Preview
BER L010204-15 06/01/2018 Pg lof7 Trans ID: LCV2018962540
FILED
JUN 01 2018
MARY F. THURBER, J.S.C.
DENNIS MAAS,
SUPERIOR COURT OF NEW JERSEY
Plaintiff, LAW DIVISION: BERGEN COUNTY
v Docket No.: BER-L-10204-15
Civil Action
HOYT CORPORATION, A Corporation of The State
of New Jersey; MICHAEL BRADFORD; SUSAN ORDER
NIXON BRADFORD; NICHOLAS B. NIXON; DENYING MOTION FOR
MARIA ESPARRAGUERA; THE WILLIAM H. DISQUALIFICATION OR
NIXON REVOCABLE TRUST; THE ESTATE OF RECUSAL OF JUDGE
WILLIAM H. NIXON; and JOHN DOES 1-10, the
latter names being fictitious and imaginary,
Defendants.
This matter being opened to the court by William A. Feldman, LLC, counsel for plaintiff,
on cross-motion for disqualification or recusal of the trial judge, on notice to all counsel of
record, Daniel C. Gibbons, Esq. of Nixon Peabody LLP, having represented defendants The
William H. Nixon Revocable Trust and the Estate of William H. Nixon, and M. Ross &
Associates, LLC (Michele Ross, Esq., appearing) having represented the remaining defendants,
and the Court having considered all papers submitted and arguments of counsel, and good cause
appearing;
IT IS on this 1 day of June, 2018:
ORDERED that the motion for recusal or disqualification is DENIED. To the extent
plaintiff contends his motion for a stay was not rendered moot by the withdrawal of defendants’
summary judgment motions, that motion is also DENIED.
THURBER, J.S.C
xSee ahached rider
Order to all wunsel of recoral
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on ths clate va eCourts Civil.
BERL 010204-15 06/01/2018 Pg2of7 Trans ID: LCV2018962540
Dennis Maas y. Hoyt Corporation, et al.
Docket No. BER L-10204-15
Statement of Reasons for Order
Entered on June 1, 2018
This matter came before the Court on two separate motions by defendants (through separate
counsel) for partial summary judgment. Plaintiff, Dennis Maas, opposed both motions and filed a
cross-motion for (i) recusal or disqualification of the assigned pretrial judge and author of this
decision, Mary F. Thurber, J.S.C., and (ii) denial of the summary judgment motions or in the
alternative a stay of the matter pending resolution of the appeal pending in a related matter, BER
L-2605-16, Appellate Division Docket Number A-003376-17T3. At oral argument, defendants
withdrew both motions for partial summary judgment, making moot that aspect of plaintiffs cross-
motion. Thus, the only motion remaining is defendant’s cross-motion for recusal. For the reasons
set forth below, the Court denies the cross-motion in its entirety.
PROCEDURAL HISTORY
Disputes between plaintiff and defendants have been the subject of separate lawsuits. The
first filed lawsuit is the one that is the subject of this motion. That case was filed by plaintiff
initially in the Chancery Division (Docket Number C-194-15) on or about June 26, 2015. On
November 6, 2015, the Court dismissed the complaint without prejudice. Plaintiff then refiled in
the Law Division on or about November 20, 2015. Maas’s complaint alleged special injury,
stockholder derivative claims, breach of contract and the implied covenant of good faith, CEPA
violation, civil conspiracy, and tortious interference. On February 12, 2016, the Court dismissed
that complaint with prejudice.
None of the proceedings in either of those matters was heard by Judge Thurber. The
Honorable Menelaos W. Toskos, J.S.C., presided over the Chancery matter, and The Honorable
Robert L. Polifroni, P.J.Cv., presided over the matter in the Civil Part, Law Division. Judge
BERL 010204-15 06/01/2018 Pg3o0f7 Trans ID: LCV2018962540
Polifroni entered the Order on or about February 12, 2016, that dismissed the case with prejudice.
Plaintiff Maas appealed, and the Appellate Division reversed the dismissal and remanded the
matter. The case on remand was assigned to Judge Thurber, who conducted a remand conference
on February 28, 2018, and entered a Remand Order,
After Judge Polifroni dismissed Maas’s complaint against Hoyt Corporation and others,
Hoyt initiated a lawsuit of its own by filing a complaint on or about March 23, 2016. Hoyt
Corporation v. Maas, Docket Number BER L-2605-16. Hoyt’s complaint against Mr. Maas
alleged breach of fiduciary duty and tortious interference, related to the disposition of proceeds of
a life insurance policy. (The policy was also the subject of a federal interpleader action.)
The Hoyt matter came to trial in October 2017. The parties waived a jury, and Judge
Thurber tried the case over approximately six days. (Judge Thurber had no pretrial contact with
the case.) The Appellate Division decision reversing Judge Polifroni’s dismissal of Maas’s
complaint in the first matter was issued on the last day of the trial on Hoyt’s complaint. The Court
brought it to the attention of trial counsel prior to the start of trial on that day.
The Court entered judgment after trial in favor of plaintiff in that case, Hoyt Corporation,
on or about February 9, 2018, accompanied by a written decision. Defendant, Maas, has filed a
Notice of Appeal of that judgment.
Arguments
Maas submitted a single brief encompassing his arguments in opposition to the motions for
summary judgment or in the alternative for a stay (summary judgment motions since withdrawn)
and in support of his cross-motion for recusal or disqualification. Maas argues that I (Judge
Thurber) ought to disqualify myself, on my own motion, pursuant to Rule 1:12-1 (d) and (g). The
Rule provides in part:
BER L 010204-15 06/01/2018 Pg4of7 Trans ID: LCV2018962540
The judge of any court shall be disqualified on the court's own
motion and shall not sit in any matter, if the judge . . .
(d) has given an opinion upon a matter in question in the action; . ..
or
(g) when there is any other reason which might preclude a fair and
unbiased hearing and judgment, or which might reasonably lead
counsel or the parties to believe so.
N. J. Court Rules, R. 1:12-1,
With respect to subsection (d), Maas argues that the Court’s opinion and findings in the
Hoyt matter constitute a basis for judicial sua sponte recusal under subsection (d). That argument
ignores the further language in the Court Rule: “Paragraph{] ... (d) ... shall not prevent a judge
from sitting because of having given an opinion in another action in which the same matter in
controversy came in question or given an opinion on any question in controversy in the pending
action in the course of previous proceedings therein ...” Id. The mete fact that I conducted a trial
and ruled against Mr. Maas after several days of testimony in that proceeding is not a basis for
disqualification. As defendant Hoyt correctly pointed out, “Absent a showing of bias or prejudice,
the participation of a judge in previous proceedings in the case before him is not a ground for
disqualification.” State v. Walker, 33 N.J. 580, 591 (1960).
Plaintiff cites the Comments to the Rule for the proposition that a matter on remand will
be assigned to a different trial judge if the first judge had, during the trial, expressed conclusions
regarding witness credibility. That argument is misplaced. The decision that was reversed and
remanded by the Appellate Division was not a decision made by me. That appeal was of an Order
entered by Presiding Judge Polifroni, and on remand, the case was assigned to a different trial
judge.
BERL 010204-15 06/01/2018 Pg5of7 Trans ID: LCV2018962540
Mr. Maas is correct that in the decision after trial in the related matter, the Court
commented that it remained doubtful about certain testimony Maas gave about conversations he
had with the decedent owner of Hoyt, William H. Nixon. However, the Court analyzed the claims
as they would be decided if the testimony were true. That comment is not a blanket statement about
the parties’ credibility, and that decision has not been reversed and remanded. The Court disagrees
with Mr, Maas’s suggestion that there is any indication in the record of bias or prejudice in the
Court. A decision based on evidence presented, just because adverse, is not evidence of bias. There
is no objectively reasonable basis for counsel or plaintiff to believe so, as required for
disqualification under subsection (g).
Plaintiff suggests that certain of the Court’s findings in the prior trial, such as about Mr.
Maas’s motivation for certain actions, will prevent his having a fair trial in this matter.
Interestingly, in opposing the defendants’ motions for summary judgment (since withdrawn),
plaintiff argued that the issues decided in the other matter were too dissimilar to provide a basis
for application of the preclusionary doctrines of res judicata and collateral estoppel, yet now he
argues that they are so similar that the same issues, presented in this case, will be effectively
predetermined. On that issue, the Court has several observations. This case is at the initial, pre-
trial, discovery phase. The trial date is not in sight, and the parties have demanded a jury trial. The
pretrial judge is not necessarily the eventual trial judge, and the fact finder will be a jury, not the
judge. To the extent any of the findings in the prior matter become relevant during the pretrial
proceedings, if they do in fact deal with the same issue, then every judge would be bound to respect
the prior findings, by the doctrines of res judicata and/or collateral estoppel. The judge who
actually heard the prior case would in fact be the judge best equipped to recognize if the issue is
the same or not, and would likely be more willing and able to distinguish it if the facts so warranted.
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In evaluating a request for recusal, trial judges are required to be mindful of their duties
and obligations to hear the cases assigned to them unless there is good cause not to do so. It is
improper for a judge to withdraw from a case upon a mere suggestion that she is disqualified
"unless the alleged cause of recusal is known by [her] to exist or is shown to be true in fact."
Panitch v. Panitch, 339 N.J. Super. 63, 66-67 (App. Div. 2001). For that proposition the Panitch
court cites the 1986 decision in Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J, Super.
350, 358, 515 A.2d 246, (App.Div.), certif. denied, 107 N.J. 60, 526 A.2d 146 (1986). The court
in that case said:
Itis not only unnecessary for a judge to withdraw from a case upon
a mere suggestion that he is disqualified: it is improper for him to
do so unless the alleged cause of recusal is known by him to exist or
is shown to be true in fact.
For that proposition the Hundred E, Credit court cites the 1958 decision in Clawans v. Schakat,
49 N.J. Super. 415, 420-21 (App.Div.1958), in which the court held:
A judge is not required to withdraw from the hearing of a case upon
a mere suggestion that he is disqualified to sit. Indeed, as was said
by Chief Justice Gummere in State v. De Maio, 70 N.J.L. 220, 222
(E. & A. 1904), "it is improper for him to do so, unless the alleged
cause of recusation is known by him to exist or is shown by proof to
be true in fact."
As noted, the 1958 Clawans decision cited the 1904 decision in State v. De Maio. The DeMaio
court held:
Not only is a judge not required to withdraw from the hearing of a
case upon a mere suggestion that he is disqualified to sit, but it is
improper for him to do so, unless the alleged cause of recusation is
known by him to exist, or is shown by proof to be true in fact.
For that proposition the DeMaio court cited an 1863 decision from New Hampshire, Moses v.
Julian, 45 N.H. 52, in which that court stated:
BERL 010204-15 06/01/2018 Pg7of7 Trans ID: LCV2018962540
A judge ought not to withdraw upon a mere suggestion, unless the
cause of recusation is true in fact, and sufficient in law; because the
office of judge is one necessary for the administration of justice, and
from which a judge should not be permitted to withdraw without
sufficient grounds.
Moses vy. Julian, 45 N.H. 52 (N.H. 1863).
The Moses case goes on to cite treatises and English and Scottish cases. Suffice it to say that the
proposition has ancient roots in our common law. This judge will not step away from the
responsibility of an assigned case without good cause.
Stay
Plaintiff sought a stay only as an alternative to outright denial of the summary judgment
motions. He did not brief the issue. When the summary judgment motions were withdrawn,
plaintiff orally stated he still sought the stay, asserting that the decision on the appeal of the related
case “might be dispositive.” However, when asked if an affirmance by the Appellate Divsiion
would dispose of this case, plaintiff asserted his position that it would not. No justification for stay
of this matter has been presented, nor was it included in the notice of motion except as an
alternative to denial of the summary judgment motions.
Preview
BER L010204-15 06/01/2018 Pg lof7 Trans ID: LCV2018962540 FILED JUN 01 2018 MARY F. THURBER, J.S.C. DENNIS MAAS, SUPERIOR COURT OF NEW JERSEY Plaintiff, LAW DIVISION: BERGEN COUNTY v Docket No.: BER-L-10204-15 Civil Action HOYT CORPORATION, A Corporation of The State of New Jersey; MICHAEL BRADFORD; SUSAN ORDER NIXON BRADFORD; NICHOLAS B. NIXON; DENYING MOTION FOR MARIA ESPARRAGUERA; THE WILLIAM H. DISQUALIFICATION OR NIXON REVOCABLE TRUST; THE ESTATE OF RECUSAL OF JUDGE WILLIAM H. NIXON; and JOHN DOES 1-10, the latter names being fictitious and imaginary, Defendants. This matter being opened to the court by William A. Feldman, LLC, counsel for plaintiff, on cross-motion for disqualification or recusal of the trial judge, on notice to all counsel of record, Daniel C. Gibbons, Esq. of Nixon Peabody LLP, having represented defendants The William H. Nixon Revocable Trust and the Estate of William H. Nixon, and M. Ross & Associates, LLC (Michele Ross, Esq., appearing) having represented the remaining defendants, and the Court having considered all papers submitted and arguments of counsel, and good cause appearing; IT IS on this 1 day of June, 2018: ORDERED that the motion for recusal or disqualification is DENIED. To the extent plaintiff contends his motion for a stay was not rendered moot by the withdrawal of defendants’ summary judgment motions, that motion is also DENIED. THURBER, J.S.C xSee ahached rider Order to all wunsel of recoral Court provroles a Copy of this f The on ths clate va eCourts Civil. BERL 010204-15 06/01/2018 Pg2of7 Trans ID: LCV2018962540 Dennis Maas y. Hoyt Corporation, et al. Docket No. BER L-10204-15 Statement of Reasons for Order Entered on June 1, 2018 This matter came before the Court on two separate motions by defendants (through separate counsel) for partial summary judgment. Plaintiff, Dennis Maas, opposed both motions and filed a cross-motion for (i) recusal or disqualification of the assigned pretrial judge and author of this decision, Mary F. Thurber, J.S.C., and (ii) denial of the summary judgment motions or in the alternative a stay of the matter pending resolution of the appeal pending in a related matter, BER L-2605-16, Appellate Division Docket Number A-003376-17T3. At oral argument, defendants withdrew both motions for partial summary judgment, making moot that aspect of plaintiffs cross- motion. Thus, the only motion remaining is defendant’s cross-motion for recusal. For the reasons set forth below, the Court denies the cross-motion in its entirety. PROCEDURAL HISTORY Disputes between plaintiff and defendants have been the subject of separate lawsuits. The first filed lawsuit is the one that is the subject of this motion. That case was filed by plaintiff initially in the Chancery Division (Docket Number C-194-15) on or about June 26, 2015. On November 6, 2015, the Court dismissed the complaint without prejudice. Plaintiff then refiled in the Law Division on or about November 20, 2015. Maas’s complaint alleged special injury, stockholder derivative claims, breach of contract and the implied covenant of good faith, CEPA violation, civil conspiracy, and tortious interference. On February 12, 2016, the Court dismissed that complaint with prejudice. None of the proceedings in either of those matters was heard by Judge Thurber. The Honorable Menelaos W. Toskos, J.S.C., presided over the Chancery matter, and The Honorable Robert L. Polifroni, P.J.Cv., presided over the matter in the Civil Part, Law Division. Judge BERL 010204-15 06/01/2018 Pg3o0f7 Trans ID: LCV2018962540 Polifroni entered the Order on or about February 12, 2016, that dismissed the case with prejudice. Plaintiff Maas appealed, and the Appellate Division reversed the dismissal and remanded the matter. The case on remand was assigned to Judge Thurber, who conducted a remand conference on February 28, 2018, and entered a Remand Order, After Judge Polifroni dismissed Maas’s complaint against Hoyt Corporation and others, Hoyt initiated a lawsuit of its own by filing a complaint on or about March 23, 2016. Hoyt Corporation v. Maas, Docket Number BER L-2605-16. Hoyt’s complaint against Mr. Maas alleged breach of fiduciary duty and tortious interference, related to the disposition of proceeds of a life insurance policy. (The policy was also the subject of a federal interpleader action.) The Hoyt matter came to trial in October 2017. The parties waived a jury, and Judge Thurber tried the case over approximately six days. (Judge Thurber had no pretrial contact with the case.) The Appellate Division decision reversing Judge Polifroni’s dismissal of Maas’s complaint in the first matter was issued on the last day of the trial on Hoyt’s complaint. The Court brought it to the attention of trial counsel prior to the start of trial on that day. The Court entered judgment after trial in favor of plaintiff in that case, Hoyt Corporation, on or about February 9, 2018, accompanied by a written decision. Defendant, Maas, has filed a Notice of Appeal of that judgment. Arguments Maas submitted a single brief encompassing his arguments in opposition to the motions for summary judgment or in the alternative for a stay (summary judgment motions since withdrawn) and in support of his cross-motion for recusal or disqualification. Maas argues that I (Judge Thurber) ought to disqualify myself, on my own motion, pursuant to Rule 1:12-1 (d) and (g). The Rule provides in part: BER L 010204-15 06/01/2018 Pg4of7 Trans ID: LCV2018962540 The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter, if the judge . . . (d) has given an opinion upon a matter in question in the action; . .. or (g) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so. N. J. Court Rules, R. 1:12-1, With respect to subsection (d), Maas argues that the Court’s opinion and findings in the Hoyt matter constitute a basis for judicial sua sponte recusal under subsection (d). That argument ignores the further language in the Court Rule: “Paragraph{] ... (d) ... shall not prevent a judge from sitting because of having given an opinion in another action in which the same matter in controversy came in question or given an opinion on any question in controversy in the pending action in the course of previous proceedings therein ...” Id. The mete fact that I conducted a trial and ruled against Mr. Maas after several days of testimony in that proceeding is not a basis for disqualification. As defendant Hoyt correctly pointed out, “Absent a showing of bias or prejudice, the participation of a judge in previous proceedings in the case before him is not a ground for disqualification.” State v. Walker, 33 N.J. 580, 591 (1960). Plaintiff cites the Comments to the Rule for the proposition that a matter on remand will be assigned to a different trial judge if the first judge had, during the trial, expressed conclusions regarding witness credibility. That argument is misplaced. The decision that was reversed and remanded by the Appellate Division was not a decision made by me. That appeal was of an Order entered by Presiding Judge Polifroni, and on remand, the case was assigned to a different trial judge. BERL 010204-15 06/01/2018 Pg5of7 Trans ID: LCV2018962540 Mr. Maas is correct that in the decision after trial in the related matter, the Court commented that it remained doubtful about certain testimony Maas gave about conversations he had with the decedent owner of Hoyt, William H. Nixon. However, the Court analyzed the claims as they would be decided if the testimony were true. That comment is not a blanket statement about the parties’ credibility, and that decision has not been reversed and remanded. The Court disagrees with Mr, Maas’s suggestion that there is any indication in the record of bias or prejudice in the Court. A decision based on evidence presented, just because adverse, is not evidence of bias. There is no objectively reasonable basis for counsel or plaintiff to believe so, as required for disqualification under subsection (g). Plaintiff suggests that certain of the Court’s findings in the prior trial, such as about Mr. Maas’s motivation for certain actions, will prevent his having a fair trial in this matter. Interestingly, in opposing the defendants’ motions for summary judgment (since withdrawn), plaintiff argued that the issues decided in the other matter were too dissimilar to provide a basis for application of the preclusionary doctrines of res judicata and collateral estoppel, yet now he argues that they are so similar that the same issues, presented in this case, will be effectively predetermined. On that issue, the Court has several observations. This case is at the initial, pre- trial, discovery phase. The trial date is not in sight, and the parties have demanded a jury trial. The pretrial judge is not necessarily the eventual trial judge, and the fact finder will be a jury, not the judge. To the extent any of the findings in the prior matter become relevant during the pretrial proceedings, if they do in fact deal with the same issue, then every judge would be bound to respect the prior findings, by the doctrines of res judicata and/or collateral estoppel. The judge who actually heard the prior case would in fact be the judge best equipped to recognize if the issue is the same or not, and would likely be more willing and able to distinguish it if the facts so warranted. BERL 010204-15 06/01/2018 Pg6of7 Trans ID: LCV2018962540 In evaluating a request for recusal, trial judges are required to be mindful of their duties and obligations to hear the cases assigned to them unless there is good cause not to do so. It is improper for a judge to withdraw from a case upon a mere suggestion that she is disqualified "unless the alleged cause of recusal is known by [her] to exist or is shown to be true in fact." Panitch v. Panitch, 339 N.J. Super. 63, 66-67 (App. Div. 2001). For that proposition the Panitch court cites the 1986 decision in Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J, Super. 350, 358, 515 A.2d 246, (App.Div.), certif. denied, 107 N.J. 60, 526 A.2d 146 (1986). The court in that case said: Itis not only unnecessary for a judge to withdraw from a case upon a mere suggestion that he is disqualified: it is improper for him to do so unless the alleged cause of recusal is known by him to exist or is shown to be true in fact. For that proposition the Hundred E, Credit court cites the 1958 decision in Clawans v. Schakat, 49 N.J. Super. 415, 420-21 (App.Div.1958), in which the court held: A judge is not required to withdraw from the hearing of a case upon a mere suggestion that he is disqualified to sit. Indeed, as was said by Chief Justice Gummere in State v. De Maio, 70 N.J.L. 220, 222 (E. & A. 1904), "it is improper for him to do so, unless the alleged cause of recusation is known by him to exist or is shown by proof to be true in fact." As noted, the 1958 Clawans decision cited the 1904 decision in State v. De Maio. The DeMaio court held: Not only is a judge not required to withdraw from the hearing of a case upon a mere suggestion that he is disqualified to sit, but it is improper for him to do so, unless the alleged cause of recusation is known by him to exist, or is shown by proof to be true in fact. For that proposition the DeMaio court cited an 1863 decision from New Hampshire, Moses v. Julian, 45 N.H. 52, in which that court stated: BERL 010204-15 06/01/2018 Pg7of7 Trans ID: LCV2018962540 A judge ought not to withdraw upon a mere suggestion, unless the cause of recusation is true in fact, and sufficient in law; because the office of judge is one necessary for the administration of justice, and from which a judge should not be permitted to withdraw without sufficient grounds. Moses vy. Julian, 45 N.H. 52 (N.H. 1863). The Moses case goes on to cite treatises and English and Scottish cases. Suffice it to say that the proposition has ancient roots in our common law. This judge will not step away from the responsibility of an assigned case without good cause. Stay Plaintiff sought a stay only as an alternative to outright denial of the summary judgment motions. He did not brief the issue. When the summary judgment motions were withdrawn, plaintiff orally stated he still sought the stay, asserting that the decision on the appeal of the related case “might be dispositive.” However, when asked if an affirmance by the Appellate Divsiion would dispose of this case, plaintiff asserted his position that it would not. No justification for stay of this matter has been presented, nor was it included in the notice of motion except as an alternative to denial of the summary judgment motions.