ST. CYRILLUS AND METHODIUS CZECHO SLOVAK NATIONAL CHURCH OF PERTH AMBOY, NJ, INC v. POLISH NATIONAL CATHOLIC CHURCH, INC

NOT FOR PUBLICATION WITHOUT THE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-0933-18T4

ST. CYRILLUS AND
METHODIUS CZECHO SLOVAK
NATIONAL CHURCH OF PERTH
AMBOY, NJ, INC.,

          Plaintiff-Appellant,

v.

POLISH NATIONAL CATHOLIC
CHURCH, INC.,

     Defendant-Respondent.
_____________________________

                    Argued February 12, 2020 – Decided March 2, 2020

                    Before Judges Fuentes, Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-4511-18.

                    Mario Apuzzo argued the cause for appellant.

                    Edwin R. Matthews argued the cause for respondent
                    (Bourne Noll & Kenyon, attorneys; Edwin R.
                    Matthews, on the brief).

PER CURIAM
      Plaintiff St. Cyrillus and Methodius Czecho Slovak National Catholic

Church of Perth Amboy, N.J., Inc. is a church parish affiliated with and

subordinate to defendant Polish National Catholic Church, Inc. Since February

2016, the two entities have been debating, among other things, which of them

has the right to use a rectory building for administrative and religious purposes.

      In this current chapter of this long-running litigation, plaintiff appeals

from the Law Division's August 2, 2018 and September 14, 2018 orders denying

plaintiff's requests for statutory damages and an award of counsel fees under the

unlawful entry and detainer statutes,  N.J.S.A. 2A:39-1 to -8, and for similar

relief pursuant to Rule 1:10-3. Having reviewed plaintiff's contentions in light

of the record and applicable law, we affirm.

      The parties are fully familiar with the lengthy procedural history and facts

of this matter. Therefore, we need only recite the most salient facts here.

      Plaintiff joined defendant's religious organization member church in 1937,

and has operated under defendant's constitution and authority since that time.

Plaintiff used a church located in Perth Amboy for its religious services, and the

neighboring rectory for administrative functions.

      In 2004, plaintiff stopped paying its required dues to defendant. Nine

years later, the church burned down. Following the fire in 2013, defendant's


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diocesan bishop determined that plaintiff was no longer a financially v iable

parish, and took control of the church, rectory, and other related real and

personal property previously managed by plaintiff. In February 2016, plaintiff

filed a complaint against defendant and alleged that defendant had improperly

assumed control over the property. On December 5, 2017, the trial court granted

defendant's motion for summary judgment after finding that all of the property,

including the rectory, was "appropriately within the control of" defendant.

Thus, plaintiff no longer had a possessory interest in the rectory.

        Plaintiff filed a notice of appeal to this court, and that matter is currently

pending. 1 On February 5, 2018, the trial court denied plaintiff's motion for a

stay pending appeal. The court also denied defendant's motion to require an

individual, L.D.,2 who had been living in the rectory and working as a caretaker,

to vacate the property. The court found that "the rights of [L.D.] shall be

addressed in a separate ejectment proceeding."            We subsequently denied

plaintiff's motion for a stay pending appeal, as did the Supreme Court.

Nevertheless, plaintiff continued to access the rectory because it still had a key




1
    Docket No. A-2157-17.
2
    In order to protect his privacy, we use initials to refer to this non-party.
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to the building, and it held religious services there contrary to defendant's

wishes.

      After the Supreme Court denied plaintiff's motion for a stay on July 3,

2018, defendant made an arrangement with L.D. that permitted him to remain in

the rectory. Defendant then changed the locks on the building and, in order to

comply with the trial court's February 5, 2018 order, it gave a copy of the new

key to L.D.     Because plaintiff had no possessory interest in the rectory,

defendant did not give a key to plaintiff.

      On July 30, 2018, plaintiff filed an order to show cause and complaint

against defendant. It sought an order requiring defendant to remove the new

locks, restore the old locks, and cease preventing it from accessing the rectory.

Based upon its allegation that defendant had unlawfully entered the rectory in

violation of  N.J.S.A. 2A:39-1 and -2, plaintiff also sought an award of damages

and counsel fees under  N.J.S.A. 2A:39-8.

      Because the judge who had issued the order granting possession of the

building to defendant was no longer available, a different judge handled this

application. The judge granted the restraints sought by plaintiff and set an

August 2, 2018 return date.




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      On August 2, defendant advised the judge that it could not restore the old

locks because they had been discarded when the new locks were installed.

Following oral argument, the judge ordered defendant to provide plaintiff with

"immediate and continuous access" to the rectory from 6:00 p.m. on August 2,

until 4:30 p.m. on August 7, 2018. On that date, plaintiff was to vacate the

rectory. After defendant's attorney conceded that plaintiff had not sustained any

monetary damages from being "locked out" of the building, the judge made no

finding that defendant had violated  N.J.S.A. 2A:39-1 or -2 and, citing the

"American Rule," he denied plaintiff's request for attorney's fees and costs under

 N.J.S.A. 2A:39-8.

      On August 2, plaintiff also filed a motion to enforce litigant's rights under

Rule 1:10-3. Plaintiff complained that defendant did not give it a new key to

the rectory and, instead, granted it access by having L.D. open the door for its

members when requested. Plaintiff also asserted that on August 2, L.D. was not

available to open the door at 6:00 p.m. and, as a result, it was not admitted to

the building for twenty-two minutes. Plaintiff asked the court to impose "a

monetary penalty" on defendant for not giving it a new key, and grant it

attorney's fees and costs.




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      The judge conducted oral argument on September 14, 2018, and denied

plaintiff's motion. In so ruling, the judge stated:

            Plaintiff is seeking sanctions at this point. [Plaintiff]
            argues that they should have been given keys. There's
            nothing in the [c]ourt's [o]rder to indicate that it was the
            [c]ourt's intention to give them keys. The [c]ourt's
            intention was to give them access. Access was
            provided, it was delayed somewhat, but it was provided
            consistent with the [c]ourt's August 2nd [o]rder. The
            delay was not . . . of sufficient consequence to warrant
            the entering of sanctions. And again[,] they had access
            to the rectory. That access terminated as of August [7,
            2018]. So the [c]ourt finds there is no basis to grant the
            plaintiff's request for sanctions or attorney[']s fees, so
            the [m]otion is denied at this time.

This appeal followed.

      On appeal, plaintiff again argues that the judge should have granted it

counsel fees and costs pursuant to  N.J.S.A. 2A:39-8 or Rule 1:10-3.             We

disagree.

      The principles guiding our review are well-settled. "New Jersey strictly

adheres to the 'American rule' in regards to attorney's fees[,]" under which each

party bears its own legal fees and costs. First Atl. Fed. Credit Union v. Perez,

 391 N.J. Super. 419, 425 (App. Div. 2007) (citing Van Horn v. City of Trenton,

 80 N.J. 528, 538 (1979)). "Consistent with this policy, attorney's fees are not

recoverable absent express authorization by statute, court rule or contract." Ibid.


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(citing State of New Jersey, Dep't of Envtl. Prot. v. Ventron Corp.,  94 N.J. 473,

505 (1983)). In addition, "a court has inherent power to require a party to

reimburse another litigant for its litigation expenses, including counsel fees."

Oliviero v. Porter Hayden Co.,  241 N.J. Super. 381, 387 (App. Div. 1990) (citing

Vargas v. A.H. Bull Steamship Co.,  25 N.J. 293, 296 (1957)). Attorney "fee

determinations by trial courts will be disturbed only on the rarest of occasions,

and then only because of a clear abuse of discretion." Packard-Bamberger &

Co. v. Collier,  167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer,  141 N.J.
 292, 317 (1995)).

      Plaintiff first contends that it had a statutory right to counsel fees under

 N.J.S.A. 2A:39-1 and -2. However, this argument lacks merit. These statutes

prohibit forcible entry into real property, "except where entry is given by law,"

unless the entry is made "pursuant to legal process."  N.J.S.A. 2A:39-1. A

prevailing plaintiff in any action instituted under  N.J.S.A. 2A:39-1 and -2 "shall

recover all damages proximately caused by the unlawful entry and detainer

including court costs and reasonable attorney's fees."  N.J.S.A. 2A:39-8.

      However, as we explained over twenty years ago in Levin v. Lynn,  310 N.J. Super. 177, 183 (App. Div. 1998), these two statutes were amended in 1971

            to add . . . references . . . to  N.J.S.A. 2A:18-53 et seq.
            and  N.J.S.A. 2A:39-2 et seq., [which] are . . . the

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            statutory provisions concerning, respectively, summary
            dispossess proceedings instituted in the Special Civil
            Part, and Superior Court actions to establish either title
            or the right to possession of real property, and the intent
            of those amendments is clearly to prohibit a landlord or
            anyone else from taking possession of residential
            premises without following judicial procedures.

            [(emphasis added)].

      Here, plaintiff no longer had any possessory interest in the property at all

as the result of the trial court's December 5, 2017 order granting possession of

the rectory and other property to defendant. While plaintiff attempted to obtain

a stay of this order pending appeal, its motions for same were denied by the trial

court, this court, and the Supreme Court. Because plaintiff did not have any

right to access the property for any purpose, defendant did not violate the

unlawful detainer and detainer statutes by changing the locks .           Just as

importantly, plaintiff did not use the property as its "residence" and therefore,

the unlawful entry and statutes were simply inapplicable to it. Levin,  310 N.J.

Super. at 183.3




3
   As the first judge implicitly recognized in his February 5, 2018 order
preventing defendant from ejecting L.D. from the rectory, these statutes might
have applied to L.D., who lived in the building. As stated above, however,
defendant and L.D. reached an agreement that permitted L.D. to remain in the
rectory and, therefore, the issue of his removal was moot at that time.
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      In sum, plaintiff had no statutory right to counsel fees and costs under

 N.J.S.A. 2A:39-8. Therefore, we reject plaintiff's contention on this point.

      Plaintiff's claim for attorney's fees under Rule 1:10-3 is equally meritless.

In pertinent part, Rule 1:10-3 provides:

            Notwithstanding that an act or omission may also
            constitute a contempt of court, a litigant in any action
            may seek relief by application in the action. A judge
            shall not be disqualified because he or she signed the
            order sought to be enforced. . . . The court in its
            discretion may make an allowance for counsel fees to
            be paid by any party to the action accorded relief under
            this rule.

      "[A] proceeding to enforce litigants' rights under Rule 1:10-3 'is

essentially a civil proceeding to coerce the defendant into compliance with the

court's order for the benefit of the private litigant[.]'" Pasqua v. Council,  186 N.J. 127, 140 (2006) (quoting Essex Cty. Welfare Bd. v. Perkins,  133 N.J. Super.
 189, 195 (App. Div. 1975)). Thus, an application for relief under Rule 1:10-3

is distinguishable from "[a] criminal contempt proceeding under Rule 1:10-2[,]"

which "is 'essentially criminal' in nature and is instituted for the purpose of

punishing a defendant who fails to comply with a court order." Ibid. (quoting

Essex Cty. Welfare Bd.,  133 N.J. Super. at 195). Accordingly, "[r]elief under

[Rule] 1:10-3, whether it be the imposition of incarceration or a sanction, is not

for the purpose of punishment, but as a coercive measure to facilitate the

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enforcement of the court order." Ridley v. Dennison,  298 N.J. Super. 373, 381

(App. Div. 1997).

      We review a trial court's imposition of sanctions against a litigant pursuant

to Rule 1:10-3 under the abuse of discretion standard. Barr v. Barr,  418 N.J.

Super. 18, 46 (App. Div. 2011). "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.'" Ibid. (quoting Flagg v. Essex

Cty. Prosecutor,  171 N.J. 561, 571 (2002)). The decision to award attorney's

fees and costs associated with an enforcement motion also "rests within the

sound discretion of the trial court." Wear v. Selective Ins. Co.,  455 N.J. Super.
 440, 459 (App. Div. 2018) (quoting Maudsley v. State,  357 N.J. Super. 560, 590

(App. Div. 2003)).

      Applying these principles, we perceive no basis for second-guessing the

judge's determination that defendant complied with the court's prior rulings.

Contrary to plaintiff's contention, the orders did not require defendant to give

plaintiff a key to the rectory. Instead, defendant was to provide access to the

building, which it did by engaging L.D. to admit plaintiff's members as needed.

As the judge correctly found, the twenty-two minute delay in admitting the

members on August 2, 2018 was clearly of no consequence. Accordingly, the


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judge properly denied plaintiff's enforcement motion. Therefore, plaintiff was

plainly not entitled to recover counsel fees and costs in connection with its

unsuccessful application under Rule 1:10-3.

      Affirmed.




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