                                 NOT FOR PUBLICATION WITHOUT THE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-2877-17T3

KEVIN M. BOTHWELL,

           Plaintiff-Appellant,

v.

WILLIAM H. HOWARD, III

           Defendant-Respondent,

and

HARDSCAPES, LANDSCAPES &
CUSTOM POOLS BY NATURE
GREEN, INC., BILL HOWARD &
SONS, LLC, MELBOURNE
TRUCKING AND LEASING, LLC,
NATURE GREENLANDSCAPE
ARTISTRY & GARDEN CENTER,
INC.,

     Defendants.
______________________________

                    Argued March 6, 2019 – Decided March 22, 2019

                    Before Judges Nugent and Reisner.
            On appeal from Superior Court of New Jersey, Law
            Division, Camden County, Docket No. L-2050-16.

            Wesley Hanna argued the cause for appellant (Law
            Office of Sander D. Friedman, LLC, attorneys; Sander
            D. Friedman and Wesley Hanna on the briefs).

            Chad M. Sherwood argued the cause for respondent.

PER CURIAM

      Plaintiff, Kevin M. Bothwell, appeals from a Law Division order that

denied his motion to enter judgment on a jury verdict against a defendant whose

debt had been discharged in bankruptcy. Because the record is inadequate and

does not permit proper appellate review, we dismiss the appeal.

      In May 2017, a jury returned a $17,000 verdict against defendants William

Howard, III (Howard) and Bill Howard & Sons, LLC, (the Company) on

plaintiff's claim that these defendants had fraudulently transferred assets to

defraud his anticipated collection efforts. The Law Division judge entered

judgment on the jury's verdict against the Company and awarded plaintiff

attorney's fees. The judge denied without prejudice plaintiff's motion for entry

of judgment against Howard, "pending the outcome of a motion that may be

filed by plaintiff before the bankruptcy court."




                                                                        A-2877-17T3
                                        2
      Plaintiff filed the motion in the United States Bankruptcy Court, District

of New Jersey. The court denied it. Plaintiff had not provided the court with

the transcript of the Law Division trial. The court explained:

            [Plaintiff] has failed to provide this Court with any
            material regarding the Judgment that would permit the
            Court to grant the Motion. The fraudulent transfer
            count of the Complaint includes allegations of pre-
            petition and post-petition conduct. Moreover, the
            prayer for relief in the Complaint specifically
            references allegedly fraudulent transfers that occurred
            pre-petition. As noted above, causes of action arising
            from pre-petition conduct are barred by the automatic
            stay, and any judgment that results from those claims
            are void against the Debtor. Thus, the Judgment is
            barred by the automatic stay and cannot be entered if
            the jury's finding of liability was based, even in part, on
            the pre-petition conduct of the Debtor.

      The court concluded, "there is insufficient evidence for this Court to make

a definitive determination on the merits of the issue. [Plaintiff] has failed to

meet his burden and therefore the Motion for a determination that the automatic

stay does not apply must be denied." Notwithstanding its denial of plaint iff's

motion, the court advised, "if the State Court finds that the jury found liability

based exclusively on the Debtor's conduct after the Petition Date, the automa tic

stay does not apply and Judgment may be entered. But this Court cannot make

such a finding based on the information before it."



                                                                          A-2877-17T3
                                        3
      Following the Bankruptcy Court judge's decision, plaintiff filed a motion

in the Law Division seeking entry of judgment on the jury verdict. His motion

papers did not include a transcript of the trial. During oral argument, the judge

said he would deny the motion without prejudice because he needed transcripts.

He refused to decide the issue based upon the recollections of the attorneys. The

judge said that he would consider trial transcripts as well as the proposed jury

verdict forms the parties had submitted in the underlying fraudulent transfer

case. Plaintiff's counsel informed the court he would waive any argument based

on the proposed jury verdict forms. When it became clear plaintiff did not intend

to obtain the trial transcripts, the judge denied the motion. Plaintiff appealed.

      On appeal, plaintiff contends the jury verdict "can only be construed as

finding fraud with regards to transfers that took place subsequent to the filing of

[Howard's] bankruptcy petition." Plaintiff adds that the Law Division judge

abused his discretion by refusing to consider papers setting forth this argument.

      The record of the oral argument belies plaintiff's claim that the Law

Division judge did not consider papers plaintiff had submitted. As to entry of

judgment against Howard, we agree with the Bankruptcy Court and Law

Division judges that the issue cannot be decided without the trial transcripts.

They have not been provided. Accordingly, we dismiss the appeal.


                                                                           A-2877-17T3
                                        4
Appeal dismissed.




                        A-2877-17T3
                    5
