SELECTIVE TRANSPORTATION CORPORATION VS. GUSSCO MANUFACTURING, LLC DIRECT COAST TO COAST, LLC VS. GUSSCO MANUFACTURING, LLC (L-8013-12, L-8018-12 AND J-198852-13, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4233-16T1
SELECTIVE TRANSPORATION
CORPORATION,
Plaintiff-Appellant,
v.
GUSSCO MANUFACTURING LLC and
SELCO INDUSTRIES, INC.,
Defendants.
______________________________
DIRECT COAST TO COAST, LLC,
Plaintiff-Appellant,
v.
GUSSCO MANUFACTURING LLC and
SELCO INDUSTRIES, INC.,
Defendants.
______________________________
Argued May 30, 2018 – Decided June 26, 2018
Before Judges Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket Nos.
L-8013-12, L-8018-12, and J-198852-13.
Ronald W. Horowitz argued the cause for
appellants.
Raymond G. Chow argued the cause for
respondent S.P. Richards (Breuninger &
Fellman, attorneys; Susan B. Fellman, of
counsel; Raymond G. Chow, on the brief).
PER CURIAM
Selective Transportation Corporation and Direct Coast to
Coast, LLC (collectively, Selective) appeal from a January 20,
2017 order of the trial court quashing a subpoena duces tecum
dated December 16, 2016. Selective also appeals from an April 28,
2017 order requiring non-party respondent S.P. Richards Company
(SPR) to pay Selective a calculated sum of all debts owed to
defendant Selco Industries, Inc. (Selco) by SPR.1 Given the motion
judge's failure to provide the requisite statement of reasons with
the order per Rule 1:7-4(a), we reverse and remand. Estate of
Doerfler v. Fed. Ins. Co., ___ N.J. Super. ___ (App. Div. 2018)
(slip op. at 4-5).
We recite a brief summary of the underlying facts and
procedural history for the purpose of context. On December 3,
2012, Selective filed a complaint in the Superior Court, Law
1
Had we addressed the merits of the appeal we would have
considered this argument to be abandoned. Plaintiffs have not
briefed this point. Grubb v. Borough of Hightstown, 353 N.J.
Super. 333, 342 n.1 (App. Div. 2002) (explaining that an issue
raised in notice of appeal but not briefed is abandoned).
2 A-4233-16T1
Division against shippers and affiliated former customers Gussco
Manufacturing, LLC (Gussco) and Selco and others for unpaid freight
transportation charges. Direct Coast to Coast, LLC filed a
separate action against Gussco and Selco, which was consolidated
with the Selective claims by consent order on April 11, 2013.
Thereafter, by consent order, Selective obtained a judgment
against Selco in the amount of $229,615.35. Per the terms of the
order, the judgment was stayed pending full compliance with the
terms of the order, which included a payment schedule for Selco
to satisfy the judgment. If Selco failed to make a full timely
payment, the stay was to be deemed vacated and Selective would be
able to execute the judgment and join other defendants allegedly
liable for the subject freight transportation services provided
by Selco.
In October 2013, Selective filed an amended complaint adding
SPR as a non-party. A month later, Selco defaulted under the
terms of the consent order. In December 2013, Selco filed for
Chapter 11 Bankruptcy.
In an attempt to execute the judgment, Selective served an
information subpoena on SPR to determine what monies SPR owed to
Selco. After SPR refused to comply with the subpoena and after
efforts to reach a settlement failed, SPR was dismissed from the
action with prejudice by stipulation of the parties.
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After Selco's bankruptcy proceeding was dismissed in 2016,
Selective resumed execution proceedings of the 2013 consent order.
On October 19, 2016, Selective again served SPR with an information
subpoena. Due to SPR's failure to respond to the subpoena,
Selective filed a motion in aid of execution. The motion was
premised upon Selective's purported discovery of documents that
demonstrated that the amount owed by SPR to Selco was $245,053.69.
SPR eventually responded to the subpoena by stating that it
currently owed Selco $10,507.43.
On December 16, 2016, the court denied the motion in aid of
execution for failure to comply with Rule 6:7-2. Selective then
served a subpoena duces tecum to SPR, seeking "[a]ll documents
concerning Selco Industries, Inc., . . . including, but not limited
to, all invoices, cancelled checks, wire transfers, purchase
orders, e-mails, correspondence, and facsimiles for the last five
years of business with Selco Industries, Inc." SPR moved to quash,
which the court granted without a providing a statement of reasons.
This appeal followed.
On appeal, Selective raises the following point:
[POINT I]
THE LOWER COURT IMPROPERLY QUASHED PLAINTIFFS'
SUBPOENA DUCES TECUM WITHOUT ANY REASON.
4 A-4233-16T1
Selective argues the court erred in failing to attach a
statement of reasons to the order quashing the subpoena, per Rule
1:7-4(a). We agree.
No one — not the parties and not this court — can properly
function or proceed without some understanding of why a judge has
rendered a particular ruling. The Supreme Court said in Curtis
v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs.
v. Bd. of Adjustment, Englewood, 141 N.J. Super. 1, 4 (App. Div.
1976)), that the absence of an adequate expression of a trial
judge's rationale "constitutes a disservice to the litigants, the
attorneys and the appellate court." And this admonition has been
repeated time and again. Gnall v. Gnall, 222 N.J. 414, 428
(2015); Estate of Doerfler, N.J. Super. at ; State v.
Lawrence, 445 N.J. Super. 270, 276-77 (App. Div. 2016); Raspantini
v. Arocho, 364 N.J. Super. 528, 533 (App. Div. 2003); In re
Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003); T.M. v. J.C.,
348 N.J. Super. 101, 106-07 (App. Div. 2002). The parties and
this court are entitled to the judge's reasons for entering the
orders under review. We should not be put in the position of
guessing or assuming what the judge might have been thinking. As
Judge Fuentes said last month in Estate of Doerfler, "our function
as an appellate court is to review the decision of the trial court,
not to decide the motion tabula rasa." ___ N.J. Super. at ___.
5 A-4233-16T1
Here, there is nothing in the order under review demonstrating
indicative that the judge made an independent decision based upon
an analysis of the facts and applicable law. Thus, we are
constrained to remand. Given our determination, we have not
addressed the merits of the substantive issues raised on appeal.
Remanded. We do not retain jurisdiction.
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