October 31, 2007
NEW JERSEY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, PLAINTIFF-APPELLANT,
HUNTINGDON LIFE SCIENCES, INC., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-24-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 9, 2007
Before Judges Weissbard, Gilroy and Baxter.
Plaintiff, New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA), appeals from an order dismissing five counts of its complaint against defendant Huntingdon Life Sciences, Inc.*fn1 (HLS). We affirm.
On January 17, 2006, plaintiff filed an amended complaint containing fifty counts. The complaint contained allegations pursuant to N.J.S.A. 4:22-26, which sets out a lengthy series of acts constituting animal cruelty and authorizes plaintiff to sue for and recover designated statutory penalties. The statute, N.J.S.A. 4:22-32, further provides that the penalties may be enforced and collected in a summary manner pursuant to N.J.S.A. 2A:58-10. The jurisdiction for such an action lies in either the Superior Court or the Municipal Court of the municipality where defendant resides or where the offense was committed.
The amended complaint alleged that defendant possessed a large number of animals, estimated at 6-10,000, which were used for the testing of products intended for human consumption. It was alleged that in March 1998 the United States Department of Agriculture instituted an administrative enforcement action against defendant for violations of the Animal Welfare Act, 7 U.S.C.A. § 2131, resulting in a Consent Decree in April, 1998.
The first count alleged that defendant's employees had been negligent in the performance of their job functions, resulting in the infliction of unnecessary pain and suffering on defendant's animals, and sought the following relief:
(a) a decree requiring Defendant to implement an effective employee hiring and training plan-developed and approved in conjunction with Plaintiff NJSPCA;
(b) a decree restraining animal testing until an effective employee hiring and training plan is implemented;
(c) a decree appointing a NJSPCA representative to oversee Defendant's compliance with any Court Order and backed by subpoena power;
(d) a decree ordering restitution of all profits gained from the improper animal testing and failure to properly hire and supervise employees;
(e) any other relief the Court deems just and necessary.
The second count alleged that defendant's employees acted in an intentional manner, the third count alleged liability based on negligent hiring, the fourth count was based on negligent training and the fifth count charged negligent supervision. Counts two, three, four and five sought identical relief as count one, set out above. Counts six through fifty alleged specific acts of animal cruelty which took place between September 25, 1996 and May 10, 1997, and sought statutory penalties pursuant to N.J.S.A. 4:22-26.
On June 9, 2006 defendant moved for summary judgment.
Judge Ryan heard oral argument on July 21, 2006 and placed an oral decision on the record on August 14, 2006. In granting defendant's motion as to counts one through five the judge, in a written Decision and Order of August 14, 2006, stated, in part:
There is no basis for an injunction. A permanent injunction requires proof that the applicant's legal right to such relief has been established and that the injunction is necessary to preventing a continuing, irreparable injury. Verner v. Links at Valleybrook Neighborhood Ass'n, 371 N.J. Super. 77, 87 (App. Div. 2004). "An injunction is a preventative measure; its province is to afford relief against future acts actually threatened or apprehend with a reasonable probability." Triseleni v. Meltsner, 23 N.J. Super. 204, 209, 92 A.2d 832, 834 (App. Div. 1952).
The only specific acts alleged in the amended complaint date from 1996 to 1997 whereby the alleged last act occurred on May 10th, 1997, more than 9 years ago. Such acts cannot be the basis for an injunction in 2006. In Devine v. Devine, 20 N.J. Super. 522 (Ch. Div. 1952), the Court held that offense acts alleged to have been committed by the defendant, between June and October of 1951, cannot be remedied by a suit for injunction relief filed on March 29th of 1952.
There is no basis for the NJSPCA's request for restitution. Restitution is an available remedy where the facts show that one party has received a benefit at the expense of another, which is simple unjust to permit him to retain. Jersey Shore Sav. & Loan Ass'n v. Edelstein, 219 N.J. Super. 664, 669 (Ch. Div. 1987). Because any profits earned by HLS were not at the NJSPCA's expense, the request for restitution in the amended complaint are untenable as a matter of law.
Concerning counts six through fifty, the judge directed plaintiff to apply for a separate return date for the summary proceeding seeking penalties. Subsequently, as noted earlier, those counts were dismissed by stipulation.
On appeal, plaintiff presents the following arguments:
POINT I: THE COURT ERRED IN HOLDING THAT RESPONDENT HLS OWED NO DUTY TO THE NJSPCA
POINT II: THE COURT ERRED IN FINDING THAT THE NJSPCA DOES NOT HAVE STANDING TO PURSUE COMMON LAW CLAIMS AGAINST RESPONDENT HLS
Defendant responds as follows:
POINT I: THE TRIAL COURT'S ORDER MUST BE AFFIRMED BECAUSE IT IS FULLY SUPPORTED BY INDEPENDENT GROUNDS OF DECISION THAT THE NJSPCA HAS NOT CHALLENGED AND THUS HAS WIAVED ITS RIGHT TO CHALLENGE, AND THAT IN ANY EVENT ARE DEMONSTRABLY CORRECT
A. The NJSPCA Has Waived Its
Right to Challenge the Alternative and Independent Grounds for Dismissal of Counts One Through Five
B. The Trial Court's Alternative
Rulings Supporting Dismissal of Counts One Through Five Are Demonstrably Correct
POINT II: HLS DID NOT OWE OR BREACH ANY DUTY OF CARE OWED TO THE NJSPCA
POINT III: THE NJSPCA ALSO LACKS STANDING TO BRING COUNTS ONE THROUGH FIVE OF THE AMENDED COMPALINT
We agree with defendant in its first responding argument.
Although Judge Ryan ruled against plaintiff on the grounds of lack of standing and absence of duty owed by defendant to plaintiff, he also ruled, alternatively, that plaintiff could not seek injunctive relief based on acts that took place nearly ten years earlier. He further found that plaintiff's restitution claim must fail because plaintiff could not establish that defendant made a profit at plaintiff's expense.
As defendant correctly notes, plaintiff has not addressed those aspects of Judge Ryan's ruling in its brief on appeal. An issue not briefed is deemed waived. In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 49 n.1 (App. Div. 1989) (Appellate Division would not decide an issued raised for the first time during oral arguments and had not been briefed); Soc'y Hill Condo. Ass'n, Inc. v. Soc'y Hill Assoc., 347 N.J. Super. 163, 176 (App. Div. 2002) (Although an issue was mentioned in plaintiff's brief, it was not "briefed"; therefore the court deemed it waived); Kelly v. Hackensack Meadowlands Dev. Comm'n, 172 N.J. Super. 223, 228 n.1 (App. Div. 1980) (court did not decide an issue when defendant's brief obliquely questioned an issue, rather than directly challenging the issue).
As the judge found, there is no basis for an injunction.
See Verna v. Links at Valleybrook Neighborhood Ass'n, 371 N.J. Super. 77, 89 (App. Div. 2004); Trisolini v. Meltsner, 23 N.J. Super. 204, 209 (App. Div. 1952); Devine v. Devine, 20 N.J. Super. 522, 527-28 (Ch. Div. 1952), all quoted by the judge in his decision. See also Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 593 (2006), where the Court reversed an injunction that "served as a remedy for a past wrong rather than as a remedy to prevent future wrongs."
Here, injunction is not an appropriate form of relief for plaintiff. Similar to Loigman and Devine, acts that occurred over nine years ago, in 1996 and 1997, cannot be the basis for an injunction in 2006. Even if an injunction could work forward, there is nothing in the record indicating that HLS is likely to cause future harm.
There is also no basis for restitution. Restitution is available where one party received a benefit at the expense of another party. Wanaque Borough Sewerage Auth. v. Twp. of W. Milford, 144 N.J. 564, 575 (1996); Jersey Shore Sav. & Loan Ass'n v. Edelstein, 219 N.J. Super. 664, 669 (Ch. Div. 1987).
NJSPCA does not allege, and there is nothing to support a claim that HLS profited at NJSPCA's expense. Therefore, the court properly denied relief.
Because the judge's alternate basis for summary judgment was sound and has not, in any event, been challenged on appeal, we have no need to address the interesting issues of standing and breach of duty.