OLIVER v. SHORT, III VS. UNION COUNTY SUPERIOR COURT, CHANCERY DIVISION (L-0233-19, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3087-18T3
OLIVER V. SHORT, III,
Plaintiff-Appellant,
V.
UNION COUNTY SUPERIOR
COURT, CHANCERY DIVISION,
PROBATE PART, PRESIDING
JUDGE,
Defendant-Respondent.
Submitted November 18, 2020 – Decided December 10, 2020
Before Judges Whipple, Rose and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-0233-19.
Oliver V. Short, III, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Andrew C. Munger, Deputy
Attorney General, on the brief).
PER CURIAM
Plaintiff Oliver V. Short appeals pro se from a February 7, 2019 Law
Division order, denying his motion to alter or amend a January 14, 2019 order
pursuant to Rule 4:49-2. Middlesex County Assignment Judge Alberto Rivas
issued both orders, which were accompanied by cogent written statements of
reasons. We affirm.
The facts and procedural history are not complicated. In January 2019,
plaintiff filed an eight-count, seventy-nine-page complaint in lieu of prerogative
writs and an order to show cause seeking temporary restraints against the
Chancery Division presiding judge in Union County. Among other remedies,
plaintiff sought a writ of mandamus to compel the judge to issue a final order in
the probate matter regarding his deceased mother's estate. In doing so, plaintiff
ostensibly alleged the judge did not fulfill the decedent's expressed intent for the
ultimate disposition of her property; attorneys' fees were improperly awarded;
and the executrix of the estate did not properly perform her duties. Plaintiff
further contended the presiding judge's December 31, 2018 judgment 1 lacked
finality. Plaintiff did not, however, timely appeal from the Chancery Division
judgment.
1
Plaintiff did not provide the December 31, 2018 judgment on appeal.
A-3087-18T3
2
Venue was transferred to Middlesex County in view of the allegations
against the Union County judge. Following a hearing, Judge Rivas denied
plaintiff's application for temporary restraints and dismissed his complaint with
prejudice. Citing our decision in Malik v. Ruttenberg, 398 N.J. Super. 489, 495-
96 (App. Div. 2008), Judge Rivas aptly determined "as a matter of law"
plaintiff's claims against the presiding judge were barred under the doctrine of
judicial immunity. Recognizing plaintiff's complaint challenged the presiding
judge's decisions in the underlying probate matter, Judge Rivas correctly
concluded plaintiff's remedy laid in an appeal from the December 31, 2018
Chancery Division judgment. Accordingly, Judge Rivas entered the January 14,
2019 order denying temporary restraints and dismissing plaintiff's complaint
with prejudice.
Dissatisfied with Judge Rivas's decision, plaintiff sought reconsideration
of the January 14, 2019 order. Styled as a motion to alter or amend the judgment
under Rule 4:49-2, plaintiff reasserted the arguments made in his initial
application. Again, plaintiff argued he was "seeking a remedy to have the
[j]udge perform . . . [her] mandatory ministerial duties." Finding plaintiff failed
to satisfy the standard set forth in Rule 4:49-2 for reconsideration of the prior
order, Judge Rivas denied plaintiff's motion. The judge elaborated:
A-3087-18T3
3
There is nothing in [plaintiff]'s most recent submission
that persuades this court that it has erred or overlooked
controlling decisions or mischaracterized the nature of
[plaintiff]'s litigation. See R. 4:49-2. No reported case
law exists where an action in lieu of prerogative writ[s]
case was filed against a [j]udge. The absence of such
case is attributable to the purpose of an action in lieu of
prerogative writ[s], which is to seek redress for actions
taken by governmental bodies and public officials. See
Nolan v. Fitzpatrick, 9 N.J. 477, 485 (1952).
Accordingly, Judge Rivas reiterated that plaintiff's "sole recourse w[as] to file
an appeal" from the final judgment in the probate matter.
On appeal, plaintiff maintains the Chancery Division judge failed to issue
a final order and a writ of mandamus is needed to resolve the underlying probate
matter. Plaintiff also argues Judge Rivas erroneously concluded his action is
barred under the doctrine of judicial immunity. More particularly, plaintiff
raises the following points for our consideration:
POINT ONE
THE COURT BELOW MADE HARMFUL ERRORS
OF FACT AND LAW BY DENYING THE WRIT ON
THE BASIS OF AN ORDER NOT ON THE RECORD.
THE FULL HEARING OF THE ACTION IN LIEU OF
PREROGATIVE WRITS ISSUING THE
DECLARATORY JUDG[]MENT MUST BE
DECIDED ON [ITS] MERITS.
A-3087-18T3
4
POINT TWO
HARMFUL ERRORS OF FACT AND LAW IN THE
JANUARY 14, [] 2019 [ORDER] DENYING A FULL
HEARING OF THE WRIT AND ISSUING A
DECLARATORY . . . JUDGMENT [AND] THE
FEBRUARY 7, [] 2019 ORDER DENYING THE
MOTION TO ALTER AND AMEND REQUIR[E] DE
NOVO APPELLATE REVIEW AND REVERSAL
AND REMAND FOR FULL CONSIDERATION AND
PERFORMANCE OF CLERICAL DUTIES
CONSISTENT WITH THE PUBLIC INTEREST OF
THE STATE OF NEW JERSEY.
POINT THREE
[]PLAINTIFF CANNOT APPEAL FROM ORDERS
THE UNION COUNTY PROBATE PART COURT
HAS NOT MADE AND CANNOT LEGALLY ISSUE.
MANDAMUS IS THE ONLY REMEDY TO COMPEL
THE UNION [COUNTY] PROBATE PART TO
ISSUE A FINAL JUDG[]MENT APPEALABLE AS
OF RIGHT.
POINT FOUR
A WRIT OF MANDAMUS IS USED IN OTHER
STATES TO END THE POST-SETTLEMENT
QUAGMIRE IN WHICH . . . PLAINTIFF HAS BEEN
PLACED BY THE UNION COUNTY PROBATE
PART IN [UNION COUNTY DOCUMENT NO.] Q-
1569.
(Not raised below)
POINT FIVE
A DECLARATORY JUDG[]MENT OF FIVE OR SIX
PROVISIONS OF THE MARIE SEMPLE DYNASTY
A-3087-18T3
5
TRUST, HER WILL AND Q[UALIFIED]
P[ERSONAL] R[ESIDENCE] T[RUST OF 2000] AND
THE SETTLEMENT AGREEMENT CAN END THE
MATTER FOR ALL PRESENT AND FUTURE
BENEFICIARIES.
POINT SIX
ELEMENTS OF MANDAMUS, AN ACTION IN
LIEU OF PREROGATIVE WRITS LIES TO
COMPEL[] THE UNION COUNTY SUPERIOR
COURT PROBATE PART PRESIDING JUDGE TO
PERFORM ACTS OWED TO MARIE SEMPLE AND
HER BENEFICIARIES PRIOR TO THE ISSUANCE
OF ORDERS OR JUDG[]MENTS [A]FFECTING
THEIR LEGAL RIGHTS.
We have carefully considered plaintiff's contentions in view of the
governing law, and conclude they lack sufficient merit to warrant extended
discussion in this written opinion. R. 2:11-3(e)(1)(E). We affirm substantially
for the reasons set forth by Judge Rivas in his well-reasoned written statements.
We add the following remarks.
We review a trial court's decision to grant or deny a motion for
reconsideration under an abuse of discretion standard. Cummings v. Bahr, 295
N.J. Super. 374, 384 (App. Div. 1996). "[T]he decision to grant or deny a motion
for reconsideration rests within the sound discretion of the trial court." Pitney
Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App.
Div. 2015) (citation omitted). "Reconsideration should be used only where '1)
A-3087-18T3
6
the [c]ourt has expressed its decision based upon a palpably incorrect or
irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent evidence.'" Ibid.
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Rule 4:49-2 requires that the motion "state with specificity the basis on
which it is made, including a statement of the matters or controlling decisions
which [the movant] believes the court has overlooked or as to which it has
erred." Moreover, "the magnitude of the error cited must be a game-changer for
reconsideration to be appropriate. 'Said another way, a litigant must initially
demonstrate that the [c]ourt acted in an arbitrary, capricious, or unreasonable
manner, before the [c]ourt should engage in the actual reconsideration process.'"
Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010) (quoting
D'Atria, 242 N.J. Super. at 401). "Thus, a trial court's reconsideration decision
will be left undisturbed unless it represents a clear abuse of discretion." Pitney
Bowes Bank, Inc., 440 N.J. Super at 382 (citing Hous. Auth. of Morristown v.
Little, 135 N.J. 274, 283 (1994)).
"To bring an action in lieu of prerogative writs, a plaintiff must show that
the appeal could have been brought under one of the common-law prerogative
writs[,]" such as the writ of mandamus sought by plaintiff. Alexander's Dep't
A-3087-18T3
7
Stores of N.J., Inc., v. Borough of Paramus, 125 N.J. 100, 107 (1991).
Mandamus "is a writ directing government officials to carry out required
ministerial duties." Caporusso v. N.J. Dep't of Health & Senior Servs., 434 N.J.
Super. 88, 100 (App. Div. 2014). "A ministerial duty is one that is absolutely
certain and imperative, involving merely the execution of a set task, and when
the law which imposes it prescribes and defines the time, mode and occasion of
its performance with such certainty that nothing remains for judgment or
discretion." Id. at 102 (internal citation omitted). Therefore, the use of this writ
has typically been limited to actions involving government officials and
agencies. See Switz v. Middletown, 23 N.J. 580 (1957) (ordering the township
and board of taxation to assess property values as directed by statute.).
Furthermore, for an issuance of mandamus, "the plaintiff's right and the
defendant's duty must legally be clear and the remedy must be denied where
equity or paramount public interest so dictates or there is other adequate relief
available." Garrou v. Teaneck Tryon Co., 11 N.J. 294, 302 (1953).
As Judge Rivas correctly concluded, an action in lieu of prerogative writs
is an inappropriate "remedy" to address plaintiff's dissatisfaction with the
underlying probate matter. Plaintiff has not cited any New Jersey case law in
which an action in lieu of prerogative writs was filed against a judge. Moreover,
A-3087-18T3
8
the remedies sought by plaintiff through the writ of mandamus reach well
beyond ministerial duties, and could have been addressed by appealing the
Chancery Division's December 31, 2018 judgment. Finally, plaintiff's claims
against the Chancery Division presiding judge were barred under the doctrine of
judicial immunity for the reasons articulated by Judge Rivas. We therefore
discern no abuse of discretion here.
Affirmed.
A-3087-18T3
9