SELECTIVE TRANSPORTATION CORPORATION VS. GUSSCO MANUFACTURING, LLC DIRECT COAST TO COAST, LLC VS. GUSSCO MANUFACTURING, LLC (L-8013-12, L-8018-12 AND J-198852-13, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 26, 2018
• Docket: A-4233-16T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4233-16T1

SELECTIVE TRANSPORATION CORPORATION,

Plaintiff-Appellant,

v.

GUSSCO MANUFACTURING LLC and SELCO INDUSTRIES, INC.,

Defendants. ______________________________

DIRECT COAST TO COAST, LLC,

Argued May 30, 2018 – Decided June 26, 2018

Before Judges Manahan and Suter.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-8013-12, L-8018-12, and J-198852-13. Ronald W. Horowitz argued the cause for appellants.

Raymond G. Chow argued the cause for respondent S.P. Richards (Breuninger & Fellman, attorneys; Susan B. Fellman, of counsel; Raymond G. Chow, on the brief).

PER CURIAM

Selective Transportation Corporation and Direct Coast to

Coast, LLC (collectively, Selective) appeal from a January 20,

2017 order of the trial court quashing a subpoena duces tecum

dated December 16, 2016. Selective also appeals from an April 28,

2017 order requiring non-party respondent S.P. Richards Company

(SPR) to pay Selective a calculated sum of all debts owed to

defendant Selco Industries, Inc. (Selco) by SPR.1 Given the motion

judge's failure to provide the requisite statement of reasons with

the order per Rule 1:7-4(a), we reverse and remand. Estate of

Doerfler v. Fed. Ins. Co., ___ N.J. Super. ___ (App. Div. 2018)

(slip op. at 4-5).

We recite a brief summary of the underlying facts and

procedural history for the purpose of context. On December 3,

2012, Selective filed a complaint in the Superior Court, Law

1 Had we addressed the merits of the appeal we would have considered this argument to be abandoned. Plaintiffs have not briefed this point. Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002) (explaining that an issue raised in notice of appeal but not briefed is abandoned).

2 A-4233-16T1 Division against shippers and affiliated former customers Gussco

Manufacturing, LLC (Gussco) and Selco and others for unpaid freight

transportation charges. Direct Coast to Coast, LLC filed a

separate action against Gussco and Selco, which was consolidated

with the Selective claims by consent order on April 11, 2013.

Thereafter, by consent order, Selective obtained a judgment

against Selco in the amount of $229,615.35. Per the terms of the

order, the judgment was stayed pending full compliance with the

terms of the order, which included a payment schedule for Selco

to satisfy the judgment. If Selco failed to make a full timely

payment, the stay was to be deemed vacated and Selective would be

able to execute the judgment and join other defendants allegedly

liable for the subject freight transportation services provided

by Selco.

In October 2013, Selective filed an amended complaint adding

SPR as a non-party. A month later, Selco defaulted under the

terms of the consent order. In December 2013, Selco filed for

Chapter 11 Bankruptcy.

In an attempt to execute the judgment, Selective served an

information subpoena on SPR to determine what monies SPR owed to

Selco. After SPR refused to comply with the subpoena and after

efforts to reach a settlement failed, SPR was dismissed from the

action with prejudice by stipulation of the parties.

3 A-4233-16T1 After Selco's bankruptcy proceeding was dismissed in 2016,

Selective resumed execution proceedings of the 2013 consent order.

On October 19, 2016, Selective again served SPR with an information

subpoena. Due to SPR's failure to respond to the subpoena,

Selective filed a motion in aid of execution. The motion was

premised upon Selective's purported discovery of documents that

demonstrated that the amount owed by SPR to Selco was $245,053.69.

SPR eventually responded to the subpoena by stating that it

currently owed Selco $10,507.43.

On December 16, 2016, the court denied the motion in aid of

execution for failure to comply with Rule 6:7-2. Selective then

served a subpoena duces tecum to SPR, seeking "[a]ll documents

concerning Selco Industries, Inc., . . . including, but not limited

to, all invoices, cancelled checks, wire transfers, purchase

orders, e-mails, correspondence, and facsimiles for the last five

years of business with Selco Industries, Inc." SPR moved to quash,

which the court granted without a providing a statement of reasons.

This appeal followed.

On appeal, Selective raises the following point:

[POINT I]

THE LOWER COURT IMPROPERLY QUASHED PLAINTIFFS' SUBPOENA DUCES TECUM WITHOUT ANY REASON.

4 A-4233-16T1 Selective argues the court erred in failing to attach a

statement of reasons to the order quashing the subpoena, per Rule

1:7-4(a). We agree.

No one — not the parties and not this court — can properly

function or proceed without some understanding of why a judge has

rendered a particular ruling. The Supreme Court said in Curtis

v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs.

v. Bd. of Adjustment, Englewood, 141 N.J. Super. 1, 4 (App. Div.

1976)), that the absence of an adequate expression of a trial

judge's rationale "constitutes a disservice to the litigants, the

attorneys and the appellate court." And this admonition has been

repeated time and again. Gnall v. Gnall, 222 N.J. 414, 428

(2015); Estate of Doerfler, N.J. Super. at ; State v.

Lawrence, 445 N.J. Super. 270, 276-77 (App. Div. 2016); Raspantini

v. Arocho, 364 N.J. Super. 528, 533 (App. Div. 2003); In re

Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003); T.M. v. J.C.,

348 N.J. Super. 101, 106-07 (App. Div. 2002). The parties and

this court are entitled to the judge's reasons for entering the

orders under review. We should not be put in the position of

guessing or assuming what the judge might have been thinking. As

Judge Fuentes said last month in Estate of Doerfler, "our function

as an appellate court is to review the decision of the trial court,

not to decide the motion tabula rasa." ___ N.J. Super. at ___.

5 A-4233-16T1 Here, there is nothing in the order under review demonstrating

indicative that the judge made an independent decision based upon

an analysis of the facts and applicable law. Thus, we are

constrained to remand. Given our determination, we have not

addressed the merits of the substantive issues raised on appeal.

Remanded. We do not retain jurisdiction.

6 A-4233-16T1