# Atlantic City Board of Education v. Farook Hossain

> New Jersey Superior Court Appellate Division · December 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10762756

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** December 18, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

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## Opinion text

NOT FOR PUBLICATION WITHOUT THE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-0582-22

ATLANTIC CITY BOARD
OF EDUCATION,

Plaintiff-Respondent,

v.

FAROOK HOSSAIN, a/k/a
MD FAROOK HOSSAIN and
MOSSAMMA T. RUMANA
AKTHER, jointly and severally,

Defendants-Appellants.
___________________________

Submitted January 31, 2024 – Decided December 18, 2024

Before Judges Accurso and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-0635-21.

King-Barnes, LLC, attorneys for appellants (Robert A.
Loefflad, on the briefs).

Law Offices of Riley & Riley, attorneys for respondent
(Tracy L. Riley, on the brief).

The opinion of the court was delivered by
VERNOIA, J.A.D.

Defendants Farook Hossain and Mossamma T. Rumana Akther appeal

from a Law Division order granting plaintiff Atlantic City Board of Education

summary judgment in the amount of $69,657.20 on its claim defendants

committed fraud by mispresenting their place of domicile for the purpose of

allowing their two children to attend school tuition-free in the Atlantic City

school district during the 2019-2020 and 2020-2021 school years and by

misrepresenting their income to qualify their children for a free or reduced-price

lunch program while attending school during the 2017-2018, 2018-2019, 2019-

2020, and 2020-2021 school years. Defendants also appeal from orders denying

their motion for reconsideration of the summary-judgment order and awarding

plaintiff $75,000 in punitive damages on its fraud claims following a trial. We

affirm in part, vacate in part, and remand for further proceedings.

I.

Plaintiff filed a complaint against defendants asserting three causes of

action. The complaint alleged defendants' two children attended school in the

Atlantic City school district during the 2017-2018, 2018-2019, 2019-2020, and

2020-2021 school years.

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The complaint further alleged the Atlantic City school district supplies

free and reduced-price lunches to students who cannot otherwise afford them.

Qualification to receive those lunches requires completion of an application that

includes the names and incomes of the adults in a student's household. The

individual completing the application must sign a certification attesting to the

accuracy of the information provided and acknowledging the provision of false

information may result in a criminal prosecution.

The complaint alleged defendants had enrolled their children in the

Atlantic City school district during the 2019-2020 and 2020-2021 school years

knowing that neither they nor their children were domiciled within the district

during that time and, as a result, their children were not entitled to a free

education in the district during those school years. The complaint further

alleged Hossain, who served as member of plaintiff school board during the

2019-2020 and 2020-2021 school years, had submitted incomplete and

otherwise false applications for free or reduced-price lunches for his children

for the 2017-2018, 2018-2019, 2019-2020, and 2020-2021 school years and, as

a result, the children had received free or reduced-price lunches for which they

were ineligible.

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The complaint asserted three causes of action. First, plaintiff alleged

defendants committed fraud by obtaining the free or reduced-price lunches for

their children. The second cause of action asserted defendants committed fraud

by permitting their children to attend school in the district tuition-free even

though defendants and their children were not domiciled in Atlantic City during

the 2019-2020 and 2020-2021 school years. In its third cause of action, plaintiff

alleged defendants were unjustly enriched by obtaining the free or reduced-price

lunches for which their children were ineligible and by enrolling their children

in a school district in which they were ineligible for a tuition-free education.

The complaint sought an award of compensatory and punitive damages.

Plaintiff filed the complaint in February 2021. At that time, the children

were attending school in the district during the 2020-2021 school year.

Although the complaint alleged the children were ineligible for a free education

in the district, plaintiff did not take any action to remove the children from the

district. See N.J.S.A. 18A:38-1(b)(2) (permitting the removal of a child from

attendance at a school where the child's parent or guardian is not domiciled in

the school district). Defendants voluntarily removed their children from the

school district at the end of the 2020-2021 school year.

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Defendants filed an answer and an amended answer to the complaint.

Each answer included a counterclaim against defendant. The counterclaim

asserted a cause of action for defamation, averring plaintiff had defamed

defendants by publicly accusing them of criminal conduct and stating defendants

had falsified their income to receive free or reduced-price school lunches for

their children.

Following discovery, plaintiff moved for summary judgment on its fraud

and unjust enrichment claims against defendants. 1 The motion was supported

by a detailed statement of claimed undisputed material facts supported by

citations to competent record evidence. See R. 4:46-2. Defendants did not file

any opposition to plaintiff's motion.

In a comprehensive and thoughtful twenty-two page written decision, the

motion court made detailed findings of fact and conclusions of law supporting

its determination plaintiff had presented sufficient evidence establishing

1
Plaintiff also moved for summary judgment on defendants' counterclaim. The
court granted plaintiff summary judgment on the counterclaim. Defendants do
not challenge that determination on appeal. Any claim the court erred by
granting summary judgment on the defamation cause of action is therefore
deemed abandoned. Drinker Biddle & Reath LLP v. N.J. Dep't of L. & Pub.
Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (explaining an issue not
briefed on appeal is deemed abandoned). In the absence of any argument the
court erred by granting summary judgment on the counterclaim, we affirm the
order granting summary judgment on defendants' defamation claim.
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defendants had committed common law fraud by submitting false applications

for free or reduced-price school lunches for the 2017-2018, 2018-2019, 2019-

2020, and 2020-2021 school years. The court also determined the undisputed

evidence established defendants had received the benefit of $1,060.20 in free or

reduced-price lunches to which their children were not entitled and awarded

damages in that amount on plaintiff's fraud claim.

The court also found defendants had fraudulently received free schooling

for their children in the Atlantic City school district during the 2019 -2020 and

2020-2021 school years. The court determined that defendants and their

children had moved from their Atlantic City home to a new residence in Little

Egg Harbor by December 2018. The court made the determination based on

loan applications, affidavits of occupancy, and other documents defendants had

executed in connection with various real estate transactions. The court also

found the evidence established defendants had leased their former Atlantic City

home to a tenant following their move to Little Egg Harbor. The court

determined plaintiff was entitled to $68,597 in damages on plaintiff's fraud

claim. The court determined the amount represented the tuition plaintiff was

permitted to charge out-of-district students who were determined to have

attended school in the district.

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The court also determined plaintiff had presented evidence establishing

their cause of action for unjust enrichment. The court reasoned that defendants

had been unjustly enriched by their receipt of the free and reduced-price lunches

for their children and the tuition-free attendance in a district in which the

children were ineligible for free schooling.

The court entered an order granting plaintiff summary judgment in the

total amount of $69,657.20 on the three claims asserted in the complaint and

scheduled a hearing on plaintiff's claim for punitive damages. Defendants later

filed a motion for reconsideration of the summary-judgment order that also

included a request to vacate the order under Rule 4:50-1(c) and (f).

In support of their motion, defendants argued the court had erred in

granting summary judgment because plaintiff's claim was dependent on the

application of New Jersey school laws, and particularly N.J.S.A. 18A:38-1, and

the attendant regulations, including N.J.A.C. 6A:22-1.1 to 6.3, governing

student residency and attendance in school districts in which they are, or aren't,

domiciled. Defendants argued the court lacked jurisdiction to decide issues

pertinent to a disposition of the issues implicated by plaintiff's common law

fraud and unjust enrichment claims and that issues arising under the school laws

and regulations should have been decided in the first instance by the New Jersey

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Department of Education and the New Jersey Commissioner of Education.

Stated differently, defendants argued that under the doctrine of primary

jurisdiction, the court should have deferred its disposition of plaintiff's common

law claims pending the Commissioner's determination of various issues under

the school laws and regulations pertinent to defendants' children's attendance at

school in the Atlantic City school district during the 2018-2019 and 2019-2020

school years.

Defendants also argued they were entitled to relief from the summary-

judgment order under Rule 4:50-1(c) because the judgment was the product of

fraud, misrepresentation, or misconduct. And defendants asserted the summary-

judgment order should be vacated under Rule 4:50-1(f) because its entry resulted

in a grave injustice.

Plaintiff argued the doctrine of primary jurisdiction is inapplicable

because N.J.S.A. 18A:38-1 and its attendant regulations govern only the

removal of children from a school district, and plaintiff had never taken action

to remove defendants' children from the district. Thus, plaintiff argued the

Commissioner did not have jurisdiction over any issues pertinent to the

disposition of plaintiff's claims against defendants. Plaintiff further asserted

defendants had not demonstrated any basis for relief under Rule 4:50-1.

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In its written decision on defendants' motion, the court noted the strength

of the evidence plaintiff had presented in support of its summary-judgment

motion. The court reiterated that the evidence established defendants' fraud in

their receipt of free or reduced-price lunches for their children during four

school years and in their receipt of tuition-free schooling for their children

during the 2019-2020 and 2020-2021 school years. The court noted defendants

had not opposed the summary-judgment motion and, in support of their

reconsideration motion, had not presented any evidence the summary-judgment

order had been obtained through fraud, misrepresentation, or misconduct by

plaintiff such that defendants were entitled to relief from the order under Rule

4:50-1(c).

Although plaintiff had filed its complaint in February 2021 alleging

defendants' children had been and were ineligible to attend school within the

school district, the court incongruously found "plaintiff did not learn or find

facts supporting the children's ineligibility until after the children completed the

[2020-2021] school year and [therefore] the children were not in the process of

attending the school" when plaintiff first learned of their ineligibility. Based on

that determination, the court found N.J.S.A. 18A:38-1 and the attendant

regulations had no relevance to the disposition of the issues presented on the

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summary-judgment motion, finding the statute and regulations "do not apply to

the facts of this case."

The court concluded defendants had not satisfied their burden under Rule

4:50-1(c) or (f) supporting relief from the summary-judgment order. The court

entered an order denying defendants' reconsideration motion.

The court subsequently conducted a trial on plaintiff's punitive damages

claim. Defendants participated in the trial. Following the trial, the court

rendered a written statement of its findings of fact and conclusions of law. The

court summarized the evidence establishing defendants' fraudulent conduct,

summarized the evidence presented, and found defendants had testified "with a

clear intent to deceive [p]laintiff's counsel and [the] [c]ourt." The court

analyzed the punitive-damages claim under the Punitive Damages Act, N.J.S.A.

2A:15-5.9 to -5.17, and made detailed findings of fact supporting its

determination $75,000 constituted an appropriate punitive damages award. The

court entered an order awarding plaintiff $75,000 in punitive damages against

defendants.

II.

Defendants appeal from the court's orders granting plaintiff summary

judgment on plaintiff's affirmative claims and defendants' counterclaim,

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denying defendants' motion for reconsideration, and awarding punitive

damages. Prior to addressing defendants' arguments on appeal, it is appropriate

to note those portions of the court's orders defendants do not challenge on

appeal.

As noted, defendants do not argue the court erred by granting plaintiff

summary judgment dismissing defendants' counterclaim. Defendants also do

not challenge the summary-judgment order finding defendants committed fraud

and were unjustly enriched by misrepresenting their incomes and otherwise

providing false and incomplete information to obtain free or reduced-price

lunches for their children during the 2017-2018, 2018-2019, 2019-2020, and

2020-2021 school years.

As we explain, defendants' arguments on appeal challenging the

summary-judgment order focus on their claim that under the doctrine of primary

jurisdiction, the court should have first deferred to the Commissioner issues

under N.J.S.A. 18A:38-1 and the attendant regulations. They do not argue the

statute or regulations are pertinent to a disposition of the free-or-reduced-price-

lunch fraud and unjust enrichment claims. Stated differently, they do not argue

that disposition of those claims required the court to defer any issues to the

Commissioner under the doctrine of primary jurisdiction, and they otherwise

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offer no basis for reversal of the court's award of $1,060.20 in damages on those

claims. We therefore deem abandoned any contention the court erred by

awarding plaintiff summary judgment on those claims, Drinker Biddle & Reath

LLP, 421 N.J. Super. at 496 n.5, and affirm the court's judgment on those claims

for the reasons set forth in the court's written decision.

Defendants argue the court erred by denying their motion for

reconsideration of the summary-judgment order awarding plaintiff $68,597 in

damages on the fraud and unjust enrichment claims related to defendants'

children's tuition-free attendance in the district during the 2019-2020 and 2020-

2021 school years. Defendants' reconsideration motion also sought relief from

the summary-judgment order on those claims under Rule 4:50-1, and the court

applied the standard for relief from a judgment under that Rule. It was error to

do so.

The court's summary-judgment order was not a final order; it provided for

a future trial on plaintiff's unresolved punitive damages claim. Lombardi v.

Masso, 207 N.J. 517, 535-36 (2011). Applications for reconsideration of

interlocutory orders are not governed by Rule 4:50-1, the Rule the motion court

applied and the parties on appeal incorrectly argue applies here. A motion for

reconsideration of an interlocutory order is governed by the less stringent

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requirements of Rule 4:42-2, which provides that interlocutory orders "shall be

subject to revision at any time before entry of final judgment in the sound

discretion of the court in the interest of justice." Ibid. (quoting Rule 4:42-2(b)).

"[W]here a litigation has not terminated, an interlocutory order is always

subject to revision where the judge believes it would be just to do so." Id. at

536. As a result, the requirements and conditions precedent to relief from a final

judgment under Rule 4:50-1 are inapplicable to a court's reconsideration of an

interlocutory order. Id. at 537.

A court is also not "constrained . . . by the original record" on which an

order had been entered in determining whether an interlocutory order should be

reconsidered and reversed in the interest of justice. Id. at 537. In its assessment

of a motion for reconsideration of an interlocutory order, a court may properly

consider arguments and information that had not been presented when the

original order was entered. Ibid.

The court erred in its analysis of defendants' reconsideration motion. The

court applied the legal standard for relief from a final order or judgment under

Rule 4:50-1 instead of the far more lenient standard for reconsideration of an

interlocutory order under Rule 4:42-2. Compare DEG, LLC v. Twp. of Fairfield,

198 N.J. 242, 261 (2009) (explaining relief under Rule 4:50-1 is "granted

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sparingly" (quoting F.B. v A.L.G., 176 N.J. 201, 207 (2003))), with Lawson v.

Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021) (explaining only the court's

"'sound discretion' and the 'interest of justice' guide[]" the disposition of a

motion for reconsideration under Rule 4:42-2 (quoting R. 4:42-2), and a party

seeking reconsideration of an interlocutory order need not make the showing

"the challenged order was the result of a 'palpably incorrect or irrational'

analysis or of the judge's failure to 'consider' or 'appreciate' competent probative

evidence" as it must for reconsideration of a final order under Rule 4:49-2

(quoting Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996))).

Moreover, the court was not constrained in its determination of the

reconsideration motion by the summary-judgment record—including

defendants' failure to oppose plaintiff's motion—and could properly consider

defendants' newly asserted arguments presented in support of the

reconsideration motion. Lombardi, 207 N.J. at 537.

For those reasons, we reject plaintiff's assertion that defendants had

irretrievably waived their right to challenge the summary-judgment order by

failing to oppose plaintiff's motion in the first instance. The court was free to

consider any and all information and arguments presented in support of

defendants' reconsideration motion to determine if it "[saw] or [heard]

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something" that convinced it that its prior summary-judgment ruling was "not

consonant with the interests of justice." Ibid.

In support of their reconsideration motion, defendants argued the court

erred by granting summary judgment because it had failed to defer its disposition

of the motion and refer the matter to the Commissioner to determine in the first

instance issues arising under N.J.S.A. 18A:38-1(b)(2) and the attendant

regulations. In part, the motion court rejected the contention based on an

incorrect finding the statute and regulations were inapplicable because plaintiff

had not discovered defendants' fraud concerning defendants' and their children's

domicile until after defendants had voluntarily removed the children from the

school district following the 2020-2021 school year.

As we have noted, the record does not support the court's finding. Plaintiff

had determined the children were ineligible for tuition-free attendance at a

district school no later than in February 2021. That is when plaintiff filed its

complaint alleging the students were ineligible. Additionally, in its brief on

appeal, plaintiff concedes that "defendants' fraud unraveled in February 2021"

and plaintiff had "allowed the children to continue" to attend school through the

balance of the school year and until defendants "voluntarily withdrew the

children from the Atlantic City School district in June 2021, placing them in the

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Egg Harbor Township where they were actually domiciled." Thus, contrary to

the court's finding that N.J.S.A. 2A:38-19(b)(2) and the attendant regulations

are inapplicable because plaintiff did not discover defendants' fraud until after

the 2020-2021 school year ended, it is undisputed plaintiff was aware of the

children's ineligibility no later than February 2021 but opted not to remove them

at that time.

Based on the court's application of the wrong legal standard in its

determination of defendants' reconsideration motion and rejection of defendants '

primary-jurisdiction argument in part based on an erroneous finding of fact, we

vacate the order denying defendants' motion for reconsideration of that portion

of the summary-judgment order finding defendants liable for fraud and unjust

enrichment, and awarding $68,597 in damages, based on plaintiff's claim that

defendants' children attended school in the district during the 2019-2020 and

2020-2021 school years while not eligible to do so. We remand for the court to

consider the motion anew and for the exercise of its sound discretion to

determine whether reconsideration of the challenged order would "serve, in the

words of Rule 4:42-2, 'the interest of justice.'" Lawson, 468 N.J. Super. 128.

On remand, the court shall consider that "[u]nder the doctrine of primary

jurisdiction, when enforcement of a claim requires resolution of an issue within

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the special competence of an administrative agency, a court may defer to a

decision of that agency." Archway Programs, Inc. v. Pemberton Bd. of Educ.,

352 N.J. Super. 420, 425 (App. Div. 2002) (quoting Campione v. Adamar of

N.J., Inc., 155 N.J. 245, 263 (1998)). Deferring to the primary jurisdiction of

an administrative agency permits a decision to be made by "'the forum or body

which, on a comparative scale, is in the best position by virtue of its statutory

status, administrative competence and regulatory expertise to adjudicate the

matter.'" Boss v. Rockland Elec. Co., 95 N.J. 33, 40 (1983) (quoting Hinfey v.

Matawan Reg'l Bd. of Educ., 77 N.J. 514, 532 (1978)). The doctrine applies

where "the case is properly before the court, but agency expertise is required to

resolve the issue presented." Boldt v. Correspondence Mgmt., Inc., 320 N.J.

Super. 74, 83 (App. Div. 1999).

We have recognized "our institutional respect for the Department[] [of

Education's] subject matter interest and for the Commissioner's first-instance

jurisdiction to 'hear and decide . . . all controversies and disputes arising under

the school laws[.]'" Archway Programs, 352 N.J. Super. at 424 (quoting

N.J.S.A. 18A:6-9). Indeed, in pertinent part, N.J.S.A. 18A:6-9 provides that

"[t]he [C]ommissioner shall have jurisdiction to hear and determine, without

cost to the parties, all controversies and disputes arising under school laws,

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excepting those governing higher education, or under the rules of the State board

or of the [C]ommissioner." We have also explained "[t]he Commissioner's

authority is plenary," ibid., and we have affirmed a trial court's reliance on the

Commissioner's determination of a student's domicile, the student's ineligibility

to attend a school tuition free, and determination of tuition due to a school

district based on that ineligibility, Woodbury Hts. Bd. of Educ. v. Starr, 319 N.J.

Super. 528, 536, 538 (App. Div. 1999).

On appeal, plaintiff argues the issues presented by its causes of action do

not require or implicate the school laws such that the trial court should defer the

Law Division action in favor of a proceeding before the Commissioner for the

resolution of issues under the school laws. Plaintiff primarily relies on N.J.S.A.

18A:38-1(b)(2), which provides in part that

[if] the superintendent or administrative principal of a
school district finds that the parent or guardian of a
child who is attending the schools of the district is not
domiciled within the district and the child is not kept in
the home of another person domiciled within the school
district and supported by him gratis as if the child was
the person's own child . . . the superintendent or
administrative principal may apply to the board of
education for the removal of the child. . . .

[N.J.S.A. 18A:38-1(b)(2) (emphasis added).]

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Our courts have interpreted an application for removal of a student under

this section to be a voluntary action. See generally Starr, 319 N.J. Super. at 536-

38. In other words, a school district is not obligated to remove a student after

determining the student is ineligible to receive tuition-free schooling based on a

lack of domicile in the school district, provided it otherwise follows N.J.S.A.

18A:38-1's procedural mandates. Ibid.

Plaintiff argues that N.J.S.A. 18A:38-1(b)(2) has no application here, and

therefore does not require the exercise of the Commissioner's primary and

plenary jurisdiction, because the statute governs only the removal of students

based on issues related to domicile. As noted, plaintiff also asserts it never

removed defendants' children from the district. Plaintiff also argues that because

it never removed the children, the Commissioner has no authority to decide any

issues pertinent to the causes of action asserted in the complaint.

Defendants rely in part on the regulations attendant to N.J.S.A. 18A:38-1,

noting the regulations provide a detailed procedural framework for the

determination of student eligibility for tuition-free school attendance based on

domicile, including requirements that "when a student is found ineligible to

attend the school district . . ., the school district immediately shall provide"

notice of the ineligibility determination, N.J.A.C. 6A:22-4.2, and where it is

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determined a student is ineligible for continued tuition-free attendance at a

school, "[t]he chief school administrator shall issue a preliminary notice of

ineligibility meeting the requirements of N.J.S.A. 6A:22-4.2," N.J.S.A. 6A:22-

4.3(1).

The regulations further provide for a hearing and appeal rights to the

Commissioner over ineligibility determinations, N.J.A.C. 6A:22-4.2(a)(1) to

(9); N.J.A.C. 6A:22-4.3(b) to (e); N.J.A.C. 6A:22-5.1. The regulations also

establish standards and procedures for the assessment and calculation of tuition

for students, like defendants' children here, who were deemed ineligible for

tuition-free attendance in a school district. N.J.A.C. 6A:22-6.1 to -6.3.

Defendants argue plaintiff failed to provide what they contend was the

required notice of their children's ineligibility and thereby deprived defendants

of the opportunity to appeal from the ineligibility determination to the

Commissioner under the guise of its decision not to take any action to remove

the children under N.J.S.A. 18A:38-1(b)(2). Defendants further contend

plaintiff's decision not to take action to remove the children and failure to

provide notice of ineligibility under the regulations prevented defendants from

obtaining a determination to which they were entitled from the Commissioner

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concerning their children's eligibility and the proper amount of tuition, if any,

due plaintiff.

Defendants' challenge to the court's order awarding summary judgment is

also founded on what they claim are the limitations on the damages that may be

imposed under the school laws and attendant regulations such that punitive

damages may not be awarded where, as here, defendants enrolled their children

for two years in a school district in which they are not entitled to a free

education. See, e.g., N.J.S.A. 18A:38-1(b)(2) (providing the method of

calculating tuition due for students who have attended a school in which it is

determined they were ineligible to receive a free education); N.J.A.C. 6A:22-

6.1 (limiting districts from assessing more than one year's tuition in the absence

of an appeal from an ineligibility determination); N.J.A.C. 6A:22-6.2 (allowing

a school district to collect up to one year's tuition prior to an appeal from an

ineligibility determination under N.J.A.C. 6A:22-6.1 and to recover tuition

while an appeal is pending if the appellant is unsuccessful or withdraws the

appeal).

Defendants also appeal from the court's order awarding plaintiff $75,000

in punitive damages. The punitive damages award was the product of the

hearing that was directed in the summary-judgment order that was the subject

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of the motion for reconsideration the court will determine anew on remand.

Defendants may therefore argue on remand that under the doctrine of primary

jurisdiction, the court should not have ordered the punitive damages hearing or

should have deferred the hearing pending final disposition of a deferral of issues

to the Commissioner. The remand court shall address and decide any such

arguments, if any, and take appropriate action, including vacating the punitive

damages award pending further proceedings before the Commissioner if the

remand court deems it appropriate based on any arguments defendants may

make concerning primary jurisdiction.

Our determination that the court must consider anew defendants'

reconsideration motion shall not be construed as an expression of any opinion

on the merits of defendants' arguments concerning primary jurisdiction or any

other claims or arguments that may be made on remand. We do not limit the

arguments the parties may make on remand in support of their respective

positions. The remand court shall address and decide the merits of the parties'

claims concerning primary jurisdiction and any other issues pertinent to a

disposition of the reconsideration motion. In rendering its decision, the remand

court shall be guided where applicable by the principles governing the doctrine

of primary jurisdiction, see generally Magic Petroleum Corp. v. Exxon Mobil

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Corp., 218 N.J. 390, 405-07 (2014); Campione, 155 N.J. at 263-64; Boss, 95

N.J. at 40; Archway Programs, Inc., 352 N.J. at 424-26; Muise v. GPU, Inc., 332

N.J. Super. 140, 147 (App. Div. 2000); Bolt v. Correspondence Mgmt, Inc., 320

N.J. Super. 74, 83 (App. Div. 1999); Starr, 319 N.J. Super. at 536-38; Roxbury

Twp. Bd. of Educ. v. West Milford Bd. of Educ., 283 N.J. Super. 505, 519-21

(App. Div. 1995), and any other applicable law, and shall consider and decide

the motion under the Rule 4:42-2 standard, see Lawson, 468 N.J. Super. at 134-

35.

Because we remand for the court to consider anew defendants' motion for

reconsideration of the summary-judgment order finding defendants liable on

plaintiff's fraud and unjust enrichment claims arising out of defendants'

children's attendance at school during the 2019-2020 and 2020-2021 school

years, we recognize the remand court's disposition of the reconsideration motion

may affect the validity of the order granting plaintiff punitive damages. The

continuing validity of the punitive damages order is dependent in part on the

disposition of defendants' reconsideration motion. That is, if the court grants

defendants' reconsideration motion and vacates that portion of the summary-

judgment order awarding plaintiff $68,597 in damages on the fraud and unjust

enrichment claims arising from the alleged ineligibility of defendants' children

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to attend school in the district, the punitive damages order must necessarily be

vacated and the disposition of plaintiff's punitive damages claim should await

the final resolution of those fraud and unjust enrichment claims. That is because

the court's punitive damages analysis and determination is based in part on its

finding that defendants are liable for those claims and plaintiff suffered $68,597

in damages based on them.2

In the event the court denies the reconsideration motion, we note that we

have carefully reviewed the trial record on plaintiff's punitive damages claim,

as well as the court's thorough and well-supported findings of fact and

conclusions of law, credibility determinations, and consideration and findings

under the criteria for the award of punitive damages under the Punitive Damages

2
We note that if the court vacates the punitive-damages order as a result of
vacating the summary-judgment order after its determination of defendants'
reconsideration motion on remand, plaintiff shall be entitled to a retrial on its
punitive damages claim even it defendants are not later found liable on plaintiff's
fraud and unjust enrichment claims based on defendants' children's attendance
at school during the 2019-2020 and 2020-2021 school years. We have affirmed
the court's entry of summary judgment on plaintiff's free-or-reduced-price-lunch
fraud and unjust enrichment claims. As such, regardless of the result of the
effect of the remand proceedings on the school-attendance claims, and even if
the punitive damages order is vacated based on the remand court's determination
of the reconsideration motion on those claims, plaintiff shall be entitled to a new
trial on the punitive damages claim based on defendants' liability for the free-
or-reduced-price-lunch claims. However, if the remand court denies defendants'
reconsideration motion, there is no basis to vacate the punitive damages order,
which, as we explain, we otherwise affirm.
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Act. We discern no error in the court's punitive damages award. We find

defendants' arguments challenging the award to be without sufficient merit to

warrant any further discussion, R. 2:11-3(e)(1)(E), beyond the following brief

comments.

As we have explained, plaintiff asserted common-law causes of action in

its complaint and the court awarded punitive damages on the fraud claims.

There is a "presumption against statutory abrogation of a common-law right,"

Campione, 155 N.J. at 265, and defendants point to no statute establishing the

Legislature has spoken "plainly and clearly" to abrogate any aspect of plaintiff's

common-law fraud claims, ibid., which, for the reasons detailed in the trial

court's opinion, support the imposition of punitive damages here. We reject

defendants' claim that because N.J.S.A. 18A:38-1(b)(2) provides a formula for

the Commissioner's calculation of tuition for students attending school who are

deemed ineligible for a free education, plaintiff is barred from receiving a

punitive damage award on its common-law fraud claims. That the statute does

not mention punitive damages as a remedy "does not necessarily mean that the

Legislature intended no such [relief] should exist." Ibid. And, as noted, there

is no statutory expression of a Legislative intent to abrogate plaintiff's common-

law right to such a remedy under the egregious circumstances established in the

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summary-judgment record and as determined by the court. See ibid.; see also

Aden v. Fortsh, 169 N.J. 64, 85 (2001).

Affirmed as to the award of summary judgment to plaintiff on defendants '

counterclaim; affirmed as to the summary-judgment award of $1,060.20 on

plaintiff's claims for fraud and unjust enrichment for defendants' receipt of free

or reduced-price lunches for their children; affirmed as to that portion of the

summary-judgment order granting plaintiff judgment in amount of $68,597 on

plaintiff's fraud and unjust enrichment claims arising from defendants' children's

alleged ineligibility to attend school in the district during the 2019-2020 and

2020-2021 school years subject to the court's reconsideration of that portion of

the summary-judgment order on remand; affirmed as to the court's order denying

defendants' motion for reconsideration of that portion of the summary-judgment

order awarding $1,060.20 on plaintiff's claims for fraud and unjust enrichment

for defendants' receipt of free or reduced-price lunches for their children;

vacated as to the court's order denying plaintiff's motion for reconsideration of

that portion of the summary-judgment order granting plaintiff judgment on

plaintiff's fraud and unjust enrichment claims arising from defendants' children's

alleged ineligibility to attend school in the district during the 2019-2020 and

2020-2021 school years and remanded for the court's consideration anew of the

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motion for reconsideration of that portion of the summary-judgment order;

affirmed as to the court's punitive damages order, which may be vacated by the

court as appropriate based on its determination of defendants' reconsideration

motion on remand; and remanded for further proceedings not inconsistent with

this opinion. We do not retain jurisdiction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10762756. Public record. Not legal advice.