Opinion
DOCKET NO. A-1634-14T2
06-01-2016
PHILLIPSBURG REVIEW ORGANIZATION, INC., Plaintiff-Appellant, v. ESTATE OF MARK ROGERS, ELIJAH BRYANT et ux, and FRANK MAY, Defendants, and JOSEPH LITTLE, Defendant-Respondent.
Daniel E. Somers, attorney for appellant. Schenck, Price, Smith & King, LLP, attorneys for respondent (John P. Campbell, of counsel; Mr. Campbell and Thomas J. Cotton, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. DC-2625-12. Daniel E. Somers, attorney for appellant. Schenck, Price, Smith & King, LLP, attorneys for respondent (John P. Campbell, of counsel; Mr. Campbell and Thomas J. Cotton, on the brief). PER CURIAM
Plaintiff Phillipsburg Riverview Organization Inc. (PRO), a not-for-profit organization, appeals the trial judge's determination — following a bench trial — relieving defendant Joseph Little of any liability for damages and mesne profits stemming from a wrongful takeover of the organization and occupation of PRO's arts center building by an illegitimate board of directors that allegedly included Little. We find no principled reason for questioning the judge's conclusion that Little did not participate in or benefit from the actions of other defendants.
Mesne profits are understood to include the "[v]alue of use or occupation of land during time it was held by one in wrongful possession and is commonly measured in terms of rents and profits." Black's Law Dictionary 990 (6th ed. 2010).
The record reveals that, on January 20, 1992, PRO obtained a deed to a building, known as the Riverview Arts Center, located on South Main Street in Phillipsburg. At a PRO meeting on April 27, 2010, members present voted to dismiss the existing board of directors and elected new leadership. According to "draft minutes" of that meeting, the insurgent group, led by Mark Rogers, took this action because of "multiple failures of the supposed P.R.O. board of trustees." At the April 2010 meeting, Little, who joined PRO in 2008 as a dues-paying member, was voted in as a PRO trustee. At some later point, the building's locks were changed.
In November 2012, PRO commenced this action in Special Civil Part against Little and defendant Mark Rogers for ejectment and damages. In early proceedings, PRO was awarded possession of the building. Ultimately, a bench trial was conducted in order to determine whether Little was liable to PRO for damages based on the insurgent group's takeover of the building. After entering default judgment in favor of PRO and against Rogers, Bryant and May, jointly and severally, in the amount of $11,010, the trial judge determined that PRO was not entitled to relief from Little.
Elijah Bryant and his wife, and Frank May were later joined as defendants, and the Estate of Mark Rogers was substituted in Rogers's place following his death.
PRO appeals, arguing: (1) Little should have been held liable for mesne profits because evidence supported a finding that Little ousted and prevented PRO from re-entering its building; (2) the award of damages was insufficient; and (3) the matter should have been transferred from Special Civil Part to the Law Division. We find insufficient merit in the second and third arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We also reject plaintiff's first argument for the following reasons.
PRO's claim for damages was based on N.J.S.A. 2A:35-2, which declares that an ejected possessor of land "shall be entitled to recover from the defendant any and all incidental damages, including mesne profits, and the full value of the use and occupation of the premises for the time, not exceeding 6 years, before the commencement of the action, during which the defendant was in possession thereof." In such a setting, a plaintiff must prove a right to possession as well as a defendant's wrongful possession of the property. See Am. Can Co. v. Dornoil Prods. Co., 126 N.J.L. 345, 347 (E. & A. 1941); Stewart v. The Camden & Amboy R.R. Co., 33 N.J.L. 115, 118 (Sup. Ct. 1868).
The trial judge had earlier found the matter unripe for summary judgment in light of the parties' competing certifications. The factual dispute about Little's alleged conduct in precluding PRO's exercise of its right to possession was illuminated during a one-day trial, during which Barry Glassman and Michael King — both legitimate officers of PRO — testified on PRO's behalf, and Little testified on his own behalf. The judge ruled in Little's favor.
Our standard of review requires deference to the judge's findings unless "they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). Stated another way, a judge's findings are "binding on appeal when supported by adequate, substantial and credible evidence." Id. at 484.
Although we recognize the judge's written findings were somewhat conclusory, we have determined, in applying the Rova Farms standard and in searching the trial record, that there was ample evidence from which the judge could find Little had not ousted PRO, had not denied PRO access to the property, and had not received any rents. In his testimony, Little acknowledged that "[a]s an elected member of the Board, [he] voted to change the locks" but only for "security purposes," explaining the board had discovered "six or eight" "expensive paintings" and a "sound system" had been "stolen." Little testified he "never possessed keys to the building"; they were always kept by the chairman of PRO, originally Rogers and then his successor, Bryant. In addition, Little denied he ever occupied the building as a tenant, ever had access to or control of any part of the building, or ever received any rents. King, a witness for plaintiff and a member of PRO's current board of directors, testified that at some point in 2012 he saw Little open the building for an "arts group meeting." Little acknowledged he attended that meeting and opened the door, but Little maintained he did not have a key and the door was already opened when he entered. Implicit in the judge's conclusory findings is his determination that Little testified credibly in all these respects.
The judge stated only that it was "clear" to him "that the renegade organization was in all respects directed and run by the late Mark Rogers, with the assistance of Elijah Bryant and Frank May," and that there was "no evidence that Joseph Little was an officer of PRO," "no evidence that Little received rents, no evidence that Little possessed a key to the property, . . . no evidence that Little opened or had access to the organization's . . . bank account, [and] no evidence that Little possessed the property." --------
In adhering to our standard of review, we find no cause to disturb the experienced trial judge's disposition of the matter.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION