African American Data and Research Institute v. Jeanne Hitchner

• Court: New Jersey Superior Court Appellate Division
• Decided: August 29, 2024
• Docket: A-2990-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2990-22

AFRICAN AMERICAN DATA AND RESEARCH INSTITUTE (AADARI) and OBAFEMI (BAFFI) SIMMONS,

Plaintiffs-Appellants,

v.

JEANNE HITCHNER, CITY OF MILLVILLE, and CITY OF MILLVILLE POLICE DEPARTMENT,

Defendants-Respondents. ___________________________

Submitted April 15, 2024 – Decided August 29, 2024

Before Judges Gilson and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0736-20.

Rotimi A. Owoh, attorney for appellants.

Brock D. Russell, LLC, attorneys for respondents (Brock D. Russell, on the brief). PER CURIAM

Plaintiffs appeal a June 5, 2023 order denying their motion to amend an

unverified complaint. We conclude an unverified complaint found to be a nullity

cannot be cured by an amended verified complaint. Therefore, we affirm.

This matter returns to us after we reversed and vacated an order denying

defendants' motion to involuntarily dismiss plaintiffs' Order to Show Cause

(OSC) and unverified complaint pursuant to Rule 4:37-2(b). African American

Data and Research Institute v. City of Millville, No. A-1592-20 (April 20, 2023).

In their initial complaint, plaintiffs sought to compel access to certain documents

under the Open Public Records Act (OPRA), N.J.S.A. 47A-1 to -13. In the prior

appeal, we concluded that plaintiffs had failed to verify their complaint and,

therefore, the action was not properly instituted and the court lacked subject

matter jurisdiction. Id. at 9.

The parties are well versed in the protracted litigation history of this

matter, so we need not restate the tortured history in this opinion. Immediately

following our decision, plaintiffs moved to amend the complaint and annexed

the proposed OSC and amended verified complaint. In support of the motion to

amend the complaint, plaintiffs submitted the certification of AADRI officer

and representative Grace Woko dated April 24, 2023. Woko attested plaintiffs'

A-2990-22 2 counsel was authorized to file the amended complaint, and if necessary, an

appeal on behalf of plaintiffs. Defendants opposed the motion. After oral

argument, the court rendered an oral opinion denying plaintiffs' motion. The

court stated: "Absent a remand and/or other direction from the Appellate

Division, this court does not find that it has jurisdiction to entertain the present

application."

On appeal, plaintiffs raise the following contentions for our consideration:

the trial court erred in denying the motion to amend because the dismissal is

without prejudice; the motion was not untimely because of the relation back

doctrine and the doctrine of accommodation; the case was held in abeyance

pending the issuance of an appellate decision; the complaint could be amended

after an appeal; the governing principles favor adjudication of cases on the

merits; the amended complaint was supported by the proper verification; and the

trial court had jurisdiction to grant the motion to amend the complaint.

I.

We first address the issue of mootness raised by defendants in opposition

to this appeal. "Courts normally will not decide issues when a controversy no

longer exists, and the disputed issues have become moot." Betancourt v. Trinitas

Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). "A case is technically moot

A-2990-22 3 when the original issue presented has been resolved, at least concerning the

parties who initiated the litigation." Ibid. (quoting DeVesa v. Dorsey, 134 N.J.

420, 428 (1993) (Pollock, J., concurring)). Simply stated, "[a]n issue is moot

when the decision sought in a matter, when rendered, can have no practical effect

on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super.

254, 257-58 (App. Div. 2006) (internal quotation marks omitted) (quoting N.Y.

Susquehanna & W. Ry. Corp. v. State, Dep't of Treasury, 6 N.J. Tax 575, 582

(Tax 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985)). Defendants' challenge

of the appeal on mootness is incongruous to our ruling that the initial complaint

was a nullity because no verification was filed with the initial complaint.

We, therefore, address the merits of plaintiffs' appeal. The gravamen of

plaintiffs' contention on appeal is that the trial court order denying its motion

for leave to amend the complaint constituted an abuse of discretion. Relying on

Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 456 (1998),

plaintiffs contend that liberal application of the rule permits the amendment of

the complaint at any time, defendants would not suffer any prejudice, and the

verification was provided at its first opportunity. Plaintiffs misperceive the

application of Konan to these facts and the argument is unconvincing.

A-2990-22 4 Under Rule 4:9-1, a motion seeking to amend a complaint always rests in

the court's sound discretion. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501-

02 (2006) (quoting Kernan, 154 N.J. at 456-57). We, therefore, review a trial

court's decision to grant or deny a motion to amend the complaint for abuse of

discretion. Port Liberte II Condo. Ass'n v. New Liberty Residential Urb.

Renewal Co., 435 N.J. Super. 51, 62 (App. Div. 2014). "That exercise of

discretion requires a two-step process: whether the non-moving party will be

prejudiced, and whether granting the amendment would nonetheless be futile."

Notte, 185 N.J. at 501.

Applying the requisite standard, we discern the court did not abuse its

discretion in denying plaintiffs' motion to amend its complaint. As we noted in

our decision, the initial unverified complaint was a nullity. A.A. v. Gramiccioni,

442 N.J. Super. 276, 282 (2015). The initial complaint was a nullity and never

existed, and "an amended complaint cannot relate back to something that never

existed, nor can a nonexistent complaint be corrected." Repko v. Our Lady of

Lordes Medical Center, Inc., 464 N.J. Super 570, 575 (App. Div. 2020) (quoting

Davenport v. Lee, 348 Ark. 148 (Ark. 2002)). Thus, plaintiffs' proposed

amendment was fatally flawed.

A-2990-22 5 Plaintiffs also contend that Rule 4:9-2, the relation back rule, applies. We

reject that contention. "The 'relation back' rule cannot cure the failure to file a

valid complaint in the first instance." Repko, 464 N.J. Super at 576.

On this record, we discern no abuse of discretion in the court's decision to

deny plaintiffs' motion to amend the complaint and we affirm the denial of

plaintiffs' motion to amend the complaint. To the extent that plaintiffs have a

course of action, it would involve filing a new action. We offer no view on

whether a new action would be timely.

Affirmed.

A-2990-22 6