FRAN BROOKS v. TOWNSHIP OF TABERNACLE (L-2065-19, BURLINGTON COUNTY AND STATEWIDE AND L-1192-20, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1132-20

FRAN BROOKS,

Plaintiff-Appellant,

v.

TOWNSHIP OF TABERNACLE,

LASHAWN R. BARBER in her

official capacity as Municipal Clerk

and Records Custodian, JOSEPH

W. BARTON in his official capacity

as Mayor of Tabernacle and in his

personal capacity, KIMBERLY A.

BROWN in her official capacity as

Deputy Mayor of Tabernacle and in

her personal capacity, SAMUEL R.

MOORE, III in his official capacity

as Committeeman of Tabernacle and

in his personal capacity, STEPHEN

V. LEE, IV in his official capacity

as Committeeman of Tabernacle and

in his personal capacity, and

JOSEPH YATES, IV in his official

capacity as Committeeman of

Tabernacle and in his personal

capacity,

Defendants-Respondents.

Argued May 31, 2022 – Decided July 22, 2022

Before Judges Messano and Rose.

On appeal from the Superior Court of New Jersey, Law

Division, Burlington County, Docket No. L-2065-19

and Mercer County, Docket No. L-1192-20.

Walter M. Luers argued the cause for appellant (Cohn

Lifland Pearlman Herrmann & Knopf, LLP, attorneys;

Walter M. Luers, on the briefs).

William R. Burns argued the cause for respondents

(Kalavruzos, Mumola, Hartman, Lento & Duff, LLC,

attorneys; William R. Burns and Stephen J. Colianni,

on the brief).

PER CURIAM

By verified complaint in lieu of prerogative writs filed in Burlington

County, plaintiff Fran Brooks alleged violations of the Open Public Meetings

Act (OPMA), N.J.S.A. 10:4-6 to -21, by defendant Township of Tabernacle and

the individually named defendants – the Township's municipal clerk and five

committee members (collectively, defendants). Among other relief, plaintiff

sought judgment declaring defendants discussed public business via email

exchanges contrary to the OPMA's requirements that such "meetings" be held in

public, upon prior notice to the public.

Plaintiff claimed defendants violated the OPMA between May 31, 2019

and July 15, 2019, by exchanging emails among a quorum of the governing

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body's members, who: (1) impermissibly deliberated about the attendees and

speakers to be chosen for the annual memorial service, orchestrated by the

American Legion Post 11; and (2) discussed who would be nominated for the

Township's annual service award, presented at a local church. The complaint

further alleged "older emails" exchanged between December 26, 2018 and

December 30, 2018 established "a pattern of communicating among a quorum

of the members of the governing body via email." The December 2018 emails

pertained to the public safety director's resignation, and whether to address the

resignation at an upcoming public meeting.

Plaintiff alleged she learned of the allegations on August 14 and 27, 2019.

She filed her complaint on September 30, 2019.

After defendants answered the complaint, the Burlington County

assignment judge (BCAJ) held a case management conference on December 13,

2019. Plaintiff thereafter moved to conduct discovery. See R. 4:69-4 (providing

the court in actions in lieu of prerogative writs, unlike other Track IV cases, may

determine "[t]he scope and time to complete discovery, if any"). Following oral

argument on May 22, 2020, the BCAJ denied plaintiff's motion, finding the facts

were undisputed.

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Thereafter, plaintiff moved for reconsideration of the May 22 order, and

sought to recuse the BCAJ and transfer the matter to another vicinage. Plaintiff

argued her discovery motion should be reargued before a judge in another county

because defense counsel had been appointed presiding municipal court judge for

the Burlington vicinage prior to the May 22 return date and, as such, counsel

"directly report[ed]" to the BCAJ. Notably, the substitution of defense counsel

was executed on March 18, 2020, two months prior to the May 22 return date.

After hearing argument on July 1, 2020, the BCAJ denied plaintiff's

reconsideration motion, finding plaintiff did not raise the recusal issue until a

few weeks after "the court gave a negative ruling." But the BCAJ granted the

recusal motion and transferred the matter to Mercer County. According to the

BCAJ, the possibility existed that plaintiff would raise a future argument about

defense counsel's conduct as the Township's attorney in the underlying matter.

On November 12, 2020, the Mercer County assignment judge (MCAJ)

heard argument on the parties' ensuing motions: (1) plaintiff's motion for

reconsideration of the BCAJ's May 22 order that denied her discovery

application; (2) plaintiff's motion to amend the complaint, based on "new

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evidence[] acquired through OPRA [1] requests"; and (3) defendants' cross-

motion to dismiss the underlying complaint for failure to allege an OPMA

violation. The following day, the judge issued three separate orders, denying

plaintiff's motions and granting defendants' cross-motion. In granting

defendants' dismissal motion, the judge determined plaintiff's motion to amend

the complaint was moot.

Plaintiff now appeals from the adverse rulings set forth in the judges'

memorializing orders. Because we conclude the allegations set forth in

plaintiff's proposed amended complaint were time-barred under the OPMA and

Rules of Court, we affirm the MCAJ's order denying plaintiff's motion to amend

the complaint for reasons other than those expressed by the judge. See State v.

Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (stating an appellate court is

"free to affirm the trial court's decision on grounds different from those relied

upon by the trial court"); see also Bandler v. Melillo, 443 N.J. Super. 203, 210

(App. Div. 2015). We further conclude two claims asserted in plaintiff's

complaint failed to allege an OPMA violation and the third claim was untimely.

We therefore affirm the MCAJ's ultimate dismissal of the action. Finally, we

1

Open Public Records Act, N.J.S.A. 47:1A-1 to -13.

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discern no error in the BCAJ's denial of plaintiff's application for discovery in

this case, her decision to deny reconsideration, or the MCAJ's decision to deny

reconsideration.

I.

We first consider plaintiff's overlapping challenges to the MCAJ's denial

of her motion to amend the complaint and dismissal of her complaint. Plaintiff

contends the judge's interpretation of the emails at issue failed to meet the

OPMA's strict compliance standard. Plaintiff further argues the judge's error

was magnified by the decision to deny plaintiff's amendment motion. We

disagree.

The OPMA "established procedures governing the conduct of meetings of

public bodies" and made "explicit the legislative intent to ensure the public's

right to be present at public meetings and to witness government in action."

Kean Fed'n. of Teachers v. Morell, 233 N.J. 566, 570 (2018) (citing N.J.S.A.

10:4-7). "That legislative intent is balanced by an express recognition that

public bodies must be allowed to exercise discretion in determining how to

perform their tasks." Id. at 570 (citing N.J.S.A. 10:4-12(a)). The OPMA

"should be 'liberally construed in order to accomplish its purpose and the public

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policy of this State.'" McGovern v. Rutgers, 211 N.J. 94, 99-100 (2012) (quoting

N.J.S.A. 10:4-21).

However, an OPMA violation must be filed in a timely manner. Pursuant

to N.J.S.A. 10:4-15(a):

Any action taken by a public body at a meeting which

does not conform with the provisions of [the OPMA]

shall be voidable in a proceeding in lieu of prerogative

writ[s] in the Superior Court, which proceeding may be

brought by any person within 45 days after the action

sought to be voided has been made public . . . .

The Rules of Court are in accord. Rule 4:69-6(a) generally provides that

actions in lieu of prerogative writs must be filed within forty-five days after the

accrual of the right to the review, hearing, or relief claimed. However, Rule

4:69-6(c) permits an enlargement of the forty-five-day period "where it is

manifest that the interest of justice so requires." Our Supreme Court has

identified three categories that qualify under this exception: "'(1) important and

novel constitutional questions; (2) informal or ex parte determinations of legal

questions by administrative officials; and (3) important public rather than

private interests which require adjudication or clarification.'" Borough of

Princeton v. Bd. of Chosen Freeholders of Mercer Cnty., 169 N.J. 135, 152

(1975) (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)).

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A.

Against these legal principles, we turn to plaintiff's first point, contesting

the MCAJ's oral decision that denied plaintiff's motion to amend the complaint.

Plaintiff argues the judge abused her discretion by deciding the motion to amend

her compliant was moot without considering the merits of her proposed

amendments.2 Although we disagree with the MCAJ's reasoning, we are

persuaded by defendants' responding argument that the allegations were

untimely.

Pursuant to Rule 4:9-1, "[a] party may amend any pleading as a matter of

course at any time before a responsive pleading is served." Any time after the

responsive pleadings are filed, "a party may amend a pleading only by written

consent of the adverse party or by leave of court." R. 4:9-1. The Rule directs

that the court's permission to amend "be freely given in the interest of justice."

Ibid. If the amended complaint arises "out of the conduct, transaction or

2

Although not raised on appeal, defendants' dismissal application was

incorrectly filed as a cross-motion. See R. 1:6-3(b) (providing "[a] cross-motion

may be filed and served by the responding party together with that party's

opposition to the motion and noticed for the same return date only if it relates to

the subject matter of the original motion"). Defendants' cross-motion to dismiss

the complaint did not relate to plaintiff's motion to amend the complaint. "An

issue not briefed is deemed waived." W.H. Indus., Inc. v. Fundicao Balancins,

Ltda, 397 N.J. Super. 455, 459 (App. Div. 2008); see also Pressler and Verniero,

Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2022).

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occurrence set forth . . . in the original pleading, the amendment relates back to

the date of the original pleading." R. 4:9-3. In such cases, the statute of

limitations will not bar the amended claim.

The decision to either allow or deny amended claims is a fact-sensitive

one and is subject to the trial court's sound discretion. See Notte v. Merchs.

Mut. Ins. Co., 185 N.J. 490, 501 (2006). "That exercise of discretion requires a

two-step process: whether the non-moving party will be prejudiced, and

whether granting the amendment would nonetheless be futile." Ibid. On appeal,

we review to determine whether the court's exercise of discretion was clearly

abused. See Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J. Super. 494,

506 (App. Div. 2003).

In the present matter, the MCAJ determined plaintiff's motion to amend

her complaint was moot after dismissing the underlying complaint on the merits.

According to the judge, because the complaint was dismissed "there's nothing

left to amend." In our view, however, the judge should have decided the motion

to amend on the merits and then proceeded to defendants' "cross-motion" to

dismiss the complaint. As noted, however, the cross-motion was improperly

filed. Although we part company with the judge's procedural decision, we

conclude the amended complaint failed to assert a timely OPMA violation.

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Plaintiff moved for leave to file her proposed amended complaint on

September 25, 2020, nearly one year after her verified complaint was filed on

September 30, 2019. All but one of the alleged OPMA violations outlined in

the proposed amended complaint allegedly occurred on various dates between

December 20, 2017 and October 31, 2019 – more than forty-five days after

plaintiff learned of the alleged violations in August 2019 and "other" unspecified

dates alleged in the amended complaint. The other alleged OPMA violation

asserted in paragraph twenty-five of the amended complaint stems from an

"undated email," which was sent "in late 2019 or early 2020." Regardless of the

exact date of transmission, this email does not fall within the forty-five-day time

period.

Accordingly, we conclude all the alleged OPMA violations referenced in

the amended complaint were untimely asserted under N.J.S.A. 10:4-15(a) and

R. 4:69-6(a). Nor did the interest of justice require enlargement of the forty-

five-day requirement under Rule 4:69-6(c), or under the exceptions recognized

by the Court in Brunetti, 68 N.J. at 586. We therefore affirm the judge's decision

denying amendment of the complaint.

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B.

We turn to the MCAJ's oral decision on summary judgment. The judge

generally addressed the lack of authority defining "what's appropriate and what

crosses the line" regarding "informal communications among administration" of

a public body, here, "the municipal clerk and . . . members of the committee."

The judge noted the "practical consideration" and "certain dynamic that goes on

in terms of needing to communicate . . . with members of the public body to

make sure that they have information to enable them to participate in the

meetings." The judge found no governing law that "gave much guidance in

terms of . . . what a realistic line would be in regard to informal commu nication

and administrative communication."

Addressing plaintiff's specific allegations, the MCAJ first considered the

email exchanges regarding the memorial service. Noting the emails were

initiated by the deputy municipal clerk/administrative assistant to three

committee members, the judge found the subsequent exchanges were merely an

attempt to "get consensus" regarding who would speak and present the award.

Applying the OPMA to communications as to whether a committee member was

"going to attend an event or not" would be "an extreme application of the statute

that really doesn't get to the heart of what OPMA's about," i.e., "openness" and

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"transparency." In reaching her decision, the judge was persuaded "th at event

apparently [was] run and organized by American Legion Post 11" and, as such,

was "not a Township of Tabernacle event." The judge thus found the "informal

exchanges among committee members" regarding attendance at the memorial

service did not rise to an OPMA violation.

The MCAJ similarly found the Church of the Holy Eucharist Pine Barrens

Festival Service Award was "not a Township award." The judge recognized the

mayor's email, proposing a certain nominee and seeking "a second in consensus"

tended to "suggest that [the action] was something that would normally happen

at a public meeting." Noting the email exchange was initiated by the municipal

clerk to three committee members and some administrative officials, the judge

concluded the mayor's proposed nomination for the service award did not fall

within the type of public business recognized under the OPMA.

Finally, the MCAJ rejected plaintiff's contention that the email exchanges

concerning the public safety director's resignation rose to an OPMA violation.

The judge found the central focus of the emails was a discussion between the

mayor and a committee member as to whether the resignation would be

discussed at the upcoming committee meeting or postponed to the following

meeting. According to the judge, "what was really important [wa]s what

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happened at the meeting." Moreover, the "informal back and forth" email

exchange did not include a "discussion among three people."

Accordingly, the MCAJ granted the Township's summary judgment cross-

motion. Alternatively, the judge found even if the exchanges constituted OPMA

violations, "they [we]re so de minimis as to not require . . . a declaratory

judgment . . . or statutory injunction."

After de novo review, RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J.

459, 472 (2018), we reject plaintiff's contentions. We affirm summary judgment

substantially for the reasons articulated by the MCAJ in her oral decision.

Having employed the same standard as the motion judge, Templo Fuente De

Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016),

we conclude there are no material factual disputes and the MCAJ correctly

determined plaintiff's allegations did not rise to OMPA violations.

We simply add none of the emails regarding attendance and remarks at

the memorial service, and nominations for the service award, pertained to public

business. Indeed, the memorial service was conducted by the American Legion;

the service award was given by the church. The emails were informal

exchanges; no public business was discussed; no public action was taken.

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Moreover, the December 2018 emails pertaining to the public safety

director's resignation, were untimely asserted under both N.J.S.A. 10:4-15(a)

and Rule 4:69-6(a). Similar to plaintiff's proposed amended complaint, we

conclude neither the interests of justice, see R. 4:69-6(c), nor the Brunetti

exceptions, see 68 N.J. at 586, necessitated enlargement of the forty-five-day

time period.

II.

Lastly, we turn to plaintiff's remaining contentions that the BCAJ

erroneously denied her application for discovery. To support her argument,

plaintiff argues discovery was necessary to proceed on her claims because the

"secret email meetings" were "difficult to expose." Plaintiff further claims both

assignment judges should have vacated the discovery order because a conflict

existed when the BCAJ rendered her decision. Finally, plaintiff contends the

MCAJ applied the wrong standard when deciding her reconsideration motion.

Although we agree the MCAJ applied the incorrect standard, we find the error

inconsequential. We are unpersuaded by plaintiff's remaining contentions.

We review the BCAJ's discovery order for an abuse of discretion. Branch

v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). "[A]ppellate courts are not

to intervene but instead will defer to a trial judge's discovery rulings absent an

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abuse of discretion or a judge's misunderstanding or misapplication of the law."

Cap. Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80

(2017).

Little need be said regarding the merits of the BCAJ's decision. As the

judge correctly determined, the facts alleged in plaintiff's complaint were

undisputed. See Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409

N.J. Super. 219, 246 (App. Div. 2009) (remanding an OPMA action where the

plaintiff set forth a factual dispute to defeat summary judgment and leaving to

the court's discretion the scope of the proceedings on remand, including whether

further discovery was necessary). We therefore affirm substantially for the

reasons expressed by the BCAJ, discerning no reason to disturb her decision.

See Branch, 244 N.J. at 582; see also R. 2:11-3(e)(1)(E).

Unlike reconsideration motions to alter or amend final judgments and final

orders, which are governed by Rule 4:49-2, a motion for reconsideration of an

interlocutory order – as was the BCAJ's discovery order here – is governed by

the "far more liberal approach" set forth in Rule 4:42-2. Lawson v. Dewar, 468

N.J. Super. 128, 134 (App. Div. 2021). Rule 4:42-2 "declares that interlocutory

orders 'shall be subject to revision at any time before the entry of final judgment

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in the sound discretion of the court in the interest of justice.'" Ibid. (quoting R.

4:42-2).

Rule 4:49-2 expressly requires the movant to include "a statement of the

matters or controlling decisions which counsel believes the court has overlooked

or as to which it has erred." We have construed the Rule to mean the movant

must demonstrate the court has based its decision on a "'palpably incorrect or

irrational basis'" or when it is clear that the court failed to consider or appreciate

significant evidence. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.

1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

Citing our decision in Cummings, the MCAJ incorrectly held plaintiff to the

more stringent standard required for relief from final judgments.

Nonetheless, under either standard, plaintiff has failed to demonstrate the

BCAJ wrongfully denied her application to conduct discovery. Unlike the

conflict-of-interest cases cited by plaintiff, defense counsel did not preside over

this matter at any point. As one notable example, unlike the trial judge in State

v. Kettles, 345 N.J. Super. 466, 467 (App. Div. 2001), who had sought an

indictment against the defendant when the judge was an assistant prosecutor,

defense counsel in the present matter did not preside over this matter. His

participation was limited to the filing of the answer, attendance at preliminary

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hearings, and requests for two adjournments on the motion for discovery.

Defense counsel did not, however, appear at the return date for the motion. And

as the BCAJ accurately stated, plaintiff was aware of defense counsel's

appointment as presiding municipal court judge for two months prior to the

return date and did not raise the issue "until the court gave a negative ruling."

To the extent not specifically addressed, any remaining contentions lack

8 sufficient merit to warrant discussion in a written opinion. See R. 2:11-

3(e)(1)(E).

Affirmed.

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