CHARLES L. DIETZEK, D.O. VS. VOORHEES WHITE HORSE, LP (L-2431-14, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2664-17T2

CHARLES L. DIETZEK, D.O.,
FACOS, PC d/b/a VEIN AND
VASCULAR INSTITUTE, CREAD
MANAGEMENT, INC., and
CHARLES L. DIETZEK, D.O.,
FACOS,

Plaintiffs-Respondents,

v.

VOORHEES WHITE HORSE, LP,

Defendant-Appellant.
______________________________

Argued March 4, 2019 – Decided March 21, 2019

Before Judges Messano and Fasciale.

On appeal from Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-2431-14.

Matthew A. Green argued the cause for appellant
(Obermayer Rebmann Maxwell & Hippel LLP,
attorneys; Matthew A. Green and Samantha J.
Koopman, on the brief).
 Mark P. Asselta argued the cause for respondents
(Brown & Connery LLP, attorneys; Mark P. Asselta, on
the briefs).

PER CURIAM

In this commercial landlord-tenant case, the Landlord (defendant) appeals

from the enforcement of litigants' rights and the award of attorney's fees.1 The

order enforcing litigant's rights generally compelled defendant to have a new

roof installed, have an appropriate contractor do air conditioning work, provide

documentation, and properly bill for purported maintenance in the common area.

If defendant failed to do those things, the same order imposed a per diem penalty

against defendant. The same order enforcing litigants' rights permitted a later

counsel fee application, which plaintiff filed and another judge granted on

March 16, 2018. The first judge enforced litigants' rights in plaintiffs' favor

without conducting oral argument, even though there existed disputed facts. We

1
In its Notice of Appeal (NOA), defendant identified only one order dated
January 5, 2018. In its Case Information Statement (CIS), defendant identified
two orders dated January 5, 2018. In its CIS, we presume defendant meant the
January 5, 2018 order identified in the NOA, which granted tenants' (plaintiffs)
motion in aid of litigants' rights, and a different January 5, 2018 order denying
defendant's motion in aid of litigants' rights. In its merits brief, defendant
requests that we reverse the orders dated January 5, 2018 and a March 16, 2018
awarding counsel fees to the plaintiffs. Defendant did not list the March 16,
2018 order in the NOA or CIS.

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reverse the January 5, 2018 orders and the related March 16, 2018 order

awarding counsel fees, remand, and direct the judge to conduct a hearing to

resolve all issues.

We reach this result for two main reasons. First, we cannot resolve the

factual disputes. Defendant maintains that it satisfied its obligation to have a

new roof installed. 2 As part of the resolution of the disputed factual issues, the

judge must address defendant's assertions that plaintiffs prevented it from

complying with previous orders, and that the orders under review erroneously

enforced rights that never existed. Second, the entry of the orders on November

7, 2018 and February 25, 2019, which occurred during the pendency of this

appeal without our knowledge, directly affect the soundness of the orders under

review.

Essentially, the judge's finding in February 2019—that defendant had

timely installed the roof—adjudicates what we deem to be defendant's lateral

appeal from the January 5, 2018 order compelling defendant to install the roof.

2
On November 7, 2018, the second judge imposed additional related per diem
penalties against defendant. On February 25, 2019, that same judge conducted
oral argument on defendant's motion to reconsider the November order and
found defendant had installed the new roof in December 2017, which was before
the entry of the orders on review. In the February 25, 2019 order, that same
judge required defendant to pay additional fees for purported incomplete repair
work, even though he found defendant had a new roof installed.
A-2664-17T2
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The parties should have sought leave from us seeking a limited remand to

resolve the factual dispute about whether the premises had a new roof. Instead,

because of the improper developments during the pendency of this appeal,

defendant filed a motion on the Friday before our oral argument, seeking to

supplement the record with only the February 25, 2019 order entered after the

second judge made his findings.

Reversed and remanded. We do not retain jurisdiction.

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