PROSPECT COMMONS v. ARIA WRIGHT

NOT FOR PUBLICATION WITHOUT THE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-4399-16T3

PROSPECT COMMONS, a
Condominium, Inc.,

        Plaintiff-Appellant,

v.

ARIA WRIGHT, an individual,

        Defendant-Respondent,

and

DAVID HAZIZA, an individual,
JOHN C. GIARRUSO, an individual,
and VTL ELECTRIC CO., a New Jersey
Corporation,

     Defendants.
________________________________________

              Submitted April 11, 2018 – Decided May 17, 2018

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              0389-14.

              Jonathan I. Dorman, attorney for appellant.

              Litvak   &  Trifiolis,   PC,  attorneys   for
              respondent (Michael C. Trifiolis and James W.
              McCartney, on the brief).
PER CURIAM

      Plaintiff Prospect Commons appeals from a September 16, 2016

order of the Law Division granting defendant Aria Wright's motion

for summary judgment for failure to file an expert report.       Given

the motion judge's failure to hold oral argument and to provide

the requisite statement of reasons with the order per Rule 1:7-

4(a), we reverse and remand.

      We recite a summary of the underlying facts and procedural

history for the purpose of context.      In January 2014, Prospect

Commons filed its complaint against Wright, a unit owner at the

condominium    complex,   and   other   defendants    alleging    they

negligently installed a patio deck which       caused damage to a

retaining wall owned by Prospect Commons.1           Prospect Commons

further alleged the patio deck was unapproved by the condominium

board and failed to conform to customary principles.

      Wright filed a motion to dismiss Prospect Commons's complaint

for failure to answer interrogatories and to respond to a notice

to produce in August 2014.       The motion was granted and the

complaint was dismissed without prejudice.     Due to the continued

failure to comply with discovery, Wright filed a motion to dismiss

the complaint with prejudice per Rule 4:23-5(a)(2).        Subsequent


1
    The other named defendants are not participants in the appeal.


                                  2                           A-4399-16T3
thereto, Wright withdrew the motion as Prospect Commons provided

the requested documentation.    Thereafter, counsel for Wright sent

three letters to counsel for Prospect Commons stating that its

complaint remained dismissed.

     In February 2016, Wright again filed a motion to dismiss

Prospect Commons's complaint with prejudice.       Prospect Commons

filed a cross-motion to reinstate the complaint.    In deciding the

motions, a consent order was entered, which provided in pertinent

part that: all written discovery must be served by Prospect Commons

within 10 days of the order; Prospect Commons's expert report was

due within 45 days; and discovery was extended by 120 days.

Notwithstanding the express terms of the order, Prospect Commons

did not produce an expert report within the specified time.

     In August 2016, Wright filed a motion for summary judgment.

In response, Prospect Commons filed a cross-motion to extend time

to file an expert report and to extend discovery. Prospect Commons

then provided an expert report by Craig L. Moskowitz of CLM

Engineering Associates, LLC.

     On September 16, 2016, the judge assigned to the motions

granted summary judgment and dismissed all claims against Wright

with prejudice.    The order granting summary judgment did not

reference the judge's decision on the cross motion.        Prospect



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Commons filed a motion for reconsideration, which was denied on

November 4, 2016.       This appeal followed.2

      On appeal, Prospect Commons raises the following points:

                                     POINT I

            THE TRIAL COURT ERRED IN GRANTING SUMMARY
            JUDGMENT WITHOUT ENTERTAINING ORAL ARGUMENT.

                                    POINT II

            THE TRIAL COURT ERRED IN GRANTING SUMMARY
            JUDGMENT WITHOUT SETTING FORTH FINDINGS OF
            FACTS AND CONCLUSIONS OF LAW.

                                    POINT III

            THE TRIAL COURT ERRED IN NOT PERMITTING
            PLAINTIFF TO SUBMIT ITS EXPERT REPORT.

      Prospect Commons argues that the judge erred in that he failed

to   hold   oral    argument     regarding   Wright's     motion   for   summary

judgment and failed to attach a statement of reasons to the order

granting the relief, per Rule 1:7-4(a).             We agree.

      In the notice of motion accompanying the motion for summary

judgment,    Wright     waived    oral   argument    unless   opposition      was

presented.         Prospect    Commons   opposed    the   motion   for   summary


2
  We note that the notice of appeal only references the September
16, 2016 order, although the case information statement makes
reference to both the September order and the November 4, 2016
order for reconsideration. The notice of appeal must include the
judgment or decision appealed from. R. 2:5-1(f)(3)(A). Neither
party has briefed the denial of the motion for reconsideration.
Therefore, the only order under review is the September 16, 2016
order.

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judgment and filed a cross-motion to extend discovery and a

certification       in    support   of   the   cross-motion.        Despite   the

opposition which triggered the request, the judge did not conduct

oral argument and did not articulate the basis for the decision.

       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,


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, Wright requested oral argument if opposition was filed,

and Prospect Commons filed opposition. In the absence of adherence

to the requirement to conduct oral argument or to articulate the

specific reasons for denial, we are constrained to remand.

       Further, while we conclude the denial of oral argument without

an articulated basis alone compels a remand, we further conclude

                                         5                               A-4399-16T3
that   the   judge    erroneously      failed          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 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.

                                            6                                    A-4399-16T3
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.

     "[A]n     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 is indicative that the 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. As in Fisher, upon remand,

the judge shall 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).        Given    our

determination, we have not addressed the merits of the remaining

substantive issues raised on appeal.

     Reversed and remanded.         We do not retain jurisdiction.




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