ELIZABETH BETHEA-ROGERS et al. v. JOHN MYCOFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0574-05T30574-05T3

ELIZABETH BETHEA-ROGERS

and KENNETH ROGERS,

Plaintiffs-Respondents,

v.

JOHN MYCOFF,

Defendant-Appellant.

______________________________________________

 

Argued February 1, 2006 - Decided February 24, 2006

Before Judges Stern, Fall and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County,

Docket No. L-0059-04.

William F. Hartigan, Jr., argued the cause for

appellant John Mycoff (McLaughlin & Cooper,

attorneys; Joseph E. Choquette, of counsel;

David M. Begey, on the brief).

Mark W. Davis argued the cause for respondent

Elizabeth Bethea-Rogers (Stark & Stark,

attorneys; Mr. Davis, on the brief).

PER CURIAM

Pursuant to leave granted, defendant appeals from an order of August 11, 2005, entered "pursuant to R. 4:50-1," vacating an order, which granted summary judgment and dismissed the complaint for failure to satisfy the "limitation on lawsuit" threshold under N.J.S.A. 39:6A-8a, and reinstating the complaint. The motion for reconsideration was filed on or about July 19, 2005.

On this appeal, defendant argues that "the trial court made an error of law and abused its discretion by according plaintiff relief under Rule 4:50-1(e) when plaintiff failed to file a timely appeal or motion for reconsideration." There is no dispute that summary judgment was based on a determination that plaintiff had not satisfied the "serious life impact" prong of the verbal threshold of the 1998 Automobile Insurance Cost Reduction Act ("AICRA"), N.J.S.A. 36:6A-1.1 to -35.

On June 14, 2005, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005), which held that a plaintiff did not have to demonstrate a serious life impact when filing a claim for noneconomic damages in order to satisfy the threshold under AICRA. According to defendant's attorney, he received the order of dismissal on June 17, 2005 and immediately mailed it from his office in Trenton to plaintiff's counsel in Princeton. Although DiProspero and Serrano were decided just seventeen days after the trial court's oral decision in this case on May 27, 2005, and three days before defendant mailed the order to plaintiff, plaintiff did not file a motion for reconsideration within twenty days after the order was served, as required by R. 4:49-2, nor did she file a notice of appeal within forty-five days of the entry of the order. See R. 2:4-1(a). As noted, however, on July 19, 2005, plaintiff filed a "notice of motion for reconsideration of [the] summary judgment" in light of DiProspero and Serrano.

Argument was conducted on this motion on August 5, 2005. At argument, plaintiff's counsel acknowledged that the motion was not timely under R. 4:49-2 and, therefore, that the case was not subject to "pipeline" retroactivity as defined by Beltran v. DeLima, 379 N.J. Super. 169 (App. Div. 2005). However, plaintiff's counsel asserted that his mistake was in "couch[ing]" the motion as one for reconsideration because it was properly a motion for relief from judgment pursuant to R. 4:50-1.

The court concluded that plaintiff's case fell outside the "pipeline" since he failed to have taken a direct appeal. Nevertheless, the court granted plaintiff's motion, holding:

Well, I do feel compelled, so it must be compelling circumstances that you've - presented. I do feel compelled that this should be reexamined, in light of Serrano, and in light of DiProspero.

And the fact that, procedurally, you didn't take an appeal, a direct appeal, to put it in the pipeline, which appeal would have been stayed, is a factor in my mind. That would have automatically been stayed, until the end of this case, when it would have been summarily sent back to me.

So, I find that . . . your failure, when I weigh and balance it against what effect it would have had, had you done a direct appeal, . . . you should have taken a direct appeal, Mr. Davis.

But, the fact that you did not, under . . . all these circumstances, I think that under the exceptions to Rule 4:50, I think it's within the Court's discretion to reopen the judgment that I entered on May 27th.

And when I do that, and when I look at my prior decision, which I did, and when I reevaluated, in my mind, I went over your affirmative assertions, on behalf of your client, with respect to the injuries. My thinking is that, at this point, with the law at - in the present state of repose, until the next opinion, I really think that your case should proceed and should go to a jury.

Defendant argues that the trial court's decision was erroneous because (1) this matter was not subject to "pipeline" retroactivity under Beltran v. Delima, (2) plaintiff's motion was untimely under R. 4:49-2, and (3) plaintiff's motion was not subject to R. 4:50-1 relief. On the other hand, plaintiff contends that defendant's motion for leave to file an interlocutory appeal "should have been denied as no proper basis for appellate review has been identified" because (1) the motion below was timely, (2) plaintiff was granted relief under R. 4:50-1 based upon the circumstances particular to this case and to serve the interests of justice, and (3) the trial court properly determined that plaintiff was entitled to relief under R. 4:50-1 notwithstanding the fact that a timely motion for reconsideration or notice of appeal was not previously filed. Plaintiff further argues that "relief from judgment was properly granted" in the circumstances of this case, notwithstanding the fact that this case was not "in the pipeline" when the New Jersey Supreme Court announced its decisions in DiProspero and Serrano.

We expressly decline to address retroactivity beyond the "pipeline" in this case. Given the unique facts in this case, this is not the vehicle in which to do so, and we have the issue before us in another pending appeal.

In this case, plaintiff could have filed an appeal from the grant of summary judgment when DiProspero and Serrano were decided. Moreover, if she sought to file an appeal nunc pro tunc within seventy-five days after the judgment, it undoubtedly would have been granted in light of the intervening precedent. See R. 2:4-1(a), R. 2:4-4(a). Hence, if she had filed a direct appeal, the case would have been in the "pipeline." See Beltran supra, 379 N.J. Super. at 176-77. Instead, plaintiff proceeded by motion in the Law Division.

We need not revisit at length the jurisprudence with respect to R. 4:50-1 motions. See generally A.B. and S.B.W. v. S.E.W., 175 N.J. 588, 593-94 (2003); Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430, 434-35 (1975); Wausau Ins. Co. v. Prudential Prop. Ins., 312 N.J. Super. 516, 519 (App. Div. 1998); Smid v. New Jersey Highway Auth., 268 N.J. Super. 306, 308-09 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994); Lee v. W.S. Steel Warehousing, 205 N.J. Super. 153, 156-58 (App. Div. 1985).

Suffice it to say that we find no abuse of discretion by the motion judge in granting relief and vacating the judgment in these unique circumstances. See Palko v. Palko, 73 N.J. 395, 398 (1977) (noting the motion judge's "broad" discretion under R. 4:50-1(f)). Here the application for relief was made within one month of receipt of the judgment and approximately a month after DiProspero and Serrano were decided. Significantly, the motion was filed within the time a direct appeal, which would have required reversal, could have been successfully filed. See R. 2:4-4(a). This case can therefore be treated as if it were in the "pipeline" when the motion to vacate the judgment was entered. See Beltran, supra, 379 N.J. Super. at 176-77. Under these circumstances, we affirm the judgment.

 
Affirmed. No costs.

The motion is dated July 19, 2005. There is no filing date on the document, but the July 19, 2005 filing date is not contested before us. There is also no dispute that the motion, filed pursuant to R. 4:49-2, was not timely, but was treated as an application pursuant to R. 4:50-1 by the motion judge.

We refer to plaintiff in the singular as only the wife was involved in the accident. Plaintiff-husband sued per quod.

Enlargement of this time period is prohibited. See R. 1:3-4(c).

Because some counsel were asking for extensions of time in which to file briefs in "verbal threshold" cases, we entered an administrative order extending the time for filing briefs in all such cases. In this way counsel did not have to move to file supplementary briefs after DiProspero and Serrano were decided by the Supreme Court. See Camacho v. Camacho, 381 N.J. Super. 395, 400 (Law Div. 2005).

In so holding, we recognize that in Camacho v. Camacho, 381 N.J. Super. 395 (Law Div. 2005), which involved nearly identical facts to the present case, the Law Division declined to grant plaintiff's motion for reconsideration. In that case, the Law Division dismissed plaintiff's complaint on summary judgment for failure to satisfy the verbal threshold on April 29, 2005. Id. at 397. Plaintiff did not appeal, but then filed an untimely motion for reconsideration after DiProspero and Serrano were decided. Ibid. The Camacho opinion does not specify the date on which the motion was filed, but since the opinion was rendered on July 22, 2005, it is likely that the motion was filed within seventy-five days of the order granting summary judgment. However, the judge did not (and could not as a Law Division judge) consider R. 2:4-4(a) in his analysis, and we decline to comment on the applicability of our holding in this case to Camacho or the holding of that case on the issue of retroactivity.

(continued)

(continued)

2

A-0574-05T3

February 24, 2006