NOREEN FLUGGER v. A&A RIDGEWOOD REGISTERED PROFESSIONAL NURSES ASSOCIATION (L-7546-19, BERGEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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
controversy doctrine.
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