MICHAEL D. HEFFERNAN VS. ROBERTA L. STONEHILL, ESQ. (L-3170-15, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 26, 2020
• Docket: A-5032-18T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5032-18T1

MICHAEL D. HEFFERNAN,

Plaintiff-Respondent,

v.

ROBERTA L. STONEHILL, ESQ. and MARIE CAVALLARO,

Defendants. ______________________________

MARIE CAVALLARO,

Third-Party Plaintiff-Appellant,

BOROUGH OF SEASIDE HEIGHTS, MAYOR WILLIAM AKERS, in his official capacity, or his successor or successors, KENNETH ROBERTS, in his official capacity as CODE ENFORCEMENT OFFICER or his Masters Servants, Employees, and/or Subordinates, Construction Officer CHARLES LSAKY, Township Attorney, GEORGE GILMORE, ESQ., and GILMORE & MONAHAN, Third-Party Defendants-Respondents. ____________________________________

Submitted August 10, 2020 – Decided August 26, 2020

Before Judges Moynihan and Mawla.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3170-15.

Roberta L. Stonehill, attorney for appellant.

Dasti Murphy Mc Guckin Ulaky Koutsouris & Connors, attorneys for respondents Borough of Seaside Heights, Mayor William Akers, Charles Lasky, and Kenneth Roberts (Thomas E. Monahan, of counsel; Patrick F. Barga, on the brief).

PER CURIAM

Defendant and third-party plaintiff Marie Cavallaro appeals from an

August 18, 2017 order dismissing her claims against a third-party defendant the

attorneys for the Borough of Seaside Heights for a failure to state a claim, and

Cavallaro and her attorney defendant Roberta L. Stonehill appeal from the

imposition of sanctions under the same order. They also challenge an October

6, 2017 order denying reconsideration. Cavallaro and Stonehill also appeal from

a June 7, 2019 order granting the Borough of Seaside Heights, its mayor, code

enforcement officer, construction officer, and Borough attorneys (collectively

third-party defendants) summary judgment dismissing Cavallaro's Tort Claims

A-5032-18T1 2 Act (TCA) suit, barring her expert report, enforcing the sanction, and denying

Cavallaro and Stonehill's request for recusal and a change of venue. We affirm.

This case arises out of a decades-old grievance between plaintiff Michael

Heffernan and Cavallaro who are neighbors. Cavallaro claimed she was

disparately treated by the Borough, at the behest of Heffernan, because she was

issued notices of violation regarding the dilapidated condition of her home.

Eventually, the Borough building official issued a notice to demolish Cavallaro's

house because it was "structurally unsound."

Cavallaro claimed her home was never denied a certificate of occupancy,

had passed all inspections, and was suitable for renting. She claimed a Borough

official trespassed on her property in 1993 and violated her right to quiet

enjoyment of her property, and issued "fictitious" code enforcement violations.

She claimed the Borough did not protect her from Heffernan. She also asserted

the Borough violated her right to free speech when she made complaints to the

Borough about the alleged selective treatment and did not address her

complaints.

Cavallaro served the Borough with a TCA notice which cited Heffernan's

conduct. Heffernan filed a defamation suit against Cavallaro and Stonehill. 1

1 The suit involving Heffernan was resolved and is not a part of this appeal. A-5032-18T1 3 Cavallaro filed a third-party complaint against the Borough, its mayor, building

officials, and Borough attorneys alleging: (1) disparate treatment and selective

enforcement of Borough building codes; (2) trespass; (3) interference with the

right to quiet enjoyment; and (4) legal and civil rights violations, including a

claim that Borough attorneys damaged her by providing her TCA notice to

Heffernan.

Borough attorneys sent Stonehill a frivolous litigation letter regarding the

claims filed against them. The letter pointed out that a TCA notice is a public

document subject to the Open Public Records Act (OPRA) and is not

confidential. Borough attorneys then filed a motion to dismiss the claims against

them with prejudice and to impose sanctions on Cavallaro and Stonehill for

frivolous litigation. On August 18, 2017, the first motion judge granted the

motion finding no basis for a claim against the Borough attorneys because the

TCA notice was a public document and no evidence Borough attorneys

intentionally provided it to Heffernan. The judge imposed a $250 frivolous

litigation sanction on Stonehill. On October 6, 2017, the judge denied Cavallaro

and Stonehill's motion for reconsideration stating they "have not presented any

controlling law or overlooked facts to show the [TCA] [n]otice was not a public

document open to public access."

A-5032-18T1 4 Third-party defendants moved for summary judgment dismissal of all

remaining claims and to enforce the sanctions against Stonehill. Cavallaro and

Stonehill filed a cross-motion seeking the judge's recusal and a venue transfer,

and in opposition to the motion for summary judgment, proffered an expert

report, which purported to support the claim the Borough violated the TCA.

A second judge heard this matter. Following oral argument, the judge

entered the June 7, 2019 order. The judge found the request for recusal moot in

light of the transfer of the case to him and denied the venue transfer concluding

"[t]here are no facts provided to support the application for a change in venue

[because the motion was] . . . based on the perception that there is undue

influence on the Ocean County Court."

The judge also granted third-party defendants summary judgment noting

Cavallaro had no evidence of disparate treatment because she testified at her

deposition that she "did not know what other residents went through . . . [and]

could not recall any instances where . . . Heffernan complained to the town and

she was written up as a result and it was not valid." The judge concluded

"[Cavallaro] presents no competent evidence to support any pled or potential

cause of action under any theory for damages against the [third-party

defendants]."

A-5032-18T1 5 The judge also barred Cavallaro's expert report, because it was submitted

nearly one year after the close of discovery. He also noted the expert report was

submitted by an attorney who opined "'within a reasonable degree of legal

certainty, the Borough violated the [TCA].'" However, the judge concluded:

This is not a legal malpractice cases and [Cavallaro's expert] is not qualified under [N.J.R.E.] 702 to offer legal opinions on whether the moving parties violated state or constitutional law in any event. The opinions are not supported with competent evidence. It is a treasure trove of net opinions. It certainly does not and would not change the outcome of this motion.

I.

On appeal, Cavallaro argues summary judgment was improper because the

judge ignored the evidence, cited irrelevant law, improperly relied on the statute

of limitations to bar her claims, and barred her nuisance and civil rights cla ims

where there was a dispute in fact. She re-asserts the argument that the Borough

targeted her for disparate treatment and the motion to dismiss the Borough

attorneys was also improperly granted because the Borough attorneys

wrongfully disclosed her TCA notice by transmitting it to the Borough officials

and Heffernan, who used it as fodder to sue her. She argues her expert's opinion

was improperly barred as a net opinion.

A-5032-18T1 6 We "review the trial court's grant of summary judgment de novo under the

same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment must

be granted if the court determines "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). The court must "consider whether the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party in consideration of the applicable evidentiary standard, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 523 (1995). "[C]onclusory and self-serving assertions by one of the parties

are insufficient to overcome [a summary judgment] motion." Puder v. Buechel,

183 N.J. 428, 440-41 (2005) (citing Martin v. Rutgers Cas. Ins. Co., 346 N.J.

Super. 320, 323 (App. Div. 2002)). We also apply the de novo standard in

reviewing a motion to dismiss pursuant to Rule 4:6-2(e), limiting our inquiry to

"examining the legal sufficiency of the facts alleged on the face of the

complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746

(1989).

A-5032-18T1 7 We apply an abuse of discretion standard relating to decisions affecting

the admission of expert evidence. Estate of Hanges v. Metro. Prop. & Cas. Ins.

Co., 202 N.J. 369, 383 (2010). A judge's decision to exclude expert evidence

"will not be upset unless there has been an abuse of that discretion, i.e., there

has been a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313

(1988). We likewise review decisions involving motions for reconsideration for

an abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.

1996).

The allegations Cavallaro filed in the third-party complaint were: (1) the

Borough, through its agents allowed a course of conduct that negatively

impacted Cavallaro's quiet enjoyment of her property and violated her civil

rights by giving Heffernan her TCA notice; (2) on one or more occasions, agents

of the Borough entered Cavallaro's property without authority or permission; (3)

the Borough should have been aware of Heffernan's wish to demolish her house

and should have protected her from threats and harassment; and (4) the Borough

issued multiple violations to Cavallaro, while ignoring similar violations on

neighboring properties, which constituted disparate treatment.

We reject Cavallaro's assertion there was a cause of action against third-

party defendants on grounds they provided Heffernan confidential information.

A-5032-18T1 8 There is no evidence in the record that any party associated with the Borough

actually communicated or provided the TCA notice to Heffernan. Moreover, as

the first motion judge found, the TCA notice "is not a confidential or otherwise

protected document for which the revelation can be prosecuted or punished. In

fact, a [TCA notice] is a public document subject to [OPRA]." For these

reasons, dismissal of this claim pursuant to Rule 4:6-2(e) was properly granted.

We also reject Cavallaro's argument summary judgment was improperly

granted because her "[c]ertified [i]nterrogatory [d]iscovery [a]nswers" show that

there was more than twenty years of misconduct and an "unlawful conspiracy"

between the Borough and Heffernan to declare Cavallaro's home an unsafe

structure, trespass on her property, and issue "fictitious [building] violations."

Our review of the record discloses no objective evidence supporting these self-

serving assertions. Moreover, as the second motion judge noted, Cavallaro's

claim of a Borough agent's illegal trespass related to an incident more than

twenty years old which the statute of limitations clearly barred. See N.J.S.A.

2A:14-1 ("Every action at law for trespass to real property . . . shall be

commenced within six years next after the cause of any such action shall have

accrued.").

A-5032-18T1 9 The judge barred the expert report submitted on behalf of Cavallaro,

which opined the Borough violated the TCA, explaining the discovery end date

was May 31, 2018, Cavallaro served her report on April 26, 2019, and therefore

the report was time-barred. The judge also found that because the matter was

not a legal malpractice case, Cavallaro's expert was not qualified to opine as

expert pursuant to N.J.R.E. 702. Because we discern no abuse of discretion by

finding the report was time-barred, we do not reach Cavallaro's net opinion

argument.

Because third-party defendants were entitled to summary judgment and

dismissal of Cavallaro's claims, the motion judge did not abuse his discretion by

denying reconsideration.

II.

Cavallaro repeats the argument that she cannot receive a fair adjudication

in Ocean County and that recusal was required because the first motion judge

had a conversation with the Borough attorney in the courtroom following a

settlement conference and again in chambers. She argues the second motion

judge committed misconduct when he dismissed the claim against the Borough

attorneys and sanctioned Stonehill. She asserts this required the court to grant

her venue transfer request. We disagree.

A-5032-18T1 10 Decisions relating to a change in venue "will not be disturbed on appeal

except upon a showing of an abuse of discretion." State v. Harris, 282 N.J.

Super. 409, 413 (1995) (citing State v. Marshall, 123 N.J. 1, 76 (1991)). In order

to change venue a party must demonstrate by clear and convincing evidence that

a fair and impartial trial cannot be had in the original venue. State v. Koedatich,

112 N.J. 225, 267 (1988).

Whether a judge should disqualify himself or herself is a matter within the

sound discretion of the judge. Jadlowski v. Owens-Corning, 283 N.J. Super.

199, 221 (App. Div. 1995). A judge cannot be considered partial or biased

merely because of rulings that are unfavorable toward the party seeking recusal.

State v. Marshall, 148 N.J. 89, 186-87 (1997).

The record lacks any evidence of improper conduct to warrant recusal or

a transfer of venue. The allegations of misconduct are bald claims lacking in

detail or support by objective evidence to meet the burden of demonstrating by

clear and convincing evidence that Cavallaro's case would not receive a fair and

impartial hearing. Cavallaro's claims lack merit. R. 2:11-3(e)(1)(E).

A-5032-18T1 11 III.

Cavallaro and Stonehill challenge the monetary sanction imposed for

frivolous litigation when they sought to join the Borough attorneys in the

underlying claims against the Borough and its officials. They argue the

monetary sanctions against Stonehill lacked proper findings.

Rule 1:4-8(a) states:

The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, written motion or other paper. By signing, filing or advocating a pleading, written motion, or other paper, an attorney or pro se party certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non- frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and

A-5032-18T1 12 (4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.

If the pleading, written motion or other paper is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the document had not been served. Any adverse party may also seek sanctions in accordance with the provisions of paragraph (b) of this rule.

"A court may impose sanctions upon an attorney if the attorney files a

paper that does not conform to the requirements of Rule 1:4-8(a), and fails to

withdraw the paper within twenty-eight days of service of a demand for its

withdrawal." United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App.

Div. 2009); see also N.J.S.A. 2A:15-59. A pleading may be deemed frivolous

when "no rational argument can be advanced in its support, or it is not supported

by any credible evidence, or it is completely untenable." Ibid. (internal

quotations omitted). Joinder of a party known to face no liability may also

violate the rule against frivolous litigation. Hreshko v. Harleysville Ins. Co.,

337 N.J. Super. 104, 110-11 (App. Div. 2001).

We apply an abuse of discretion standard in our review of sanctions under

Rule 1:4-8. United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 390 (App.

A-5032-18T1 13 Div. 2009). An "abuse of discretion is demonstrated if the discretionary act was

not premised upon consideration of all relevant factors, was based upon

consideration of irrelevant or inappropriate factors, or amounts to a clear error

of judgment." Ibid. (citations omitted).

Although third-party defendants moved to have the judge sanction

Cavallaro and Stonehill by imposing upon them "all reasonable attorney's fees

and costs incurred," the motion judge imposed a $250 sanction on Stonehill.

The judge found the Borough attorneys complied with Rule 1:4-8 by serving

notice on Cavallaro and Stonehill seeking withdrawal of the third-party

complaint because it did not contain "a valid claim upon which . . . Cavallaro

could prevail." However, the third-party complaint was not withdrawn. The

judge concluded

the [t]hird-[p]arty [c]omplaint was filed and maintained in violation of [Rule] 1:4-8(a)(2) and (3), as the claims and legal contentions contained within were not warranted by existing law or by a non-frivolous argument and the factual allegations do not have evidentiary support. Neither . . . Cavallaro nor . . . Stonehill put forth contentions to rebut [the Borough attorneys'] clear arguments.

In the October 6, 2017 order denying reconsideration, the judge reiterated his

findings that "the claims against [the Borough attorneys were] without merit ."

A-5032-18T1 14 We have no reason to disturb the sanction. The claims against the

Borough attorneys were indeed frivolous and should have been withdrawn.

Nothing has been presented to us on this appeal to convince us otherwise. For

these reasons, neither the imposition of the sanction, nor the denial of

reconsideration constituted an abuse of discretion.

IV.

Finally, to the extent we have not addressed arguments Cavallaro and

Stonehill raised on this appeal, it is because they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-5032-18T1 15