September 29, 2009
DANIEL GATSON, PLAINTIFF-APPELLANT,
WAYNE J. FORREST, SOMERSET COUNTY PROSECUTOR, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-3181-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2009
Before Judges Messano and Alvarez.
Plaintiff Daniel Gatson appeals pro se from the July 18, 2008 award of summary judgment dismissing his complaint against defendant Wayne J. Forrest, the Prosecutor of Somerset County, for the return of $253,310. We affirm.
Some brief history is necessary. Defendant was convicted by a jury of two counts of third-degree receipt of stolen property, N.J.S.A. 2C:20-7, and possession of a weapon by a certain person, N.J.S.A. 2C:39-7, on Bergen County Indictment 01-11-2672. The convictions were subsequently affirmed on appeal. State v. Gatson, No. A-5009-04T4, (App. Div. Nov. 1, 2007) (slip op. at 24).
The indictment issued as a result of a lengthy investigation into multiple burglaries, including the burglary on April 14, 2001, of the home of John and Martha Arvanitis. The Arvanitises, who were restaurant owners, had over $800,000 stolen from their home. It was wrapped in cash register receipts bearing the name "Amania Café." The paper around the bundles had additional notations that were described in detail by John Arvanitis. Money purportedly belonging to plaintiff was seized from the home of his aunt, Robin Treadvance, on July 31, 2001, pursuant to a search warrant. The packaging so precisely matched the Arvanitis' description that the Somerset County Prosecutor's Office released the money plus accrued interest to them on August 24, 2001. The principal amount was $253,310, which is the amount plaintiff seeks to have returned by way of this replevin action.
Not having been provided with a copy of the complaint or the answer, we do not know when plaintiff filed this proceeding nor which items were sought in addition to the cash. Plaintiff's appendix does include a copy of his deposition, during which he refused to answer any questions as to his earnings in 2001 or prior years, provide copies of tax returns or otherwise establish ownership to the money. See, e.g., Seneca v. Bissell, 274 N.J. Super. 613, 618-19 (App. Div. 1994) ("In any event, plaintiff cannot properly bring an action for replevin because he did not have 'title and the right to possession at the time of the commencement of the [replevin] action.'") (citation omitted).
In his appendix, plaintiff also provides us with copies of the following: the order below granting summary judgment for defendants; a certification submitted by an attorney at the Prosecutor's Office in support of the motion for summary judgment (to which the deposition transcript was attached as an exhibit); and a second certification submitted by an Assistant Prosecutor in support of summary judgment. The in-house memos and police reports related to the $253,310 seized from defendant, and the in-house decision to return the money to the victims, were attached as exhibits to that second certification. Additionally, plaintiff supplied a number of photocopies of items that may have been provided in discovery in the criminal matter, although the source of the materials or their relevance was not clear to us. Plaintiff provided neither a copy of the application for summary judgment itself nor a copy of his response. We cannot glean from the record if oral argument was conducted, or if a letter of decision or statement of reasons was issued by the trial court.
Plaintiff asserts the following points of error:
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE EXISTS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE DEFENDANT UNLAWFULLY DISTRIBUTED, RETAINED, DETAINED, OR DAMAGED PLAINTIFF'S PROPERTY, MONEY, AND BOAT.
DEFENDANT'S SUMMARY JUDGMENT SHOULD BE DENIED, BECAUSE THE DEFENDANT FAILED TO SUPPLY THE COURT WITH AN AFFIDAVIT/OR CERTIFICATION SHOWING THAT THE DEFENDANT POSSESSED ANY PERSONAL KNOWLEDGE OF THE FACTS ASSERTED.
THE ISSUE OF UNLAWFUL DISTRIBUTION, DETENTION, RETENTION, POSSESSION, AND DAMAGES SHOULD NOT BE CONSIDERED UNDISPUTED, AND THEREFORE NOT RIPE FOR SUMMARY JUDGMENT BECAUSE DEFENDANT'S MOTION, AND BRIEF FAILED TO INCLUDE A STATEMENT OF UNDISPUTED FACTS.
ALTERNATIVELY, PLAINTIFF SHOULD BE GRANTED A CONTINUANCE OF THIS MOTION TO CONDUCT ADDITIONAL DISCOVERY ON THE ISSUE OF AGENCY.
Rule 2:6-1(a)(1) requires that an appellant's appendix contain the pleadings filed in the action. Plaintiff has failed to comply with the rule. Similarly, when the appeal is from an order granting or denying summary judgment, "the appendix shall also include a statement of all items submitted to the court on the summary judgment motion and all such items shall be included in the appendix." Id. Significant portions of the trial record that should have been included in the appendix therefore appear to be missing. Realistically, we cannot concur with plaintiff's points of error in an informational vacuum. Worse still, he has supplied us with only those documents which support defendants' characterization of the facts and their position as to the law.
Our review of the award of summary judgment is de novo. "This court, on appeal of a grant or denial of summary judgment, applies the same standard as the trial court." Bello v. Lyndhurst Bd. of Educ., 344 N.J. Super. 187, 190 (App. Div. 2001). Generally, summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying that standard to the facts in the record available to us, we conclude that there were no material facts in dispute and that summary judgment was properly granted because defendants were entitled to prevail as a matter of law.
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