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Alvarez v. City of Hoboken

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 7, 2010

LUZ ALVAREZ, PLAINTIFF-APPELLANT,
v.
CITY OF HOBOKEN,*FN1 DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-387-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2010

Before Judges Sapp-Peterson and Espinosa.

Plaintiff appeals from three January 23, 2009 orders (1) granting summary judgment dismissing her complaint alleging civil rights and common law claims against defendant, the City of Hoboken; (2) denying plaintiff's discovery motion and motion to strike defendant's answer; and (3) imposing sanctions pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1(a)(1) and Rule 1:4-8(b)(2) and (d)(2). Plaintiff also appeals from the March 20, 2009 order granting reimbursement of counsel fees and costs to defendant in the amount of $13,279.84. We reverse and remand.

Plaintiff's claims arise out of an alleged incident that occurred on January 28, 2006. In her complaint, plaintiff alleged that on that date, she was a passenger in a motor vehicle stopped at a traffic light in Hoboken. While waiting for the light to change, she was approached by three unidentified persons who assaulted her, causing injury to her face and nose. She received emergency medical care at Hoboken Hospital and later through her private physician. She claimed that the assaults were committed by "unidentified actors believed to be employed by Hoboken" and that defendant enabled the individual defendants identified as "Jane Doe 1," "Jane Doe 2," and "John Doe 1," "to cover up their actions" by, among other things, "stonewalling any discovery of information relating to the acts committed by the individual defendants[.]"

Prior to initiating the lawsuit, in a January 30, 2006 letter written to the Hoboken Chief of Police, plaintiff's counsel advised that it was his understanding that two police officers arrived at the scene and told plaintiff that nothing would be done about the incident. The letter sought an explanation as to how the incident was being handled, copies of all reports prepared in connection with the incident, as well as the identities of the alleged assailants and the investigating police officers.

On April 14, 2006, plaintiff's counsel filed a Notice of Claim pursuant to N.J.S.A. 59:8-4 with the Hoboken Municipal Clerk. In a letter dated April 25, to the Hudson County Prosecutor's Office, plaintiff's counsel stated that he had learned from the Chief of Police that one or more of the persons who assaulted his client may have been police officers. Counsel stated further that other officers who arrived at the scene "attempted to shield the true facts and instructed the victim and witnesses not to seek to file official reports, because to do so would place them in legal jeopardy." Counsel also expressed the belief that "those officers who attended the scene later filed false reports to shield their colleagues from the incident." Counsel requested the Prosecutor to investigate the matter. In another letter to the Chief of Police also written on April 25, counsel indicated that no information had been provided to him in accordance with his January 30 letter. Several months later, on September 27, plaintiff's counsel sent another letter to the Chief of Police indicating that "[i]t has been many months since I originally requested the identities of all actors involved in the improper assault of Luz Alvarez, and I have not received and [sic] reports." Counsel requested that "at least the names, addresses and titles of those involved in the assault" be provided to him "without further delay."

Plaintiff filed her complaint against Hoboken alleging assault and battery (Count One), negligence (Count Two), and violations of 42 U.S.C. § 1983 (Count Three). Plaintiff sought compensatory and punitive damages. Defendant filed an answer, separate defenses and a cross-claim for defense and indemnification against any co-defendant.

On March 13, 2008, plaintiff propounded a demand for the production of documents. On April 8, defendant propounded interrogatories that required plaintiff to provide answers to 111 questions. Plaintiff served her responses on December 5. On that same date, defendant served plaintiff's counsel with a request to take her oral deposition. In a December 10 letter written by another attorney within the same firm that plaintiff retained, defense counsel was advised that plaintiff would not be produced for a deposition until "all of the defendants have been identified." Plaintiff's counsel expressed the understanding that plaintiff had been requesting information about those persons known to have been involved in the incident but that no information had been provided. Counsel stated further that defendant should consider the letter as another formal request for the information sought and that "[u]ntil this is provided, it is not cost effective nor is it practical to go forward with Ms. Alvarez's deposition."

On December 10, defendant's attorney wrote to plaintiff's counsel, advising that his letter was being written "pursuant to [Rule] 1:4-8 and N.J.S.A. 2A:15-59[.1] as your complaint[s] are believed to violate both of those provisions regarding frivolous litigation" and requesting that counsel execute the "enclosed Stipulation of Dismissal with Prejudice" in order to avoid an application for sanctions. Plaintiff did not withdraw her complaint. Instead, one week later, plaintiff's counsel filed a motion to strike defendant's answer for failure to comply with discovery obligations. On December 23, defendant filed a motion to dismiss plaintiff's complaint for failure to state a claim. Defendant urged that (1) plaintiff failed to plead with specificity what actions of individual officers resulted from a policy or custom of defendant under 42 U.S.C. § 1983; (2) Hoboken was under no duty to protect individuals from harm caused by third parties; and (3) defendant was immune from liability arising out of its failure to provide police protection or its failure to arrest. On December 30, defense counsel submitted a letter memorandum in opposition to plaintiff's motion. Defense counsel asserted that (1) his firm was never served with any discovery request from plaintiff; (2) plaintiff's counsel's certification failed to include a representation that counsel had reached out to defense counsel to resolve the discovery issue prior to filing the motion; and (3) plaintiff's counsel never placed his firm on notice that there was discovery owed to plaintiff. Finally, on January 7, 2009, defense counsel filed a motion seeking sanctions.

The court considered all of the motions on January 23, and by orders entered on that same date, the court granted defendant's motion to dismiss and also granted defendant's motion for sanctions. The orders were both marked as unopposed. Defense counsel was ordered to "submit a supplemental certification for counsel fees and costs[.]" The court denied plaintiff's motion to strike defendant's answer "[b]ased upon the Court's granting defendant, Hoboken's motion to dismiss decided this same date." The present appeal followed. On May 18, plaintiff notified our court that there were no transcripts of the trial court's decision, since the "[d]ecision was made on the papers."

On appeal, plaintiff contends that the trial court committed reversible error when it failed to grant her motion to strike defendant's answer, erred in granting defendant's motion to dismiss, which the court effectively treated as a motion for summary judgment, and erred in granting the motion for sanctions and ordering plaintiff to pay attorneys' fees and costs.

Because the court's order dismissing plaintiff's complaint with prejudice disposed of all claims plaintiff filed against defendant, the motion was appealable as of right. R. 2:2-3(1)(a). It was therefore subject to Rule 1:7-4(a), which provides: "The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right[.]"

Whether in the setting of a non-jury trial or in the context of a motion, our Court has stressed the importance of a trial court's obligation to make a record of its factual findings and legal conclusions. For example, in Ronan v. Adely, 182 N.J. 103, 110-12 (2004), the Supreme Court remanded a trial court's denial of a mother's request to change her son's surname because the court received no testimony from the parties and made no findings of fact. See also Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-10 (1999) ("In a non-jury action, the court, whether deciding the matter on a motion at the close of the plaintiff's case or the entire case, should support its decision with adequate findings of fact.")

We have addressed this issue as well. In Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005), we remanded to the trial court for findings because the trial court's decision lacked sufficient reasons and noted that "[o]ur review . . . is hampered by the absence of findings and a more complete record." See also In re Commitment of M.M., 384 N.J. Super. 313, 332 (App. Div. 2006) ("[W]ithout findings relevant to the legal standards the litigants and the reviewing court 'can only speculate about the reasons' for the decision." (quoting Rosenberg v. Bunce, 214 N.J. Super. 300, 304 (App. Div. 1986)); Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (noting that the court's "examination into the soundness of the order in question is hampered by the trial judge's failure to adequately explain" the reasons for the decision).

More recently, in Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 293 (App. Div. 2009), we had the occasion to address the application of Rule 1:7-4 in the context of an interlocutory order granting partial summary judgment where the motion was unopposed. We held that the fact that the motion was unopposed did not relieve the trial court of its obligation to set forth its reasons for granting the relief sought. Id. at 300-02. We rejected the plaintiff's argument that no opinion was required because the motion was unopposed:

Although Rule 4:46-2(b) provides that the facts asserted by the plaintiffs will be deemed admitted based upon the defendant's failure to oppose the motion, both Rule 1:7-4 and Rule 2:5-1(b), specifically state that the court "shall" set forth the facts and make conclusions of law to support the order or judgment. As stated above, neither rule exempts the court from this obligation where the motion has not been opposed.

The trial judge may satisfy the court rules by relying on the facts or reasons advanced by a party; however, the court is obligated to make the fact of such reliance "explicit." Pressler, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2009) (citing Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 612 (App. Div. 1984) (holding that the trial court's reliance on the reasons advanced by a party is not fatal to determination of a motion for a new trial under Rule 4:49-1)). Here, the judge did not give any indication that he was relying on either the facts or the legal arguments proffered by plaintiffs in support of their motion, and we cannot assume that is what the judge intended. [Allstate Ins. Co., supra, 408 N.J. Super. at 301.]

In this matter, we have no record of any findings of fact and conclusions of law articulated by the motion judge. Defendant moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Because defendant's motion was supported by plaintiff's answers to interrogatories, matters beyond the pleadings, the motion was appropriately converted into a motion for summary judgment. See Lederman v. Prudential Life Ins. Co. of Am., 385 N.J. Super. 324, 337 (App. Div.), certif. denied, 188 N.J. 353 (2006). "Even litigants who have not challenged a motion for summary judgment . . . are entitled to a recitation of the reasons for the granting (or denial) of relief. More significantly, even in an uncontested motion, the judge must consider whether undisputed facts are sufficient to entitle a party to relief." Allstate Ins. Co., supra, 408 N.J. Super. at 302.

While the motion judge's failure to comply with Rule 1:7-4(a) necessitates a remand, we also address whether the remand should be limited to requiring the trial court to submit a statement of reasons, or whether the appropriate remedy is to reverse and remand for consideration of the motions anew. Because the summary judgment motion was unopposed, a statement of reasons explaining why the undisputed facts supported the grant of defendant's motion is sufficient. As to the discovery motion, however, a statement of reasons is not sufficient.

The court denied plaintiff's motion to strike based upon the grant of defendant's dismissal motion. The court does not articulate whether it concluded that the discovery sought would not have altered its findings and legal conclusions. Additionally, we observe that plaintiff's counsel, in a certification submitted in support of the motion to strike, claimed that discovery had been served, an inquiry was made to defense counsel in April 2008 regarding information sought, and plaintiff's counsel was informed "that they still did not have any information." In addition, plaintiff's counsel's certification referenced a December 10 letter in which the issue of outstanding discovery was once again raised. Defense counsel disputed that discovery requests had been served or that plaintiff's counsel had conferred with counsel regarding the outstanding motion prior to filing the motion to strike. The court must resolve this disputed issue.

To summarize, on remand, the court should first address the discovery motion. If it determines that plaintiff made discovery demands of which defense counsel or his firm were aware, conferred with defense counsel's office about outstanding discovery, and that plaintiff is entitled to the discovery sought, the court should then address what impact, if any, the failure to provide the discovery may have had upon the merits of defendant's summary judgment motion, notwithstanding that the motion was unopposed. If the court once again denies the discovery motion, in addition to providing a statement of reasons for granting the summary judgment motion, the court will then provide a statement of reasons for its decision on defendant's frivolous litigation motion and counsel fee application.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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