse, in late March 2014, the Division removed the children from their parents' care and applied for custody of the children. The court granted that application after finding that the parents had violated the safety plan and order. The court also directed both parents to attend substance abuse evaluations and domestic violence counseling. 5 A-0583-15T2 A fact-finding hearing was conducted on June 10, 2014. The Division presented testimony from six witnesses and entered a number of documents into evidence. Neither Alice nor James testified at the hearing, and they did not present any witnesses on their own behalf. Following the hearing, the Family judge issued an order and written decision on August 12, 2014, finding that the Division had proven by a preponderance of the evidence that both parents had abused or neglected the two children. The judge found the witnesses who testified on behalf of the Division to be credible. Relying on the testimony of the witnesses and the facts established in the documents submitted into evidence, the judge found that the parents had a history of "severe domestic violence, including a number of physical assaults causing injury." The judge also found that the children were present during some of the domestic violence incidents. In addition, the Family judge found that James had a significant and ongoing substance abuse problem. The court also found that Alice was aware of James's substance abuse problems, but left him as the primary caregiver of their two young children on a regular basis. The judge then found that James's role as primary caretaker, while he was suffering from ongoing substance abuse problems, created a substantial risk of harm to the young children. 6 A-0583-15T2 Turning to the issue of whether the children were exposed to a risk of harm, the judge found that the extensive domestic violence between the parents, James's substance abuse, and the violations of the safety plan and court order placed the children at a substantial risk of harm. In that regard, the trial court found that both parents knowingly and willfully violated the safety plan and court order. After finding that the parents abused or neglected their children, the court held several compliance hearings. In July 2015, the court entered an order approving the Division's permanency plan of termination of parental rights. Accordingly, the Title 9 action was terminated, and the Division filed a Title 30 action for guardianship and termination of parental rights. At oral argument, counsel informed us that, thereafter, the Division returned custody of the two children to Alice. II. Both parents now appeal from the order finding that they abused or neglected their two children. The appeals were consolidated. Alice argues that she did not abuse or neglect her children and she contends that James's substance abuse did not support a finding of abuse or neglect. Alice also argues that there was insufficient evidence for the court to find that the 7 A-0583-15T2 domestic violence between the parties placed the children in imminent danger or created a substantial risk of harm. James presents two arguments for our consideration. First, he contends that the court erred when it found that the burden of persuasion shifted to the parents to show that they did not abuse or neglect the children. Second, he argues that the trial court erred when it found that the children were in imminent danger of harm due to his substance abuse when there was no expert testimony supporting such a conclusion. Having reviewed these arguments in light of the record, we affirm the August 12, 2014 order finding that both parents abused or neglected their two young children. The scope of our review in an appeal from an order finding abuse or neglect is limited. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014). We will uphold the trial judge's factual findings and credibility determinations if they are supported by adequate, substantial, and credible evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Accordingly, we will only overturn the judge's findings if they "went so wide of the mark that the judge was clearly mistaken." Ibid. We do not, however, give "special deference" to the trial court's interpretation of the law. D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 8 A-0583-15T2 N.J. 145, 183 (2010)). Consequently, we apply a de novo standard of review to legal issues. D.W., supra, 212 N.J. at 245-46. The adjudication of abuse or neglect is governed by Title 9, which is designed to protect children. N.J.S.A. 9:6-8.21 to - 8.73; N.J.S.A. 9:6-8.8. Under Title 9, a child is abused or neglected if: [a] parent or guardian . . . creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ . . . or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.] [N.J.S.A. 9:6-8.21(c)(2) and (c)(4)(b).] The statute does not require that the child experience actual harm. N.J.S.A. 9:6-8.21(c)(4)(b). A child is abused or neglected if his or her physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired. N.J.S.A. 9:6-8.21(c)(4)(b). In cases where there is an absence of actual harm, but there exists a substantial risk of harm or imminent danger, the court must consider whether the parent exercised a 9 A-0583-15T2 minimum degree of care under the circumstances. G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999). In G.S., the New Jersey Supreme Court explained that failure to exercise a "minimum degree of care" refers to "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. A parent fails to exercise a minimum degree of care if, despite being "aware of the dangers inherent in a situation," the parent "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. The Division must prove by a preponderance of competent, material, and relevant evidence that a child is abused or neglected. N.J.S.A. 9:6-8.46(b). This burden of proof requires the Division to demonstrate a probability of present or future harm. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). Title 9 cases are fact-sensitive, and the court should base its findings on the totality of circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). The issues raised by Alice and James on appeal can be distilled into two arguments. First, they both allege that there was not enough evidence to support a finding of abuse or neglect. 10 A-0583-15T2 In particular, Alice and James contend that James's substance abuse did not pose a risk of harm to the children. They also argue that there was no evidence to support the trial court's finding that their ongoing domestic violence exposed the children to a substantial risk or imminent danger. Second, James challenges the trial court's application of a burden-shifting analysis to find abuse or neglect. He argues that the trial court erred as a matter of law when it shifted the burden of persuasion to him and Alice to rebut the presumption of abuse or neglect. We are not persuaded by either of these arguments. We will analyze them in turn. A. The Substantial Evidence Alice and James argue that the trial court erred in finding that there was sufficient evidence to show that their ongoing domestic violence, James's substance abuse, and their violations of the safety plan and order actually exposed their children to a substantial risk of harm or imminent danger. The trial court found that there was a lengthy history of domestic violence between James and Alice. The court also found that the children were present during some of those domestic violence incidents. Finally, the court found that both parents were aware that exposing their children to domestic violence 11 A-0583-15T2 created a substantial risk of harm to the children. Alice acknowledged that potential harm to the Division in January 2014. Alice and James also both signed the safety plan, which demonstrates that they were aware that there was a risk to the children. All of those findings are supported by substantial credible evidence in the record. The trial court also found that James had a substantial and ongoing substance abuse problem. Alice acknowledged that James had that problem. The court then found that despite both parents' knowledge of the potential for harm, James was often left as the primary caregiver to the children. Here again, the court relied on the safety plan and court order. The safety plan and order do not in and of themselves establish the harm to the children. Instead, they establish that the parents were aware that leaving James with the children posed a substantial risk of harm. Again, all of those findings by the court were supported by substantial credible evidence. B. The Burden Shifting As already noted, James contends that the trial court erred by shifting the burden of persuasion to the parents to rebut a presumption of abuse or neglect. We reject this argument for two reasons. First, we do not read the trial court's decision as shifting the burden of persuasion to the parents. Instead, as 12 A-0583-15T2 already analyzed, the trial court found that the Division had established by a preponderance of the evidence that the children were exposed to a substantial risk of imminent harm due to the parents' ongoing domestic violence, James's substance abuse, and their violation of the safety plan and order. Those findings were made without shifting any burden. Second, while the court made reference to shifting the burden, read in context, it is clear that the court was discussing the parents' decision not to present any evidence at the fact-finding hearing. At oral argument before us, all counsel agreed that the burden should not shift in this case. We agree with that conclusion. Thus, while the trial court's discussion of burden shifting may arguably have created some confusion, the trial court's decision was based on findings supported by substantial credible evidence presented by the Division. The trial court's decision was also supported by well- established law. In that regard, our Supreme Court has held: "A parent fails to exercise a minimum degree of care if he [or she] is aware of the danger inherent in a situation and fails to adequately supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181. See also Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306-07 (2011) ("Indeed, where a parent or 13 A-0583-15T2 guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger."). Here, as we have noted, the children faced two dangers: (1) exposure to ongoing domestic violence between their parents, and (2) being left in the care of James who had a substance abuse problem with substantial risk of relapse. The record supports the trial court's finding that both parents were aware that James needed supervision when he was with the children. Both parents were also aware that allowing James to care for the children without supervision exposed the children to a substantial risk of harm. Accordingly, the burden of persuasion did not shift to the parents. Instead, both parents recognized the domestic violence and substance abuse problems, and their knowledge of the risk of harm posed to the children was reflected in the safety plan, as well as the court order. Thereafter, despite knowing of the risks, the parents allowed James to be present with the children unsupervised. Affirmed. 14 A-0583-15T2
Date: November 17, 2017
Docket Number: a0583-15 PER CURIAM A mother and father appeal from an August 12, 2014 order finding that they abused or neglected their two young children by exposing them to a substantial risk of harm resulting from the ongoing domestic violence between the parents, the father's substance abuse, and the parents' violations of a child safety protection plan and court order. We affirm because the findings of abuse or neglect were supported by substantial credible evidence. I. A.C. (Alice),1 the mother, and J.J. (James), the father, are the parents of two children: J.J., Jr. (Jake), born in September 2010, and N.J. (Nora), born in September 2011. The family has an extensive history with the Division of Child Protection and Permanency (Division). The abuse or neglect findings in this case 1 To protect privacy interests and for ease of reading, we use initials and fictitious names for the parents and child. See R. 1:38-3(d)(12). 2 A-0583-15T2 focused on the two young children, who were three and two years old in 2014 when the abuse or neglect occurred. In January 2014, the Division received a referral regarding a domestic dispute between Alice and James. Each of the parents had consumed a forty-ounce container of beer and, thereafter, they got into an argument, which turned physical. During that altercation, Alice bit James on both his arms. As a result, Alice was arrested. An ensuing investigation revealed that the parents had a history of domestic violence. At the time of the incident in January 2014, James was on probation for an aggravated assault of Alice and he admitted that he had assaulted her on another occasion. Certified police records revealed ten investigations of the parents, most of which involved domestic violence. The children were reportedly present during some of those domestic violence incidents. Those police reports also revealed that Alice reported that James repeatedly hit her and punched her in the face. In January 2014, Alice told a Division worker that she understood that her children could be harmed by growing up in a home with domestic violence. During its investigation, the Division also learned that James had a history of crack cocaine abuse. Alice acknowledged that she was aware of James's substance abuse. Nevertheless, she 3 A-0583-15T2 informed the Division that she left James as the sole caretaker of the children when she went to work. In February 2014, James tested positive for cocaine and ultimately admitted to using cocaine. Thereafter, the Division implemented a safety protection plan under which James's contact with the children was to be supervised by his grandmother. Both Alice and James signed the safety plan. After the safety plan was put in place, the Family court entered an order enforcing the plan. The court order also prohibited James and Alice from being in the same place at the same time with the children, and provided that James could not be in Alice's home with the children except when Alice is not present and James's grandmother was present. Alice and James were found to be in violation of the safety plan and court order twice. On February 27, 2014, the owner and manager of a bar below Alice's apartment reported that he found James in the apartment with Alice and the children. A responding police officer reported that there was only one bed in the apartment, and the officer believed that the parents had been sleeping in the same bed with the children. Alice and James violated the safety plan and order again on March 6, 2014. Alice admitted that James had been in her home where the children reside without supervision by his grandmother. 4 A-0583-15T2 Simultaneous with these incidents, James reported to the Division that he was in full relapse, had been discharged from his treatment program, and could not control his substance abuse. James was, thereafter, admitted into an inpatient treatment program for several weeks. While in treatment, James was diagnosed with cocaine and alcohol dependency, depressive disorder, and hypertension. James's attending physician from the program testified that James had a high probability of relapsing because he lacked coping skills and he was in a poor environment for recovery. In May 2014, after James completed the inpatient program, a police officer responded to a report of a man wandering in the middle of an intersection. The officer identified the man as James and testified that he appeared to be highly intoxicated and could not explain why or what he was doing in the middle of the street. In response to the parents' violations of the safety plan and court order, and James's continued substance abuse, in late March 2014, the Division removed the children from their parents' care and applied for custody of the children. The court granted that application after finding that the parents had violated the safety plan and order. The court also directed both parents to attend substance abuse evaluations and domestic violence counseling. 5 A-0583-15T2 A fact-finding hearing was conducted on June 10, 2014. The Division presented testimony from six witnesses and entered a number of documents into evidence. Neither Alice nor James testified at the hearing, and they did not present any witnesses on their own behalf. Following the hearing, the Family judge issued an order and written decision on August 12, 2014, finding that the Division had proven by a preponderance of the evidence that both parents had abused or neglected the two children. The judge found the witnesses who testified on behalf of the Division to be credible. Relying on the testimony of the witnesses and the facts established in the documents submitted into evidence, the judge found that the parents had a history of "severe domestic violence, including a number of physical assaults causing injury." The judge also found that the children were present during some of the domestic violence incidents. In addition, the Family judge found that James had a significant and ongoing substance abuse problem. The court also found that Alice was aware of James's substance abuse problems, but left him as the primary caregiver of their two young children on a regular basis. The judge then found that James's role as primary caretaker, while he was suffering from ongoing substance abuse problems, created a substantial risk of harm to the young children. 6 A-0583-15T2 Turning to the issue of whether the children were exposed to a risk of harm, the judge found that the extensive domestic violence between the parents, James's substance abuse, and the violations of the safety plan and court order placed the children at a substantial risk of harm. In that regard, the trial court found that both parents knowingly and willfully violated the safety plan and court order. After finding that the parents abused or neglected their children, the court held several compliance hearings. In July 2015, the court entered an order approving the Division's permanency plan of termination of parental rights. Accordingly, the Title 9 action was terminated, and the Division filed a Title 30 action for guardianship and termination of parental rights. At oral argument, counsel informed us that, thereafter, the Division returned custody of the two children to Alice. II. Both parents now appeal from the order finding that they abused or neglected their two children. The appeals were consolidated. Alice argues that she did not abuse or neglect her children and she contends that James's substance abuse did not support a finding of abuse or neglect. Alice also argues that there was insufficient evidence for the court to find that the 7 A-0583-15T2 domestic violence between the parties placed the children in imminent danger or created a substantial risk of harm. James presents two arguments for our consideration. First, he contends that the court erred when it found that the burden of persuasion shifted to the parents to show that they did not abuse or neglect the children. Second, he argues that the trial court erred when it found that the children were in imminent danger of harm due to his substance abuse when there was no expert testimony supporting such a conclusion. Having reviewed these arguments in light of the record, we affirm the August 12, 2014 order finding that both parents abused or neglected their two young children. The scope of our review in an appeal from an order finding abuse or neglect is limited. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014). We will uphold the trial judge's factual findings and credibility determinations if they are supported by adequate, substantial, and credible evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Accordingly, we will only overturn the judge's findings if they "went so wide of the mark that the judge was clearly mistaken." Ibid. We do not, however, give "special deference" to the trial court's interpretation of the law. D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 8 A-0583-15T2 N.J. 145, 183 (2010)). Consequently, we apply a de novo standard of review to legal issues. D.W., supra, 212 N.J. at 245-46. The adjudication of abuse or neglect is governed by Title 9, which is designed to protect children. N.J.S.A. 9:6-8.21 to - 8.73; N.J.S.A. 9:6-8.8. Under Title 9, a child is abused or neglected if: [a] parent or guardian . . . creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ . . . or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.] [N.J.S.A. 9:6-8.21(c)(2) and (c)(4)(b).] The statute does not require that the child experience actual harm. N.J.S.A. 9:6-8.21(c)(4)(b). A child is abused or neglected if his or her physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired. N.J.S.A. 9:6-8.21(c)(4)(b). In cases where there is an absence of actual harm, but there exists a substantial risk of harm or imminent danger, the court must consider whether the parent exercised a 9 A-0583-15T2 minimum degree of care under the circumstances. G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999). In G.S., the New Jersey Supreme Court explained that failure to exercise a "minimum degree of care" refers to "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. A parent fails to exercise a minimum degree of care if, despite being "aware of the dangers inherent in a situation," the parent "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. The Division must prove by a preponderance of competent, material, and relevant evidence that a child is abused or neglected. N.J.S.A. 9:6-8.46(b). This burden of proof requires the Division to demonstrate a probability of present or future harm. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). Title 9 cases are fact-sensitive, and the court should base its findings on the totality of circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). The issues raised by Alice and James on appeal can be distilled into two arguments. First, they both allege that there was not enough evidence to support a finding of abuse or neglect. 10 A-0583-15T2 In particular, Alice and James contend that James's substance abuse did not pose a risk of harm to the children. They also argue that there was no evidence to support the trial court's finding that their ongoing domestic violence exposed the children to a substantial risk or imminent danger. Second, James challenges the trial court's application of a burden-shifting analysis to find abuse or neglect. He argues that the trial court erred as a matter of law when it shifted the burden of persuasion to him and Alice to rebut the presumption of abuse or neglect. We are not persuaded by either of these arguments. We will analyze them in turn. A. The Substantial Evidence Alice and James argue that the trial court erred in finding that there was sufficient evidence to show that their ongoing domestic violence, James's substance abuse, and their violations of the safety plan and order actually exposed their children to a substantial risk of harm or imminent danger. The trial court found that there was a lengthy history of domestic violence between James and Alice. The court also found that the children were present during some of those domestic violence incidents. Finally, the court found that both parents were aware that exposing their children to domestic violence 11 A-0583-15T2 created a substantial risk of harm to the children. Alice acknowledged that potential harm to the Division in January 2014. Alice and James also both signed the safety plan, which demonstrates that they were aware that there was a risk to the children. All of those findings are supported by substantial credible evidence in the record. The trial court also found that James had a substantial and ongoing substance abuse problem. Alice acknowledged that James had that problem. The court then found that despite both parents' knowledge of the potential for harm, James was often left as the primary caregiver to the children. Here again, the court relied on the safety plan and court order. The safety plan and order do not in and of themselves establish the harm to the children. Instead, they establish that the parents were aware that leaving James with the children posed a substantial risk of harm. Again, all of those findings by the court were supported by substantial credible evidence. B. The Burden Shifting As already noted, James contends that the trial court erred by shifting the burden of persuasion to the parents to rebut a presumption of abuse or neglect. We reject this argument for two reasons. First, we do not read the trial court's decision as shifting the burden of persuasion to the parents. Instead, as 12 A-0583-15T2 already analyzed, the trial court found that the Division had established by a preponderance of the evidence that the children were exposed to a substantial risk of imminent harm due to the parents' ongoing domestic violence, James's substance abuse, and their violation of the safety plan and order. Those findings were made without shifting any burden. Second, while the court made reference to shifting the burden, read in context, it is clear that the court was discussing the parents' decision not to present any evidence at the fact-finding hearing. At oral argument before us, all counsel agreed that the burden should not shift in this case. We agree with that conclusion. Thus, while the trial court's discussion of burden shifting may arguably have created some confusion, the trial court's decision was based on findings supported by substantial credible evidence presented by the Division. The trial court's decision was also supported by well- established law. In that regard, our Supreme Court has held: "A parent fails to exercise a minimum degree of care if he [or she] is aware of the danger inherent in a situation and fails to adequately supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181. See also Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306-07 (2011) ("Indeed, where a parent or 13 A-0583-15T2 guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger."). Here, as we have noted, the children faced two dangers: (1) exposure to ongoing domestic violence between their parents, and (2) being left in the care of James who had a substance abuse problem with substantial risk of relapse. The record supports the trial court's finding that both parents were aware that James needed supervision when he was with the children. Both parents were also aware that allowing James to care for the children without supervision exposed the children to a substantial risk of harm. Accordingly, the burden of persuasion did not shift to the parents. Instead, both parents recognized the domestic violence and substance abuse problems, and their knowledge of the risk of harm posed to the children was reflected in the safety plan, as well as the court order. Thereafter, despite knowing of the risks, the parents allowed James to be present with the children unsupervised. Affirmed. 14 A-0583-15T2
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Date: November 17, 2017
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Date: November 16, 2017
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 FRANCIS SCARDILLO v. DAVID INN
Date: November 15, 2017
Docket Number: a0847-16
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the SHEILA MARTELLO v. ROBERT A. FRANCO, ESQ. and RANDI K. FRANCO, ESQ and FRANCO & FRANCO, ATTORNEYS A
Date: November 14, 2017
Docket Number: a0858-14a069 PER CURIAM Defendants Robert A. Franco, Randi K. Franco, and Todd Siegmeister appeal from a September 19, 2014 order enforcing two stipulations of settlement reached with plaintiff Sheila Martello, requiring defendants to re-pay plaintiff funds she advanced 2 A-0698-14T3 relating to a gold venture in Africa.1 They also appeal from an order entered the same date denying their cross-motion to vacate the settlement agreements. These are back-to-back appeals consolidated for the purpose of this opinion. We affirm. This matter commenced when plaintiff filed a Law Division complaint asserting Robert A. Franco and Randi K. Franco committed fraud, negligence, misappropriation, civil conspiracy to commit fraud, and conversion. The complaint sought veil piercing remedies against the Francos' law firm. Plaintiff also asserted: fraud, misappropriation, civil conspiracy to commit fraud, conversion, and piercing the corporate veil against Todd Siegmeister. Plaintiff claimed defendants fraudulently induced her to loan them $785,000 for a fictitious venture. Specifically, Robert allegedly informed plaintiff's brother, Paul Martello, "he could make money quickly if he could find people to make a [thirty] day loan of $200,000 to Crown Financial who would re-pay the loan plus [twelve percent] interest and $100,000 within [thirty] days." Robert allegedly assured Paul Martello he was part owner of Crown Financial and that the company needed the money to finance the shipment of gold from Africa. 1 We will refer to Robert A. Franco and Randi K. Franco collectively as "the Francos." As defendants share a common last name, we will refer to them individually by their first names; no disrespect is intended. 3 A-0698-14T3 Paul Martello informed Robert he thought his sister could make the loan. Robert and Siegmeister contacted plaintiff. Robert allegedly represented he was Crown Financial's international general counsel, and Siegmeister its President. Robert allegedly informed plaintiff her monetary contribution would be used to pay the taxes, insurance, and freight for the gold transaction, and that he would personally "ensure the payment of those expenses out of his Law Firm's Trust Account." Plaintiff also alleges defendants stated her investment would be insured and guaranteed by an all-risk policy issued by Lloyd's of London. Plaintiff loaned defendants $200,000 on December 23, 2010, $150,000 on January 13, 2011, $60,000 on March 7, 2011, $175,000 on April 11, 2011, $56,000 on June 3, 2011, and $144,000 on June 9, 2011. Defendants executed loan agreements and promissory notes for the funds plaintiff provided. Plaintiff alleged these funds were never used to pay taxes, insurance, or freight, but were distributed from the Francos' Law Firm Trust Account to defendants. Plaintiff also alleged her loans were not insured by Lloyd's of London. Plaintiff was never repaid. On January 6, 2014, the matter was scheduled in the Law Division for a default proof hearing. Defendants' pleadings had previously been stricken for failing to comply with a court order to pay an award of counsel fees and accounting fees to plaintiff. 4 A-0698-14T3 The parties engaged in settlement discussions and plaintiff reached two settlement agreements with defendants. The settlement agreement between plaintiff and Siegmeister also resolved all claims against Michael Kirkovich, Elliot Vernon, Crown Financial Solutions, LLC, Crown Precious Metals Group, LLC, and Verde Tropical Development, Group LLC. The agreement with Siegmeister required plaintiff be re-paid a total of $550,000 in three equal installments of $183,333.33, payable on June 30, September 30, and December 30, 2014. In exchange, plaintiff agreed to dismiss her complaint. In the event of a default, the settlement agreement provided plaintiff could file a motion to seek entry of a judgment against Siegmeister, Michael Kirkovich, Elliot Vernon, Crown Financial Solutions, LLC, Crown Precious Metals Group, LLC, and Verde Tropical Development Group, LLC in the amount of $900,000, less any sums paid by these defendants. The settlement agreement between plaintiff and the Franco defendants provided for a payment obligation totaling $350,000, payable in three installments of $116,670.00, due on June 30, September 30, and December 30, 2014. The Franco settlement agreement contained the same default provisions as the agreement with Siegmeister, and stipulated plaintiff would be able to seek entry of judgment in the amount of $800,000, less any payments made by the Franco defendants. 5 A-0698-14T3 Neither the Francos nor Siegmeister made the June 30, 2014 payment. Consequently, plaintiff filed a motion to enter judgment in accordance with the settlement agreements. Both Siegmeister and the Francos opposed the motion and filed cross-motions to invalidate the settlement agreements, claiming they were usurious, fraudulent, and unconscionable. After oral argument, the motion judge entered an order denying both cross-motions, and entered judgment for plaintiff, in accordance with the settlement agreements, for $800,000 against the Francos and $900,000 against Siegmeister. On appeal, the Francos and Siegmeister argue the September 19, 2014 order entering judgment should be vacated as a matter of law because both settlement agreements are illegal. Specifically, defendants allege the settlement agreements are usurious and violate N.J.S.A. 31:1-1, since the combined amount they are obligated to pay is more than two-hundred percent of the original loan amount. Defendants also argue the motion court should not have enforced an illegal agreement, which contained a punitive amount of interest. Defendants claim they are entitled to relief by framing these arguments within Rule 4:50-1(a), (b), (c), (d) and (f). 6 A-0698-14T3 I. We begin by reciting our standard of review. We review a trial judge's entry of judgment pursuant to Rule 1:10-3, under an abuse of discretion standard. Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). Generally, Rule 1:10-3 is "a civil proceeding to coerce the defendant into compliance with the court's order." Pasqua v. Council, 186 N.J. 127, 140 (2006) (citing Essex Cty. Welfare Bd. v. Perkins, 135 N.J. Super. 189, 195 (App. Div.), cert. denied, 68 N.J. 161 (1975)). In fact, a proceeding under Rule 1:10-3 "is [the] proper tool to compel compliance with a court order." Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997). As such, a trial judge's exercise of discretion will not be disturbed absent a demonstration of an abuse of discretion resulting in injustice. Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). "An abuse of discretion 'arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Barr, supra, 58 N.J. Super. at 46 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561 (2002)). II. Defendants argue the judgments are unenforceable because both settlement agreements are illegal and represent a "mistake of the exploitive amount calculated in the settlement agreement and 7 A-0698-14T3 applied in the judgment; plaintiff and plaintiff's attorney's fraudulent acts of fashioning a judgment which is tantamount to criminal and civil usury; and the judgment's void nature since it is illegal." Specifically, defendants allege the agreements are unenforceable since they penalize defendants in the event of a default. We have stated that: An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a demonstration of "fraud or other compelling circumstances," should honor and enforce as it does other contracts. Indeed, "settlement of litigation ranks high in our public policy." Moreover, courts will not ordinarily inquire into the adequacy or inadequacy of the consideration underlying a compromise settlement fairly and deliberately made. . . . [W]here there is no showing of "artifice or deception, lack of independent advice, abuse of confidential relation, or similar indicia generally found in the reported instances where equity has declined to enforce, as unfair or unconscionable, an agreement voluntarily executed by the parties," the agreement should be enforced. It is only where the inadequacy of consideration is grossly shocking to the conscience of the court that it will interfere. [Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (citations omitted), cert. denied, 94 N.J. 600 (1983).] Rule 4:50-1 states: On motion, with briefs, and upon such terms as are just, the court may relieve a party or 8 A-0698-14T3 the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud[,] . . . misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; . . . (f) any other reason justifying relief from the operation of the judgment or order. Generally, "[c]ourts should use Rule 4:50-1 sparingly, [and] in exceptional situations[.]" Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994). Relief under Rule 4:50-1 "is designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Manning Eng'g, Inc. v. Hudson Cty. Park Comm'n, 74 N.J. 113, 120 (1977) (citing Hodgson v. Applegate, 31 N.J. 29, 43 (1959)). "The kind of mistake contemplated by [Rule 4:50-1(a)] has been described as one in which the parties could not have protected themselves from during the litigation." Pressler & Verniero, Current N.J. Court Rules, cmt. 5.1.1 on R. 4:50-1 (2018); See DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 263 (2009). Therefore, "neither the court's nor an attorney's error as to the law or the remedy constitutes mistake under this section." Pressler & Verniero, supra, cmt. 5.1.1 on R. 4:50-1. 9 A-0698-14T3 To establish relief from a judgment based on newly discovered evidence under Rule 4:50-1(b) the evidence must be: (1) [] material to the issue and not merely cumulative or impeaching, (2) have been discovered since the trial and must be such as by the exercise of due diligence could not have been discoverable prior to the expiration of the time for moving for a new trial; and (3) be of such a nature as to have been likely to have changed the result if a new trial had been granted. [Pressler & Verniero, Current N.J. Court Rules, cmt. 5.2 on R. 4:50-1 (2018).] Fraud, under Rule 4:50-1(c) requires proof of: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005) (quoting Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997)). Fraudulent misrepresentation occurs when an individual purports to represent a fact when it is in fact false. Jewish Ctr. of Sussex Cty. v. Whale, 86 N.J. 619, 624 (1981). Legal fraud or fraudulent misrepresentation must be established by clear and convincing evidence. See Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395-96 (App. Div. 1989), certif. denied, 121 N.J. 607 (1990). 10 A-0698-14T3 Under Rule 4:50-1: "No categorization can be made of the situations which warrant redress under subsection (f). . . . [T]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." DEG, supra, 198 N.J. at 269-71 (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). Here, the record demonstrates the parties voluntarily entered into two settlement agreements, whose terms were unambiguous, including the provisions pertaining to enforcement of the agreements in the event of a default. The agreements were reached at arms-length, and with each party having provided consideration. There is no evidence in the record to the contrary. We do not view the motion judge's enforcement of the settlement agreements by entering judgment against defendants as an unconscionable penalty. A settlement agreement providing for enforcement is considered a penalty, and thus unenforceable when: a) the penalty is designed to be a punishment for a breach of the contract; and b) the penalty has no relation whatsoever to the amount of damages. See Westmount Country Club v. Kameny, 82 N.J. Super. 200, 206-07 (App. Div. 1964). Here, plaintiff's claims against defendants exceeded $1.7 million. She agreed to compromise those claims for $900,000, in 11 A-0698-14T3 exchange for surety of payment under an agreed upon schedule, and the ability to seek a $1.7 million judgment in the event of default. Thus, the sums set forth in the settlement did not exceed the total amount claimed in plaintiff's complaint and had a relation to the damages plaintiff alleged. We reject defendants' claims the settlement agreement and judgment enforcing them are usurious. Defendants misconstrue N.J.S.A. 31:1-1. This statute does not apply to the settlement agreements here because they were not loan instruments. See Loigman v. Keim, 250 N.J. Super. 434, 437 (Law Div. 1991) ("[T]he law of this State is consistent with the majority view that the usury statute N.J.S.A. 31:1-1, does not apply to interest on defaulted obligations."). Also, the settlement agreements do not impose an interest rate. The motion judge explained the sums due in the event of default encompassed the damages sought by plaintiff in her complaint under the parties' contract, including plaintiff's claims against defendants for misappropriation, fraud, and legal fees. Therefore, the terms of the settlement agreements are fair and entitled to enforcement. The record is devoid of a material misrepresentation by plaintiff that defendants relied upon resulting in damages. Indeed, defendants do not profess ignorance of the express terms 12 A-0698-14T3 of the settlement agreements. They negotiated the agreements for which there was a bargained for consideration. These facts do not support a finding of mistake, fraud, or misrepresentation. The record lacks any evidence, other than defendants' claim the settlement agreement was usurious, which we have rejected, to support their arguments on the grounds of newly discovered evidence or exceptional circumstances. Defendants do not point out what new evidence came to light that they did not have when they entered into the agreements. Also, because the settlement agreements were not usurious and the order enforcing the settlement was not an abuse of discretion, there are no exceptional circumstances warranting relief under Rule 4:50-1(f). III. Defendants challenge the September 19, 2014 order and reassert their arguments that they have no personal or individual obligation to plaintiff because the loans she made were to the corporate defendants, not the Francos or Siegmeister individually. The record clearly demonstrates defendants acknowledged individual responsibility for the funds provided by plaintiff by personally obligating themselves to repay plaintiff, and in default thereof to accept the imposition of a judgment for the unpaid amounts. We deem this argument without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). 13 A-0698-14T3 Lastly, Siegmeister argues the motion judge improperly denied his request for an adjournment of the motion, which Siegmeister made on the return date of the motion. We find no abuse of discretion in this regard, and this argument also lacks merit to warrant further discussion. R. 2:11-3(e)(1)(E). Affirmed. 14 A-0698-14T3
Date: November 14, 2017
Docket Number: a0858-14a069 PER CURIAM Defendants Robert A. Franco, Randi K. Franco, and Todd Siegmeister appeal from a September 19, 2014 order enforcing two stipulations of settlement reached with plaintiff Sheila Martello, requiring defendants to re-pay plaintiff funds she advanced 2 A-0698-14T3 relating to a gold venture in Africa.1 They also appeal from an order entered the same date denying their cross-motion to vacate the settlement agreements. These are back-to-back appeals consolidated for the purpose of this opinion. We affirm. This matter commenced when plaintiff filed a Law Division complaint asserting Robert A. Franco and Randi K. Franco committed fraud, negligence, misappropriation, civil conspiracy to commit fraud, and conversion. The complaint sought veil piercing remedies against the Francos' law firm. Plaintiff also asserted: fraud, misappropriation, civil conspiracy to commit fraud, conversion, and piercing the corporate veil against Todd Siegmeister. Plaintiff claimed defendants fraudulently induced her to loan them $785,000 for a fictitious venture. Specifically, Robert allegedly informed plaintiff's brother, Paul Martello, "he could make money quickly if he could find people to make a [thirty] day loan of $200,000 to Crown Financial who would re-pay the loan plus [twelve percent] interest and $100,000 within [thirty] days." Robert allegedly assured Paul Martello he was part owner of Crown Financial and that the company needed the money to finance the shipment of gold from Africa. 1 We will refer to Robert A. Franco and Randi K. Franco collectively as "the Francos." As defendants share a common last name, we will refer to them individually by their first names; no disrespect is intended. 3 A-0698-14T3 Paul Martello informed Robert he thought his sister could make the loan. Robert and Siegmeister contacted plaintiff. Robert allegedly represented he was Crown Financial's international general counsel, and Siegmeister its President. Robert allegedly informed plaintiff her monetary contribution would be used to pay the taxes, insurance, and freight for the gold transaction, and that he would personally "ensure the payment of those expenses out of his Law Firm's Trust Account." Plaintiff also alleges defendants stated her investment would be insured and guaranteed by an all-risk policy issued by Lloyd's of London. Plaintiff loaned defendants $200,000 on December 23, 2010, $150,000 on January 13, 2011, $60,000 on March 7, 2011, $175,000 on April 11, 2011, $56,000 on June 3, 2011, and $144,000 on June 9, 2011. Defendants executed loan agreements and promissory notes for the funds plaintiff provided. Plaintiff alleged these funds were never used to pay taxes, insurance, or freight, but were distributed from the Francos' Law Firm Trust Account to defendants. Plaintiff also alleged her loans were not insured by Lloyd's of London. Plaintiff was never repaid. On January 6, 2014, the matter was scheduled in the Law Division for a default proof hearing. Defendants' pleadings had previously been stricken for failing to comply with a court order to pay an award of counsel fees and accounting fees to plaintiff. 4 A-0698-14T3 The parties engaged in settlement discussions and plaintiff reached two settlement agreements with defendants. The settlement agreement between plaintiff and Siegmeister also resolved all claims against Michael Kirkovich, Elliot Vernon, Crown Financial Solutions, LLC, Crown Precious Metals Group, LLC, and Verde Tropical Development, Group LLC. The agreement with Siegmeister required plaintiff be re-paid a total of $550,000 in three equal installments of $183,333.33, payable on June 30, September 30, and December 30, 2014. In exchange, plaintiff agreed to dismiss her complaint. In the event of a default, the settlement agreement provided plaintiff could file a motion to seek entry of a judgment against Siegmeister, Michael Kirkovich, Elliot Vernon, Crown Financial Solutions, LLC, Crown Precious Metals Group, LLC, and Verde Tropical Development Group, LLC in the amount of $900,000, less any sums paid by these defendants. The settlement agreement between plaintiff and the Franco defendants provided for a payment obligation totaling $350,000, payable in three installments of $116,670.00, due on June 30, September 30, and December 30, 2014. The Franco settlement agreement contained the same default provisions as the agreement with Siegmeister, and stipulated plaintiff would be able to seek entry of judgment in the amount of $800,000, less any payments made by the Franco defendants. 5 A-0698-14T3 Neither the Francos nor Siegmeister made the June 30, 2014 payment. Consequently, plaintiff filed a motion to enter judgment in accordance with the settlement agreements. Both Siegmeister and the Francos opposed the motion and filed cross-motions to invalidate the settlement agreements, claiming they were usurious, fraudulent, and unconscionable. After oral argument, the motion judge entered an order denying both cross-motions, and entered judgment for plaintiff, in accordance with the settlement agreements, for $800,000 against the Francos and $900,000 against Siegmeister. On appeal, the Francos and Siegmeister argue the September 19, 2014 order entering judgment should be vacated as a matter of law because both settlement agreements are illegal. Specifically, defendants allege the settlement agreements are usurious and violate N.J.S.A. 31:1-1, since the combined amount they are obligated to pay is more than two-hundred percent of the original loan amount. Defendants also argue the motion court should not have enforced an illegal agreement, which contained a punitive amount of interest. Defendants claim they are entitled to relief by framing these arguments within Rule 4:50-1(a), (b), (c), (d) and (f). 6 A-0698-14T3 I. We begin by reciting our standard of review. We review a trial judge's entry of judgment pursuant to Rule 1:10-3, under an abuse of discretion standard. Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). Generally, Rule 1:10-3 is "a civil proceeding to coerce the defendant into compliance with the court's order." Pasqua v. Council, 186 N.J. 127, 140 (2006) (citing Essex Cty. Welfare Bd. v. Perkins, 135 N.J. Super. 189, 195 (App. Div.), cert. denied, 68 N.J. 161 (1975)). In fact, a proceeding under Rule 1:10-3 "is [the] proper tool to compel compliance with a court order." Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997). As such, a trial judge's exercise of discretion will not be disturbed absent a demonstration of an abuse of discretion resulting in injustice. Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). "An abuse of discretion 'arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Barr, supra, 58 N.J. Super. at 46 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561 (2002)). II. Defendants argue the judgments are unenforceable because both settlement agreements are illegal and represent a "mistake of the exploitive amount calculated in the settlement agreement and 7 A-0698-14T3 applied in the judgment; plaintiff and plaintiff's attorney's fraudulent acts of fashioning a judgment which is tantamount to criminal and civil usury; and the judgment's void nature since it is illegal." Specifically, defendants allege the agreements are unenforceable since they penalize defendants in the event of a default. We have stated that: An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a demonstration of "fraud or other compelling circumstances," should honor and enforce as it does other contracts. Indeed, "settlement of litigation ranks high in our public policy." Moreover, courts will not ordinarily inquire into the adequacy or inadequacy of the consideration underlying a compromise settlement fairly and deliberately made. . . . [W]here there is no showing of "artifice or deception, lack of independent advice, abuse of confidential relation, or similar indicia generally found in the reported instances where equity has declined to enforce, as unfair or unconscionable, an agreement voluntarily executed by the parties," the agreement should be enforced. It is only where the inadequacy of consideration is grossly shocking to the conscience of the court that it will interfere. [Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (citations omitted), cert. denied, 94 N.J. 600 (1983).] Rule 4:50-1 states: On motion, with briefs, and upon such terms as are just, the court may relieve a party or 8 A-0698-14T3 the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud[,] . . . misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; . . . (f) any other reason justifying relief from the operation of the judgment or order. Generally, "[c]ourts should use Rule 4:50-1 sparingly, [and] in exceptional situations[.]" Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994). Relief under Rule 4:50-1 "is designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Manning Eng'g, Inc. v. Hudson Cty. Park Comm'n, 74 N.J. 113, 120 (1977) (citing Hodgson v. Applegate, 31 N.J. 29, 43 (1959)). "The kind of mistake contemplated by [Rule 4:50-1(a)] has been described as one in which the parties could not have protected themselves from during the litigation." Pressler & Verniero, Current N.J. Court Rules, cmt. 5.1.1 on R. 4:50-1 (2018); See DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 263 (2009). Therefore, "neither the court's nor an attorney's error as to the law or the remedy constitutes mistake under this section." Pressler & Verniero, supra, cmt. 5.1.1 on R. 4:50-1. 9 A-0698-14T3 To establish relief from a judgment based on newly discovered evidence under Rule 4:50-1(b) the evidence must be: (1) [] material to the issue and not merely cumulative or impeaching, (2) have been discovered since the trial and must be such as by the exercise of due diligence could not have been discoverable prior to the expiration of the time for moving for a new trial; and (3) be of such a nature as to have been likely to have changed the result if a new trial had been granted. [Pressler & Verniero, Current N.J. Court Rules, cmt. 5.2 on R. 4:50-1 (2018).] Fraud, under Rule 4:50-1(c) requires proof of: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005) (quoting Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997)). Fraudulent misrepresentation occurs when an individual purports to represent a fact when it is in fact false. Jewish Ctr. of Sussex Cty. v. Whale, 86 N.J. 619, 624 (1981). Legal fraud or fraudulent misrepresentation must be established by clear and convincing evidence. See Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395-96 (App. Div. 1989), certif. denied, 121 N.J. 607 (1990). 10 A-0698-14T3 Under Rule 4:50-1: "No categorization can be made of the situations which warrant redress under subsection (f). . . . [T]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." DEG, supra, 198 N.J. at 269-71 (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). Here, the record demonstrates the parties voluntarily entered into two settlement agreements, whose terms were unambiguous, including the provisions pertaining to enforcement of the agreements in the event of a default. The agreements were reached at arms-length, and with each party having provided consideration. There is no evidence in the record to the contrary. We do not view the motion judge's enforcement of the settlement agreements by entering judgment against defendants as an unconscionable penalty. A settlement agreement providing for enforcement is considered a penalty, and thus unenforceable when: a) the penalty is designed to be a punishment for a breach of the contract; and b) the penalty has no relation whatsoever to the amount of damages. See Westmount Country Club v. Kameny, 82 N.J. Super. 200, 206-07 (App. Div. 1964). Here, plaintiff's claims against defendants exceeded $1.7 million. She agreed to compromise those claims for $900,000, in 11 A-0698-14T3 exchange for surety of payment under an agreed upon schedule, and the ability to seek a $1.7 million judgment in the event of default. Thus, the sums set forth in the settlement did not exceed the total amount claimed in plaintiff's complaint and had a relation to the damages plaintiff alleged. We reject defendants' claims the settlement agreement and judgment enforcing them are usurious. Defendants misconstrue N.J.S.A. 31:1-1. This statute does not apply to the settlement agreements here because they were not loan instruments. See Loigman v. Keim, 250 N.J. Super. 434, 437 (Law Div. 1991) ("[T]he law of this State is consistent with the majority view that the usury statute N.J.S.A. 31:1-1, does not apply to interest on defaulted obligations."). Also, the settlement agreements do not impose an interest rate. The motion judge explained the sums due in the event of default encompassed the damages sought by plaintiff in her complaint under the parties' contract, including plaintiff's claims against defendants for misappropriation, fraud, and legal fees. Therefore, the terms of the settlement agreements are fair and entitled to enforcement. The record is devoid of a material misrepresentation by plaintiff that defendants relied upon resulting in damages. Indeed, defendants do not profess ignorance of the express terms 12 A-0698-14T3 of the settlement agreements. They negotiated the agreements for which there was a bargained for consideration. These facts do not support a finding of mistake, fraud, or misrepresentation. The record lacks any evidence, other than defendants' claim the settlement agreement was usurious, which we have rejected, to support their arguments on the grounds of newly discovered evidence or exceptional circumstances. Defendants do not point out what new evidence came to light that they did not have when they entered into the agreements. Also, because the settlement agreements were not usurious and the order enforcing the settlement was not an abuse of discretion, there are no exceptional circumstances warranting relief under Rule 4:50-1(f). III. Defendants challenge the September 19, 2014 order and reassert their arguments that they have no personal or individual obligation to plaintiff because the loans she made were to the corporate defendants, not the Francos or Siegmeister individually. The record clearly demonstrates defendants acknowledged individual responsibility for the funds provided by plaintiff by personally obligating themselves to repay plaintiff, and in default thereof to accept the imposition of a judgment for the unpaid amounts. We deem this argument without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). 13 A-0698-14T3 Lastly, Siegmeister argues the motion judge improperly denied his request for an adjournment of the motion, which Siegmeister made on the return date of the motion. We find no abuse of discretion in this regard, and this argument also lacks merit to warrant further discussion. R. 2:11-3(e)(1)(E). Affirmed. 14 A-0698-14T3
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 JCPO, LLC v. CLAYTON PERLMAN a
Date: November 14, 2017
Docket Number: a0944-16a108 PER CURIAM Plaintiff JCPO, LLC brought this chancery action against defendants Clayton and Eva Perlman, alleging a fraudulent transfer of property from Clayton to Eva. At the conclusion of JCPO's case- in-chief, Chancery Judge Patricia Del Bueno Cleary dismissed the complaint pursuant to Rule 4:37-2(b). Later, the judge denied defendants' motion, based on both Rule 1:4-8 and N.J.S.A. 2A:15- 59.1, for frivolous litigation fees. JCPO appeals the involuntary dismissal, as well as the judge's later denial of its motion for reconsideration and a new trial. And defendants appeal the denial of their motion for fees. We calendared these appeals back-to-back and now affirm the orders under review by way of this single opinion. Indeed, we affirm those orders substantially for the reasons set forth by Judge Cleary in her oral decisions. We add only the following brief comments regarding JCPO's appeal of the involuntary dismissal. As the judge recognized, there was no dispute that, in 2010, JCPO lent $170,000 to FHF Enterprises, LLC, to fund the latter's acquisition and liquidation of foreclosed Florida properties. 2 A-0944-16T1 Defendant Clayton Perlman, as a principal of FHF, signed the loan agreement on FHF's behalf. But there was no evidence to support the contention that Clayton Perlman signed the agreement in an individual capacity or otherwise obligated himself personally on the promise to repay. The evidence reveals that FHF later defaulted on the loan agreement. JCPO then sued FHF, Clayton Perlman, and Frank Ficca, another FHF principal, in a Florida court, alleging securities fraud. In January 2013, the parties to the Florida suit entered into a settlement agreement which called for a release of the claims asserted by JCPO and the payment to JCPO by those defendants of $120,000 in two installments. The first $20,000 installment, due in April 2013, was paid; the second $100,000 installment, due by the end of 2013, was not. Pursuant to the stipulation in the settlement agreement that authorized JCPO's entitlement to a $150,000 consent judgment, less any paid settlement proceeds, a $130,000 judgment was entered in January 2014 against FHF, Clayton Perlman, and Frank Ficca. This chancery action, commenced in November 2014 sought to set aside a 2010 conveyance made by defendant Clayton Perlman – a judgment debtor on the 2014 judgment based on the Florida settlement agreement – to his wife, defendant Eva Perlman. Judge Cleary, correctly applying Rule 4:37-2(b), which required that she 3 A-0944-16T1 accept as true all the evidence that supported JCPO's position and provide JCPO with all reasonable legitimate inferences, Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) – found no evidence to suggest anything but that the underlying 2010 transaction was between only JCPO and FHF and that, although Clayton Perlman executed the loan agreement, he did so only in his capacity as a member of FHF and not personally. In reviewing this determination, like the chancery judge we too must honor the juridical distinction between the business entity that incurred the 2010 obligation and the individual who allegedly transferred assets at about the same time as the loan agreement and who only, three years later, incurred personal liability toward the claimant by entering into the settlement agreement. See Motorworld, Inc. v. Benkendorf, 228 N.J. 311, 317, 332-33 (2017). For these reasons, as well as those set forth by Judge Cleary in her cogent and thoughtful oral decision, we affirm the order granting an involuntary dismissal of JCPO's action. The orders under review in A-0944-16 and A-1087-16 are affirmed. 4 A-0944-16T1
Date: November 14, 2017
Docket Number: a0944-16a108 PER CURIAM Plaintiff JCPO, LLC brought this chancery action against defendants Clayton and Eva Perlman, alleging a fraudulent transfer of property from Clayton to Eva. At the conclusion of JCPO's case- in-chief, Chancery Judge Patricia Del Bueno Cleary dismissed the complaint pursuant to Rule 4:37-2(b). Later, the judge denied defendants' motion, based on both Rule 1:4-8 and N.J.S.A. 2A:15- 59.1, for frivolous litigation fees. JCPO appeals the involuntary dismissal, as well as the judge's later denial of its motion for reconsideration and a new trial. And defendants appeal the denial of their motion for fees. We calendared these appeals back-to-back and now affirm the orders under review by way of this single opinion. Indeed, we affirm those orders substantially for the reasons set forth by Judge Cleary in her oral decisions. We add only the following brief comments regarding JCPO's appeal of the involuntary dismissal. As the judge recognized, there was no dispute that, in 2010, JCPO lent $170,000 to FHF Enterprises, LLC, to fund the latter's acquisition and liquidation of foreclosed Florida properties. 2 A-0944-16T1 Defendant Clayton Perlman, as a principal of FHF, signed the loan agreement on FHF's behalf. But there was no evidence to support the contention that Clayton Perlman signed the agreement in an individual capacity or otherwise obligated himself personally on the promise to repay. The evidence reveals that FHF later defaulted on the loan agreement. JCPO then sued FHF, Clayton Perlman, and Frank Ficca, another FHF principal, in a Florida court, alleging securities fraud. In January 2013, the parties to the Florida suit entered into a settlement agreement which called for a release of the claims asserted by JCPO and the payment to JCPO by those defendants of $120,000 in two installments. The first $20,000 installment, due in April 2013, was paid; the second $100,000 installment, due by the end of 2013, was not. Pursuant to the stipulation in the settlement agreement that authorized JCPO's entitlement to a $150,000 consent judgment, less any paid settlement proceeds, a $130,000 judgment was entered in January 2014 against FHF, Clayton Perlman, and Frank Ficca. This chancery action, commenced in November 2014 sought to set aside a 2010 conveyance made by defendant Clayton Perlman – a judgment debtor on the 2014 judgment based on the Florida settlement agreement – to his wife, defendant Eva Perlman. Judge Cleary, correctly applying Rule 4:37-2(b), which required that she 3 A-0944-16T1 accept as true all the evidence that supported JCPO's position and provide JCPO with all reasonable legitimate inferences, Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) – found no evidence to suggest anything but that the underlying 2010 transaction was between only JCPO and FHF and that, although Clayton Perlman executed the loan agreement, he did so only in his capacity as a member of FHF and not personally. In reviewing this determination, like the chancery judge we too must honor the juridical distinction between the business entity that incurred the 2010 obligation and the individual who allegedly transferred assets at about the same time as the loan agreement and who only, three years later, incurred personal liability toward the claimant by entering into the settlement agreement. See Motorworld, Inc. v. Benkendorf, 228 N.J. 311, 317, 332-33 (2017). For these reasons, as well as those set forth by Judge Cleary in her cogent and thoughtful oral decision, we affirm the order granting an involuntary dismissal of JCPO's action. The orders under review in A-0944-16 and A-1087-16 are affirmed. 4 A-0944-16T1
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the MICHAEL MARTIN v. CONIFER-LECHASE CONSTRUCTION LLC, CONIFER REALTY, LLC -
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 IN THE MATTER OF APPEAL OF THE DE
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HAKEEM ALLEN v. NEW JERSEY DEPARTMENT OF CORRECTIONS
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the OF CHILD PROTECTION AND PERMANENCY v. Z.S and G.N IN THE MATTER OF Z.N
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. NICOLE D. ZAMBRANO-QUILLEN
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the OF CHILD PROTECTION AND PERMANENCY v. D.B., SR and C.B IN THE MATTER OF THE GUARDIANSHIP OF W.I.B
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 STATE OF NEW JERSEY v. J.B., J
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Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. STEVEN B. TRAINER, a/k/a STEVE JOHNSON, STEVEN JOHNSON, STEVEN B. JOHNSON ST
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ROYAL TAX LIEN SERVICES L.L.C. v. SYEDA FATIMA SHUAIB
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Date: November 11, 2017
Docket Number: a5501-14
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. K.A
Date: November 9, 2017
Docket Number: a0139-16
Date: November 9, 2017
Docket Number: a0139-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the WALLACE BROS., INC v. EAST BRUNSWICK BOARD OF EDUCATION
Date: November 9, 2017
Docket Number: a1432-15
Date: November 9, 2017
Docket Number: a1432-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 IN THE MATTER OF NEW JERSEY SPORT
Date: November 9, 2017
Docket Number: a2602-15a281 PER CURIAM On January 14, 2016, the New Jersey Sports and Exposition Authority (Authority) adopted Resolution 2016-70 (2016 Resolution), which certified the 2016 meadowlands adjustment payments for constituent municipalities, pursuant to the Hackensack Meadowlands Agency Consolidation Act (Act), N.J.S.A. 10A-1 to -68. The Town of Kearny and the Borough of North Arlington appeal from the 2016 Resolution. Thereafter, we granted the Authority's motion to consolidate the appeals, and permitted the Borough of Ridgefield to intervene.1 For the reasons that follow, we conclude that Ridgefield may not challenge its 2015 adjustment payment; the Authority erred by failing to calculate the 2016 adjustment payments in the manner prescribed by N.J.S.A. 5:10A-59(a); and the Authority did not err by including a $1.1 million payment that North Arlington received in 2012 when determining the amount of North Arlington's pre- adjustment payment for 2012 and the adjustment payments for 2015 and 2016. Accordingly, we reverse Resolution 2016-70 and remand for recalculation of the 2016 adjustment payments in accordance with N.J.S.A. 5:10A-59(a). 1 East Rutherford also was granted leave to intervene, but did not file a brief and is no longer participating in the appeal. 2 A-2602-15T4 I. The Hackensack Meadowlands District is comprised of fourteen constituent municipalities, which include Kearny, North Arlington, and Ridgefield. The Act provides in pertinent part for the establishment of an intermunicipal account and requires the Authority to compute the amounts that the constituent municipalities should pay to the account and be paid from the account each year. N.J.S.A. 5:10A—59(a). The Authority then must certify the adjustment payments for each constituent municipality. Ibid. The payments are determined by adding all the payments payable to that municipality from the intermunicipal account for school district service payments, guarantee payments, and apportionment payments, if any, and by subtracting therefrom the obligations of that municipality to the intermunicipal account, as calculated pursuant to [N.J.S.A. 5:10A-53 to -58]. The amount so derived shall be referred to as the meadowlands pre-adjustment payment. For calendar year 2015, the meadowlands adjustment payment shall be the average of the meadowlands pre-adjustment payments for calendar years 2012, 2013, and 2014. For calendar year 2016 and subsequent years, the meadowlands adjustment payment shall be the average of the meadowlands pre-adjustment payments for the prior three calendar years. [Ibid. (emphasis added).] The adjustment payments are funded primarily through the Meadowlands Regional Hotel Use Assessment, which is imposed 3 A-2602-15T4 pursuant to N.J.S.A. 5:10A-85(a). The Act provides that in the event the assessment generates insufficient revenue for the adjustment payments, the State Treasurer must provide the Authority with the funds needed to make up the shortfall. N.J.S.A. 5:10A-85(d). For calendar year 2015, the Authority calculated the adjustment payments by taking the average of each municipality's pre-adjustment payments for 2013, 2014, and 2015. On January 30, 2015, the Authority adopted Resolution 2015-01, certifying the payments due to the constituent municipalities for that calendar year. Based on information received from a constituent municipality, the Authority revised the payments for 2015 and on April 16, 2015, adopted Resolution 2015-12, which certified a revised payment schedule for 2015. The Authority then paid the designated amounts to the municipalities, as required by N.J.S.A. 5:10A-59(b). None of the constituent municipalities filed an appeal challenging the approved payments for 2015. For calendar year 2016, the Authority calculated the adjustment payments using the average of the municipality's pre- adjustment payments for years 2014, 2015, and 2016. The Authority then adopted Resolution 2016-70 certifying the payments for 2016. These appeals followed. 4 A-2602-15T4 On appeal, Kearny, North Arlington, and Ridgefield argue that the Authority erred by calculating the adjustment payments for 2016 because the Authority did not use the average of the pre- adjustment payments for the three prior calendar years, as required by N.J.S.A. 5:10A-59(a). Ridgefield challenges the 2015 adjustment payments for the same reason. In addition, North Arlington argues that the Authority erroneously calculated its 2016 adjustment payment by applying the amount of a payment North Arlington received in 2012 pursuant to a settlement of a tax appeal. II. The Authority argues that Ridgefield is precluded from challenging its 2015 adjustment payment because it failed to file a timely appeal from the resolutions the Authority adopted in 2015, which approved the adjustment payments for that calendar year. The Authority also argues that the doctrine of laches bars Ridgefield from challenging its 2015 adjustment payment. Rule 2:4-1(b) states that appeals must be taken from final decisions or actions of state administrative agencies within forty-five days after "the date of service of the decision or notice of the action taken." When an appeal is not filed within the time prescribed by the rule, the court lacks jurisdiction to decide the matter on the merits. Alberti v. Civil Serv. Comm'n, 5 A-2602-15T4 41 N.J. 147, 154 (1963); In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990). The forty-five-day filing requirement applies to an administrative "agency's quasi-judicial decisions that adjudicate the rights of a particular individual." Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 135 (2001) (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 2:4-1 (2001)). In determining whether an agency's decision is a quasi-judicial act, the key question is "whether the fact finding involves a certain person or persons whose rights will be directly affected." Id. at 136 (quoting Cunningham v. Dep't of Civil Serv., 69 N.J. 13, 22 (1975)). The Authority's 2015 resolutions are quasi-judicial acts because those resolutions represent factual determinations pertaining to the adjustment payments due to the District's constituent municipalities in 2015. Because Ridgefield did not file a timely appeal from the Authority's 2015 resolutions, it may not challenge its adjustment payment, which was authorized by those actions. In view of our decision, we need not address the Authority's argument that the laches doctrine also precludes Ridgefield from challenging the 2015 adjustment payment. 6 A-2602-15T4 III. Kearny, North Arlington, and Ridgefield argue that the Authority erred in calculating their 2016 adjustment payments. These municipalities argue that the Authority erroneously based the payments on the average of each municipality's pre-adjustment payments for 2014, 2015, and 2016, rather than the pre-adjustment payments for 2013, 2014, and 2015, as expressly required by N.J.S.A. 5:10A-59(a). The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013). An agency's decision will not be reversed unless it is arbitrary, capricious, or unreasonable. Ibid. (citing In re Petition for Rulemaking, N.J.A.C. 10:82-1.2 & 10:85-4.1, 117 N.J. 311, 325 (1989)). Therefore, the court's role in reviewing an agency's decision is limited to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Id. at 385-86 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).] 7 A-2602-15T4 Furthermore, we are "not bound by the agency's legal opinions." A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div.) (quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)), certif. denied, 200 N.J. 210 (2009). The construction of a statute is "a purely legal issue [that is] subject to de novo review." Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Here, the municipalities challenge the Authority's interpretation and application of N.J.S.A. 5:10A-59(a). When the court interprets statutory language, "the goal is to divine and effectuate the Legislature's intent." State v. Shelley, 205 N.J. 320, 323 (2011) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). We begin our inquiry with the language of the statute, giving the words used therein their ordinary and accepted meaning. Ibid. (citing DiProspero, supra, 183 N.J. at 492). If the statutory language is clear and unambiguous, we must "construe and apply the statute as enacted." In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980). N.J.S.A. 5:10A-59(a) states that for calendar year 2015, the adjustment payments "shall be the average of the meadowlands pre- adjustment payments for calendar years 2012, 2013, and 2014." The statute also states that for calendar year 2016 and all subsequent 8 A-2602-15T4 years, "the meadowlands adjustment payment shall be the average of the meadowlands pre-adjustment payments for the prior three calendar years." Ibid. Thus, N.J.S.A. 5:10A-59(a) plainly and unambiguously requires that the 2016 adjustment payments must be based on the average of the pre-adjustment payments for 2013, 2014, and 2015. It is undisputed that for 2016, the Authority based the adjustment payments upon the average of each municipality's pre-adjustment payments for 2014, 2015, and 2016. Therefore, the Authority did not calculate the payment in accordance with N.J.S.A. 5:10A-59(a). The Authority maintains, however, that its calculation of the 2016 adjustment payments was reasonable. According to the Authority, it calculated the 2016 payments in accordance with the prior statutory formula, which required the Authority to base the adjustment payments upon the average of the pre-adjustment payments for three calendar years — the current year and the two prior years. See N.J.S.A. 13:17-74(a).2 The Authority asserts its continued use of the prior statutory formula is entitled to deference. We disagree. 2 N.J.S.A. 5:10A-2(j) provides that in the event there is any conflict between the Act and L. 1968, c. 404 (codified at N.J.S.A. 13:17-1 to -86), the provisions of the Act will control. 9 A-2602-15T4 The Authority's action is inconsistent with the plain language of N.J.S.A. 5:10A-59(a). Although the Authority may have made its calculations based on the former statutory formula, the Act established a new formula and required that it be applied beginning in 2015. Ibid. The Authority was required to apply the new formula in determining the adjustment payments for 2016. It erred by failing to do so. The Authority further argues that if the court determines that the 2016 adjustment payments should have been calculated based on the average of the pre-adjustment payments for the three prior calendar years, it should be allowed to address any issues resulting from the erroneous calculation of the 2016 payments, including any underpayments or overpayments, when it calculates the next annual adjustment payments, which now would be in February 2018. We conclude it would be reasonable for the Authority to address these issues when it next calculates the adjustment payments. Accordingly, the 2016 Resolution is reversed and the matter remanded to the Authority to recalculate the 2016 adjustment payments in accordance with N.J.S.A. 5:10A-59(a). Furthermore, the Authority may address any issues arising from the erroneous calculation of the 2016 adjustment payments when it calculates the payments for 2018. 10 A-2602-15T4 IV. In addition to arguing that the Authority erred by basing its 2016 adjustment payment on the basis of the average of the pre- adjustment payments for 2014, 2015, and 2016, North Arlington argues that the Authority erred by including $1.1 million that it received in 2012 pursuant to a settlement of a tax appeal. A constituent municipality's adjustment payment is based in part on the amount that municipality is required to pay into the intermunicipal account. Ibid. The amount payable to the account is based in part upon the increase, if any, in the aggregate true value of taxable real property in the municipality in a comparison year. N.J.S.A. 5:10A-53(f).3 Any payments in lieu of taxes (PILOT) on real property that the municipality has received are taken into account in determining the increase or decrease in the aggregate true value of taxable real property in the municipality. N.J.S.A. 5:10A-53(e). The record shows that in April 2011, the New Jersey Meadowlands Commission (Commission) filed a tax appeal challenging North Arlington's real estate tax assessment upon property that the Commission owned in that municipality. The parties eventually 3 The term "comparison year" is defined as "the second calendar year preceding the adjustment year." N.J.S.A. 5:10A-3. 11 A-2602-15T4 settled the appeal, and the Commission agreed to pay North Arlington $1.1 million. The settlement agreement required North Arlington to execute a PILOT agreement, which states in part that the $1.1 million would be paid to the municipality as a payment in lieu of taxes "for the period from May 2008 through December 31, 2011[,] and in settlement of all future payments in lieu of taxes on the [p]roperty through December 31, 2030[,] or until such time as use of the [p]roperty changes . . . [.]" The PILOT agreement also states that the parties agreed the payment would be made "in satisfaction of all past and future taxes or payments in lieu of taxes on the [p]roperty for the period through December 31, 2030[,] . . . ." It is undisputed that the $1.1 million was paid to North Arlington in 2012. On appeal, North Arlington argues that the Authority erroneously included the $1.1 million it received in 2012 in calculating its pre-adjustment payment for 2012. North Arlington contends that if the Authority had not included the $1.1 million payment in determining that pre-adjustment payment, its adjustment payments for 2015 and 2016 would have been significantly greater. We reject North Arlington's arguments because they are not supported by the plain language of N.J.S.A. 5:10A-53(e). As noted, the statute expressly provides that if a constituent municipality 12 A-2602-15T4 has received in any comparison year "a payment in lieu of real estate taxes on property located within the district," that payment must be taken into account when determining whether there has been an increase or decrease in the aggregate true value of all taxable real property in the municipality. Ibid. As noted, the aggregate true value of all taxable property is part of the calculation that ultimately results in the determination of the municipality's adjustment payment. N.J.S.A. 5:10A-53(b)-(f); N.J.S.A. 5:10A-59(a). The 2012 payment was properly considered in determining North Arlington's pre- adjustment payment for 2012, and therefore properly taken into account in calculating the adjustment payments for 2015 an 2016. North Arlington contends that, at best, the payment it received in 2012 was largely for unpaid real estate taxes and not future tax assessments. It argues that the revenue was not related to any 2012 tax assessments. North Arlington further contends that the Commission labeled the payment a PILOT payment for its "internal purposes." North Arlington therefore maintains that the payment should not have been used in determining its 2012 pre- adjustment payment, or the adjustment payments for 2015 and 2016. We are not persuaded by these arguments. As noted, the PILOT agreement declares the payment to be a PILOT payment, and North Arlington received the payment in 2012. The Authority's decision 13 A-2602-15T4 to take the 2012 payment into account when calculating North Arlington's 2012 pre-adjustment payment was consistent with the plain language of N.J.S.A. 5:10A-53(e) and supported by sufficient credible evidence in the record. Reversed and remanded to the Authority for recalculation of the 2016 adjustment payments in accordance with this opinion. We do not retain jurisdiction. 14 A-2602-15T4
Date: November 9, 2017
Docket Number: a2602-15a281 PER CURIAM On January 14, 2016, the New Jersey Sports and Exposition Authority (Authority) adopted Resolution 2016-70 (2016 Resolution), which certified the 2016 meadowlands adjustment payments for constituent municipalities, pursuant to the Hackensack Meadowlands Agency Consolidation Act (Act), N.J.S.A. 10A-1 to -68. The Town of Kearny and the Borough of North Arlington appeal from the 2016 Resolution. Thereafter, we granted the Authority's motion to consolidate the appeals, and permitted the Borough of Ridgefield to intervene.1 For the reasons that follow, we conclude that Ridgefield may not challenge its 2015 adjustment payment; the Authority erred by failing to calculate the 2016 adjustment payments in the manner prescribed by N.J.S.A. 5:10A-59(a); and the Authority did not err by including a $1.1 million payment that North Arlington received in 2012 when determining the amount of North Arlington's pre- adjustment payment for 2012 and the adjustment payments for 2015 and 2016. Accordingly, we reverse Resolution 2016-70 and remand for recalculation of the 2016 adjustment payments in accordance with N.J.S.A. 5:10A-59(a). 1 East Rutherford also was granted leave to intervene, but did not file a brief and is no longer participating in the appeal. 2 A-2602-15T4 I. The Hackensack Meadowlands District is comprised of fourteen constituent municipalities, which include Kearny, North Arlington, and Ridgefield. The Act provides in pertinent part for the establishment of an intermunicipal account and requires the Authority to compute the amounts that the constituent municipalities should pay to the account and be paid from the account each year. N.J.S.A. 5:10A—59(a). The Authority then must certify the adjustment payments for each constituent municipality. Ibid. The payments are determined by adding all the payments payable to that municipality from the intermunicipal account for school district service payments, guarantee payments, and apportionment payments, if any, and by subtracting therefrom the obligations of that municipality to the intermunicipal account, as calculated pursuant to [N.J.S.A. 5:10A-53 to -58]. The amount so derived shall be referred to as the meadowlands pre-adjustment payment. For calendar year 2015, the meadowlands adjustment payment shall be the average of the meadowlands pre-adjustment payments for calendar years 2012, 2013, and 2014. For calendar year 2016 and subsequent years, the meadowlands adjustment payment shall be the average of the meadowlands pre-adjustment payments for the prior three calendar years. [Ibid. (emphasis added).] The adjustment payments are funded primarily through the Meadowlands Regional Hotel Use Assessment, which is imposed 3 A-2602-15T4 pursuant to N.J.S.A. 5:10A-85(a). The Act provides that in the event the assessment generates insufficient revenue for the adjustment payments, the State Treasurer must provide the Authority with the funds needed to make up the shortfall. N.J.S.A. 5:10A-85(d). For calendar year 2015, the Authority calculated the adjustment payments by taking the average of each municipality's pre-adjustment payments for 2013, 2014, and 2015. On January 30, 2015, the Authority adopted Resolution 2015-01, certifying the payments due to the constituent municipalities for that calendar year. Based on information received from a constituent municipality, the Authority revised the payments for 2015 and on April 16, 2015, adopted Resolution 2015-12, which certified a revised payment schedule for 2015. The Authority then paid the designated amounts to the municipalities, as required by N.J.S.A. 5:10A-59(b). None of the constituent municipalities filed an appeal challenging the approved payments for 2015. For calendar year 2016, the Authority calculated the adjustment payments using the average of the municipality's pre- adjustment payments for years 2014, 2015, and 2016. The Authority then adopted Resolution 2016-70 certifying the payments for 2016. These appeals followed. 4 A-2602-15T4 On appeal, Kearny, North Arlington, and Ridgefield argue that the Authority erred by calculating the adjustment payments for 2016 because the Authority did not use the average of the pre- adjustment payments for the three prior calendar years, as required by N.J.S.A. 5:10A-59(a). Ridgefield challenges the 2015 adjustment payments for the same reason. In addition, North Arlington argues that the Authority erroneously calculated its 2016 adjustment payment by applying the amount of a payment North Arlington received in 2012 pursuant to a settlement of a tax appeal. II. The Authority argues that Ridgefield is precluded from challenging its 2015 adjustment payment because it failed to file a timely appeal from the resolutions the Authority adopted in 2015, which approved the adjustment payments for that calendar year. The Authority also argues that the doctrine of laches bars Ridgefield from challenging its 2015 adjustment payment. Rule 2:4-1(b) states that appeals must be taken from final decisions or actions of state administrative agencies within forty-five days after "the date of service of the decision or notice of the action taken." When an appeal is not filed within the time prescribed by the rule, the court lacks jurisdiction to decide the matter on the merits. Alberti v. Civil Serv. Comm'n, 5 A-2602-15T4 41 N.J. 147, 154 (1963); In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990). The forty-five-day filing requirement applies to an administrative "agency's quasi-judicial decisions that adjudicate the rights of a particular individual." Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 135 (2001) (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 2:4-1 (2001)). In determining whether an agency's decision is a quasi-judicial act, the key question is "whether the fact finding involves a certain person or persons whose rights will be directly affected." Id. at 136 (quoting Cunningham v. Dep't of Civil Serv., 69 N.J. 13, 22 (1975)). The Authority's 2015 resolutions are quasi-judicial acts because those resolutions represent factual determinations pertaining to the adjustment payments due to the District's constituent municipalities in 2015. Because Ridgefield did not file a timely appeal from the Authority's 2015 resolutions, it may not challenge its adjustment payment, which was authorized by those actions. In view of our decision, we need not address the Authority's argument that the laches doctrine also precludes Ridgefield from challenging the 2015 adjustment payment. 6 A-2602-15T4 III. Kearny, North Arlington, and Ridgefield argue that the Authority erred in calculating their 2016 adjustment payments. These municipalities argue that the Authority erroneously based the payments on the average of each municipality's pre-adjustment payments for 2014, 2015, and 2016, rather than the pre-adjustment payments for 2013, 2014, and 2015, as expressly required by N.J.S.A. 5:10A-59(a). The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013). An agency's decision will not be reversed unless it is arbitrary, capricious, or unreasonable. Ibid. (citing In re Petition for Rulemaking, N.J.A.C. 10:82-1.2 & 10:85-4.1, 117 N.J. 311, 325 (1989)). Therefore, the court's role in reviewing an agency's decision is limited to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Id. at 385-86 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).] 7 A-2602-15T4 Furthermore, we are "not bound by the agency's legal opinions." A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div.) (quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)), certif. denied, 200 N.J. 210 (2009). The construction of a statute is "a purely legal issue [that is] subject to de novo review." Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Here, the municipalities challenge the Authority's interpretation and application of N.J.S.A. 5:10A-59(a). When the court interprets statutory language, "the goal is to divine and effectuate the Legislature's intent." State v. Shelley, 205 N.J. 320, 323 (2011) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). We begin our inquiry with the language of the statute, giving the words used therein their ordinary and accepted meaning. Ibid. (citing DiProspero, supra, 183 N.J. at 492). If the statutory language is clear and unambiguous, we must "construe and apply the statute as enacted." In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980). N.J.S.A. 5:10A-59(a) states that for calendar year 2015, the adjustment payments "shall be the average of the meadowlands pre- adjustment payments for calendar years 2012, 2013, and 2014." The statute also states that for calendar year 2016 and all subsequent 8 A-2602-15T4 years, "the meadowlands adjustment payment shall be the average of the meadowlands pre-adjustment payments for the prior three calendar years." Ibid. Thus, N.J.S.A. 5:10A-59(a) plainly and unambiguously requires that the 2016 adjustment payments must be based on the average of the pre-adjustment payments for 2013, 2014, and 2015. It is undisputed that for 2016, the Authority based the adjustment payments upon the average of each municipality's pre-adjustment payments for 2014, 2015, and 2016. Therefore, the Authority did not calculate the payment in accordance with N.J.S.A. 5:10A-59(a). The Authority maintains, however, that its calculation of the 2016 adjustment payments was reasonable. According to the Authority, it calculated the 2016 payments in accordance with the prior statutory formula, which required the Authority to base the adjustment payments upon the average of the pre-adjustment payments for three calendar years — the current year and the two prior years. See N.J.S.A. 13:17-74(a).2 The Authority asserts its continued use of the prior statutory formula is entitled to deference. We disagree. 2 N.J.S.A. 5:10A-2(j) provides that in the event there is any conflict between the Act and L. 1968, c. 404 (codified at N.J.S.A. 13:17-1 to -86), the provisions of the Act will control. 9 A-2602-15T4 The Authority's action is inconsistent with the plain language of N.J.S.A. 5:10A-59(a). Although the Authority may have made its calculations based on the former statutory formula, the Act established a new formula and required that it be applied beginning in 2015. Ibid. The Authority was required to apply the new formula in determining the adjustment payments for 2016. It erred by failing to do so. The Authority further argues that if the court determines that the 2016 adjustment payments should have been calculated based on the average of the pre-adjustment payments for the three prior calendar years, it should be allowed to address any issues resulting from the erroneous calculation of the 2016 payments, including any underpayments or overpayments, when it calculates the next annual adjustment payments, which now would be in February 2018. We conclude it would be reasonable for the Authority to address these issues when it next calculates the adjustment payments. Accordingly, the 2016 Resolution is reversed and the matter remanded to the Authority to recalculate the 2016 adjustment payments in accordance with N.J.S.A. 5:10A-59(a). Furthermore, the Authority may address any issues arising from the erroneous calculation of the 2016 adjustment payments when it calculates the payments for 2018. 10 A-2602-15T4 IV. In addition to arguing that the Authority erred by basing its 2016 adjustment payment on the basis of the average of the pre- adjustment payments for 2014, 2015, and 2016, North Arlington argues that the Authority erred by including $1.1 million that it received in 2012 pursuant to a settlement of a tax appeal. A constituent municipality's adjustment payment is based in part on the amount that municipality is required to pay into the intermunicipal account. Ibid. The amount payable to the account is based in part upon the increase, if any, in the aggregate true value of taxable real property in the municipality in a comparison year. N.J.S.A. 5:10A-53(f).3 Any payments in lieu of taxes (PILOT) on real property that the municipality has received are taken into account in determining the increase or decrease in the aggregate true value of taxable real property in the municipality. N.J.S.A. 5:10A-53(e). The record shows that in April 2011, the New Jersey Meadowlands Commission (Commission) filed a tax appeal challenging North Arlington's real estate tax assessment upon property that the Commission owned in that municipality. The parties eventually 3 The term "comparison year" is defined as "the second calendar year preceding the adjustment year." N.J.S.A. 5:10A-3. 11 A-2602-15T4 settled the appeal, and the Commission agreed to pay North Arlington $1.1 million. The settlement agreement required North Arlington to execute a PILOT agreement, which states in part that the $1.1 million would be paid to the municipality as a payment in lieu of taxes "for the period from May 2008 through December 31, 2011[,] and in settlement of all future payments in lieu of taxes on the [p]roperty through December 31, 2030[,] or until such time as use of the [p]roperty changes . . . [.]" The PILOT agreement also states that the parties agreed the payment would be made "in satisfaction of all past and future taxes or payments in lieu of taxes on the [p]roperty for the period through December 31, 2030[,] . . . ." It is undisputed that the $1.1 million was paid to North Arlington in 2012. On appeal, North Arlington argues that the Authority erroneously included the $1.1 million it received in 2012 in calculating its pre-adjustment payment for 2012. North Arlington contends that if the Authority had not included the $1.1 million payment in determining that pre-adjustment payment, its adjustment payments for 2015 and 2016 would have been significantly greater. We reject North Arlington's arguments because they are not supported by the plain language of N.J.S.A. 5:10A-53(e). As noted, the statute expressly provides that if a constituent municipality 12 A-2602-15T4 has received in any comparison year "a payment in lieu of real estate taxes on property located within the district," that payment must be taken into account when determining whether there has been an increase or decrease in the aggregate true value of all taxable real property in the municipality. Ibid. As noted, the aggregate true value of all taxable property is part of the calculation that ultimately results in the determination of the municipality's adjustment payment. N.J.S.A. 5:10A-53(b)-(f); N.J.S.A. 5:10A-59(a). The 2012 payment was properly considered in determining North Arlington's pre- adjustment payment for 2012, and therefore properly taken into account in calculating the adjustment payments for 2015 an 2016. North Arlington contends that, at best, the payment it received in 2012 was largely for unpaid real estate taxes and not future tax assessments. It argues that the revenue was not related to any 2012 tax assessments. North Arlington further contends that the Commission labeled the payment a PILOT payment for its "internal purposes." North Arlington therefore maintains that the payment should not have been used in determining its 2012 pre- adjustment payment, or the adjustment payments for 2015 and 2016. We are not persuaded by these arguments. As noted, the PILOT agreement declares the payment to be a PILOT payment, and North Arlington received the payment in 2012. The Authority's decision 13 A-2602-15T4 to take the 2012 payment into account when calculating North Arlington's 2012 pre-adjustment payment was consistent with the plain language of N.J.S.A. 5:10A-53(e) and supported by sufficient credible evidence in the record. Reversed and remanded to the Authority for recalculation of the 2016 adjustment payments in accordance with this opinion. We do not retain jurisdiction. 14 A-2602-15T4
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. J.Y.D
Date: November 9, 2017
Docket Number: a3221-14
Date: November 9, 2017
Docket Number: a3221-14
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the PNC BANK, N.A v. DEIDRE GUINE and MR. GUINE her husband
Date: November 9, 2017
Docket Number: a3483-15
Date: November 9, 2017
Docket Number: a3483-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. RAMON RIVERA-FIGUEROA
Date: November 9, 2017
Docket Number: a3649-15
Date: November 9, 2017
Docket Number: a3649-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., CS
Date: November 8, 2017
Docket Number: a0008-16
Date: November 8, 2017
Docket Number: a0008-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the FRANK CARABALLO v. CITY OF JERSEY CITY POLICE DEPARTMENT, a municipal entity and THOMAS COMEY, indi
Date: November 8, 2017
Docket Number: a0758-15
Date: November 8, 2017
Docket Number: a0758-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the MARLENE MORGAN v. PROGRESSIVE INSURANCE COMPANY and/or PROGRESSIVE GARDEN STATE INSURANCE COMPANY
Date: November 8, 2017
Docket Number: a2964-15
Date: November 8, 2017
Docket Number: a2964-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the PETER FONTANA AND KATHY FONTANA v. EXECUTIVE CARS, NEW YORK BLACK CAR.COM, ROYAL DISPATCH SERVICES
Date: November 8, 2017
Docket Number: a3151-15
Date: November 8, 2017
Docket Number: a3151-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the DEPARTMENT OF COMMUNITY AFFAIRS, SANDY RECOVERY DIVISION v. ROBERT RUGGIERO -
Date: November 8, 2017
Docket Number: a3604-15
Date: November 8, 2017
Docket Number: a3604-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. LATONIA E. BELLAMY a/k/a NA-NA
Date: November 8, 2017
Docket Number: a3676-12
Date: November 8, 2017
Docket Number: a3676-12
IN THE MATTER OF THE ESTATE OF MARY JANE LYNCH, DECEASED
Date: November 8, 2017
Docket Number: a5617-14
Date: November 8, 2017
Docket Number: a5617-14
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the ANTHONY MARRA, individually and as a member of MARTINSVILLE REALTY ASSOCIATES, LLC v. MITCHELL T. B
Date: November 6, 2017
Docket Number: a0149-15
Date: November 6, 2017
Docket Number: a0149-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. SIDDHARTH GAUR
Date: November 6, 2017
Docket Number: a0245-14a460 PER CURIAM In these consolidated appeals, defendant, Siddarth Gaur, appeals from his convictions, following a jury trial for attempted sexual assault and various other charges stemming from his interactions in a chat room with an undercover detective posing as a twelve-year-old girl. When he filed his appeal, defendant included, in his appendix, expert reports that were outside of the trial record, which he submitted in support of his contention that the State had altered audiotape recordings of phone conversations between defendant and a female undercover detective. We granted the State's motion to strike that information without prejudice to defendant making a motion in the trial court for the production of the original recordings. In our order, we anticipated that any appeal from the outcome of that motion would be consolidated with defendant's original appeal. We specifically granted the trial court jurisdiction to decide the motion pending appeal. Our February 2, 2016 order stated: We grant the State's motion to strike . . . the three expert reports appellant procured after the trial. However, our disposition is without prejudice to appellant filing a motion in the trial court to seek relief based upon those expert reports, including but not limited to granting appellant's counsel or his experts access to the original audiotape recordings in the State's possession. The trial court shall have jurisdiction to consider such a motion despite the pendency of this appeal. Depending on how the trial court rules on that motion if it is filed, 2 A-0245-14T4 either party may seek appellate review of the court's ruling in a new notice of appeal, which shall be consolidated with the present appeal. [(emphasis added).] Defendant made the motion and, in support, he filed his attorney's certification that had attached a copy of our order. Despite the provisions of our order, after considering the motion and counsels' oral arguments, the judge concluded that he did not have jurisdiction to consider the motion. We reverse and remand. We conclude from our review that the motion judge, who was not the trial judge, never saw our order. At the outset of oral argument, the judge stated that he "only . . . had a limited opportunity to review the submissions," but that based on his understanding of what was before him, he did not "expect that [he would] need further review or preparation." He warned counsel that "there may be issues which you may expect the [c]ourt to know which I don't as yet." Notably, neither attorney brought our order to the court's attention during oral argument. In fact, the prosecutor argued that defendant's motion was improper and not appropriate for the motion judge's consideration, never advising the judge that we already determined that issue in our order. 3 A-0245-14T4 The judge concluded that defendant's "arguments [were] clearly issues to be addressed in the appellate court." He subsequently entered an order on June 22, 2016, denying defendant's motion for access to the recordings and, on July 6, 2016, he issued a memorandum of decision explaining his reasons. In it, the judge stated that defendant's motion was "beyond the legal competence of th[e c]ourt to consider [as the] issues [raised are] for the Appellate Division's consideration on appeal as to the trial record. There has been no limited remand by the Appellate Division . . . ." (emphasis added). Obviously, the judge was mistaken. We are constrained to vacate the judge's order and remand the matter back to the Law Division for consideration of defendant's motion in accordance with our original order. The result here has caused undue delay in our consideration of defendant's appeal. We caution trial judges to ensure that they have indeed reviewed all of the submissions and have read and ensured the accuracy of their decisions before entering orders. Erroneous orders can cause, as here, a waste of everyone's valuable time and, more importantly, a delay in justice being done. The order dated June 22, 2016 is vacated. The matter is remanded for consideration of defendant's motion within twenty- one days. We retain jurisdiction, except as originally stated in our February 2, 2016 order. 4 A-0245-14T4 5 A-0245-14T4
Date: November 6, 2017
Docket Number: a0245-14a460 PER CURIAM In these consolidated appeals, defendant, Siddarth Gaur, appeals from his convictions, following a jury trial for attempted sexual assault and various other charges stemming from his interactions in a chat room with an undercover detective posing as a twelve-year-old girl. When he filed his appeal, defendant included, in his appendix, expert reports that were outside of the trial record, which he submitted in support of his contention that the State had altered audiotape recordings of phone conversations between defendant and a female undercover detective. We granted the State's motion to strike that information without prejudice to defendant making a motion in the trial court for the production of the original recordings. In our order, we anticipated that any appeal from the outcome of that motion would be consolidated with defendant's original appeal. We specifically granted the trial court jurisdiction to decide the motion pending appeal. Our February 2, 2016 order stated: We grant the State's motion to strike . . . the three expert reports appellant procured after the trial. However, our disposition is without prejudice to appellant filing a motion in the trial court to seek relief based upon those expert reports, including but not limited to granting appellant's counsel or his experts access to the original audiotape recordings in the State's possession. The trial court shall have jurisdiction to consider such a motion despite the pendency of this appeal. Depending on how the trial court rules on that motion if it is filed, 2 A-0245-14T4 either party may seek appellate review of the court's ruling in a new notice of appeal, which shall be consolidated with the present appeal. [(emphasis added).] Defendant made the motion and, in support, he filed his attorney's certification that had attached a copy of our order. Despite the provisions of our order, after considering the motion and counsels' oral arguments, the judge concluded that he did not have jurisdiction to consider the motion. We reverse and remand. We conclude from our review that the motion judge, who was not the trial judge, never saw our order. At the outset of oral argument, the judge stated that he "only . . . had a limited opportunity to review the submissions," but that based on his understanding of what was before him, he did not "expect that [he would] need further review or preparation." He warned counsel that "there may be issues which you may expect the [c]ourt to know which I don't as yet." Notably, neither attorney brought our order to the court's attention during oral argument. In fact, the prosecutor argued that defendant's motion was improper and not appropriate for the motion judge's consideration, never advising the judge that we already determined that issue in our order. 3 A-0245-14T4 The judge concluded that defendant's "arguments [were] clearly issues to be addressed in the appellate court." He subsequently entered an order on June 22, 2016, denying defendant's motion for access to the recordings and, on July 6, 2016, he issued a memorandum of decision explaining his reasons. In it, the judge stated that defendant's motion was "beyond the legal competence of th[e c]ourt to consider [as the] issues [raised are] for the Appellate Division's consideration on appeal as to the trial record. There has been no limited remand by the Appellate Division . . . ." (emphasis added). Obviously, the judge was mistaken. We are constrained to vacate the judge's order and remand the matter back to the Law Division for consideration of defendant's motion in accordance with our original order. The result here has caused undue delay in our consideration of defendant's appeal. We caution trial judges to ensure that they have indeed reviewed all of the submissions and have read and ensured the accuracy of their decisions before entering orders. Erroneous orders can cause, as here, a waste of everyone's valuable time and, more importantly, a delay in justice being done. The order dated June 22, 2016 is vacated. The matter is remanded for consideration of defendant's motion within twenty- one days. We retain jurisdiction, except as originally stated in our February 2, 2016 order. 4 A-0245-14T4 5 A-0245-14T4
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the CALISTO BERTIN and BERTIN ENGINEERING ASSOCIATES, INC v. MANHAR PATEL, GREENTREE DEVELOPERS, LLC, B
Date: November 6, 2017
Docket Number: a0308-16
Date: November 6, 2017
Docket Number: a0308-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the K.L.D.,1 v. J.D
Date: November 6, 2017
Docket Number: a0970-16
Date: November 6, 2017
Docket Number: a0970-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the LEE PHILLIPS v. KIMBERLY YORK
Date: November 6, 2017
Docket Number: a1149-16
Date: November 6, 2017
Docket Number: a1149-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. JOHN D. GABRIELE, a/k/a JOHN TEMPLEMAN, a/k/a ROCCO MARONE a/k/a WILLIAM BUR
Date: November 6, 2017
Docket Number: a3129-15
Date: November 6, 2017
Docket Number: a3129-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the PAMELA MACEK v. HENRY PEISCH
Date: November 6, 2017
Docket Number: a3291-15
Date: November 6, 2017
Docket Number: a3291-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the MYRA P. DIDONATO v. GEORGE V. DIDONATO
Date: November 6, 2017
Docket Number: a3465-15
Date: November 6, 2017
Docket Number: a3465-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. WILLIAM T. STELTZ
Date: November 6, 2017
Docket Number: a3658-15
Date: November 6, 2017
Docket Number: a3658-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the JOHN JAMES PIERSON v. NANNETTE PIERSON
Date: November 6, 2017
Docket Number: a3747-15
Date: November 6, 2017
Docket Number: a3747-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the CHINWE ATUEGWU v. EAST ORANGE GENERAL HOSPITAL
Date: November 3, 2017
Docket Number: a0448-14
Date: November 3, 2017
Docket Number: a0448-14
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. GREGORY TANASHIAN
Date: November 3, 2017
Docket Number: a0623-15
Date: November 3, 2017
Docket Number: a0623-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the V.M., by his Guardian ad Litem LaTANYA MURPHY and LaTANYA MURPHY, Individually v. JERSEY SHORE UNIV
Date: November 3, 2017
Docket Number: a0781-16
Date: November 3, 2017
Docket Number: a0781-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the OF CHILD PROTECTION AND PERMANENCY v. V.S and J.R IN THE MATTER OF M.M-C. and J.M-R., Minors
Date: November 3, 2017
Docket Number: a1006-14
Date: November 3, 2017
Docket Number: a1006-14
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the OF CHILD PROTECTION AND PERMANENCY v. C.L and B.W., J.O., and C.C IN THE MATTER OF THE GUARDIANSH
Date: November 3, 2017
Docket Number: a1596-16
Date: November 3, 2017
Docket Number: a1596-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. AMY BLOODWORTH
Date: November 3, 2017
Docket Number: a2570-15
Date: November 3, 2017
Docket Number: a2570-15
E.H. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: November 3, 2017
Docket Number: a4560-15
Date: November 3, 2017
Docket Number: a4560-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the BRENDA PARKER v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and MATRIX PERSONN
Date: November 2, 2017
Docket Number: a0215-16
Date: November 2, 2017
Docket Number: a0215-16
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. DAVON M. JOHNSON
Date: November 2, 2017
Docket Number: a0625-15
Date: November 2, 2017
Docket Number: a0625-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. DARIEN D. ANDERSON, a/k/a LEONARD D. DAVIS
Date: November 2, 2017
Docket Number: a0821-15
Date: November 2, 2017
Docket Number: a0821-15
Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. JUAN GUERRERO-ESTRADA, a/k/a JUAN C. ESTRADA, JUAN C GUERRERO, JUAN CARLOS G
Date: November 2, 2017
Docket Number: a2375-15a282 PER CURIAM Defendants Juan Guerrero-Estrada and Juan Flores Santos appeal from the denial of their respective suppression motions and subsequent convictions following a joint trial.1 Flores Santos also contends that the trial court failed to merge two offenses at the time of sentencing. After a review of the arguments in light of the record and applicable principles of law, we affirm. Both defendants were charged in an indictment with second- degree conspiracy, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), and 2C:35- 5(b)(8); first-degree possession with intent to distribute a controlled dangerous substance (CDS) (here, methamphetamine), N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(8), and 2C:2-6; first-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(8), and 1 We have consolidated these appeals for the purposes of this opinion. 2 A-2375-15T1 2C:2-6; and third-degree possession of a CDS, N.J.S.A. 2C:35- 10(a)(1) and 2C:2-6. We derive the facts from the testimony presented at the suppression hearing. Several detectives and other members of the New Jersey State Police were doing investigative work in a parking lot of a large box store on an unrelated narcotics case. Detective Hugh Ribeiro noticed a car parked at the far end of the lot in an area reserved normally for tractor trailers. The vehicle was facing outwards towards incoming traffic so that its occupants could see vehicles coming into the lot. Its two occupants were later identified as defendants; Flores Santos was holding a can of beer as he sat in the passenger seat. Based on these observations, the officers thought the car might be involved in the case they were investigating. Detective Sergeant Victorio Flora drove by defendants' vehicle. The Kansas license plate number revealed the owner to be Guerrero-Estrada. As the police were watching, defendants' car slowly circled the store and then backed into another space in the far side of the lot by the tractor trailers, again facing incoming traffic. Detective Flora described this maneuver "as if [the car] were looking for somebody or scanning the parking lot for law enforcement personnel." He also stated that the manner in which the car was facing towards oncoming traffic and parked with the 3 A-2375-15T1 tractor trailers far away from the store entrance was suspicious. They therefore continued to watch the car even though the officers determined it was likely unrelated to their original investigation. The officers next observed a Zipcar2 driving into the parking lot and coming to a stop in front of defendants' car. Co-defendant Juan Nunez got out of the Zipcar and joined Guerrero-Estrada, who had opened his trunk and was standing at the back of his car. Detective Flora testified that it appeared that Guerrero-Estrada was directing Nunez to move his car to a position behind his own vehicle so it was somewhat hidden by the parked tractor trailers. After another conversation, Nunez pulled his car alongside defendants' vehicle so the windows were aligned. The detectives then saw a white and red plastic bag thrown from the passenger side of defendants' car into the rear of the Zipcar. The Zipcar then headed toward the exit of the parking lot. The police decided to conduct investigative traffic stops on both vehicles. The prosecutor asked Detective Flora: "[a]nd why did you and members of your team decide to stop those two vehicles?" Flora responded: "Because we all felt that an illicit 2 Zipcar is an American car-sharing company which "provides automobile reservations to its members, billable by the minute, hour[,] or day." Zipcar, https://en.wikipedia.org/wiki/Zipcar (last visited Oct. 17, 2017). 4 A-2375-15T1 transaction just occurred at that location right then and there." The detective continued, explaining that narcotics transactions often take place in parking lots and shopping plazas, particularly in close proximity to a highway, because narcotic traffickers can "hide in plain sight." He stated that law enforcement officers perform surveillance work in these areas as well because they too can "hide in plain sight." Following the traffic stop, defendants consented to searches of the vehicles. The bag found in the Zipcar contained five bricks of crystal methamphetamine. Defendants moved to suppress the seizure of the narcotics, arguing that the police lacked reasonable suspicion to conduct an investigatory stop. In an oral decision, Judge Mitzy Galis-Menendez noted that an officer must have reasonable suspicion to believe that a motorist has engaged in or is about to engage in criminal activity in order to conduct a motor vehicle stop. A determination of reasonable suspicion consists of the "events which occurred leading up to the stop and then the decision whether [those] . . . facts viewed from [the] standpoint of an objectively reasonable police officer amount to reasonable suspicion." The judge recounted that Guerrero-Estrada was driving a vehicle with out-of-state plates, the car circled the area while Guerrero-Estrada was on his cell phone, and then he parked again 5 A-2375-15T1 in a parking space far from the store entrance. After Guerrero- Estrada had parked, Nunez drove into the area in a rental car. Guerrero-Estrada and Nunez spoke while standing by the trunk of Guerrero-Estrada's car, following which Nunez moved his car so it was parallel to the other vehicle. The police then observed a weighted bag tossed from one car into another. In looking at the totality of the circumstances, and finding Detective Flora to be credible, Judge Galis-Menendez concluded that the officers had reasonable and articulable suspicion to believe that they had observed criminal activity. The motion to suppress was denied. Prior to trial, Nunez pled guilty to second-degree conspiracy to distribute narcotics. He testified at trial that he was at the shopping plaza to pick up drugs, met with Guerrero-Estrada and Flores Santos for that purpose, and the drugs were tossed from Guerrero-Estrada's car into Nunez's car. Both defendants were convicted on all charges and sentenced to prison terms of ten years. At sentencing, the judge merged the second-degree conspiracy count with both the first-degree possession with intent to distribute a CDS count and the first-degree distribution of a CDS count. The judge also merged the third-degree possession of a CDS count with the first-degree possession with intent to distribute a CDS count. On appeal, Guerrero-Estrada raises the following arguments: 6 A-2375-15T1 POINT ONE: THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL DETENTION. POINT TWO: THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED. POINT THREE: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND RIGHT TO CONFRONTATION AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF HIGHLY PREJUDICIAL HEARSAY OPINION EVIDENCE. (Not Raised Below) A. The State Improperly Proffered Police Opinion Evidence that There Had Been a Drug Transaction B. The Defendant's Right to Confront Witnesses Was Violated by the Admission of Hearsay Statements of Absentee Police Officers Implicating the Defendant in the Commission of the Crimes POINT FOUR: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE JURORS WERE NOT INSTRUCTED ON ALL THE ESSENTIAL ELEMENTS OF CONSPIRACY, INTENT TO DISTRIBUTE, AND DISTRIBUTION OF CDS. (Not Raised Below) Flores Santos reiterates these contentions in his appeal, and adds an additional argument: POINT V: THE COUNT OF POSSESSION WITH INTENT TO DISTRIBUTE MUST MERGE WITH THE DISTRIBUTION COUNT. MOREOVER, THE SENTENCING COURT ERRED 7 A-2375-15T1 IN ORDERING DEFENDANT TO PAY FINANCIAL PENALTIES ON MERGED OFFENSES. We begin by addressing defendants' argument that the trial judge erred in not suppressing the narcotics and other evidence obtained subsequent to a search of the vehicles. In reviewing a motion to suppress, "we accord deference to the factual findings of the trial court." State v. Scriven, 226 N.J. 20, 32 (2016). That is particularly so as "to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). If our review satisfies us that the trial court's findings could reasonably have been reached on sufficient, credible evidence present in the record, our task is complete and we will not disturb the result. Id. at 162. Our review of the trial court's legal conclusions is plenary. State v. Rockford, 213 N.J. 424, 440 (2013). As Judge Galis-Menendez noted, it is well-settled that "[a] police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (emphasis added) (citing 8 A-2375-15T1 Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). Here, Flora believed he had seen criminal activity. Flora's suspicion was based on the movements of defendants' car and its location in the parking lot, and his knowledge that narcotics trafficking often takes place in large parking lots within close proximity to a highway. The judge was uniquely able to observe Flora's demeanor at the motion hearing and she found the detective to be credible. Her findings are entitled to deference. State v. Walker, 213 N.J. 281, 290 (2013) (finding that the court must give deference to the trial court's credibility findings, especially when a sole witness presents largely uncontested testimony that was challenged on cross-examination). At the conclusion of the State's case, defendants moved for acquittal on several of the counts, arguing that they could not be charged with possession with intent to distribute or distribution of a CDS because defendants cannot intend to distribute to each other drugs they already jointly possess. Defendants alleged that they and Nunez jointly and constructively possessed the methamphetamine at all times, and one cannot "conspire to possess with an intent to distribute with somebody else with whom you already have shared possession over it." 9 A-2375-15T1 In response, the State argued that Guerrero-Estrada and Flores Santos possessed the drugs in their car and acted together to transfer the narcotics into Nunez's vehicle. The judge denied the acquittal motion, concluding that the State had provided sufficient evidence that defendants possessed and distributed the narcotics. She also noted that Nunez testified that he had a phone conversation with Guerrero-Estrada who informed him where to pick up the package, and she found this to be additional evidence for a jury to determine there was an agreement to distribute. In our review, we apply the same standard as did the trial judge, and deny a motion under Rule 3:18-1 if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). Based on our review of the record and applicable law, we deem this argument lacks sufficient merit to warrant any discussion in addition to the comments set forth in the trial court's oral ruling of December 8, 2015. R. 2:11-3(e)(2). There was ample evidence presented by the State for the jury to consider and convict defendants on each charged offense. 10 A-2375-15T1 Defendants contend that a portion of Detective Flora's testimony was improper opinion evidence and impermissible hearsay. Flora testified that, after observing the two vehicles for a period of time as described, "myself and my unit members believed that an illicit transaction took place so we decided to conduct simultaneous investigative motor vehicle stops on both vehicles." Defendants argue that this testimony exceeded the limits of the lay testimony that police officers may present, violating the precepts established in State v. McLean, 205 N.J. 438 (2011), and contend that the officer improperly opined on the ultimate issue in the case. Defendants did not object to this testimony at trial and we therefore review it under a plain error standard; defendants must show that it is an error "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. In McLean, the prosecutor asked a police detective at trial if he thought "that [what he observed] was a hand-to-hand drug transaction." McLean, supra, 205 N.J. at 446. The officer responded affirmatively. Id. at 446-47. The Court found the testimony to be improper. Id. at 463. Because the testimony of the police detective was elicited by a question that referred to the officer's training, education, and experience, it called for an impermissible expert opinion. Ibid. 11 A-2375-15T1 Here, Flora's testimony was elicited by the question: "[a]nd what happened after that?" There was no reference to the officer's training, education, or experience. Flora answered the question based on his observations, commenting that "an illicit transaction" had occurred; he did not express a direct opinion that defendant was guilty of the charged crime. Flora's brief comment did not rise to the level of impermissible expert testimony found objectionable in McLean. "[A]n expert may 'characterize[] defendant's conduct based on the facts in evidence in light of his specialized knowledge[;] and the opinion is not objectionable even though it embraces ultimate issues that the jury must decide.'" Id. at 454 (quoting State v. Odom, 116 N.J. 65, 79 (1989)). We are more troubled by the portion of Flora's statement in which he implied that other unit members also believed that an illicit transaction had taken place. As there was no objection the State was not given the opportunity to present other officers as witnesses to corroborate the testimony and correct the error. We disagree with defendants' argument that the statement violated State v. Bankston, 63 N.J. 263, 271 (1973), as the jury was not led to believe that an unidentified witness only known to Flora told police that defendant was involved in a crime. Rather, the detective was explaining why his personal observations led him to 12 A-2375-15T1 take the subsequent action of conducting a motor vehicle stop. Any error in the fleeting statement was harmless. We find insufficient merit in defendants' argument set forth in Point Four to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Defendants were not charged with attempted distribution of CDS; the charges stemmed from the actual possession and distribution of narcotics. The judge properly followed the Model Jury Charges for each offense. Flores Santos further argues on appeal that the trial judge erred in her failure to merge the possession with intent to distribute count with the distribution count as these two charges encompass the same act. We disagree. See State v. Valentine, 69 N.J. 205, 211 (1976); State v. Davis, 68 N.J. 69, 84 (1975) (the crime of possession with intent to distribute CDS does not merge with the crime of distribution of CDS). The offenses here occurred at separate stages of the offensive conduct. Defendants committed possession with intent to distribute when they left Kansas with the narcotics and traveled to New Jersey. The distribution offense did not occur until defendants were in New Jersey and transferred the drugs to Nunez in the parking lot. Flores Santos also states that he was improperly ordered to pay penalties on the two counts that were correctly merged. We agree, as does the State, that separate fines and penalties should 13 A-2375-15T1 not be imposed on merged counts. We, therefore, remand to the trial court for the sole purpose of amending defendants' Judgments of Conviction to reflect the proper assessments. Affirmed in part, remanded for amendment of the Judgments of Conviction. We do not retain jurisdiction. 14 A-2375-15T1
Date: November 2, 2017
Docket Number: a2375-15a282 PER CURIAM Defendants Juan Guerrero-Estrada and Juan Flores Santos appeal from the denial of their respective suppression motions and subsequent convictions following a joint trial.1 Flores Santos also contends that the trial court failed to merge two offenses at the time of sentencing. After a review of the arguments in light of the record and applicable principles of law, we affirm. Both defendants were charged in an indictment with second- degree conspiracy, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), and 2C:35- 5(b)(8); first-degree possession with intent to distribute a controlled dangerous substance (CDS) (here, methamphetamine), N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(8), and 2C:2-6; first-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(8), and 1 We have consolidated these appeals for the purposes of this opinion. 2 A-2375-15T1 2C:2-6; and third-degree possession of a CDS, N.J.S.A. 2C:35- 10(a)(1) and 2C:2-6. We derive the facts from the testimony presented at the suppression hearing. Several detectives and other members of the New Jersey State Police were doing investigative work in a parking lot of a large box store on an unrelated narcotics case. Detective Hugh Ribeiro noticed a car parked at the far end of the lot in an area reserved normally for tractor trailers. The vehicle was facing outwards towards incoming traffic so that its occupants could see vehicles coming into the lot. Its two occupants were later identified as defendants; Flores Santos was holding a can of beer as he sat in the passenger seat. Based on these observations, the officers thought the car might be involved in the case they were investigating. Detective Sergeant Victorio Flora drove by defendants' vehicle. The Kansas license plate number revealed the owner to be Guerrero-Estrada. As the police were watching, defendants' car slowly circled the store and then backed into another space in the far side of the lot by the tractor trailers, again facing incoming traffic. Detective Flora described this maneuver "as if [the car] were looking for somebody or scanning the parking lot for law enforcement personnel." He also stated that the manner in which the car was facing towards oncoming traffic and parked with the 3 A-2375-15T1 tractor trailers far away from the store entrance was suspicious. They therefore continued to watch the car even though the officers determined it was likely unrelated to their original investigation. The officers next observed a Zipcar2 driving into the parking lot and coming to a stop in front of defendants' car. Co-defendant Juan Nunez got out of the Zipcar and joined Guerrero-Estrada, who had opened his trunk and was standing at the back of his car. Detective Flora testified that it appeared that Guerrero-Estrada was directing Nunez to move his car to a position behind his own vehicle so it was somewhat hidden by the parked tractor trailers. After another conversation, Nunez pulled his car alongside defendants' vehicle so the windows were aligned. The detectives then saw a white and red plastic bag thrown from the passenger side of defendants' car into the rear of the Zipcar. The Zipcar then headed toward the exit of the parking lot. The police decided to conduct investigative traffic stops on both vehicles. The prosecutor asked Detective Flora: "[a]nd why did you and members of your team decide to stop those two vehicles?" Flora responded: "Because we all felt that an illicit 2 Zipcar is an American car-sharing company which "provides automobile reservations to its members, billable by the minute, hour[,] or day." Zipcar, https://en.wikipedia.org/wiki/Zipcar (last visited Oct. 17, 2017). 4 A-2375-15T1 transaction just occurred at that location right then and there." The detective continued, explaining that narcotics transactions often take place in parking lots and shopping plazas, particularly in close proximity to a highway, because narcotic traffickers can "hide in plain sight." He stated that law enforcement officers perform surveillance work in these areas as well because they too can "hide in plain sight." Following the traffic stop, defendants consented to searches of the vehicles. The bag found in the Zipcar contained five bricks of crystal methamphetamine. Defendants moved to suppress the seizure of the narcotics, arguing that the police lacked reasonable suspicion to conduct an investigatory stop. In an oral decision, Judge Mitzy Galis-Menendez noted that an officer must have reasonable suspicion to believe that a motorist has engaged in or is about to engage in criminal activity in order to conduct a motor vehicle stop. A determination of reasonable suspicion consists of the "events which occurred leading up to the stop and then the decision whether [those] . . . facts viewed from [the] standpoint of an objectively reasonable police officer amount to reasonable suspicion." The judge recounted that Guerrero-Estrada was driving a vehicle with out-of-state plates, the car circled the area while Guerrero-Estrada was on his cell phone, and then he parked again 5 A-2375-15T1 in a parking space far from the store entrance. After Guerrero- Estrada had parked, Nunez drove into the area in a rental car. Guerrero-Estrada and Nunez spoke while standing by the trunk of Guerrero-Estrada's car, following which Nunez moved his car so it was parallel to the other vehicle. The police then observed a weighted bag tossed from one car into another. In looking at the totality of the circumstances, and finding Detective Flora to be credible, Judge Galis-Menendez concluded that the officers had reasonable and articulable suspicion to believe that they had observed criminal activity. The motion to suppress was denied. Prior to trial, Nunez pled guilty to second-degree conspiracy to distribute narcotics. He testified at trial that he was at the shopping plaza to pick up drugs, met with Guerrero-Estrada and Flores Santos for that purpose, and the drugs were tossed from Guerrero-Estrada's car into Nunez's car. Both defendants were convicted on all charges and sentenced to prison terms of ten years. At sentencing, the judge merged the second-degree conspiracy count with both the first-degree possession with intent to distribute a CDS count and the first-degree distribution of a CDS count. The judge also merged the third-degree possession of a CDS count with the first-degree possession with intent to distribute a CDS count. On appeal, Guerrero-Estrada raises the following arguments: 6 A-2375-15T1 POINT ONE: THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL DETENTION. POINT TWO: THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED. POINT THREE: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND RIGHT TO CONFRONTATION AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF HIGHLY PREJUDICIAL HEARSAY OPINION EVIDENCE. (Not Raised Below) A. The State Improperly Proffered Police Opinion Evidence that There Had Been a Drug Transaction B. The Defendant's Right to Confront Witnesses Was Violated by the Admission of Hearsay Statements of Absentee Police Officers Implicating the Defendant in the Commission of the Crimes POINT FOUR: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE JURORS WERE NOT INSTRUCTED ON ALL THE ESSENTIAL ELEMENTS OF CONSPIRACY, INTENT TO DISTRIBUTE, AND DISTRIBUTION OF CDS. (Not Raised Below) Flores Santos reiterates these contentions in his appeal, and adds an additional argument: POINT V: THE COUNT OF POSSESSION WITH INTENT TO DISTRIBUTE MUST MERGE WITH THE DISTRIBUTION COUNT. MOREOVER, THE SENTENCING COURT ERRED 7 A-2375-15T1 IN ORDERING DEFENDANT TO PAY FINANCIAL PENALTIES ON MERGED OFFENSES. We begin by addressing defendants' argument that the trial judge erred in not suppressing the narcotics and other evidence obtained subsequent to a search of the vehicles. In reviewing a motion to suppress, "we accord deference to the factual findings of the trial court." State v. Scriven, 226 N.J. 20, 32 (2016). That is particularly so as "to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). If our review satisfies us that the trial court's findings could reasonably have been reached on sufficient, credible evidence present in the record, our task is complete and we will not disturb the result. Id. at 162. Our review of the trial court's legal conclusions is plenary. State v. Rockford, 213 N.J. 424, 440 (2013). As Judge Galis-Menendez noted, it is well-settled that "[a] police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (emphasis added) (citing 8 A-2375-15T1 Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). Here, Flora believed he had seen criminal activity. Flora's suspicion was based on the movements of defendants' car and its location in the parking lot, and his knowledge that narcotics trafficking often takes place in large parking lots within close proximity to a highway. The judge was uniquely able to observe Flora's demeanor at the motion hearing and she found the detective to be credible. Her findings are entitled to deference. State v. Walker, 213 N.J. 281, 290 (2013) (finding that the court must give deference to the trial court's credibility findings, especially when a sole witness presents largely uncontested testimony that was challenged on cross-examination). At the conclusion of the State's case, defendants moved for acquittal on several of the counts, arguing that they could not be charged with possession with intent to distribute or distribution of a CDS because defendants cannot intend to distribute to each other drugs they already jointly possess. Defendants alleged that they and Nunez jointly and constructively possessed the methamphetamine at all times, and one cannot "conspire to possess with an intent to distribute with somebody else with whom you already have shared possession over it." 9 A-2375-15T1 In response, the State argued that Guerrero-Estrada and Flores Santos possessed the drugs in their car and acted together to transfer the narcotics into Nunez's vehicle. The judge denied the acquittal motion, concluding that the State had provided sufficient evidence that defendants possessed and distributed the narcotics. She also noted that Nunez testified that he had a phone conversation with Guerrero-Estrada who informed him where to pick up the package, and she found this to be additional evidence for a jury to determine there was an agreement to distribute. In our review, we apply the same standard as did the trial judge, and deny a motion under Rule 3:18-1 if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). Based on our review of the record and applicable law, we deem this argument lacks sufficient merit to warrant any discussion in addition to the comments set forth in the trial court's oral ruling of December 8, 2015. R. 2:11-3(e)(2). There was ample evidence presented by the State for the jury to consider and convict defendants on each charged offense. 10 A-2375-15T1 Defendants contend that a portion of Detective Flora's testimony was improper opinion evidence and impermissible hearsay. Flora testified that, after observing the two vehicles for a period of time as described, "myself and my unit members believed that an illicit transaction took place so we decided to conduct simultaneous investigative motor vehicle stops on both vehicles." Defendants argue that this testimony exceeded the limits of the lay testimony that police officers may present, violating the precepts established in State v. McLean, 205 N.J. 438 (2011), and contend that the officer improperly opined on the ultimate issue in the case. Defendants did not object to this testimony at trial and we therefore review it under a plain error standard; defendants must show that it is an error "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. In McLean, the prosecutor asked a police detective at trial if he thought "that [what he observed] was a hand-to-hand drug transaction." McLean, supra, 205 N.J. at 446. The officer responded affirmatively. Id. at 446-47. The Court found the testimony to be improper. Id. at 463. Because the testimony of the police detective was elicited by a question that referred to the officer's training, education, and experience, it called for an impermissible expert opinion. Ibid. 11 A-2375-15T1 Here, Flora's testimony was elicited by the question: "[a]nd what happened after that?" There was no reference to the officer's training, education, or experience. Flora answered the question based on his observations, commenting that "an illicit transaction" had occurred; he did not express a direct opinion that defendant was guilty of the charged crime. Flora's brief comment did not rise to the level of impermissible expert testimony found objectionable in McLean. "[A]n expert may 'characterize[] defendant's conduct based on the facts in evidence in light of his specialized knowledge[;] and the opinion is not objectionable even though it embraces ultimate issues that the jury must decide.'" Id. at 454 (quoting State v. Odom, 116 N.J. 65, 79 (1989)). We are more troubled by the portion of Flora's statement in which he implied that other unit members also believed that an illicit transaction had taken place. As there was no objection the State was not given the opportunity to present other officers as witnesses to corroborate the testimony and correct the error. We disagree with defendants' argument that the statement violated State v. Bankston, 63 N.J. 263, 271 (1973), as the jury was not led to believe that an unidentified witness only known to Flora told police that defendant was involved in a crime. Rather, the detective was explaining why his personal observations led him to 12 A-2375-15T1 take the subsequent action of conducting a motor vehicle stop. Any error in the fleeting statement was harmless. We find insufficient merit in defendants' argument set forth in Point Four to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Defendants were not charged with attempted distribution of CDS; the charges stemmed from the actual possession and distribution of narcotics. The judge properly followed the Model Jury Charges for each offense. Flores Santos further argues on appeal that the trial judge erred in her failure to merge the possession with intent to distribute count with the distribution count as these two charges encompass the same act. We disagree. See State v. Valentine, 69 N.J. 205, 211 (1976); State v. Davis, 68 N.J. 69, 84 (1975) (the crime of possession with intent to distribute CDS does not merge with the crime of distribution of CDS). The offenses here occurred at separate stages of the offensive conduct. Defendants committed possession with intent to distribute when they left Kansas with the narcotics and traveled to New Jersey. The distribution offense did not occur until defendants were in New Jersey and transferred the drugs to Nunez in the parking lot. Flores Santos also states that he was improperly ordered to pay penalties on the two counts that were correctly merged. We agree, as does the State, that separate fines and penalties should 13 A-2375-15T1 not be imposed on merged counts. We, therefore, remand to the trial court for the sole purpose of amending defendants' Judgments of Conviction to reflect the proper assessments. Affirmed in part, remanded for amendment of the Judgments of Conviction. We do not retain jurisdiction. 14 A-2375-15T1
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