PAUL CIBELLI, JR v. JEANNETTE P. QUIROGA

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion 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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0185-14T2

PAUL CIBELLI, JR.,

        Plaintiff-Appellant,

v.

JEANNETTE P. QUIROGA,

        Defendant-Respondent.

_________________________________

              Argued December 14, 2017 – Decided February 14, 2018

              Before Judges Simonelli, Rothstadt and Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              5258-11.

              Anthony J. Randazzo argued the cause for
              appellant (Anthony J. Randazzo, attorney; Paul
              Cibelli, Jr., on the pro se briefs).

              Donald D. Campbell argued the cause for
              respondent (Campbell & Campbell, attorneys;
              Donald D. Campbell, on the brief).

PER CURIAM

        Paul Cibelli, Jr. appeals from the July 25, 2014 Law Division

order granting summary judgment to Jeannette P. Quiroga, his ex-
girlfriend, and dismissing counts one through three of his four-

count complaint.1       We reverse.

      Quiroga and Cibelli began a romantic relationship in 2006.

In   June    2007,    Cibelli    was   convicted     for   murder     of   a    former

girlfriend     and     incarcerated     until   September        2009,     when     his

conviction was reversed and he was released on bail pending a re-

trial.      After his release, Cibelli resumed his relationship with

Quiroga until the end of September 2010, when the relationship

ended.

      Following their break up, on October 12, 2010, Quiroga filed

a domestic violence civil complaint and obtained a temporary

restraining     order    (TRO)    against     Cibelli      alleging     harassment.

During the ex parte TRO proceeding before a municipal court judge,

Quiroga testified that although she had broken up with Cibelli

"two weeks ago," he was "following" her and "text[ing] [her] every

single day" despite telling him "to leave [her] alone" and to stop

texting her.         Quiroga testified that she was in "fear for [her]

kids' li[ves] and [her] life."

      In    addition    to   issuing    the   TRO,    on   the   same      date,    the

municipal court judge found "probable cause" for the issuance of



1
  The remaining count of the complaint was dismissed without
prejudice by a different judge on August 11, 2014. Plaintiff does
not appeal that dismissal.

                                         2                                     A-0185-14T2
a criminal complaint charging Cibelli with harassment, 
N.J.S.A.

2C:33-4.     The police officer who had responded to Quiroga's home

after she reported Cibelli to the police appeared before the

municipal court judge to swear to the complaint. Upon questioning,

the officer told the municipal court judge that he had "viewed

[Quiroga's] cell phone" and there were "[fifteen] text messages

from the 1st of October up until today         . . . trying to reconnect

with her."    According to the officer, one of the text messages was

"a picture text" of "an intimate photo" showing Quiroga topless,

which "[Cibelli] basically threatened to print . . . and bring

. . . to [Quiroga's] place of employment . . . ."             The officer

stated that Quiroga told him "all these text messages started"

after Quiroga told Cibelli "she want[ed] no part of him anymore"

and refused to "testify on his behalf . . . as a character witness"

at his upcoming re-trial.

     On October 13, 2010, Cibelli was served with the TRO, arrested

on the criminal complaint, and jailed.           On the same date, the

prosecutor on the murder charge filed an application in the Law

Division   "to   revoke   [Cibelli's]   bail   and   remand   him   to   the

Correction Center pending the conclusion of this [re-]trial."            The

application was predicated upon the TRO and the criminal complaint

issued the day before.        The prosecuting attorney argued that

Cibelli was "a danger to the community" based upon "[his] history

                                   3                                A-0185-14T2
of domestic violence with respect to his former wife and because

of his actions now . . . ."      Instead of revoking Cibelli's bail

on the murder charge, the Law Division judge increased the bail

from $1 million to $1.3 million, resulting in Cibelli being

remanded.

     On November 19, 2010, a final restraining order (FRO) hearing

was conducted during which Cibelli disputed that he engaged in

harassing conduct.    On the contrary, Cibelli claimed "they were

involved in a dialogue about the relationship" and he "was only

kidding" about threatening to expose the intimate photograph.              At

the hearing, Cibelli's aunt testified that she had two phone

conversations with Quiroga in September 2010 during which Quiroga

demanded "money" on a credit card debt she believed Cibelli owed

her and threatened to "have [Cibelli] arrested" if "she [didn't]

get the money . . . ."        On cross-examination, Quiroga denied

calling   Cibelli's   aunt   solely   about   the   credit   card     debt.

According to Quiroga, she called his aunt because Cibelli "was

scaring [her] because of the picture" and Cibelli had threatened

"that if [she] were to call the attorney and his aunt . . . to

tell them what was going on[,] that [she] was going to regret it."

     Ultimately, the Family Part judge denied Quiroga the FRO and

dismissed the TRO and the domestic violence complaint.        As for the

criminal complaint, on February 17, 2011, a municipal court judge

                                  4                                 A-0185-14T2
dismissed the complaint based on Quiroga's failure to appear,

despite the court notifying her of the court date on January 12,

2011.      Subsequently,        Quiroga      moved    to     restore     the   criminal

complaint out of time over Cibelli's objection.                     On December 20,

2011,   the   municipal      court    judge     denied        Quiroga's    motion    but

modified the dismissal order to indicate "[d]ismissal [was] not

based on victim's failure to appear."

      On   October     11,    2011,      Cibelli      filed    a   four-count     civil

complaint against Quiroga for malicious prosecution, abuse of

process, severe emotional distress, and breach of contract.                            In

the   complaint,      Cibelli      alleged     that    after    their     relationship

"resumed[,]" from September 2009 to September 2010, he "made

various improvements to and fixed various items in [Quiroga's]

residence and an investment property she owned[,]" and "[Quiroga]

permitted     [him]    to    use   her    credit      card    to   buy    construction

materials needed" for the work. However, "[a]s [Cibelli's] October

1, 2010 retrial approached," Quiroga demanded payment of "$6000

in credit card charges" and "threaten[ed] to take action against

[Cibelli] if he did not pay . . . ."

      According to Cibelli, when "[he] refused [Quiroga's] demands

insisting he did not owe her anything[,]" Quiroga "without any

probable cause and with malice swore out a criminal complaint

. . . against [Cibelli] . . . charging him with harassment[,]

                                           5                                    A-0185-14T2
. . . and . . . caused a [TRO] to be issued against [him]" based

on the same allegation.             Cibelli alleged that, subsequently,

Quiroga's      "request   for   a    permanent    restraining       order      was

denied[,]" and the TRO and the criminal complaint were dismissed.

However, as a result of Quiroga's "malicious prosecution" and

"malicious abuse of process[,]" Cibelli "was arrested, imprisoned,

and   forced    to   defend   against   [Quiroga's]      false    charges"     and

"suffered severe emotional distress."            Cibelli alleged that his

"bail on his Middlesex County charges was revoked by his trial

judge and he was remanded to the Middlesex County Jail for the

remainder of his trial."        Cibelli also alleged that "[he] agreed

to make repairs and improvements to [Quiroga's] various properties

in    return   for   compensation"      and   demanded    $7070    "for     [his]

services."      In response, on November 21, 2011, Quiroga filed a

contesting answer and affirmative defenses.

       On February 6, 2013, an arbitrator awarded Cibelli $3500 in

damages and Quiroga filed a timely notice of demand for trial de

novo. On June 16, 2014, Quiroga moved for summary judgment, waived

oral argument, and consented to disposition on the papers.                 In her

affidavit submitted in support of her motion, Quiroga averred that

"[she] filed the harassment complaint based on the advice of the

Bayonne police officer who investigated [her] complaint."              Quiroga

further certified that "[w]hile [Cibelli] lived at [her] house,

                                        6                                 A-0185-14T2
he didn't pay rent and [she] paid for all materials[,]" and "[they]

never ever discussed him charging [her] on a per hour or per job

basis."   Quiroga continued that it was not until "[a]lmost a year

after [Cibelli] moved out and after his second [murder] conviction"

that she was sent the bill for services.        Cibelli opposed the

motion and requested oral argument.

     When oral argument was rescheduled from July 23 to July 25,

2014, Cibelli's attorney notified the motion judge that because

"neither [he] nor [his] adversary [was] available on July 25,"

which was the judge's "last day before vacation," and "the trial

date . . . [was] August 11, 2014, . . . there [was] no alternative

but to decide the motion on the papers."        Accordingly, without

oral argument and without making findings of fact and conclusions

of law, on July 25, 2014, the motion judge entered an order

granting Quiroga summary judgment and dismissing counts one, two

and three of the complaint.    The only reasoning provided by the

motion judge was a notation on the order stating "charges pursued

in municipal court [and] substantiated.       Court found sufficient

probable cause for claims.    Thus no genuine issues of material

facts in dispute."2   This appeal followed.



2
  As to count four, the order stated "[g]enuine issues of material
fact in dispute as to existence of verbal contract.        Summary
judgment denied as to contract claims."

                                 7                           A-0185-14T2
      On   appeal,    Cibelli    raises    the   following   points   for   our

consideration:

            POINT I

            THE COURT BELOW COMMITTED REVERSIBLE ERROR BY
            THE ENTRY OF SUMMARY JUDGMENT AND DISMISSAL
            OF COUNTS ONE, TWO, AND THREE OF THE
            PLAINTIFF'S COMPLAINT CONTRARY TO THE GENUINE
            ISSUES OF MATERIAL FACTS PRESENTED WHICH
            DEFEAT   SUMMARY  JUDGMENT   AND  SHOULD   BE
            SUBMITTED TO THE JURY.

            POINT II

            THE COURT BELOW COMMITTED REVERSIBLE ERROR AND
            ABUSED ITS DISCRETION BY FAILING TO PROVIDE A
            WRITTEN OR ORAL OPINION IN SUPPORT OF ITS
            DECISION TO GRANT SUMMARY JUDGMENT RESULTING
            IN AN ARBITRARY AND CAPRICIOUS DISMISSAL ON
            COUNTS ONE, TWO AND THREE OF THE PLAINTIFF'S
            COMPLAINT.

Because we agree with Cibelli's second point, we will not address

the first.

      Except for pre-trial discovery motions or motions directly

addressed to a calendar, oral argument "shall be granted as of

right" if a party requests it in the moving, answering, or reply

papers.    R. 1:6-2(d).         Where a request for oral argument on a

substantive motion is properly made, denial, absent articulation

of   specific   reasons    for     denial   on    the   record,   constitutes

reversible error.      Raspantini v. Arocho, 
364 N.J. Super. 528, 531-

34 (App. Div. 2003).       However, the court may deny such request

when special or unusual circumstances exist.              Filippone v. Lee,

                                       8                               A-0185-14T2

304 N.J. Super. 301, 306 (App. Div. 1997).         The court may also

deny such a request if the motion is frivolous or unsubstantiated.

Kozak v. Kozak, 
280 N.J. Super. 272, 274-76 (Ch. Div. 1994).

     Here, it is of great concern to us that the motion judge

failed to accommodate the request for oral argument or specify the

special or unusual circumstances for the denial of oral argument

on the record.   Of even greater concern, however, is the fact that

the motion judge failed to make written or oral findings of fact

and conclusions of law for the motion.         A trial judge has an

obligation to render "an opinion or memorandum decision, either

written or oral, [with] find[ings of] fact[] and . . . conclusions

of law thereon in all actions tried without a jury."      R. 1:7-4(a).

"The purpose of the rule is to make sure that the court makes its

own determination of the matter."      In re Tr. Created by Agreement

Dated Dec. 20, 1961, by & between Johnson & Hoffman, Lienhard &

Perry, 
399 N.J. Super. 237, 254 (App. Div. 2006).

     "When a trial court issues reasons for its decision, it 'must

state clearly [its] factual findings and correlate them with

relevant legal conclusions, so that parties and the appellate

courts   [are]   informed   of   the   rationale   underlying   th[ose]

conclusion[s].'"    Avelino-Catabran v. Catabran, 
445 N.J. Super.
 574, 594-95 (App. Div. 2016) (alterations in original) (quoting

Monte v. Monte, 
212 N.J. Super. 557, 565 (App. Div. 1986)).            In

                                   9                            A-0185-14T2
particular, when a trial judge issues an order granting summary

judgment, the "judge is required to detail the findings of fact

and conclusions of law in a written or oral opinion.                         Those

findings   and    conclusions     must      then   be    measured   against      the

standards set forth in [Brill v. Guardian Life Ins. Co. of Am.,


142 N.J. 520, 540 (1995)]."        Allstate Ins. Co. v. Fisher, 
408 N.J.

Super. 289, 299-300 (App. Div. 2009) (citations omitted) (quoting

Great Atl. & Pac. Tea Co. v. Checchio, 
335 N.J. Super. 495, 498

(App. Div. 2000)).        When that is not done, a reviewing court does

not know whether the judge's decision is based on the facts and

law   or   is    the    product   of   arbitrary        action   resting    on    an

impermissible basis.        See Monte, 
212 N.J. Super. at 565.

      The manner in which a trial judge complies with Rule 1:7-4(a)

is left to the judge's discretion.            In re Tr. Created by Agreement

Dated Dec. 20, 1961, 
399 N.J. Super. at 253.                     A judge is not

required to specify grounds for the grant or denial of a motion

and, instead, can rely upon reasons expressed by a party.                   Id. at

253-54.    However, the judge must make "such reliance 'explicit,'"

Fisher, 
408 N.J. Super. at 301 (quoting Pressler & Verniero,

Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2018)), and make

"clear the extent of [the judge's] agreement with and reliance on

[the]   proposed       findings   of   fact   and   conclusions      of    law[,]"

demonstrating that the judge "carefully considered the evidentiary

                                       10                                  A-0185-14T2
record    and   did   not   abdicate    [the   judge's]   decision-making

responsibility."      In re Tr. Created by Agreement Dated Dec. 20,

1961, 
399 N.J. Super. at 254.

     To be sure, a judge "does not discharge [his or her] function

simply by recounting the parties' conflicting assertions and then

stating a legal conclusion, or . . . incorporating by reference

one of the parties' arguments."        Avelino-Catabran, 
445 N.J. Super.

at 595.    Rather, "an articulation of reasons is essential to the

fair resolution of a case."      O'Brien v. O'Brien, 
259 N.J. Super.
 402, 407 (App. Div. 1992).       Here, there is nothing in the order

under review that confirms the motion judge made an independent

decision based upon an analysis of the facts and applicable law.

"While the failure to provide reasons necessitates a remand, we

are left with the option of remanding for a statement of reasons

or reversing and remanding for consideration of the motion . . .

anew. We determine that the latter course of action is appropriate

here."    Fisher, 
408 N.J. Super. at 303.

     The order under review is vacated.          The matter is remanded

and the court is directed to conduct oral argument, consider the

motion anew, and enter a new order together with a written or oral

statement of reasons in conformity with Rule 1:7-4(a).          We do not

retain jurisdiction.



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