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Warren Massey v. City of Atlantic City

March 31, 2011


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3627-07.

Per curiam.


Submitted March 16, 2011 - Decided

Before Judges Lihotz and J. N. Harris.

This appeal involves a claim of governmental interference with the opportunity of an individual to participate in the electoral process. Plaintiff Warren Massey was the unsuccessful candidate for a councilmanic seat on the governing body of defendant City of Atlantic City (the City) in November 2006. After placing second in the vote tally -- losing by only twenty-six votes -- he eventually filed a five-count amended complaint and jury demand alleging that the individual defendants and the City scuttled his candidacy by ordering City sanitation workers on the eve of the election to remove "every single sign placed up by [p]laintiff's campaign staff."

After a motion judge granted summary judgment in favor of two of the individual defendants*fn2 -- Robert Levy and Rosemary Adams -- and severely truncated Massey's liability and damage claims, a bench trial*fn3 ensued against the City only. The matter was tried before a different judge under the previously- determined limitation that Massey could recover only for the "value of the signs." At the trial's conclusion, the court dismissed the complaint, finding that Massey "failed to meet his burden" because "[the court did not] know exactly what these signs cost."

From our review of the record, we are satisfied that the motion court erred when it abridged Massey's theories of liability and the scope of his recoverable damages. Because this inevitably tarnished the subsequent bench trial, we reverse and remand for further proceedings, including the potential for an entirely new trial.



Massey's notice of appeal recites that it seeks review of only the final order entered on March 16, 2010, dismissing his complaint on the basis of a failure of proof of actual damages. However, because the thrust of his arguments touch and concern the interlocutory order dated August 28, 2009, which limited the scope of Massey's claims against the City, we treat Massey's appeal as also emanating from an order for partial summary judgment. Because of this focus, we consider the factual record in the light most favorable to Massey as the non-moving party. See Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010); Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 313 (App. Div. 2010).

Complicating our analysis is the manner in which the City's summary judgment application was presented to the Law Division. Instead of preparing and filing a fully-fledged summary judgment motion pursuant to Rule 4:46-2, the City "joined"*fn4 the companion motion for summary judgment that had been filed on behalf of the individual defendants Levy and Adams. In correspondence to Massey's attorney, the City's attorney averred that "the City relies on the brief and exhibits submitted by co-defendants Adams and Levy since the core basis for the relief in my view is identical for all three co-defendants."

Understandably perplexed by the municipal corporation's gambit, Massey responded only to the numerous arguments presented in Levy's and Adams's motion papers. He expressly, and appropriately, noted, "[i]t is most certainly unfair and prejudicial that [the City's attorney] simply moved to join in [Levy's and Adams's] [m]otion. The [p]laintiff needs something to oppose." Notwithstanding its failure to file an initial summary judgment brief and a statement of material facts, see Rule 4:46-2(a), the City nevertheless interposed a "reply to plaintiff's opposition to the pending motion[] for summary judgment." Ignoring the procedural muddle, probably because it held the view that the most important dispositive issues were indeed identical for all defendants, the Law Division heard oral argument from all parties and rendered its decision on the mostly uncontested factual background.


Our recitation of the facts mostly tracks the data that were available at the summary judgment motions, and not those generated at the later bench trial. We do this in fidelity to Massey's appellate grievance, which is primarily directed to the summary judgment motions and their sequelae. Although these facts are very similar to the facts adduced at the bench trial, there were some differences.*fn5 We start with the acknowledgment that Massey was a candidate for the third ward seat on the City Council of Atlantic City, and he lost the 2006 general election by twenty-six votes.

During the weeks preceding and leading up to Election Day 2006, campaign signs promoting Massey's candidacy were erected on public and private property. Right before the election, at the direction of Callaway -- the City's Director of Public Works -- several City employees were ordered to remove and discard Massey's campaign signs located on public property. Neither Levy nor Adams directed Callaway to confiscate the signs, and both disclaimed prior knowledge of Callaway's order. As a result of Callaway's directive, dozens of Massey's ...

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