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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. 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 (Brach 

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 successor personal 

representative (SPR) for the Estate of Frank Holtham, Sr., and derivatively on 

behalf of CP&F Realty, LLC (CP&F Realty), appeal from a July 8, 2022, 

Chancery Division order dismissing his complaint without 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 for 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 to avoid confusion and 

intend no disrespect. 
3 A-3894-21

defendants' motion to seal portions of the record pursuant 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 are now both deceased. During 

their lifetime, Frank, Sr. and Patricia owned and operated two automobile 

dealerships, Glen Motors, Inc. (Glen Motors) and Toyota 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 Frank, Jr. In 2004, 

Frank, Sr. decided to buy property in Glen Rock (the 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 to 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 in 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 and not directly to Frank, 

Sr. and Patricia as 60/40 owners. 
4 A-3894-21

Frank, Sr. passed away on January 29, 2010, while he and Patricia were 

residents of Florida. Frank, Sr.'s will was admitted to probate in Sarasota 

County, Florida, on March 31, 2010. Pursuant to Frank, Sr.'s will, Patricia was 

appointed personal representative of Frank, Sr.'s Estate 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 "to serve as [s]uccessor [c]oTrustee" in the event of Cathy's incapacitation. For 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 all assets that qualified for the 

marital deduction, and the Family Part consisted 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 and properly distributed" and 

discharged Patricia as personal representative, during the ensuing years, 

disagreements arose in the family regarding the administration 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 distributions from the Family Part 
5 A-3894-21

trust. On the other hand, defendants believed the will granted Patricia a 

testamentary power of appointment (POA) so that she could direct the assets and 

"pay over, transfer, convey, assign and administer upon such 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 had "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 agreement). Among the terms 

of the settlement, the parties agreed to confidentiality based on "legitimate 

business interests," and included limitations on the disclosure of the settlement 

terms. The agreement also required the Glen Rock property to be split, sixty 

percent to Frank, Sr.'s estate and forty percent to Patricia. In addition, the 

agreement specified that Frank, Jr., Patricia, Patty, and Cathy had "the right of 

first refusal at fair market value if another party want[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-3894-21

 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 each had a 33.3% membership 

interest, and Frank, Jr. was the sole manager. However, on December 22, 2015, 

a new operating agreement was issued stating that CP&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 "was never binding" on the 

company or its members, that Frank, Jr. "ha[d] since 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 both her personal 

capacity and as personal representative of Frank, Sr.'s estate. 

The family disputes continued and largely revolved around the ownership 

of CP&F Realty and Glen Motors as those were the most valuable assets in 

Frank, Sr.'s estate. In 2015 and 2016, certain real estate transactions were 

consummated that led to further disagreements between the parties. Frank, Jr. 

claimed that on December 30, 2015, Cathy in her capacity as manager of CP&F 

Realty, sold the Glen Rock property to a third party for $4 million and that he 

never received notice of the sale. He claimed this was a violation of his right of 
7 A-3894-21

first refusal encompassed in the 2015 settlement agreement. Frank, Jr. also 

claimed that on June 24, 2016, CP&F Realty bought property located at 19-01 

Pollitt Drive in Fair Lawn (the Pollitt Property) for $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 appear 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 additional realty transfer taxes 

and fees associated with that transaction." Additionally, 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 promissory notes." He claimed 

he never received notice about the purchase in violation of the 2015 Settlement 

Agreement and his right of first refusal. Frank, Jr. 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 petition, reinstated Patricia's 

Letters of Administration, and ordered 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 the prior orders of the court. On 

February 5, 2021, Patricia filed a petition for discharge and a First and Final 
8 A-3894-21

Accounting of the Estate. As part of her petition, Patricia set forth a plan of 

distribution directing all assets remaining in Frank, Sr.'s estate, including the 

sixty percent stake in CP&F Realty, to be moved into trust in accordance with 

Frank, Sr.'s will. On March 5, 2021, Frank, Jr. filed objections to the accounting 

of Frank, Sr.'s estate, generally objecting to Patricia's "administration of the 

Trust's assets . . . for . . . eight years" since her 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 percent 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 Realty. 

Prior to the estate being closed, Patricia passed away on April 7, 2021. In 

Patricia's will, she appointed Cathy and Patty as her co-Personal 

Representatives. In the will, she also exercised her "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. Holtham Revocable Trust 

Agreement (Patricia's Trust). The will also directed "the rest, residue and 
9 A-3894-21

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 interest in CP&F Realty in equal 

parts. 

After Patricia's death, the parties continued to engage 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 Division against Cathy, Patty, 

PAC, Patricia's estate, and nominal defendants, including Glen Motors and 

CP&F Realty, seeking temporary restraints and alleging breach of the 2015 

settlement agreement, conversion, and fraud. While litigating the June 11, 2021, 

complaint, Frank, Jr. petitioned the Sarasota County probate court to be 

appointed SPR of Frank Sr.'s estate. The petition was granted on December 29, 

2021. Defendants appealed the determination, and the appeal is currently 

pending. 

On January 18, 2022, defendants petitioned the Sarasota Circuit court to 

compel distributions from Patricia's Trust. Defendants claimed because Frank, 

Sr.'s will had granted Patricia powers of appointment (POA), and Patricia had 

exercised the POA to transfer the assets to Patricia's Trust, the assets, including 

the sixty percent stake in CP&F Realty, were no longer part of Frank, Sr.'s estate 
10 A-3894-21

or Patricia's estate, were not assets subject to control 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 claimed that although Patricia 

had a POA over the assets and property in the Family Part Trust of Frank, Sr.'s 

estate, if she had used the power properly, it would have resulted in the division 

of equal shares of the assets in the trust among all three siblings. However, 

Frank, Jr. asserted that the Family Part Trust has never been funded by Patricia 

with any assets, including the sixty percent interests in Glen Motors and CP&F 

Realty. Therefore, Frank stated the trust could not 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 and the construction of Frank, 

Sr.'s will are still under consideration by the Sarasota Circuit court. 

During the pendency of the Sarasota Circuit court litigation, on May 7, 

2021, Glen Motors sued Frank, Jr. and various entities under his control in the 

Law Division for failing to make payments to Glen Motors on a promissory note 
11 A-3894-21

as required by the 2015 settlement agreement. Shortly thereafter, on June 11, 

2021, Frank, Jr. filed a complaint in the Law Division against Patricia's estate, 

Cathy, Patty, and nominal defendants, including Glen 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 alleged breach of contract, 

breach of implied covenants of good faith and fair dealing, unjust enrichment, 

equitable fraud and fraud in the inducement, wrongful conversion of assets, 

tortious interference with prospective economic advantage and contractual 

relations, and promissory estoppel. Frank, Jr. requested 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 compelling 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 redacted from the record, as 

it was attached as an exhibit to Frank, Jr.'s complaint. 

On March 28, 2022, Frank, Jr. filed the complaint that is the subject of 

this appeal in the Chancery Division. Frank, Jr., brought the action directly in 
12 A-3894-21

his capacity as SPR of Frank, Sr.'s estate, and derivatively 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 complaint, Frank, Jr. alleged that 

Patricia's Estate and Cathy had breached CP&F Realty's amended operating 

agreement, breached their fiduciary duty of care and 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. as 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, Sr.'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 transactions 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 April 20, 2022, following a 

hearing during which defendants opposed the application, the judge declined to 

impose temporary restraints. In an oral opinion, the judge determined plaintiff 
13 A-3894-21

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 show cause, the judge held 

a hearing on Frank, Jr.'s application for a preliminary injunction and other relief. 

During the hearing, relying on his Florida counsel's certification, Frank, Jr. 

argued that a decision by the Sarasota Circuit court on the POA was "not getting 

resolved soon." He urged that he was currently a sixty percent member of CP&F 

Realty as successive personal representative of Frank, 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, the 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." in 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 matter 

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 representative 

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 this 

context? At best, Frank, Jr., owns [twenty] percent of 

CP&F [Realty]. He cannot do any better than [twenty] 

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. Following 

oral argument conducted on July 8, 2022, the judge granted both motions. The 

judge noted that although he was not bound by the Law Division judge's sealing 

order, declining to seal the record would "essentially undo[]" the prior order, 

and would be "inconsistent," "untenable," and "unworkable." Additionally, the 

judge pointed out that "the parties [had] in fact agreed to a confidentiality 

agreement." As such, the judge sealed the portions of the record 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. The judge explained: 
15 A-3894-21

And if I think there[ is] an issue of ripeness, then 

I have to apply, is this fit for judicial review today 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 without prejudice. After 

the ruling, Frank, Jr. asked for clarification as to 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 successive 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 the 

current personal representative. If he remains that and 

if the courts down there determine . . . the ownership, I 

do[ not] think there[ is] any harm to Frank, Sr.'s[]

Estate. Those claims will remain in effect as well. 

You[ have] got competing interests here. 

You[ have] got Frank, Jr. . . . . trying to exercise rights 

that are not really at the end of the day or very well 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-3894-21

 The judge issued an order granting defendants' motion to dismiss the 

complaint without prejudice on July 8, 2022, and issued an order sealing the 

2015 settlement agreement on July 27, 2022. This appeal followed. 

II. 

On appeal, Frank, Jr. argues his claims are ripe because he currently has 

standing as SPR of Frank, Sr.'s estate, which is a sixty percent 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 will 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 Division action. He argues "[t]he 

status of the ongoing Florida litigation[ is] . . . irrelevant" and "cannot negate 

Frank[,] Sr.'s Estate's standing and unrebutted statutory authority" as "a New 

Jersey LLC member under the [Revised Uniform Limited Liability Company 

Act (RULLCA)]." See N.J.S.A. 42:2C-1 to -94. 

Our review of a dismissal for failure to state a claim pursuant to Rule 4:6-

2(e) is de novo and we owe "no deference to the trial court's legal conclusions." 

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 
17 A-3894-21

N.J. 91, 108 (2019). Our inquiry "is limited to 'examining 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. Div. 2015) (quoting Printing 

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

plaintiff the benefit of 'every reasonable inference of fact,'" Baskin v. P.C. 

Richard & Son, LLC, 246 N.J. 157, 171 (2021) (quoting 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-Morristown, 116 N.J. at 746). 

"If the court considers evidence beyond the pleadings 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 prejudice, and the court has 

discretion to permit a party to amend the pleading to allege additional facts in 
18 A-3894-21

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 Fire 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 of 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. Senator 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., 379 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 upon '"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 controversy arises, also has the 
19 A-3894-21

advantage of permitting the . . . courts further opportunity to construe'" the 

issues before it. Ibid. (quoting Renne v. Geary, 501 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); see 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 controversy, meaning the facts present 

"concrete contested issues conclusively affecting" the parties' adverse 

interests.'" (quoting In re Firemen's Ass'n Obligation, 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 currently the SPR of Frank, Sr.'s 

estate, it is unclear whether the estate is still an owner of CP&F Realty. In the 

Florida litigation, defendants argued in the petition 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 Patricia's Trust. If defendants' 

argument prevails, there would be no assets in Frank, Sr.'s estate and he would 
20 A-3894-21

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. asserted that Patricia's 

exercise of the POA was ineffective to appoint assets 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 Sarasota Circuit court must determine 

who holds ownership interests in CP&F Realty and whether Frank, Sr.'s estate 

is a majority owner of the company, there are contingent future events and 

significant factual developments that must occur prior 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 credible evidence in the record that 

defendants are engaging in any activities that would jeopardize or harm CP&F 

Realty, particularly considering they may one day become owners of the 

company. If the Florida courts determine otherwise, Frank, Jr. may file claims 

individually against defendants, or potentially derivatively on behalf of Frank, 

Sr.'s estate if it is determined the assets are still in the estate. Thus, we agree 

with the judge that if we make any determination at this juncture, it would be a 
21 A-3894-21

"'premature adjudication' which would entangle [this court] in 'abstract 

disagreements.'" Platkin, 474 N.J. Super. at 496 (quoting Firemen's Ass'n, 230 

N.J. at 275). We therefore decline to decide whether Frank, Jr. has standing as 

SPR or in his individual capacity to bring these claims until the Florida courts 

determine the ownership status of CP&F Realty. 

Although Frank, Jr. contends that as SPR, he currently has standing as a 

majority owner of CP&F Realty, he is effectively urging this court to make a 

potentially adverse ruling prior to the Sarasota Circuit court ruling. However, 

"New Jersey has long adhered to 'the general rule that 

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 state, 

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 shopping 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 imminent 
22 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 or 

judicial policy" of the forum state, City of Philadelphia 

v. Austin, 86 N.J. 55, 64 (1981). 

. . . [(4)] it would cause "great hardship and 

inconvenience" to one party by proceeding in the firstfiled action and no unfairness to the opposing party 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 whether 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 matter began on March 28, 2022, 

when Frank, Jr. filed a complaint in the Law Division. There 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 shopping has occurred, as 
23 A-3894-21

the estates of both Frank, Sr. and Patricia are squarely 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 bad faith. Additionally, no 

state interests are implicated and there are no hardships 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 may proceed unencumbered 

by potentially adverse rulings in New Jersey. 

Frank, Jr. also argues "[d]efendants failed to establish good cause 

warranting the sealing of the [2015 settlement agreement]." He asserts 

"[d]efendants failed to demonstrate any cognizable injury from disclosure of the 

[agreement]," failed to identify anything "confidential in the [agreement]," such 

as "trade secrets or proprietary information," cannot show how "disclosure . . . 

will . . . affect the valuation of the businesses," and have not overcome the 

presumption "favoring 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 proving 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 court 

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 restraints, in relation to 

the 2015 settlement agreement, defense counsel argued: 

[T]he parties put in a confidentiality provision because 

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 business. 

And they did not want other dealerships to know what 

was going on between and amongst them in the event 

of a sale of one of these enterprises. So they bargained 

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 defendants' 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 settlement agreement 

because "the parties [had] attempted to protect confidential and proprietary 

information by virtue of including the confidentiality provision of the settlement 

agreement." We discern no abuse of discretion in the judge's decision to grant 
25 A-3894-21

the motion to seal the records given the parties' confidentiality provision in the 

agreement and the judge's decision in the concurrent Law Division action. 

 Affirmed.