Mark Hibbert, Sr. v. Bellmawr Park Mutual Housing

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 14-3419
____________

MARK E. HIBBERT, SR.,
Appellant

v.

BELLMAWR PARK MUTUAL HOUSING CORPORATION,
a New Jersey Corporation; PAT LEVINS; BOB MCCORMICK
____________

On Appeal from United States District Court
for the District of New Jersey
(D. N.J. No. 1-10-cv-05386)
District Judge: Honorable Noel L. Hillman
____________

Submitted Pursuant to Third Circuit LAR 34.1(a)
September 15, 2015

Before: FISHER, CHAGARES and JORDAN, Circuit Judges.

(Filed: October 5, 2015)
____________

OPINION*
____________

FISHER, Circuit Judge.

*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
 Mark Hibbert appeals the District Court’s order granting summary judgment in

favor of the Defendants-Appellees on Hibbert’s claims for breach of contract and

violations of the Fair Housing Act and the New Jersey Law Against Discrimination. We

will affirm.

I.

We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

Mark Hibbert (“Hibbert”), who is deaf, was a resident of Bellmawr Park Mutual

Housing Corporation (“Bellmawr Park”), a non-profit corporation that provides low-cost

housing in southern New Jersey. Bellmawr Park owns the housing project in which

Hibbert lived but does not sell or rent residences. Instead, residents enter into a “Mutual

Ownership Contract” with Bellmawr Park by which they agree to pay low monthly

payments in exchange for a right of perpetual use of dwellings. A resident may surrender

the dwelling back to Bellmawr Park and may sell any improvements he made to the

dwelling.

Hibbert grew up in Bellmawr Park, and, in 2003, acquired his own residence. In

2009, Hibbert expressed an intent to surrender his interest in his residence. He planned to

move to Maine with his wife and children. On December 1, 2009, Hibbert met with the

Bellmawr Park Board of Trustees to discuss his intent to terminate his membership in

2
Bellmawr Park. Hibbert’s teenage son, who is not deaf, attended the meeting and served

as an interpreter for his father. The manager of Bellmawr Park, Pat Levins (“Levins”),

another Defendant in this action, also attended the meeting.

After the meeting, Levins contacted Defendant Robert McCormick

(“McCormick”), who had previously submitted an application to Bellmawr Park.

McCormick and Hibbert then had several communications (with Hibbert’s son again

serving as interpreter) about the sale of the property. During this time, Hibbert began

taking the necessary steps to purchase a mobile home property in Maine. Hibbert

executed an agreement to purchase the Maine property in February 2010. On March 7,

2010, Hibbert received a check for $20,000 from McCormick, which he promptly

deposited in his bank account. That same day, Hibbert and his wife hired a moving truck

and moved out of Bellmawr Park. On March 8, 2010, Hibbert attended a closing for the

Maine property and used $17,000 of the money he had received from McCormick to

cover costs at the closing.

Hibbert claims he was evicted and forced to move out of his New Jersey home on

March 7, 2010, and that the Appellees took advantage of his disability and engaged in a

scheme to acquire his property. At issue on this appeal are three counts against Bellmawr

Park, Levins, and McCormick for breach of contract and for violations of the New Jersey

3
Law Against Discrimination (“NJLAD”)1 and the Fair Housing Act (“FHA”).2 The

District Court granted summary judgment on all three counts.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C.

§ 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s order granting summary judgment, and we apply the same

standard as the District Court.3 We review the record in the light most favorable to the

nonmovant.4 We will affirm summary judgment if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.5

III.

A.

Under New Jersey law, a breach of contract claim requires a plaintiff to prove the

following: “(1) a contract between the parties; (2) a breach of that contract; (3) damages

flowing therefrom; and (4) that the party stating the claim performed its own contractual

obligations.”6 Hibbert asserts that Bellmawr Park breached the Mutual Ownership

Contract by removing him from the Bellmawr Park property in March 2010. The District

1
See N.J. Stat. Ann. § 10:5-12(g)(2).
2
See 42 U.S.C. § 3604(f)(2)(A).
3
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
4
Id.
5
Fed. R. Civ. P. 56(a).
6
Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007).

4
Court noted that the Mutual Ownership Contract constituted a valid contract. The two

relevant provisions of that contract provide that Bellmawr Park must allow a resident

such as Hibbert to peaceably use and enjoy his property without interference as long as

he remains a member of the complex and pays his rent.

The District Court concluded—and we agree—that Hibbert failed to present

sufficient evidence from which a jury could conclude that Bellmawr Park interfered with

Hibbert’s peaceful use and enjoyment of his property. Hibbert did not present sufficient

facts showing that Bellmawr Park coerced him into leaving his property. To the contrary,

the record reflects that Hibbert voluntarily left his New Jersey property to move into the

Maine property: before moving out of the New Jersey residence, he signed an agreement

of sale to purchase a property in Maine; he received $20,000 from McCormick for the

improvements on the New Jersey property; he used most of that $20,000 to cover closing

costs related to his purchase of the Maine property; he attended a closing on March 8,

2010, at which he signed the closing documents; and he moved into the newly acquired

Maine property immediately after closing.

The District Court denied the initial motion for summary judgment on the breach

of contract claim in part because Hibbert had never disclosed his purchase of the Maine

property. The District Court noted in its denial of that first summary judgment motion

that the factual record was unclear about the events leading up to Hibbert’s vacating the

New Jersey premises—on the record at that time, it could not rule out the possibility that

5
a reasonable jury could find that Bellmawr Park and Levins created, or at least

contributed to, circumstances in which Hibbert felt coerced to leave. The District Court

reached this conclusion based on Hibbert’s testimony that he felt overwhelmed and

confused about the events surrounding his vacating the New Jersey residence; that he did

not understand why he had been given a check for $20,000; and that he had no intention

of moving to Maine.

During a period of supplemental discovery, however, the facts of Hibbert’s

purchase of the Maine property came to the surface. The District Court granted the

second motion for summary judgment on the breach of contract claim because the factual

record, as supplemented, showed that Hibbert had intended to move to Maine and that he

had used most of the $20,000 he received from McCormick to purchase the Maine

property. These newly discovered facts, coupled with the absence of evidence of coercion

by the Defendants, led the District Court to determine that no reasonable jury could

conclude that Bellmawr Park and Levins breached their contract with Hibbert. We agree

and will therefore affirm summary judgment on this claim.

6
 B.

The remaining two issues on appeal relate to Hibbert’s claims under the FHA and

NJLAD. Because Hibbert failed to address these issues on appeal, he has waived them.7

Hibbert’s recitation of these issues in the Statement of the Issues section of his brief is

insufficient because he failed to present any argument in support of them.8 We will

therefore affirm the District Court’s order granting summary judgment on the FHA and

NJLAD claims.

C.

The Appellees have also filed motions for damages and costs pursuant to Federal

Rule of Appellate Procedure 38 for the filing of a frivolous appeal. Bellmawr Park and

Levins cite the following in support of their motion: in his opening (and only) brief,

Hibbert failed to cite to the record, filed a defective appendix, alleged facts not in the

7
See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202–03 (3d Cir. 2004)
(“We have held on numerous occasions that an issue is waived unless a party raises it in
its opening brief, and for those purposes a passing reference to an issue will not suffice to
bring that issue before this court.” (internal quotation marks and alteration omitted)).
8
See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (“[U]nder Federal Rule
of Appellate Procedure 28(a)(3) and (5) and Third Circuit Local Appellate Rule 28.1(a),
appellants are required to set forth the issues raised on appeal and to present an argument
in support of those issues in their opening brief. It is well settled that if an appellant fails
to comply with these requirements on a particular issue, the appellant normally has
abandoned and waived that issue on appeal and it need not be addressed by the court of
appeals.” (internal citations omitted)); see also Free Speech Coal., Inc. v. Attorney Gen.,
677 F.3d 519, 545 (3d Cir. 2012) (affirming the district court’s dismissal of claims
because “[p]laintiffs did not include any argument with respect to these claims or
otherwise explain how the District Court erred in dismissing them” and had therefore
“abandoned any issues with respect to these claims”).
7
record, and failed to brief issues related to the NJLAD and FHA claims. An appeal is

frivolous if it is “wholly without merit.”9 As this appeal relates to Bellmawr Park and

Levins, we cannot conclude that it was “‘utterly without basis in law or in fact’ and,

accordingly, an award of damages and costs pursuant to Federal Rule of Appellate

Procedure 38 is unwarranted.”10 The request for damages and costs by Bellmawr Park

and Levins is therefore denied.

As to McCormick, however, the Rule 38 motion will be granted for the following

reasons. The only issue briefed by Hibbert on appeal pertained to the breach of contract

claim, and it is undisputed that McCormick was not a party to that contract. Further,

Hibbert has made no argument that McCormick interfered with that contract other than to

assert that McCormick paid him $20,000. In fact, Hibbert has made no arguments to

justify McCormick’s being a party to this appeal, and the appeal as it relates to

McCormick is thus utterly without basis in law or fact. McCormick’s motion for damages

and costs is therefore granted.11

IV.

We agree with the District Court that Hibbert has not pointed to any evidence

which creates a genuine dispute of a material fact concerning his breach of contract

9
Quiroga v. Hasbro, Inc., 943 F.2d 346, 347 (3d Cir.1991).
10
Agostini v. Piper Aircraft Corp., 729 F.3d 350, 356 (3d Cir. 2013) (quoting
Quiroga, 943 F.2d at 347).
11
McCormick is hereby directed to follow the procedures outlined in Federal Rule
of Appellate Procedure 39(d) to have the amount of damages and costs liquidated.
8
claim. Further, Hibbert has waived his claims for violations of the FHA and NJLAD.

Accordingly, we will affirm the District Court's order granting summary judgment to the

Appellees. Finally, because this appeal was frivolous as it related to McCormick, we will

grant McCormick’s motion for damages and costs pursuant to Federal Rule of Appellate

Procedure 38.

9