Opinion
DOCKET NO. A-5628-11T2
03-25-2013
MARTINE BANKS, Plaintiff-Respondent, v. SANDRA DIAZ, Defendant-Appellant/Cross-Respondent, and SANDRA ROUSE, Defendant-Respondent/Cross-Appellant, and JAMES MACKINTOSH, Defendant-Respondent, and VIRTUA HEALTH, INC., d/b/a VIRTUA MEMORIAL HOSPITAL, Defendant.
Thompson, Becker & Bothwell, LLC, attorneys for appellant/cross-respondent (Deborah A. Plaia, on the brief). Sandra Rouse, respondent/cross-appellant pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-4043-10.
Thompson, Becker & Bothwell, LLC, attorneys for appellant/cross-respondent (Deborah A. Plaia, on the brief).
Sandra Rouse, respondent/cross-appellant pro se. PER CURIAM
In these unopposed appeals, defendant Sandra Diaz, and her mother, defendant Sandra Rouse, seek review of two discrete paragraphs within the trial court's July 6, 2012 order dismissing plaintiff Martine Banks's complaint with prejudice. The two paragraphs in question imposed prospective civil restraints upon Diaz and Rouse, enjoining them from having contact with Banks without her permission. For the reasons that follow, we vacate those injunctive provisions.
The limited record furnished to us by appellants reflects the following background. Plaintiff Banks had a long-standing relationship with co-defendant James MacKintosh and she had a child with him. Eventually, MacKintosh began having a relationship with Rouse. That relationship apparently caused Banks to have medical, physical, and emotional issues and she was hospitalized multiple times. On one such hospitalization, Banks was admitted to co-defendant Virtua Memorial Hospital ("Virtua") where Diaz coincidentally was employed. Diaz then allegedly obtained unauthorized computer access to Banks's medical records. Diaz contended that she had done so for benign reasons, in order to know where in the hospital Banks was being kept so that she could stay away from her. In any event, the hospital terminated Diaz because of her actions.
Plaintiff Banks brought the present action in the Law Division against Diaz, Virtua, Rouse, and MacKintosh, alleging, among other things, infringement of her right to medical privacy. During the course of the litigation, summary judgment was granted to Rouse and MacKintosh. Eventually, a settlement was negotiated between Banks, Diaz, and Virtua. The trial court severed Diaz's third-party complaint against Virtua for her allegedly wrongful termination.
The record further indicates without elaboration that before the settlement was consummated, the trial judge interviewed Banks. The interview was not transcribed, and evidently Diaz's counsel was not present for it.
Given the incomplete nature of the record, we do not know exactly why the judge interviewed Banks. We recognize that it is possible that the judge did so at the request of counsel in order to facilitate settlement negotiations.
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The only transcript provided to us is a transcribed telephone conference of June 5, 2012, solely involving Banks's counsel and the trial judge. None of the other remaining defendants or their attorneys were on the phone. The ex parte discussion, which took place on the record, begins with Banks's counsel reporting that her claims against Diaz and Virtua had settled. The judge advised Banks's attorney that he was going to require that the settlement order contain provisions directing that Diaz cease and desist from any and all disparaging remarks and comments, or otherwise to refrain from contact with plaintiff. The judge also asked that a similar provision be included in the order regarding Diaz's mother, co-defendant Rouse, even though Rouse had already been dismissed from the case on summary judgment. The judge suggested that language customarily used in domestic violence restraining order cases could be adapted for use in the order.
Adhering to the judge's instruction, Banks's counsel presented, under the five-day rule, Rule 4:42-1(c), a proposed form of order dismissing the case. The proposed order contained provisions reciting that Diaz "is enjoined and restrained from contacting plaintiff at her home or place of work without plaintiff's express permission[.]" In addition, the order specified that Rouse "is enjoined and restrained from having any contact with plaintiff without plaintiff's express permission. This includes any written communication, telephonic communication, personal communication, communication through a third party, or any other conduct committed with the purpose of annoying or alarming plaintiff." Rouse was also to be enjoined by the proposed order from "engaging any third party to contact plaintiff." The order further recited that it will serve as notice to defendants Diaz and Rouse "that should they violate any of the terms of this order with respect to communicating with plaintiff, Martine Banks, the court retains jurisdiction and upon application may entertain an order to show cause as to why [they] should not be found in contempt of court for violating the provisions regarding communication and contact."
Counsel for Diaz then wrote a letter to the court objecting to the inclusion of the proposed injunctive language in the order. The judge nevertheless signed the order. The record lacks an oral or written statement of reasons from the judge indicating why he rejected the objection.
Diaz and Rouse each now appeal, contending that there is no evidential basis for the trial court to have issued civil restraints against them as part of the settlement order. See Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982). They also contend that they were deprived of fair advance notice of the telephone conference in which the judge, sua sponte, suggested the inclusion of such restraints in the settlement order. See H.E.S. v. J.C.S., 175 N.J. 309, 321-22 (2003). They further point out that the trial judge failed to provide them with a hearing on the objection to the proposed order, nor with a statement of reasons explaining why he rejected that objection. See R. 1:7-4 (requiring a trial court to provide a statement of reasons for its dispositions); but see Rule 4:42-1(c) (noting that if an objection is made to an order under the five-day rule, "the matter may be listed for hearing in the discretion of the court").
We agree with appellants' contentions concerning the lack of a proper evidential record to support the sua sponte injunctive restraints and the absence of appropriate notice permitting an opportunity to present arguments as to why such restraints were unnecessary. Indeed, Banks did not seek any injunctive relief either in her complaint or her amended complaint.
Although we conceivably might have remanded this matter to the trial judge for a statement of reasons, we discern no necessity to do so here since Banks, whose counsel was served with the respective notices of appeal by Diaz and Rouse, has not filed opposition to the appellate relief that they have sought. Consequently, we presume that Banks has no continued desire or need for the restraints. We therefore direct the trial court to issue an amended final order within twenty days vacating the restraint provisions.
Remanded as to the appeal and cross-appeal. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION