Opinion
DOCKET NO. A-6129-10T4
09-21-2012
GINSBURG DEVELOPMENT COMPANIES, L.L.C., Plaintiff-Respondent/Cross-Appellant, and THE ESTATE OF EVELYN BANFF, Plaintiff/Intervenor, v. TOWNSHIP OF HARRISON, Defendant-Appellant/Cross-Respondent.
John A. Moustakas argued the cause for appellant/cross-respondent (Law Office of Brian J. Duffield, attorneys; Mr. Moustakas, on the brief). Richard S. Goldman argued the cause for respondent/cross-appellant (Drinker Biddle & Reath, attorneys; Mr. Goldman and Jason J. Bundick, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1249-08.
John A. Moustakas argued the cause for appellant/cross-respondent (Law Office of Brian J. Duffield, attorneys; Mr. Moustakas, on the brief).
Richard S. Goldman argued the cause for respondent/cross-appellant (Drinker Biddle & Reath, attorneys; Mr. Goldman and Jason J. Bundick, on the brief). PER CURIAM
Ginsburg Development Companies, L.L.C., contract purchaser of a property in the Township of Harrison (Township), obtained the planning board's approval to subdivide the property and construct seventy-seven single family homes. The approval was subject to several conditions including the capacity of the Township's sewer system to handle the additional wastewater the development would produce. Recognizing the inadequacy of the sewer system, Ginsburg and the Township reached an agreement for its improvement. It called for Ginsburg to make specified alterations on the subject property and to contribute its pro-rata share of the cost of improving two of the Township's pump stations — by their agreement, seven percent for pump station one and seventeen percent for pump station two.
Although the off-site improvements to the sewer system have been completed, a dispute about the parties' respective responsibilities under their sewer improvement agreement led to this litigation. Ginsburg filed a complaint against the Township seeking a declaratory judgment interpreting the agreement and damages for an alleged breach of the agreement and the implied covenant of good faith and fair dealing by the Township. The Township answered and filed a counterclaim charging Ginsburg with breach and seeking damages in the amount due under the agreement. The contract seller, the Estate of Evelyn Banff, intervened. The Estate, like Ginsburg, sought declaratory relief and reformation of the sewer improvement agreement.
It is unclear to us whether the Estate's claim has been resolved by the trial court.
On the Township's motion for summary judgment, the judge determined that Ginsburg owed the Township $160,470 but concluded that factual disputes material to allocation of responsibility for an additional $45,689 sought by the Township required a trial. Accordingly, the judge entered a partial summary judgment in the amount of $160,470 in favor of the Township and against Ginsburg and scheduled trial.
Following trial, the judge awarded the Township an additional $18,047.18. The judgment, entered on July 15, 2011, requires Ginsburg to pay a total of $178,517.18. It further provides for Ginsburg to pay the full amount at the time it begins construction on the property.
The Township appeals from the part of the judgment that defers payment by Ginsburg until it begins construction on the property, and Ginsburg cross-appeals. Although the judgment indicates the judge stated his findings and reasons on the record on July 15, 2011, neither party has provided us with a transcript. In addition, the Township filed a civil case information statement (CIS) indicating that the judge issued a written decision on that date as well. We do not have that either.
Given the deference this court owes to findings a judge made following a bench trial, Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974), it would be inappropriate for us to address the issues as if we were a court of first instance, especially since it appears that the judge has met his obligation to make findings of fact and state his legal conclusions. Accordingly, we must remand.
This appeal and cross-appeal have been prosecuted in a manner that has led to an unnecessary expenditure of judicial resources and delay that would have been avoided if the parties had complied with the rules of appellate practice. Pursuant to Rule 2:5-1(b), an appellant must mail a copy of his or her notice of appeal and CIS to the judge or agency that made the determination from which the appeal is taken. The CIS requires the appellant to indicate whether and when a trial judge issued oral or written findings or opinions. Civil Case Information Statement (revised Jan. 3, 2011), http://www.judiciary.state. nj.us/rules/app7.pdf. The information provided to this court should be accurate.
The information about a judge's decision is neither meaningless nor requested without good reason. When a party indicates that the judge has not provided a statement of findings and reasons, the judge must act. When there is no decision, the judge "shall within [fifteen days] file with the Clerk of the Appellate Division and mail to the parties a written opinion stating findings of fact and conclusions of law." R. 2:5-1(b); Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 300 (App. Div. 2009) (discussing the rule and the obligation it imposes). Quite obviously, the rule serves an important purpose.
This case illustrates the point. Here, the CIS indicated that the judge had issued both an oral and a written decision. We have no reason to believe that the judge did not do that; after all, the judgment also states that the judge placed his reasons on the record on the date he issued the judgment. Because neither attorney reported that the judge had not provided findings and reasons, the judge had no reason to suspect that the parties were unable to locate a record of his decision and no reason to act to comply with Rule 2:5-1(b).
When the parties to this appeal learned that there was no recording, they should have realized that something was amiss and in need of correction. They should have considered whether a statement of proceedings in lieu of transcript, R. 2:5-3(f), or a motion to settle the record, R. 2:5-5(a), was needed to complete the record. We fail to understand why the appeal and cross-appeal were briefed without bringing this problem to the attention of the trial judge or this court. The briefs submitted on appeal indicate that the parties were content to assume what the judge found and concluded. Speculation, however, is inconsistent with our role as a reviewing court. Rova Farms, supra, 65 N.J. at 483-84; see also Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).
For the foregoing reasons, we remand the matter. Within twenty days of this decision, appellant shall provide the clerk of this court and the judge who tried the matter with a transcript or written decision or a certification asserting that neither is available and setting forth the basis for that assertion. If there is no written decision or record of an oral decision, the judge shall provide a written statement, opinion or memorandum within fifteen days of his receipt of the certification.
Upon receipt of the judge's findings, we will issue an opinion on the merits in due course. Because the parties were content to brief the matter without the judge's findings and reasons, no additional briefs will be accepted unless this court, on its own motion, requests them.
The matter is remanded and jurisdiction is retained.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION