NOREEN FLUGGER v. A&A RIDGEWOOD REGISTERED PROFESSIONAL NURSES ASSOCIATION (L-7546-19, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 23, 2022
• Docket: A-2264-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2264-20

NOREEN FLUGGER and MARGARET HAYES,

Plaintiffs-Appellants,

v.

A&A RIDGEWOOD REGISTERED PROFESSIONAL NURSES ASSOCIATION, JANET KELLY, JANET DOBBS, KATHLEEN BISI, LUCILLE HAUBNER, and MEYERSON, FOX, MANCINELLI & CONTE, P.A.,

Defendants-Respondents.

______________________________

Submitted March 9, 2022 – Decided June 23, 2022

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7546-19. Asatrian Law Group, LLC, attorneys for appellants (Martin V. Asatrian, of counsel; Jeffrey Zajac, on the brief).

Meyerson, Fox, Mancinelli & Conte, PA, attorneys for respondents (Andrew P. Bolson and Matthew M. Nicodemo, on the brief).

PER CURIAM

Plaintiffs Noreen Flugger and Margaret Hayes appeal from an order

granting defendants' summary-judgment motion. Plaintiffs do not challenge the

motion judge's conclusion that plaintiffs' claims were barred by the entire

controversy doctrine. We agree with the judge's conclusion and affirm.

I.

We discern the facts from the summary-judgment record, viewing them in

the light most favorable to plaintiffs, the parties who opposed summary

judgment. See Richter v. Oakland Bd. of Educ., 246 N.J. 507, 515 (2021) (citing

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

Defendant A&A Ridgewood Registered Professional Nurses Association,

Inc. (“A&A”) is a New Jersey non-profit organization, founded in 1992 by

twelve registered nurses. 1 According to its bylaws, A&A's purpose is to

1 This is the name of the organization according to its bylaws; thus, we use that name at the outset. We note in some submissions and documents in the record,

A-2264-20 2 "promote the excellence of independent and private professional nursing

practice," to "elevate the professional status of the registered nurses engaged in

independent and private nursing care," to "educate the community at large as to

the benefits of independent and private professional nursing care," and to

"encourage the closer cooperation of nurses specializing in independent and

private nursing care with other health care professionals and providers."

Defendants Janet Kelly, Janet Dobbs, Kathleen Bisi, and Lucille Haubner

(collectively, "individual defendants") are members of A&A.

Plaintiff Noreen Flugger was a "[f]ounder" member, trustee, and

employee of A&A. According to A&A's bylaws, a founder member is someone

who was named in the roll call of a June 24, 1992 meeting and whose status may

be terminated for good cause by a majority vote of the founder members. At an

August 23, 2018 meeting, a majority of A&A's founder members voted to revoke

Flugger's membership and remove her as a founder member and a trustee.

Flugger was also employed by A&A as a clinical coordinator. According to an

October 11, 2018 letter from Dobbs to Flugger, a majority of the founder

members at an October 10, 2018 meeting discussed whether A&A needed two

the organization is referred to as "A&A Ridgewood Registered Professional Nurses Association" or "A&A Ridgewood Registered Professional Nurses Assoc." A-2264-20 3 clinical-coordinator positions given A&A had received only one request for

private duty nursing during the past four months and voted to eliminate the

position she held as one of two clinical coordinators.

Plaintiff Margaret Hayes was a founder member of A&A. She was not

removed as a founder member and her membership was not revoked. According

to defendants, Hayes was an active volunteer for A&A. Hayes testified she was

never employed by A&A.

On or about July 30, 2018, plaintiffs filed a complaint in the Chancery

Division (the "Chancery Action") against A&A, Kelly, and Dobbs, alleging,

Kelly and Dobbs, who were then the president and treasurer of A&A,

respectively, had managed A&A without regard to its bylaws and that the

defendants had "provided a payment from corporate funds to Ramapo College

without the requisite authorization," had failed to provide "timely and complete

tax information" to A&A's "members," and had allowed unqualified people to

vote, resulting in "continual and long-term non-compliance with applicable

statutes . . . as well as commercially accepted practices." Plaintiffs sought a

return of the Ramapo College payment, a freeze of A&A's assets, the

appointment of a receiver, a presentation of an accounting of A&A's finances,

and counsel fees.

A-2264-20 4 After discovery was conducted, the defendants moved for summary

judgment in the Chancery Action. The same attorney who signed the complaint

in this case participated on behalf of plaintiffs in the oral argument of the

defendants' summary-judgment motion in the Chancery Action. During oral

argument, he advised the Chancery judge he had contacted the Equal

Employment Opportunity Commission and said "we filed charges against A&A

for the wrongful termination of a W[-2] employee. And that's Noreen Flugger."

On April 5, 2019, the Chancery judge granted the defendants' motion for

summary judgment and dismissed the complaint with prejudice. Because

plaintiffs had not refuted the defendants' statement of undisputed facts, the

Chancery judge concluded the defendants had complied with A&A's bylaws and

the Ramapo College payment was authorized. The Chancery judge

acknowledged plaintiffs' allegation that Dobbs and Kelly had mismanaged

A&A's affairs "without regard for the bylaws" but believed "such issues are not

the subject of this action," which focused on the allegation concerning the

Ramapo College payment. Nevertheless, the Chancery judge found:

However, even if this case was about the alleged mismanagement of [A&A] by Ms. Dobbs and Ms. Kelly, [p]laintiffs fail to raise any genuine issue of material fact that would warrant denial of the [summary-judgment m]otion. [Plaintiffs' expert's] report does not support the assertion that Ms. Kelly and

A-2264-20 5 Ms. Dobbs [sic] mismanagement harmed [A&A]. [The] report states . . . "I did not see an expense that was questionable" . . . [and] he found, "no irregularities" . . . . [Plaintiffs' expert] concluded . . . "it is my opinion that Janet Kelly and Janet Dobbs were not involved in the misappropriation of funds from [A&A]." Thus, [p]laintiffs' own expert fails to support the claim that Ms. Dobbs and Ms. Kelly harmed [A&A].

The Chancery judge granted the motion and dismissed the complaint with

prejudice but denied the defendants' fee application.

Plaintiffs filed the complaint in this action on October 29, 2019, naming

as defendants A&A, the individual defendants, and a law firm, Meyerson, Fox,

Mancinelli & Conte. On November 8, 2019, before defendants answered,

plaintiffs filed an amended complaint in which they alleged twelve causes of

action: defamation, asserting defendants generally had defamed them and Kelly

particularly had defamed plaintiffs by making statements during board meetings

that impugned their reputations; intentional and negligent infliction of emotional

distress, asserting defendants had belittled plaintiffs during meetings and, in

particular, that Kelly had intentionally caused Flugger emotional distress by her

conduct during meetings and by wrongfully discharging Flugger and retaliating

against her for filing the Chancery Action and had caused Hayes emotional

distress by engaging in "abusive and marginalizing behavior"; wrongful

A-2264-20 6 discharge, claiming defendants had retaliated against Flugger for filing the

Chancery Action and had "effectively wrongfully discharged" Hayes, who,

according to plaintiffs, was "still gainfully employed as Secretary of A&A";

violations of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A.

10:5-1 to -50, based on a retaliation claim, specifically alleging retaliatory

actions against Flugger, a hostile work environment claim, and an age

discrimination claim; harassment as to Hayes; "whistleblower," asserting

plaintiffs were retaliated against for pointing out improper activities and

unlawful conduct; legal malpractice, breach of fiduciary duty of loyalty, and

promissory estoppel against the law-firm defendant, claiming the firm had given

Kelly negligent legal advice to terminate Flugger; and a "conspiracy to commit

a tort and other wrongdoings."

On December 18, 2019, defendants moved to dismiss the amended

complaint, contending plaintiffs' claims were barred by the entire controversy

doctrine and that plaintiffs had failed to state a claim on which relief could be

granted. In a January 16, 2020 order, the motion judge granted the motion as to

all counts concerning the law-firm defendant and as to the defamation and

emotional-distress counts, finding those two counts were barred by the entire

controversy doctrine.

A-2264-20 7 Discovery concluded on November 19, 2020. On November 20, 2020,

plaintiffs moved for the judge's recusal. The judge denied the motion in an order

dated December 18, 2020.

Defendants moved for summary judgment on January 28, 2021. The judge

granted the motion and dismissed the case with prejudice in an order and written

opinion issued on March 22, 2021. The judge held the entire controversy

doctrine required the dismissal of the case, finding the doctrine applied because

"the controversy which forms the factual nexus of the instant action also was at

the heart of the previously filed Chancery Division action." In addition, the

judge held plaintiffs' causes of action failed as a matter of law. As to the

individual defendants, the judge found "no legal basis for which individual

liability may attach." The judge cited N.J.S.A. 15A:5-25, which provides

"members of a nonprofit corporation shall not be personally liable for the debts,

liabilities or obligations of the corporation." Recognizing a corporate officer

"can be held personally liable for a tort committed by the corporation when he

or she is sufficiently involved in the commission of the tort," Saltiel v. GSI

Consultants, Inc., 170 N.J. 297, 303 (2002), the judge held "no torts have been

committed by A&A or by any of its members or officers. Had tortious acts been

committed, however, such acts would also be barred by the entire controversy

A-2264-20 8 doctrine." The judge reasoned the alleged defamation by Kelly had occurred

prior to the initiation of the Chancery Action, which was why the judge

previously had dismissed that claim. Based on Flugger's testimony, the judge

concluded the claims against Dobbs were premised on actions she allegedly took

as A&A's treasurer and "[i]ssues about Ms. Dobbs' management of the finances

of A&A were raised in the previous Chancery Action and cannot serve as a basis

for imposing individual liability in this matter." Citing Flugger's testimony that

Haubner was named as a defendant because she had voted unanimously with the

other members and had announced how she was voting before the elections, the

judge found "no basis in law or fact that could impose liability on Ms. Haubner

for voting in accordance with her capacity as a [f]ounder [m]ember." The judge

found plaintiffs had sued Bisi "on the theory that she used A&A funds for

personal purposes." He held plaintiffs had failed to substantiate those

accusations and that "[n]otably, if [p]laintiffs believed Ms. Bisi misused A&A's

funds, it appears that such acts were committed prior to the initiation of the

[p]laintiffs' prior action."

Plaintiffs filed a notice of appeal on April 16, 2021, stating in the notice

they were appealing the March 22, 2021 order granting summary judgment. On

appeal, plaintiffs contend the judge committed reversable error in denying their

A-2264-20 9 recusal motion in the December 18, 2020 order. Plaintiffs also argue the judge

erred in granting defendants' summary-judgment motion because material facts

were in dispute. Plaintiffs reference specifically only Flugger's NJLAD

retaliation claim, contending a material fact exists as to whether defendants'

basis for terminating Flugger was pretextual. Plaintiffs do not dispute or make

any argument about the judge's finding regarding the application of the entire

II.

We review a grant of summary judgment de novo, using "the same

standard that governs the motion judge's" decision. RSI Bank v. Providence

Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018). When "facts relevant to the

application of the entire controversy doctrine are not in dispute," the

determination of whether the doctrine applies is a question of law, which we

review de novo. Higgins v. Thurber, 413 N.J. Super. 1, 6 (App. Div. 2010),

aff'd, 205 N.J. 227 (2011); see also Pareja v. Princeton Int'l Props., 246 N.J. 546,

554 (2021) ("In questions of law, be it common law or a statute, our review is

de novo."). In our review, we owe "no special deference" to the motion judge's

legal analysis. RSI Bank, 234 N.J. at 472.

A-2264-20 10 We note at the outset we review "only the judgment or orders designated

in the notice of appeal." 1266 Apartment Corp. v. New Horizon Deli, Inc., 368

N.J. Super. 456, 459 (App. Div. 2004); see also Kornbleuth v. Westover, 241

N.J. 289, 298-299 (2020) (same). An appellant who does not designate an order

in a notice of appeal as being the subject of the appeal "has no right to our

consideration of th[at] issue." 1266 Apartment Corp., 368 N.J. Super. at 459.

In their notice of appeal plaintiffs did not designate the December 18, 2020 order

denying the recusal motion as a subject of this appeal. Therefore, we decline to

consider that issue and address the only order plaintiffs referenced in their notice

of appeal: the March 22, 2021 order granting defendants' summary-judgment

motion.

We affirm the order granting summary judgment because we agree with

the motion judge that plaintiffs' claims in this case were barred by the entire

controversy doctrine. We note plaintiffs failed to address whether or how the

judge had erred in applying the entire controversy doctrine. Accordingly,

plaintiffs waived that argument. See Sklodowsky v. Lushis, 417 N.J. Super.

648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived");

Matter of Gloria T. Mann Revocable Tr., 468 N.J. Super. 160, 180 (App. Div.

A-2264-20 11 2021) (same). Nevertheless, we address the entire controversy doctrine because

it was the primary basis of the order on appeal.

The entire controversy doctrine is codified in Rule 4:30A, which provides

in relevant part: "[n]on-joinder of claims required to be joined by the entire

controversy doctrine shall result in the preclusion of the omitted claims to the

extent required by the entire controversy doctrine . . . ." "The purpose of the

doctrine is to prevent piecemeal decisions, promote fairness to the parties, and

advance the goal of judicial efficiency." Sklodowsky, 417 N.J. Super. at 655.

The doctrine "embodies the principle that the adjudication of a legal controversy

should occur in one litigation in only one court; accordingly, all parties involved

in a litigation should at the very least present in that proceeding all of their

claims and defenses that are related to the underlying controversy." Highland

Lakes Country Club & Cmty. Ass'n v. Nicastro, 201 N.J. 123, 125 (2009)

(quoting Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 15 (1989)); see also Bank

Leumi USA v. Kloss, 243 N.J. 218, 227 (2020). The doctrine "seeks to impel

litigants to consolidate their claims . . . whenever possible." Dimitrakopoulos

v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108

(2019) (quoting Thornton v. Potamkin Chevrolet, 94 N.J. 1, 5 (1983)).

A-2264-20 12 "When a court decides whether multiple claims must be asserted in the

same action, its initial inquiry is whether they 'arise from related facts or the

same transaction or series of transactions.'" Id. at 109 (quoting DiTrolio v.

Antiles, 142 N.J. 253, 267 (1995)). "It is the core set of facts that provides the

link between distinct claims against the same parties . . . and triggers the

requirement that they be determined in one proceeding." Wadeer v. N.J. Mfrs.

Ins. Co., 220 N.J. 591, 605 (2015) (quoting DiTrolio, 142 N.J. at 267-68). "The

doctrine does not mandate that successive claims share common legal issues in

order for the doctrine to bar a subsequent action." Dimitrakopoulos, 237 N.J. at

109.

However, "the entire controversy doctrine 'remains an equitable doctrine

whose application is left to judicial discretion based on the factual circumstances

of individual cases.'" Bank Leumi USA, 243 N.J. at 227 (quoting

Dimitrakopoulos, 237 N.J. at 114). In that regard, "a court should not preclude

a claim under the entire controversy doctrine if such a remedy would be unfair

in the totality of the circumstances and would not promote the doctrine's

objectives of conclusive determinations, party fairness, and judicial economy

and efficiency." Dimitrakopoulos, 237 N.J. at 119.

A-2264-20 13 We hold that the entire controversy doctrine applies and bars plaintiffs'

claims. This case and the Chancery Action are premised on plaintiffs'

allegations of mismanagement of A&A, misuse of A&A's funds, and wrongful

voting. We perceive no equitable basis preventing the application of the

doctrine. Plaintiffs do not dispute they were aware of the existence of the claims

they made in this case during the pendency of the Chancery Action. See

Dimitrakopoulos, 237 N.J. at 99 (a party can avoid application of the doctrine

"by proving that he or she did not know, and should not reasonably have known,

of the existence of the claim during the pendency of the [prior] action");

DiTrolio, 142 N.J. at 273-74 (the doctrine "does not apply to unknown or

unaccrued claims"). The record also established that plaintiffs would have had

"a fair and reasonable opportunity to have fully litigated" all their claims in the

Chancery Action. Dimitrakopoulos, 237 N.J. at 99 (quoting Gelber v. Zito

P'ship, 147 N.J. 561, 565 (1997)). That plaintiffs did not name Bisi and Haubner

in the Chancery Action does not defeat the application of the doctrine given the

nature of the claims against them and their material interest as A&A members

in the Chancery Action. See DiTrolio, 142 N.J. at 268 (finding defendants

named in second suit had a sufficient interest in first suit to "mandate joinder of

A-2264-20 14 those defendants in that suit"). Plaintiffs could have and should have brought

their claims in one case.

Given that the judge correctly granted defendants' summary-judgment

motion and dismissed the case with prejudice based on the entire controversy

doctrine, we need not reach plaintiffs' remaining arguments.

Affirmed.

A-2264-20 15