SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3253-19

GULBIR KAUR ANAND,

Executor of the Estate of

AMRIT KAUR ANAND,

Plaintiff-Appellant,

v.

UPKAR ANAND , JASJOT 

ANAND, and KIRAN GULATI,

Defendants-Respondents.

___________________________

Submitted April 13, 2021 – Decided April 30, 2021

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-6048-19.

Woolson Anderson Peach, PC., attorneys for appellant 

(Mark S. Anderson, on the briefs).

Upkar Anand, Jasjot Anand and Kiran Gulati, 

respondents pro se.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Plaintiff Gulbir Kaur Anand appeals from the Law Division's April 2, 

2020 order, which granted defendants' motion to dismiss her complaint "on both 

the basis of improper venue and forum non conveniens." Because the record 

developed before the trial court is insufficient to permit appellate review, we are 

constrained to vacate the court's order and remand for further proceedings.

We begin by summarizing plaintiff's factual allegations as set forth in her 

barebones complaint. Plaintiff is the executor of the estate of Amrit Kaur Anand 

(Amrit),1 who died in January 2015. Prior to her death, Amrit executed a power 

of attorney in favor of defendant Upkar Anand (Upkar). According to the 

complaint, Amrit owned real property. Acting pursuant to the power of attorney, 

Upkar sold the property, but did not "fully and completely account to" Amrit for 

the proceeds of the sale.

Upkar allegedly gave some of the money to defendant Jasjot Anand 

(Jasjot) and also used some of the funds to acquire assets in Jasjot's name. 

Plaintiff also alleged that Upkar improperly gave money from the sale of Amrit's 

property to defendant Kiran Gulati (Kiran) or used that money to buy assets in 

1

 Because plaintiff, the decedent, and two of the three defendants share the same 

surname, we refer to Gulbir Kaur Anand as "plaintiff," and to the decedent and 

all three defendants by their first names in order to avoid confusion. In doing 

so, we intend no disrespect.
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Kiran's name. Plaintiff alleged that after Amrit died, Upkar declined to provide 

an accounting to the estate for these funds despite her repeated requests that he 

do so.

In her five-count complaint, plaintiff asserted that Upkar breached his 

fiduciary obligation to transfer the funds from the sale of the property to the 

estate (count one); had been unjustly enriched by his retention of the funds 

(count two); and improperly converted the proceeds to his own use or the use of 

others (count three). Plaintiff also alleged that both Jasjot (count four) and Kiran 

(count five) were unjustly enriched by receiving this money from Upkar.

Defendants filed an answer and, before any discovery was taken, 

submitted a motion to dismiss the complaint because they believed it was 

improperly venued in Bergen County.2 Defendants did not file any certifications 

or affidavits setting forth any facts and, although it appears they submitted 

documents with their motion, the parties dispute whether the documents they 

submitted are the same as those included in their appellate appendix.

2

 All three defendants lived and were served with process in Bergen County. 

Plaintiff lived in Somerset County. Plaintiff had earlier filed a complaint against 

Upkar and Jasjot in Somerset County, but the trial court in that vicinage 

dismissed it without prejudice after it concluded that plaintiff's action was 

improperly venued in Somerset County. Plaintiff did not file a notice of appeal 

from this decision.
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Defendants argued that Amrit executed the power of attorney in the United 

Kingdom and that the property that Upkar sold was located in India. They 

argued that the land sale was consummated in India and that all the proceeds 

were held there in banks. In addition, defendants claimed that Amrit's will had 

been probated in the United Kingdom. Again, defendants did not submit any 

certifications verifying these factual assertions and plaintiff disputed many of 

them at the trial level.

Although defendants were relying on unverified facts outside the four 

corners of plaintiff's complaint, the trial court did not convert defendants' motion 

to dismiss to a motion for summary judgment as required by Rule 4:6-2(e). And, 

although defendants' factual assertions raised questions of jurisdiction, the court 

disposed of the motion to dismiss on venue grounds. 

The court found that plaintiff's complaint was an action that dealt with a 

matter "affecting title to real property or a possessory or other interest therein, 

or for damages thereto" and, therefore, the action had to be venued where the 

property was located, the country of India, under Rule 4:3-2(a)(1). To support 

this conclusion, the court made only the following sparse findings:

In the instant action, the real property at issue is 

located in India and all of the transactions at issue took 

place in the United Kingdom. The only nexus to 

Bergen County is that the defendants reside here. This 
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nexus is not enough to sustain this court's jurisdiction. 

The estate was probated in the United Kingdom and the 

real property at issue is located in India. The decedent 

executed a [p]ower of [a]ttorney in the United 

Kingdom. None of the transactions at issue took place 

in Bergen County and therefore the [c]ourt must 

dismiss the action on both the basis of improper venue 

and forum non conveniens.

In making this ruling, the trial court failed to consider plaintiff's 

contention that she was not disputing Upkar's authority under the power of 

attorney to sell Amrit's property, and she was not challenging the sale of that 

property. Instead, plaintiff was merely seeking an accounting, as the executor 

of Amrit's estate, of how Upkar disposed of the proceeds of that sale. Therefore, 

plaintiff argued that she had properly filed her complaint in Bergen County 

under Rule 4:3-2(a)(3), which states that unless otherwise specified in the Rules 

of Court, venue "shall be laid in the county in which the cause of action arose, 

or in which any party to the action resides at the time of its commencement." 

This appeal followed.

On appeal, plaintiff argues that the trial judge incorrectly dismissed her 

complaint on an incomplete record without fully considering her arguments. We 

agree.

We review a grant of a motion to dismiss de novo, applying the same 

standard under Rule 4:6-2(e) that governed the motion court. Frederick v. 
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Smith, 416 N.J. Super. 594, 597 (App. Div. 2010). Such review "is limited to 

examining the legal sufficiency of the facts alleged on the face of the complaint," 

and in determining whether dismissal under Rule 4:6-2(e) is warranted, the court 

should not concern itself with the plaintiff's ability to prove her allegations. 

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).

Here, however, defendants made factual assertions that were not only 

outside the pleadings, but were also not supported by certifications or affidavits. 

Thus, rather than considering defendants' motion to dismiss and relying upon 

these unsupported factual claims, the trial court should have converted it to a 

motion for summary judgment, required the parties to submit the required 

certifications or affidavits, and, as required by Rule 4:6-2(e), disposed of the 

matter as provided by Rule 4:46. Lederman v. Prudential Life Ins. Co., 385 N.J. 

Super. 324, 337 (App. Div. 2006). Because the court failed to do so, we vacate 

the April 2, 2020 order dismissing plaintiff's complaint and remand for further 

proceedings.

To provide further guidance to the court and the parties on the remand, we 

add the following brief comments. While venue is important in this, as in any 

other case, "[v]enue requirements are not jurisdictional." State, Dep't of Env't. 

Prot. v. Middlesex Cnty. Bd. of Chosen Freeholders, 206 N.J. Super. 414, 420 
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(Ch. Div. 1985) (citing Doyley v. Schroeter, 191 N.J. Super. 120, 123 (Law Div. 

1983)). Instead, these requirements "are rules of practice designed to place 

litigation at a location convenient to parties and witnesses." Ibid. (citing 

Doyley, 191 N.J. Super. at 126-28).

Here, the primary issue that needs to be immediately addressed on a full 

factual record is whether New Jersey properly has jurisdiction over the parties' 

dispute. Plaintiff's complaint contains only meager information concerning 

where the cause of action may have arisen and where Upkar may have 

distributed the proceeds of the sale of Amrit's property to himself and the other 

two defendants. Defendants allege that the money remained in India where the 

property was located, but they provided no proof this was the case.

Under these circumstances, the trial court should permit the parties to 

engage in a period of "jurisdictional discovery" before considering a motion for 

summary judgment. See Rippon v. Smigel, 449 N.J. Super. 344, 359 (App. Div. 

2017) (quoting Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 

2003)). The trial court should also consider whether a "preliminary evidential 

hearing" on the issue of jurisdiction is necessary after the parties are afforded 

"an appropriate opportunity for discovery." Ibid. (quoting Citibank, N.A. v. 

Estate of Simpson, 290 N.J. Super. 519, 532 (App. Div. 1996)). If the question 
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of jurisdiction is resolved in favor of New Jersey having jurisdiction of this 

dispute, the trial court may then address the venue issue.

In addressing that issue, the court should consider the doctrine of forum 

non conveniens anew because it was inadequately addressed in the court's short 

April 2, 2020 decision. This doctrine, which is codified in Rule 4:3-3(a)(3), 

allows a court to "decline jurisdiction where there is available another forum 

where trial will best serve the convenience of the parties and the ends of justice." 

Gore v. U.S. Steel Corp., 15 N.J. 301, 305 (1954).

However, it is well settled that before the doctrine is applied in a case, the 

trial court should first allow the parties to conduct sufficient discovery in order 

"to enable the court to make a better-informed assessment" of the factors to be 

considered in applying this Rule. D'Agostino v. Johnson & Johnson, Inc., 115 

N.J. 491, 494 n.1 (1989). This principle therefore provides further support for 

our conclusion that the trial court should not consider a motion for summary 

judgment in this case until the completion of a period of discovery, the 

parameters of which the court can set in a case management order.

Finally, we again note that the trial court's decision in this matter was 

largely conclusory and lacked meaningful findings of fact. As we have recently 

observed, "our function as an appellate court is to review the decision of the trial 
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court, not to decide the motion tabula rasa." Estate of Doerfler v. Federal Ins. 

Co., 454 N.J. Super. 298, 301-02 (App. Div. 2018). Like every other case that 

comes before our courts, the resolution of this matter "required a careful analysis 

and the requisite findings to insure a just result." Bailey v. Bd. of Review, 339 

N.J. Super. 29, 33 (App. Div. 2001). Here, the trial court did not identify the 

source of the limited fact findings it made, did not consider plaintiff's arguments 

on the venue question, and conflated that question with the issue of jurisdiction. 

On remand, we are confident that the court will clearly state its "factual findings 

and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 

N.J. 563, 569-70 (1980).

In sum, we vacate the trial court's April 2, 2020 order and remand for 

further proceedings consistent with this opinion. Nothing within this opinion 

forecasts any view on the merits of plaintiff's claims against defendants nor on 

the question of whether defendants may be entitled to prevail on these issues 

after a fuller record is developed and presented to the trial court. We say no 

more than that the issues were not fully ripe for decision.

Vacated and remanded. We do not retain jurisdiction.