ST. CYRILLUS AND METHODIUS CZECHO SLOVAK NATIONAL CHURCH OF PERTH AMBOY, NJ, INC. VS. POLISH NATIONAL CATHOLIC CHURCH, INC. (L-4511-18, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0933-18T4
ST. CYRILLUS AND
METHODIUS CZECHO SLOVAK
NATIONAL CHURCH OF PERTH
AMBOY, NJ, INC.,
Plaintiff-Appellant,
v.
POLISH NATIONAL CATHOLIC
CHURCH, INC.,
Defendant-Respondent.
_____________________________
Argued February 12, 2020 – Decided March 2, 2020
Before Judges Fuentes, Haas and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-4511-18.
Mario Apuzzo argued the cause for appellant.
Edwin R. Matthews argued the cause for respondent
(Bourne Noll & Kenyon, attorneys; Edwin R.
Matthews, on the brief).
PER CURIAM
Plaintiff St. Cyrillus and Methodius Czecho Slovak National Catholic
Church of Perth Amboy, N.J., Inc. is a church parish affiliated with and
subordinate to defendant Polish National Catholic Church, Inc. Since February
2016, the two entities have been debating, among other things, which of them
has the right to use a rectory building for administrative and religious purposes.
In this current chapter of this long-running litigation, plaintiff appeals
from the Law Division's August 2, 2018 and September 14, 2018 orders denying
plaintiff's requests for statutory damages and an award of counsel fees under the
unlawful entry and detainer statutes, N.J.S.A. 2A:39-1 to -8, and for similar
relief pursuant to Rule 1:10-3. Having reviewed plaintiff's contentions in light
of the record and applicable law, we affirm.
The parties are fully familiar with the lengthy procedural history and facts
of this matter. Therefore, we need only recite the most salient facts here.
Plaintiff joined defendant's religious organization member church in 1937,
and has operated under defendant's constitution and authority since that time.
Plaintiff used a church located in Perth Amboy for its religious services, and the
neighboring rectory for administrative functions.
In 2004, plaintiff stopped paying its required dues to defendant. Nine
years later, the church burned down. Following the fire in 2013, defendant's
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diocesan bishop determined that plaintiff was no longer a financially v iable
parish, and took control of the church, rectory, and other related real and
personal property previously managed by plaintiff. In February 2016, plaintiff
filed a complaint against defendant and alleged that defendant had improperly
assumed control over the property. On December 5, 2017, the trial court granted
defendant's motion for summary judgment after finding that all of the property,
including the rectory, was "appropriately within the control of" defendant.
Thus, plaintiff no longer had a possessory interest in the rectory.
Plaintiff filed a notice of appeal to this court, and that matter is currently
pending.1 On February 5, 2018, the trial court denied plaintiff's motion for a
stay pending appeal. The court also denied defendant's motion to require an
individual, L.D.,2 who had been living in the rectory and working as a caretaker,
to vacate the property. The court found that "the rights of [L.D.] shall be
addressed in a separate ejectment proceeding." We subsequently denied
plaintiff's motion for a stay pending appeal, as did the Supreme Court.
Nevertheless, plaintiff continued to access the rectory because it still had a key
1
Docket No. A-2157-17.
2
In order to protect his privacy, we use initials to refer to this non-party.
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3
to the building, and it held religious services there contrary to defendant's
wishes.
After the Supreme Court denied plaintiff's motion for a stay on July 3,
2018, defendant made an arrangement with L.D. that permitted him to remain in
the rectory. Defendant then changed the locks on the building and, in order to
comply with the trial court's February 5, 2018 order, it gave a copy of the new
key to L.D. Because plaintiff had no possessory interest in the rectory,
defendant did not give a key to plaintiff.
On July 30, 2018, plaintiff filed an order to show cause and complaint
against defendant. It sought an order requiring defendant to remove the new
locks, restore the old locks, and cease preventing it from accessing the rectory.
Based upon its allegation that defendant had unlawfully entered the rectory in
violation of N.J.S.A. 2A:39-1 and -2, plaintiff also sought an award of damages
and counsel fees under N.J.S.A. 2A:39-8.
Because the judge who had issued the order granting possession of the
building to defendant was no longer available, a different judge handled this
application. The judge granted the restraints sought by plaintiff and set an
August 2, 2018 return date.
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On August 2, defendant advised the judge that it could not restore the old
locks because they had been discarded when the new locks were installed.
Following oral argument, the judge ordered defendant to provide plaintiff with
"immediate and continuous access" to the rectory from 6:00 p.m. on August 2,
until 4:30 p.m. on August 7, 2018. On that date, plaintiff was to vacate the
rectory. After defendant's attorney conceded that plaintiff had not sustained any
monetary damages from being "locked out" of the building, the judge made no
finding that defendant had violated N.J.S.A. 2A:39-1 or -2 and, citing the
"American Rule," he denied plaintiff's request for attorney's fees and costs under
N.J.S.A. 2A:39-8.
On August 2, plaintiff also filed a motion to enforce litigant's rights under
Rule 1:10-3. Plaintiff complained that defendant did not give it a new key to
the rectory and, instead, granted it access by having L.D. open the door for its
members when requested. Plaintiff also asserted that on August 2, L.D. was not
available to open the door at 6:00 p.m. and, as a result, it was not admitted to
the building for twenty-two minutes. Plaintiff asked the court to impose "a
monetary penalty" on defendant for not giving it a new key, and grant it
attorney's fees and costs.
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The judge conducted oral argument on September 14, 2018, and denied
plaintiff's motion. In so ruling, the judge stated:
Plaintiff is seeking sanctions at this point. [Plaintiff]
argues that they should have been given keys. There's
nothing in the [c]ourt's [o]rder to indicate that it was the
[c]ourt's intention to give them keys. The [c]ourt's
intention was to give them access. Access was
provided, it was delayed somewhat, but it was provided
consistent with the [c]ourt's August 2nd [o]rder. The
delay was not . . . of sufficient consequence to warrant
the entering of sanctions. And again[,] they had access
to the rectory. That access terminated as of August [7,
2018]. So the [c]ourt finds there is no basis to grant the
plaintiff's request for sanctions or attorney[']s fees, so
the [m]otion is denied at this time.
This appeal followed.
On appeal, plaintiff again argues that the judge should have granted it
counsel fees and costs pursuant to N.J.S.A. 2A:39-8 or Rule 1:10-3. We
disagree.
The principles guiding our review are well-settled. "New Jersey strictly
adheres to the 'American rule' in regards to attorney's fees[,]" under which each
party bears its own legal fees and costs. First Atl. Fed. Credit Union v. Perez,
391 N.J. Super. 419, 425 (App. Div. 2007) (citing Van Horn v. City of Trenton,
80 N.J. 528, 538 (1979)). "Consistent with this policy, attorney's fees are not
recoverable absent express authorization by statute, court rule or contract." Ibid.
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(citing State of New Jersey, Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473,
505 (1983)). In addition, "a court has inherent power to require a party to
reimburse another litigant for its litigation expenses, including counsel fees."
Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990) (citing
Vargas v. A.H. Bull Steamship Co., 25 N.J. 293, 296 (1957)). Attorney "fee
determinations by trial courts will be disturbed only on the rarest of occasions,
and then only because of a clear abuse of discretion." Packard-Bamberger &
Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J.
292, 317 (1995)).
Plaintiff first contends that it had a statutory right to counsel fees under
N.J.S.A. 2A:39-1 and -2. However, this argument lacks merit. These statutes
prohibit forcible entry into real property, "except where entry is given by law,"
unless the entry is made "pursuant to legal process." N.J.S.A. 2A:39-1. A
prevailing plaintiff in any action instituted under N.J.S.A. 2A:39-1 and -2 "shall
recover all damages proximately caused by the unlawful entry and detainer
including court costs and reasonable attorney's fees." N.J.S.A. 2A:39-8.
However, as we explained over twenty years ago in Levin v. Lynn, 310
N.J. Super. 177, 183 (App. Div. 1998), these two statutes were amended in 1971
to add . . . references . . . to N.J.S.A. 2A:18-53 et seq.
and N.J.S.A. 2A:39-2 et seq., [which] are . . . the
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statutory provisions concerning, respectively, summary
dispossess proceedings instituted in the Special Civil
Part, and Superior Court actions to establish either title
or the right to possession of real property, and the intent
of those amendments is clearly to prohibit a landlord or
anyone else from taking possession of residential
premises without following judicial procedures.
[(emphasis added)].
Here, plaintiff no longer had any possessory interest in the property at all
as the result of the trial court's December 5, 2017 order granting possession of
the rectory and other property to defendant. While plaintiff attempted to obtain
a stay of this order pending appeal, its motions for same were denied by the trial
court, this court, and the Supreme Court. Because plaintiff did not have any
right to access the property for any purpose, defendant did not violate the
unlawful detainer and detainer statutes by changing the locks . Just as
importantly, plaintiff did not use the property as its "residence" and therefore,
the unlawful entry and statutes were simply inapplicable to it. Levin, 310 N.J.
Super. at 183.3
3
As the first judge implicitly recognized in his February 5, 2018 order
preventing defendant from ejecting L.D. from the rectory, these statutes might
have applied to L.D., who lived in the building. As stated above, however,
defendant and L.D. reached an agreement that permitted L.D. to remain in the
rectory and, therefore, the issue of his removal was moot at that time.
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In sum, plaintiff had no statutory right to counsel fees and costs under
N.J.S.A. 2A:39-8. Therefore, we reject plaintiff's contention on this point.
Plaintiff's claim for attorney's fees under Rule 1:10-3 is equally meritless.
In pertinent part, Rule 1:10-3 provides:
Notwithstanding that an act or omission may also
constitute a contempt of court, a litigant in any action
may seek relief by application in the action. A judge
shall not be disqualified because he or she signed the
order sought to be enforced. . . . The court in its
discretion may make an allowance for counsel fees to
be paid by any party to the action accorded relief under
this rule.
"[A] proceeding to enforce litigants' rights under Rule 1:10-3 'is
essentially a civil proceeding to coerce the defendant into compliance with the
court's order for the benefit of the private litigant[.]'" Pasqua v. Council, 186
N.J. 127, 140 (2006) (quoting Essex Cty. Welfare Bd. v. Perkins, 133 N.J. Super.
189, 195 (App. Div. 1975)). Thus, an application for relief under Rule 1:10-3
is distinguishable from "[a] criminal contempt proceeding under Rule 1:10-2[,]"
which "is 'essentially criminal' in nature and is instituted for the purpose of
punishing a defendant who fails to comply with a court order." Ibid. (quoting
Essex Cty. Welfare Bd., 133 N.J. Super. at 195). Accordingly, "[r]elief under
[Rule] 1:10-3, whether it be the imposition of incarceration or a sanction, is not
for the purpose of punishment, but as a coercive measure to facilitate the
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enforcement of the court order." Ridley v. Dennison, 298 N.J. Super. 373, 381
(App. Div. 1997).
We review a trial court's imposition of sanctions against a litigant pursuant
to Rule 1:10-3 under the abuse of discretion standard. Barr v. Barr, 418 N.J.
Super. 18, 46 (App. Div. 2011). "An abuse of discretion 'arises when a decision
is made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" Ibid. (quoting Flagg v. Essex
Cty. Prosecutor, 171 N.J. 561, 571 (2002)). The decision to award attorney's
fees and costs associated with an enforcement motion also "rests within the
sound discretion of the trial court." Wear v. Selective Ins. Co., 455 N.J. Super.
440, 459 (App. Div. 2018) (quoting Maudsley v. State, 357 N.J. Super. 560, 590
(App. Div. 2003)).
Applying these principles, we perceive no basis for second-guessing the
judge's determination that defendant complied with the court's prior rulings.
Contrary to plaintiff's contention, the orders did not require defendant to give
plaintiff a key to the rectory. Instead, defendant was to provide access to the
building, which it did by engaging L.D. to admit plaintiff's members as needed.
As the judge correctly found, the twenty-two minute delay in admitting the
members on August 2, 2018 was clearly of no consequence. Accordingly, the
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judge properly denied plaintiff's enforcement motion. Therefore, plaintiff was
plainly not entitled to recover counsel fees and costs in connection with its
unsuccessful application under Rule 1:10-3.
Affirmed.
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