MARLA DORN et al. v. NEW LINDEN PRICE RITE t/a SHOP-RITE OF LAKEWOOD STORE#602 (Improperly pled as Foodarama Supermarkets, Inc., t/a Shoprite of Lakewood #602)

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1544-04T11544-04T1

MARLA DORN and BARRY DORN,

her husband,

Plaintiffs-Appellants/

Cross-Respondents,

v.

NEW LINDEN PRICE RITE t/a

SHOP-RITE OF LAKEWOOD STORE

#602 (Improperly pled as

Foodarama Supermarkets, Inc.,

t/a Shoprite of Lakewood #602),

Defendant-Respondent/

Cross-Appellant.

__________________________________

 

Submitted: September 20, 2005 - Decided:

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-775-02.

Monte, Sachs & Rudolph, attorneys for appellants/cross-respondents (Stephen A. Rudolph and Kathleen Drew, on the brief).

Gold, Albanese, Barletti & Velazquez, attorneys for respondent/cross-appellant (Robert Francis Gold, of counsel; Leonard S. Rothbard, on the brief).

PER CURIAM

In this slip-and-fall action, plaintiff Marla Dorn and her husband appeal from the grant of a new trial against defendant supermarket. Plaintiffs contend the motion for a new trial was filed out of time and the trial court abused its discretion and misapplied the law in granting the motion. The supermarket cross-appeals from the initial judgment, arguing the trial court should have granted a mistrial during trial, as requested, based on the alleged misconduct of plaintiffs' counsel during opening and closing arguments. We reverse on the appeal and affirm on the cross-appeal.

On July 15, 2000 plaintiff slipped and fell in the supermarket, twisting her right leg and knee. She testified there were no mats covering the tile floor, and there was a puddle of clear liquid on the floor that caused the fall. Plaintiff's husband informed a nearby employee of his wife's fall and asked him to get the manager. Plaintiff testified she overheard the manager direct the employee to mop up the liquid. The manager, however, stated he did not see any liquid on the floor nor did he tell anyone to clean it up.

Plaintiff's knee injury was diagnosed as a bad sprain, and the knee was placed in a brace by an emergency room physician. One week later plaintiff was involved in an automobile accident while a front seat passenger, when a vehicle backed into the car in a gas station parking lot. The parties presented conflicting evidence of the effect of the motor vehicle collision on plaintiff's prior knee injury. On September 14, 2000 plaintiff underwent arthroscopic surgery to her knee. Plaintiff was unable to return to her employment until four months after the accident. She further testified as to the residual pain caused by her slip-and-fall injury.

At the conclusion of the three-day trial, the jury found defendant 100 percent negligent and awarded plaintiff $60,000 and her husband $20,000 on his per quod claim. The jury's verdict was returned at about 4:20 p.m. on Thursday, December 4, 2003. Defendant did not serve his motion for a new trial until Friday, December 26, 2003. Plaintiffs argued the motion was time-barred under Rule 4:49-1(b), which requires the motion to be served not later than twenty days "after the return of the verdict of the jury." Defendant argued that because the verdict was rendered at the close of the court's business day on December 4, it should be considered as having been rendered on December 5, and as December 25 was a legal holiday, service on December 26 was in substantial compliance with the rule. In his appellate brief, defense counsel explained that the motion was not filed before December 26, 2003, because of

the increasing complexity and time consumption of the practice of law . . . attend[ing] numerous depositions, motions and meetings between December 5, 2003 and December 24, 2003. Defense counsel was even out of state, attending depositions in Massachusetts, during the week of December 15, 2003 to December 19, 2003.

Additionally, defendant argued there was no prejudice to plaintiff because the motion was delivered only one day out of time, and plaintiffs should have expected it in view of defendant's strenuous objections and unsuccessful mistrial motion during trial. The court rejected plaintiffs' time-barred defense, addressed the merits and granted the motion for a new trial.

The judge erred as a matter of law in rejecting the procedural bar to defendant's motion for a new trial. The motion was clearly filed and served out of time. The verdict was returned on December 4, 2003, thus the motion for a new trial was required to be served by December 24, 2003. R. 4:49-1(b); 1:3-1. Rule 1:3-4(c) expressly prohibits the court from extending the time limit set forth in Rule 4:49-1(b). This rule has been strictly enforced. In Moich v. Passaic Terminal and Transp. Co., Inc., 82 N.J. Super. 353, 360-61 (App. Div. l964), defendant had filed a new trial motion, and a copy had been provided to a delivery service six days after the jury verdict, but the papers had not been served on opposing counsel until the fifteenth day. As Rule 4:49-1(b) at the time mandated a ten-day time limit for service and actual service of the motion had been made after that deadline, we affirmed the trial court's denial of a motion for a new trial as untimely. Id. at 361.

In Baumann v. Marinaro, 95 N.J. 380 (1984), the Court affirmed the denial of a new trial motion filed and served six days after the deadline, finding it untimely and citing with approval our comments in Moich:

In Moich [citation omitted], the Appellate Division, relying on Hodgson [v. Applegate, 31 N.J. 29 (1959)], held that "notwithstanding the existence of extenuating circumstances, it has been consistently held that the trial court is without discretion to extend the time given by the rule." In its opinion the Appellate Division noted that power to relax the ten day rule was specifically barred by the Supreme Court in its adoption of the court rules, and that any attempt to circumvent this rule "would fly in the face of the intention of the Supreme Court in barring the enlargement of the ten day period and nullify the plain language of R.R. 1:27B(c)." (Now R. 1:3-4(c)). Moich, supra, 82 N.J. Super. at 362; (additional citations omitted).

We see no reason to depart from this line of cases. The policies of expedition and finality that underlie these time limitations would be defeated by extending the time to file a motion for a new trial under R. 4:49-1. Finality of judgments is essential to the efficient functioning of the court system; a litigant must know when an action is finally concluded. Thus, we affirm that the time to file a motion for a new trial under R. 4:49-1 cannot be enlarged regardless of extenuating circumstances.

[Baumann, supra, 95 N.J. at 388-89.]

In Cabrera v. Tronolone, 205 N.J. Super. 268, 270-71 (App. Div. 1985), certif. denied, 103 N.J. 493 (1986), we affirmed the trial court's reluctant dismissal of a new trial motion as untimely, based on Baumann, where it was timely filed but not served on opposing counsel until four days after the deadline. Defendant had filed his motion on the tenth day but, critically, had not given a copy of the motion to the courier for hand delivery until the thirteenth day, which was already past the deadline. Id. at 270.

Recently, we have permitted relaxation of this rule in limited circumstances under the equitable theory of substantial compliance. Our courts, however, have set a high standard for litigants to reach before finding they have shown substantial compliance. In Stegmeier v. St. Elizabeth Hosp., 239 N.J. Super. 475, 481-82 (App. Div. 1990), we found substantial compliance where a new trial motion was both filed with the court and a copy was given to a reputable messenger service within the prescribed period, notwithstanding that the papers were not actually delivered to opposing attorney until four days after the deadline. We distinguished Baumann and Cabrera as not substantially complying with Rule 4:49-1(b); in the former case the motion had neither been filed nor mailed within the prescribed period and, in the latter case, the motion had not been timely delivered to a messenger for service. We disagreed with the holding in Moich, finding there had been substantial compliance with the rule by both the timely filing and delivery of the motion to an independent messenger service. Stegmeier, supra, 239 N.J. Super. at 482. We considered the relevant Bernstein v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 151 N.J. Super. 71, 76-77 (App. Div. l977) factors used for determining whether to apply the substantial compliance doctrine: "(1) the lack of prejudice to defending parties; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; [and] (4) a reasonable explanation why there was not a strict compliance with the statute." Stegmeier, supra, 239 N.J. Super. at 482. We found particularly compelling that under the then-existing Rule 1:5-4, the time requirements would have been satisfied if counsel had merely placed a copy of the motion in regular mail rather than retaining a messenger delivery service to effect delivery. Id. at 482-83. Accordingly, we concluded, "[u]nder these circumstances, the interests of justice require that the motion be heard on its merits, rather than being dismissed on technical grounds." Id. at 482.

In Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 578-79 (App. Div.), certif. denied, 142 N.J. 574 (1995), we found substantial compliance by a movant who attempted to timely deposit the motion papers at the post office on a business day during normal business hours, but was prevented from doing so because of an unforeseen incident closing the post office. We found that Rule 4:49-1(b) was not violated "where there has been substantial compliance with the rule, and the opposing party had not been prejudiced by the non-literal compliance. . ." Id. at 579.

In the present case, however, there was not substantial compliance with Rule 4:49-1(b). Defendant neither filed nor served his new trial motion within the prescribed twenty-day period. Nor did an unforeseen force outside of defendant's control prevent his compliance with the rule as occurred in Stegmeier and Thomas. Rather, defense counsel's sole explanation for his untimely filing was the consuming practice of law and the holiday season. The only Bernstein factor relied on by defendant, and accepted by the trial court as a basis for addressing the motion on its merits, was the lack of prejudice to plaintiffs in view of the one-day delay and presumed lack of surprise. In view of the express language and longstanding interpretation by our courts of the time deadline of Rule 4:49-1(b), this single factor does not justify application of the limited equitable doctrine of substantial compliance.

In view of our conclusion that defendant's motion for a new trial was time-barred, we need not address plaintiffs' substantive challenge to the grant of that motion. We therefore turn to defendant's cross-appeal asserting error in the denial of its mistrial motion.

"[T]he denial of a mistrial will not be found erroneous on appeal unless there is a clear showing of mistaken use of discretion by the trial court." Greenberg v. Stanley, 30 N.J. 485, 503 (1959) (citations omitted). Because the trial judge has the "feel" of the case, we will not reverse the denial of such a motion "unless it so clearly appears from the printed page alone that the happening on which the motion was based was so striking that because of it one of the parties could not thereafter have a fair trial." Ibid. Moreover, a harmful effect can generally be sufficiently eradicated by a prompt, strong curative instruction to the jury, which the court is obligated to give on its own initiative so as to make a mistrial unnecessary. Ibid. Based on our standard of review, we discern no abuse of discretion in the trial court's denial of a mistrial.

Defense counsel objected twice during his adversary's closing statements. The first objection was made to the comment that defense counsel had "subpoenaed every document under the sun. . ." Defense counsel contended it was not a fair comment to discuss what occurred during pretrial discovery. The judge sustained the objection, instructing the jury regarding the rights of parties during pretrial discovery and directing them to disregard the statement. The next objection was in response to the comment that defendant did not call the unidentified employee who allegedly was present after plaintiff's fall, to testify at trial. After objecting, defense counsel requested a mistrial, claiming that plaintiffs' attorney was implying that he had an obligation to call that witness even though plaintiffs' counsel had not sought an adverse inference instruction. The court denied the motion and indicated an intent to provide a specific curative instruction. Defense counsel then made the following record:

Throughout this entire summation I have been listening to, "Mr. Gold [defense counsel] this, Mr. Gold that. Mr. Gold this, Mr. Gold that." Now he's said to the jury, "Did you hear anybody bring anybody in, to bring this guy in," the unidentified employee. The implication is Mr. Gold is trying to pull a fast one. His whole summation has been this way, and I think it is outrageously inflammatory and I think a mistrial, if one was ever warranted, is certainly warranted under the circumstances.

The court again declined to grant a mistrial and issued the following curative instruction that either party could have called the employee as a witness and that defense counsel did nothing to prevent him from testifying:

Either party, both parties have a right to bring in any witnesses that they think are relevant to the case. Mr. Gold didn't do anything to prevent the witness, the produce guy, the cleanup guy, whatever, or any other witnesses to the trial. And if anyone wanted to bring any witnesses in, either party could have brought them. So don't concern yourself with it.

We discern no error in the court's decision to provide curative instructions as an alternative to granting a mistrial. The trial court provided a prompt, specific cautionary instruction that defense counsel had no obligation to produce the employee as a witness. The court also gave general instructions on credibility and the jurors being the sole judges of the facts based on the evidence, which does not include counsels' opening or closing statements. We are satisfied these instructions were sufficient to eradicate any potential prejudice to defendant occasioned by opposing counsel's challenged comments during trial.

We reverse the order granting a new trial and affirm the denial of a mistrial. The initial jury verdict is reinstated.

 

Plaintiffs' new trial, which resulted in a no-cause verdict, is not part of this appeal.

Defense counsel's explanation was not advanced at oral argument on the motion. Based on the record provided on appeal, we are unable to determine whether this explanation was part of the motion record.

Rule 4:49-1(b) was amended to extend the time period to twenty days effective September 1, 1998.

The motion pre-dated the September l, l994 amendment which provided that service of a motion for a new trial is complete only upon receipt of papers by opposing counsel, no longer upon mailing. Rule 1:6-3(c).

(continued)

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A-1544-04T1

October 7, 2005