SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3894- 21 FRANK HOLTHAM, JR., (as Successor Personal Representative for the Estate of Frank Holtham, Sr. and Derivatively on Behalf of CP&F Realty, LLC), Plaintiff-Appellant,

v. CATHERINE A. HOLTHAM (as purported current Manager for CP&F Realty, LLC, as co -Personal Representative for the Estate of Patricia D. Holtham and Individually) and PATRICIA M. HOLTHAM (as co-Personal Representative for the Estate of Patricia D. Holtham and Individually), Defendants-Respondents.

___________________________

Argued January 9, 2024

– Decided August 22, 2024 Before Judges Gooden Brown and Puglisi.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3894

- 21 On appeal from the Superior Court of New Jersey,Chancery Division, Bergen County, Docket No. C000056

- 22. Mark E. Critchley argued the cause for appellant (B rach Eichler LLC, attorneys; Bob Kasolas and Mark E. Critchley, on the briefs ). Alexandra V. Gallo argued the cause for respondents Catherine A. Holtham and Patricia M. Holtham (O'Toole Scrivo, LLC, attorneys; Alexandra V. Gallo , of counsel and on the brief; Joseph R. Marsico, on the brief).
PER CURIAM Plaintiff Frank Holtham, Jr., in his capacity as su ccessor personal representative (SPR) for the Estate of Frank Holtha m, Sr., and derivatively on behalf of CP&F Realty, LLC (CP&F Realty), appeal fr om a July 8, 2022, Chancery Division order dismissing his complaint wi thout prejudice against defendants Catherine A. Holtham (Cathy), 1 as co-Personal Representative for the Estate of Patricia D. Holtham and sole manager of CP&F Realty, and Patricia (Patty) M. Holtham, as co-Personal Representative f or the Estate of Patricia D. Holtham. Plaintiff also appeals from the July 27, 2022, order granting

1 Because of the common surname, we use first names t o avoid confusion and intend no disrespect.3 A- 3894

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defendants' motion to seal portions of the record p ursuant to Rule 1:38

- 11 . We affirm.
I. We glean these facts from the motion record. Frank, Jr. , Cathy, and Patty are the children of Frank, Sr. and Patricia, who ar e now both deceased. During their lifetime, Frank, Sr. and Patricia owned and o perated two automobile dealerships, Glen Motors, Inc. (Glen Motors) and To yota of Hackensack. Generally, their ownership interests in the businesses were split sixty percent to Frank, Sr., and forty percent to Patricia. In 1998, Frank, Sr. sold Toyota of Hackensack to Fr ank, Jr. In 2004, Frank, Sr. decided to buy property in Glen Rock (th e Glen Rock property) to use

as a service center for Glen Motors and asked Frank, Jr. to perform the closing. In 2006, Frank, Jr. deeded the Glen Rock property t o CP&F Realty, claiming that he acted at Frank Sr.'s behest. However , CP&F Realty was an LLC owned equally by the three children and managed by Frank, Jr., and i n a subsequent certification, Cathy averred that no one in the family was aware that Frank, Jr. had deeded the Glen Rock property to CP&F Realty an d not directly to Frank, Sr. and Patricia as 60/40 owners.4 A- 3894

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Frank, Sr. passed away on January 29, 2010, while h e and Patricia were residents of

Florida. Frank, Sr.'s will was admitted to probat e in Sarasota County, Florida, on March 31, 2010. Pursuant to Fr ank, Sr.'s will, Patricia was appointed personal representative of Frank, Sr.'s E state and was issued Letters of Administration. Frank, Jr. was named as the SPR

. The will also nominated Patricia and Frank, Jr. to serve "as [c]o-Trustees of any trust created under [the will] for the benefit of [Patricia]." It nominated Cathy to serve if any of the trustees died or became incapacitated, and Patty "t o serve as [s]uccessor [c]oTrustee" in the event of Cathy's incapacitation. F or all other trusts, the will nominated Frank, Jr., Cathy, and Patty to serve as co-Trustees. Within the will, Frank, Sr. created two trusts, the "Family Part" and the "Spouse's Part." The Spouse's Part consisted of al l assets that qualified for the marital deduction, and the Family Part consist ed of the residuary estate. Despite the fact that on July 12, 2012, the Sarasota County probate court found that Frank, Sr.'s estate had been "fully administered an d properly distributed" and discharged Patricia as personal representative, dur ing the ensuing years, disagreements arose in the family regarding the adm inistration of the estate and the ownership and distribution of assets. For example, Frank, Jr. believed he was the only trustee with the power to make distrib utions from the Family Part5 A- 3894

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trust. On the other hand, defendants believed the will gra nted Patricia a testamentary power of appointment (POA) so that she could direct the assets and "pay over, transfer, convey, assign and administer upon suc h estates," including any property held in trust by Frank, Sr.'s estate. As a result of these family disagreements, in 2014, Cathy, Patty, Patricia, and Glen Motors sued Frank, Jr., alleging that he h ad "been stealing from Glen Motors," which he managed, and "diverting money to Toyota of Hackensack and to himself personally." To resolve the lawsuit, in February 2015, a settlement agreement was entered by the parties, which agreement was supplemented on March 30, 2015 (collectively, the 2015 settlement a greement). Among the terms of the settlement, the parties agreed to confidentiality based on "legitimate business interests," and included limitations on th e disclosure of the settlement terms. The agreement also required the Glen Rock p roperty to be split, sixty percent to Frank, Sr.'s estate and forty percent to Patricia. In addition, the agreement specified that Frank, Jr., Patricia, Patt y, and Cathy had "the right of first refusal at fair market value if another party w ant[ed] to sell their respective dealership interest" in order to ensure that both dealerships stayed in the family. As such, the agreement required the parties to send each other written notice if there was to be a sale.6 A- 3894

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The lawsuit prompted Patricia, Cathy, and Patty to draft a new operating agreement for CP&F Realty. Under the operating agreement adopted when the company was formed, Frank, Jr., Cathy, and Patty ea ch had a 33.3% membership interest, and Frank, Jr. was the sole manager. However, o n December 22, 2015, a new operating agreement was issued stating that C P&F Realty 's only members were the estate of Frank, Sr. with a sixty percent ownership interest and Patricia with a forty percent ownership interest. The new operating agreement also specified that the preceding operating agreement "w as never binding " on the company or its members, that Frank, Jr. "ha[d] sinc e acknowledged that he [was] not a member of [CP&F Realty]," and that going forward, its manager would be Cathy. Patricia executed the new operating agreement in bo th her personal capacity and as personal representative of Frank, S r.'s estate. The family disputes continued and largely revolved around the ownership of CP&F Realty and Glen Motors as those were the mo st valuable assets in Frank, Sr.'s estate. In 2015 and 2016, certain rea l estate transactions were consummated that led to further disagreements betwe en the parties. Frank, Jr. claimed that on December 30, 2015, Cathy in her cap acity as manager of CP&F Realty, sold the Glen Rock property to a third part y for $4 million and that he
never received notice of the sale. He claimed this was a vi olation of his right of7 A- 3894

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first refusal encompassed in the 2015 settlement ag reement. Frank, Jr. also claimed that on June 24, 2016, CP&F Realty bought p roperty located at 19- 01 Pollitt Drive in Fair Lawn (the Pollitt Property) f or $4.4 million from PAC Management LLC (PAC). He asserted the purchase was a fraud upon CP&F Realty and himself because "PAC does not readily ap pear to have had any legitimate or justifiable business or legal reason to sell the [Pollitt Property] to CP&F [Realty], and/or to incur the corresponding ad ditional realty transfer taxes and fees associated with that transaction." A ddition ally , Frank, Jr. claimed that on December 21, 2016, Patricia "fraudulently" sold a sixty percent interest in Glen Motors to Cathy and Patty "in exchange for pro missory notes." He claimed he never received notice about the purchase in viol ation of the 2015 Settlement Agreement and his right of first refusal. Frank, J r. also asserted Patricia never deposited the promissory note payments into Frank, Sr.'s estate as required. In 2020, Patricia petitioned to reopen Frank Sr.'s estate. On November
23 , 2020, the Sarasota Circuit court granted the petiti on, reinstated Patricia's Letters of Administration, and order ed the estate reopened "for the purposes of allowing the Personal Representative to marshal the assets [and] distribute the assets" in accordance with Frank, Sr.'s will and th e prior orders of the court. On February 5, 2021, Patricia filed a petition for dis charge and a First and Final8 A- 3894

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Accounting of the Estate. As part of her petition, Patricia set forth a plan of distribution directing all assets remaining in Fran k, Sr.'s estate, including the sixty percent stake in CP&F Realty, to be moved int o trust in accordance with Frank, Sr.'s will. On March 5, 2021, Frank, Jr. fi led objections to the accounting of Frank, Sr.'s estate , generally objecting to Patricia 's "administration of the Trust's assets . . . for . . . eight years" since h er discharge on July 12, 2012,

" without his knowledge, participation, or consent." Among his specific objections, Frank, Jr. stated the sale of the Glen Rock property for $4 million should have been accounted for by CP&F Realty , but instead was valued on the Final Accounting at "its initial carrying value of $328,000 as of [December 31,
2020 ]." Frank Jr. also objected to the sale of the sixty pe rcent interest of Glen Motors, arguing it was "far below market value" and the sale required "his knowledge or consent as co-trustee" of the trust holding CP&F R ealty. Prior to the estate being closed, Patricia passed aw ay on April 7, 2021. In Patricia's will, she appointed Cathy and Patty as h er co-Personal Representatives. In the will, she also exercised h er "powers of appointment given" in Frank, Sr.'s will and directed that "all assets" subject to those powers of appointment be distributed to the Patricia D. Ho ltham Revocable Trust Agreement (Patricia's Trust). The will also direct ed "the rest, residue and9 A- 3894

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remainder" of Patricia's assets to go into Patricia 's Trust, of which Cathy and Patty were the beneficiaries. As part of the will and Patricia's trust, Cathy and Patty also received Patricia's forty percent intere st in CP&F Realty in equal parts. After Patricia's death, the parties continued to en gage in extensive litigation in both Florida and New Jersey. On June 11, 2021, Frank, Jr. filed a complaint and order to show cause in the Law Divisi on against Cathy, Patty, PAC, Patricia's estate, and nominal defendants , including Glen Motors and CP&F Realty, seeking temporary restraints and alleg ing breach of the 2015 settlement agreement, conversion, and fraud. While litigating the June 11, 2021, complaint, Frank, Jr. petitioned the Sarasota Count y probate court to be appointed SPR of Frank Sr.'s estate. The petition was granted on December 29, 2021. Defendants appealed the determination, and t he appeal is currently pending. On January 18, 2022, defendants petitioned the Sara sota Circuit court to compel distributions from Patricia's Trust. Defend ants claimed because Frank, Sr.'s will had granted Patricia powers of appointme nt (POA), and Patricia had exercised the POA to transfer the assets to Patrici a's Trust, the assets, including the sixty percent stake in CP&F Realty, were no lon ger part of Frank, Sr.'s estate10 A- 3894

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or Patricia's estate, were not assets subject to co ntrol by any fiduciary of Frank, Sr.'s estate, and should be distributed accordingly

. In February 2022, Frank Jr. opposed the petition by filing an answer and a counter-petition, arguing that there was still an "actual, presently existing, and justiciable controversy" between the parties. He c laimed that although Patricia had a POA over the assets and property in the Famil y Part Trust of Frank, Sr.'s estate, if she had used the power properly, it would have res ulted in the division of equal shares of the assets in the trust among al l three siblings. However, Frank, Jr. asserted that the Fa mily Part Trust has never been funded by Patricia with any assets, including the sixty percent intere sts in Glen Motors and CP&F Realty. Therefore, Frank stated the trust could no t be "retroactively funded" with the assets, and "there is a bona fide, actual, present and practical need for a declaration of the effectiveness of the exercise of the [POA] by [Patricia] and the parties' rights under the Family Part Trust." The effectiveness of the exercise of the POA to distribute Frank, Sr.'s estate assets an d the construction of Frank, Sr.'s will are still under consideration by the Sar asota Circuit court. During the pendency of the Sarasota Circuit court l itigation, on May 7, 2021, Glen Motors sued Frank, Jr. and various entit ies under his control in the Law Division for failing to make payments to Glen M otors on a promissory note11 A- 3894

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as required by the 2015 settlement agreement. Shortly thereafter, on June 11, 2021, Frank, Jr. filed a complaint in the Law Divis ion against Patricia's estate, Cathy, Patty, and nominal defendants, including Gle n Motors and CP&F Realty , claiming the sale of the Glen Rock property and the sale of Frank, Sr.'s sixty percent Glen Motors interest violated his right of first refusal encompassed in the 2015 settlement agreement. The complaint alleg ed breach of contract, breach of implied covenants of good faith and fair dealing, unjust enrichment, equitable fraud and fraud in the inducement, wrongf ul conversion of assets, tortious interference with prospective economic adv antage and contractual relations, and promissory estoppel. Frank, Jr. req uested specific performance of his right of first refusal to the sales of the Glen Motors and CP&F Realty interests to Cathy and Patty and sought an order co mpelling Cathy and Patty to transfer title of the interests to him at the same price they paid. On June 29, 2021, the two Law Division actions were consolidated, and the litigation is still ongoing. On December 9, 2021, the Law Division judge ordered the 2015 settlement agreement sealed and re dacted from the record, as it was attached as an exhibit to Frank, Jr.'s complaint. On March 28, 2022, Frank, Jr. filed the complaint t hat is the subject of this appeal in the Chancery Division. Frank, Jr., brought the action directly in12 A- 3894

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his capacity as SPR of Frank, Sr.'s estate, and derivat ively as an oppressed member action on behalf of CP&F Realty , of which he argued Frank, Sr.'s estate was a sixty percent majority owner. In the complai nt, Frank, Jr. alleged that Patricia's Estate and Cathy had breached CP&F Realt y's amended operating agreement, breached their fiduciary duty of care an d loyalty to Frank, Sr.'s estate by, among other things, failing to appoint counsel to represent CP&F Realty in the Law Division action , converted Glen Rock property sale proceeds, and unjustly enriched themselves. Frank , Jr. requested the removal of Cathy as manager of CP&F Realty, appointment of Frank, Jr. a s the new manager, dissolution of CP&F Realty or appointment of a provisional director or custodian in the alternative, inspection of all CP& F Realty's financial records, and imposition of a constructive trust for Frank, S r.'s estate and CP&F Realty. Frank, Jr. also sought an order to show cause with temporary restraints, primarily seeking to temporarily enjoin Cathy from acting as the manager of CP&F Realty and from engaging in financial transact ions on CP&F Realty's behalf. Frank, Jr. also sought an order directing Cathy to turn over all financial records of CP&F Realty for a full accounting. On A pril 20, 2022, following a hearing during which defendants opposed the applica tion, the judge declined to impose temporary restraints. In an oral opinion, t he judge determined plaintiff13 A- 3894

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did not meet the standard for temporary restraints under Crowe v. De Gioia , 90
N.J. 126 , 132- 34 (1981). On June 1, 2022, the return date of the order to sh ow cause, the judge held a hearing on Frank, Jr.'s application for a preliminary injunct ion and other relief

. During the hearing, relying on his Florida counsel' s certification, Frank, Jr. argued that a decision by the Sarasota Circuit cour t on the POA was "not getting resolved soon." He urged that he was currently a sixty percent memb er of CP&F Realty as successive personal representative of Fra nk, Sr.'s estate and had the statutory authority to remove Cathy as manager and inspect the financial records. In an order issued the same day, the judge rejected Frank, Jr.'s contentions and denied the application. In an oral opinion, th e judge found "no immediate and irreparable harm; no well-settled legal right; no reasonable probability of success on the merits," and "no hardship to Frank, Jr." i n denying an injunction. The judge explained:

As I see it, the issue in this case is governed by the determination of the court in Florida as to whether the exercise of the power of appointment of Patricia .

. . with respect to CP&F [Realty] was proper. That mat ter is pending in front of a court or courts in Florida . It has not been decided. And when it will be decided is certainly open to question. I do agree . . . that it's not likely to happen any time soon.14 A- 3894

- 21 . . . [U]ntil that matter is determined, then the ultimate beneficiaries of CP&F [Realty] are unknown

. Yes, as of this moment, [Frank, Jr.] is the represe ntative of the Estate of [Frank, Sr. ]. And the estate purportedly owns a [sixty] percent interest in CP&F [Realty]. The difficulty with that is, what does that mean in thi s context? At best, Frank, Jr., owns [twenty] percen t of CP&F [Realty]. He cannot do any better than [twent y] percent. The defendants cannot do any worse than [eighty] percent of CP&F [Realty]. And may in fact own 100 percent of CP&F [Realty]. Until that issue gets determined, this requested relief is . . . premature. On June 10, 2022, defendants moved to dismiss Frank Jr.'s complaint pursuant to Rule 4:6 -2(e) and to seal the 2015 settlement agreement. Followin g oral argument conducted on July 8, 2022, the judge granted both motions. The judge noted that although he was not bound by the Law Di vision judge 's sealing order, declining to seal the record would "essentia lly undo[]" the prior order, and would be "inconsistent ," "untenable ," and "unworkable." Additionally, the judge pointed out that "the parties [had] in fact a greed to a confidentiality agreement." As such, the judge sealed the portions of the recor d disclosing the contents of the 2015 settlement agreement. Turning to the motion to dismiss, the judge found there was "an issue of ripeness" due to the ongoing Florida litigation. T he judge explained:15 A- 3894

- 21 And if I think there[ is] an issue of ripeness, the n I have to apply, is this fit for judicial review to day and what are the hardships if the review is withheld. .

. . There is no . . . hardship to Frank, Jr. [] today if judicial review is withheld, assuming that I dismiss without prejudice. He has whatever claims he may have. He can pursue those claims once this issue in Florida is fully and finally resolved. Accordingly, the judge dismissed the complaint with out prejudice. After the ruling, Frank, Jr. asked for clarification as t o whether the estate of Frank, Sr. would experience any hardship inasmuch as Frank, Jr . was bringing the claims on behalf of the estate in his capacity as the succ essive personal representative. The judge found that there were no hardships to the estate, explaining:

I do [ not] think it[ is] a hardship to Frank, Jr., nor do I think it[ is] a hardship to Frank, Sr.'s [] Estate. . . . With respect to the issue of Frank, Sr.'s [] Estate, the beneficiaries of that estate, Frank, Jr., may be th e current personal representative. If he remains tha t and if the courts down there determine . . . the owners hip, I do [ not] think there[ is] any harm to Frank, Sr.'s [] Estate. Those claims will remain in effect as well.
You [ ha ve ] got competing interests here. You [ ha ve ] got Frank, Jr. . . . . trying to exercise rights that are not really at the end of the day or very w ell may not be for his benefit. And I still do [ not] think there [ is] a hardship

-- I do not believe there[ is] a hardship either to Frank, Jr., or to Frank, Sr.16 A- 3894

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The judge issued an order granting defendants' mot ion to dismiss the complaint without prejudice on July 8, 2022, and is sued an order sealing the 2015 settlement agreement on July 27, 2022. This appeal followed.
II. On appeal, Frank, Jr. argues his claims are ripe be cause he currently has standing as SPR of Frank, Sr.'s estate, which is a sixty pe rcent interest holder in CP&F Realty, and he has a fiduciary duty to protect the estate's assets. Frank, Jr. claims Cathy is mismanaging CP&F Realty and wil l continue to mismanage the company if she is not replaced as manager or if he is not allowed to inspect the company's financial records in his capacity as SPR. As evidence of Cathy's mismanagement of CP&F Realty, he cites her failure to hire disinterested counsel to represent CP&F Realty in the Law Divisio n action. He argues "[t]he status of the ongoing Florida litigation[ is] . . . irrelevant" and "cannot negate Frank[,] Sr.'s Estate's standing and unrebutted sta tutory authority" as "a New Jersey LLC member under the [Revised Uniform Limite d Liability Company Act (RULLCA)]." See N.J.S.A. 42:2C -1 to - 94

. Our review of a dismissal for failure to state a clai m pursuant to Rule 4:6

- 2(e) is de novo and we owe "no deference to the tri al court's legal conclusions." Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 23717 A- 3894

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N.J. 91, 108 (2019). Our inquiry "is limited to 'e xamining the legal sufficiency of the facts alleged on the face of the complaint,' " State v. Cherry Hill Mitsubishi, Inc., 439 N.J. Super. 462, 467 (App. Di v. 2015) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 , 746 (1989)), "giving the plaintiff the benefit of 'every reasonable inferenc e of fact,'" Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021) (quoti ng Dimitrakopoulos, 237
N.J. at 107). The test for determining the adequacy of a pleading is "whether a cause of action is 'suggested' by the facts, " Printing Mart-Morristown , 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N. J. 189, 192 (1988)) , and "'whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary,' " Baskin, 246 N.J. at 171 (quoting Printing Mart-Morr istown , 116 N.J. at 746). "If the court considers evidence beyond the pleadin gs in a Rule 4:6 -2(e) motion, that motion becomes a motion for summary judgment, and the court applies the standard of Rule 4:46. " Dimitrakopoulos, 237 N.J. at 107. "Ordinarily, dismissal for failure to state a claim is without p rejudice, and the court has discretion to permit a party to amend the pleading to allege additional facts in18 A- 3894

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an effort to state a claim." Cona v. Twp. of Wash. , 456 N.J. Super. 197, 214 (App. Div. 2018). The outcome of this appeal turns on the application of the ripeness doctrine. The purpose of the ripeness doctrine is to avoid premature adjudication of abstract disagreements. House of F ire Christian Church v. Zoning Bd. of Adjustment, 379 N.J. Super. 526, 547 (App. Div. 2005). "A case's ripeness depends on two factors: (1) the fitness o f issues for judicial review and (2) the hardship to the parties if judicial review is withheld at this time." Comm. to Recall Robert Menendez From the Off. of U.S. Senat or v. Wells, 204 N.J. 79, 99 (2010) (internal quotation marks omitted ) (quoting K. Hovnanian Cos. of N. Cent. Jersey, Inc. v. N.J. Dep't of Env't Prot., 37 9 N.J. Super. 1, 9 (App. Div. 2005)). When "[ t]he issues in dispute are 'purely legal, '" the case is fit for judicial resolution " without developing additional facts. " Ibid. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). "A claim is not ripe for adjudication if it rests u pon '"contingent future events that may not occur as anticipated, or indeed may not occur at all."'" Texas v. U.S., 523 U.S. 296, 300 (1998) (quoting Thomas v . Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). "'[P] ostponing consideration of questions presented, until a more concrete controve rsy arises, also has the19 A- 3894

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advantage of permitting the . . . courts further op portunity to construe'" the issues before it. Ibid. (quoting Renne v. Geary, 5 01 U.S. 312, 323 (1991)). "[C]ourts can assume jurisdiction over a claim only if there is a 'real and immediate' threat of enforcement or harm that would affect the plaintiff." Garden State Equality v. Dow, 434 N.J. Super. 163, 189 (Law Div. 2013) (quoting K. Hovnanian, 379 N.J. Super. at 10); s ee Platkin v. Smith & Wesson Sales Co., 474 N.J. Super. 476, 496 (App. Div. 2023) (" Such claims are ripe for adjudication 'only when there is an actual controve rsy, meaning the facts present "concrete contested issues conclusively affecting" the parties' adverse interests.'" (quoting In re Firemen's Ass'n Obligat ion, 230 N.J. 258, 275 (2017)))

. Here, we agree with the judge's application of the ripeness doctrine. First, although it is undisputed that Frank, Jr. is curren tly the SPR of Frank, Sr.'s estate, it is unclear whether the estate is still a n owner of CP&F Realty. In the Florida litigation, defendants argued in the petiti on to compel distributions that during her lifetime, Patricia exercised the POA given to her by Frank, Sr.'s will and transferred all assets in his estate into Patri cia's Trust. I f defendants ' argument prevails, there would be no assets in Fran k, Sr.'s estate and he would20 A- 3894

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be a zero percent owner of CP&F Realty. His estate would be closed, and Cathy and Patty would be one hundred percent owners of CP &F Realty. In contrast, in his counterpetition, Frank, Jr. ass erted that Patricia's exercise of the POA was ineffective to appoint asse ts in Frank, Sr.'s estate and that she was therefore unable to properly transfer the assets to defendants. He asked the Sarasota Circuit court to construe Frank, Sr.'s will to determine what was left in Frank, Sr.'s estate. Because the Saras ota Circuit court must determine who holds ownership interests in CP&F Realty and whethe r Frank, Sr.'s estate is a majority owner of the company, there are conti ngent future events and significant factual developments that must occur pr ior to any determinations on the merits. Second, there is no hardship or immediate threat of harm that would affect Frank, Jr. or Frank, Sr.'s estate. There is no cre dible evidence in the record that defendants are engaging in any activities that woul d jeopardize or harm CP&F Realty , particularly considering they may one day be come owners of the company. If the Florida courts determine otherwise , Frank, Jr. may file claims individually against defendants, or potentially derivatively on behalf o f Frank, Sr.'s estate if it is determined the assets are sti ll in the estate. Thus, we agree with the judge that if we make a ny determination at this juncture, it would be a21 A- 3894

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"'premature adjudication' which would entangle [thi s court] in 'abstract disagreements. '" Platkin, 474 N.J. Super. at 496 (quoting Firemen' s Ass'n, 230
N.J. at 275). W e therefore decline to decide whether Frank, Jr. has standing as SPR or in his individual capacity to bring these cl aims until the Florida courts determine the ownership status of CP&F Realty. Although Frank , Jr. conten ds that as SPR, he currently has standing as a majority owner of CP&F Realty, he is effectively ur ging this court to make a potentially adverse ruling prior to the Sarasota Ci rcuit court ruling. However,

"New Jersey has long adhered to 'the general rule t hat the court which first acquires jurisdiction has precedence in the absence of special equities.'" Sensient Colors Inc. v. Allstate Ins. Co., 193 N.J. 373, 386 (2008) ( quoting Yancoskie v. Del. River Port Auth. , 78 N.J. 321, 324 (1978)). "Under the first-filed rule, a New Jersey state court ordinarily will stay or dismiss a civil action in deference to an already pending, substantially similar lawsuit in another s tate, unless compelling reasons dictate that it retain jurisdiction." Ibid. (citing O'Loughlin v. O'Loughlin, 6 N.J. 170, 179 (1951)). [Platkin, 474 N.J. Super. at 487.] Compelling reasons often include when [(1)] one party has engaged in jurisdiction shoppin g to deny the other party the benefit of its natural forum. . . . [(2)] a party acting in bad faith has filed first "in anticipation of the opposing party's immi nent22 A- 3894

- 21 suit in another, less favorable, forum." [EEOC v. Univ. of Pa. , 850 F.2d 969, 976 (3d Cir. 1988) .]

. . . .

. . . [(3)] significant state interests . . . are implicated, and when deferring to a proceeding in another jurisdiction "would contravene the public o r judicial policy" of the forum state, City of Philadelph ia v. Austin, 86 N.J. 55, 64 (1981). . . . [(4)] it would cause "great hardship and inconvenience" to one party by proceeding in the fi rstfiled action and no unfairness to the opposing part y by proceeding in the second-filed action. See [O'Loughlin, 6 N.J. at 180]. [Sensient Colors Inc., 193 N.J. at 387 -89 (citations omitted).] The question is not "whether a state court has the power to exercise jurisdiction over a case filed within its jurisdiction, but whet her the court should restrain itself and not exercise that power." Id. at 386-87 (citing O'Loughlin, 6 N.J. at 179). The Florida litigation has been ongoing since 2020, when Patricia petitioned to reopen Frank, Sr.'s estate. This mat ter began on March 28, 2022, when Frank, Jr. filed a complaint in the Law Division. Th ere are no compelling reasons for this court to render a decision on the ownership of CP&F Realty until the Florida courts make their rulings. No forum shop ping has occurred, as23 A- 3894

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the estates of both Frank, Sr. and Patricia are squ arely in Florida's jurisdiction. Further, Patricia's petition to reopen Frank, Sr.'s estate and defendants' petition to compel distribution of assets were not made in b ad faith. Additionally, no state interests are implicated and there are no har dships to Frank, Jr. or Frank, Sr.'s estate. Therefore, we agree with the judge's decision to dismiss the complaint without prejudice so the Florida courts m ay proceed unencumbered by potentially adverse rulings in New Jersey. Frank, Jr. also argues "[ d]efendants failed to establish good cause

warrant ing the sealing of the [2015 settlement agreement]." He asserts "[ d]efendants failed to demonstrate any cognizable in jury from disclosure of the [agreement]," failed to identify anything "confident ial in the [agreement]," such as "trade secrets or proprietary information," cann ot show how "disclosure . . . will . . . affect the valuation of the business es ," and have not overcome the presumption "favor ing public inspection of court records." Decisions to seal the record are within the trial court's discretion. Hammock by Hammock v. Hoffmann-LaRoche, Inc., 142 N .J. 356, 380 (1995). Rule 1:38

- 11 provides that information in a court record may be sealed for "good cause." "The moving party shall bear the burden of p roving by a preponderance of the evidence that good cause exists, " by showing:24 A- 3894

- 21 (1) Disclosure will likely cause a clearly defined and serious injury to any person or entity; and (2) The person's or entity's interest in privacy substantially outweighs the presumption that all co urt and administrative records are open for public inspection pursuant to [Rule] 1:38. [Rule 1:38 -11(a), (b)]. During the April 20, 2022, hearing for temporary r estraints , in relation to the 2015 settlement agreement, defense counsel argu ed:

[T]he parties put in a confidentiality provision be cause they did [ not] want the family's dirty laundry being aired, because these are dealerships that are very valuable. [Frank, Jr.] does run a competing busine ss. And they did not want other dealerships to know wha t was going on between and amongst them in the event of a sale of one of these enterprises. So they bar gained for that. It [ is] a provision of the agreement. The parties decided amongst themselves that they would keep the settlement confidential. During the July 8, 2022, hearing, to support defend ants' motion to seal the record , defense counsel pointed out that the judge in the concurrent Law Division matter had found good cause to seal the 2015 settle ment agreement because "the parties [had] attempted to protect con fidential and proprietary information by virtue of including the confidential ity provision of the settlement agreement." We discern no abuse of discretion in the judge 's decision to grant25 A- 3894

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the motion to seal the records given the parties' c onfidentiality provision in the agreement and the judge's decision in the concurren t Law Division action. Affirmed.