JONATHAN ALLEN v. KEE L. SEYMORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2483-08T32483-08T3

A-2884-08T3

JONATHAN ALLEN,

Plaintiff-Appellant,

v.

KEE L. SEYMORE and STEFAN R. CUTTINO,

Defendants-Respondents,

and

RAHMINIQU HILL, ANN RICKS,

WALTER D. SANTIAGO, JR.,

GINA L. SANTIAGO, ROMULO V.

JARA-BENITEZ, NANCY J. JARA,

AND EPHRAM M. ROZIER, as

Administrator/trix Ad

Prosequendum of the ESTATE OF

RASHEEDA ROZIER and EPHRAM M.

ROZIER, as the Survivor of the

DECEASED RASHEEDA ROZIER and

ALLSTATE INSURANCE CO.,

Defendants.

__________________________________________________

STEFAN R. CUTTINO,

Plaintiff-Appellant,

v.

KEE L. SEYMORE,

Defendant-Respondent,

and

RAHMINIQU HILL, ANN M. RICKS,

WALTER D. SANTIAGO, JR.,

GINA L. SANTIAGO, ROMULO V.

JARA-BENITEZ, NANCY J. JARA,

AND EPHRAM M. ROZIER, as

Administrator/trix Ad

Prosequendum of the ESTATE OF

RASHEEDA ROZIER and EPHRAM M.

ROZIER, as the Survivor of the

DECEASED RASHEEDA ROZIER and

NEW JERSEY SKYLANDS INSURANCE CO.,

Defendants.

___________________________________________________

 

Argued April 13, 2010 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket Nos. L- L-3895-06 and L-2946-05.

James T. McCarthy argued the cause for appellant Jonathan Allen under Docket No. A-2483-08T3 (Gelman, Gelman, Wiskow & McCarthy, LLC, attorneys; Mr. McCarthy, on the brief).

Dennis G. Polizzi argued the cause for appellant Stefan R. Cuttino under Docket No. A-2884-08T3/respondent under Docket No. A-2483-08T3 (Weiner, Ryan & Mazzei, P.C., attorneys; Franco Mazzei, on the brief).

Respondent Kee L. Seymore has not filed a brief.

PER CURIAM

These two negligence matters were consolidated by the trial court along with five others. The actions sought recovery for injuries suffered in a car accident occurring on May 7, 2005, at approximately 2:30 a.m. The accident resulted when a vehicle driven by defendant Kee Seymore "crossed the grass median from the service road onto the main body of the roadway, crossing the shoulder and three lanes of traffic" on Route 3, also known as West Main Roadway, in Secaucus. Rahminiqu Hill was driving her vehicle on the main roadway and collided with the center barrier when Seymore lost control of his vehicle. A third car, driven by Walter D. Santiago, struck Seymore's vehicle and a fourth car, driven by Romulo V. Jara-Benitez, struck Hill's car as it crossed the roadway after impact with the divider. Plaintiffs Stefan Cuttino and Jonathan Allen were rear seat passengers in Hill's car and suffered significant injuries in the accident. Hill and Seymore were both arrested at the scene for driving while intoxicated (DWI). Later, Seymore admitted he had been drinking at a bar/restaurant one hour before the accident. At the time of the crash, Seymore's measured blood alcohol content was .09, which exceeded the State's legal limit, and he pled guilty to DWI. His sentence included ninety days incarceration and thirty days community service upon release.

Plaintiffs appeal from a Law Division order denying their respective motions to amend their complaints to add Cheeseburger in Paradise, operated by OSI Restaurant Partners, LLC (OSI), as a defendant, alleging a dram shop violation. Following our review of the arguments on appeal, the record and the applicable law, we affirm.

The facts relevant to the disposition of this appeal are found in the motion record. Plaintiffs separately filed their respective negligence actions against Seymore and others on July 7, 2005 and September 6, 2006. Following the filing of Seymore's answer, all actions filed as a result of the accident were consolidated by order dated July 6, 2007, and the court set November 3, 2007 as the discovery end date in the consolidated cases. The date was later extended to April 18, 2008.

Plaintiffs allege Seymore was impossible to locate prior to trial. During the discovery period, other parties moved to compel Seymore's deposition or strike his pleadings. He did not answer interrogatories and missed depositions scheduled on January 24, 2006, April 26, 2006, September 28, 2006, December 12, 2006, January 18, 2007, February 14, 2007, April 23, 2007, May 14, 2007, July 11, 2007, October 30, 2007 and December 14, 2007. On June 20, 2007, in response to such a motion, Seymore's attorney sent a letter to all counsel of record confirming "our office has not been able to contact our client on this matter after the sentencing [on the DWI charge]. Therefore, at this time, he will not be appearing for the deposition scheduled for July 11, 2007."

Seymore was finally located and deposed on March 13, 2008. On April 9, 2008, Allen filed a motion to amend his complaint. Thereafter, Cuttino moved for the same relief. Alleging a dram shop claim, plaintiffs sought to add OSI as a party defendant, contending they learned for the first time defendant was served alcohol at OSI immediately before the accident.

The Law Division entered an order denying Allen's motion on May 9, 2008. In its statement of reasons added to the form of order, the motion judge noted:

Application is denied. An application to amend while normally liberally granted should not unduly delay the resolution of a matter. In this particular motion arbitration has been already scheduled once and adjourned. Over 500 days of discovery have been provided [and] the amendment would change the entire complex of the case. The deposition that led to the finding out about OSI Restaurant Partners needed to take place much earlier in the discovery process.

Cuttino's motion was denied on July 3, 2008. The court stated:

These consolidated cases range from 977 days of discovery with 7 extensions to 443 days of discovery days with 2 extensions. Information that spurred these motions to amend was ascertained when defendant[']s [] deposition was finally taken. There were no motions filed to compel these [sic] defendant[']s deposition earlier. There is no discussion regarding why the identity of the bar that allegedly served defendant alcohol wasn[']t discovered in interrogatory answers.

Allen moved for reconsideration. During argument Seymore's counsel outlined the difficulties he experienced in locating his client and that he successfully ascertained Seymore's whereabouts from his criminal counsel. Reconsideration was also denied on July 3, 2008, for reasons similar to those stated in denying Cuttino's motion:

Application denied this was previously made [and] denied on 5/9/08. This matter has had 4 discovery extension and 536 days of discovery. Clearly this movant knew at the outset culpable defendant was intoxicated raising the spectre of a liquor liability action. Despite that no information was ever obtained from defendant regarding this issue until 500 days of discovery.

The parties attended arbitration on June 19, 2008, which resulted in an award totaling over $800,000, divided proportionally among the five injured plaintiffs. Defendant timely rejected the arbitration award and requested trial de novo. Recognizing Seymore had minimal automobile liability coverage and no assets, the parties executed a Consent Judgment resolving all issues on January 2, 2009. Plaintiffs' separate appeals ensued. On April 20, 2009, this court -- on its own motion -- consolidated the two appeals for all purposes.

In support of allowing the amendment to their pleadings, plaintiffs point to their adversary's attempt to unsuccessfully compel Seymore's discovery compliance, stating Seymore's lack of cooperation interfered with their right to obtain timely information. Since Seymore's deposition was the first notice that OSI was implicated in a dram shop claim, plaintiffs argue their motion was timely under the circumstances. Further, plaintiffs contend a denial of their request to amend the pleadings would deny them the ability to include an indispensable party and would eliminate a significant claim, resulting in substantial injustice. Finally, liberality demands the amendment be allowed as any interest in achieving timely adjudication of cases is amply offset by a countervailing need for "proper and efficient adjudication of the entire controversy" and effectuating the pubic policy aimed at preventing establishments from serving intoxicated patrons.

In reviewing the points plaintiffs have raised, we examine whether the denial of the request to amend their complaints was a reasoned exercise of the trial court's discretion under the circumstances. Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998); Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994).

The disposition of discovery issues rests with the discretion of the trial court. Mango v. Pierce-Coombs, 370 N.J. Super. 239, 258 (App. Div. 2004). Rule 4:9-1 sets forth the considerations guiding a court's review of a party's motion to amend a pleading. As plaintiffs' motions were filed after a trial date had been set, the Rule requires that amendment of pleadings be considered "only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." Ibid. Consideration of the application should "be liberally granted and without consideration of the ultimate merits of the amendment." Pressler, Current N.J. Court Rules, comment 2.1 on R. 4:9-1 (2010).

In our review, the trial judge's determination will not be disturbed unless it constitutes a "clear abuse of discretion." Salitan v. Magnus, 28 N.J. 20, 26 (1958); Franklin Med. Assocs. v. Newark Pub. Schs., 362 N.J. Super. 494, 506 (App. Div. 2003). We reverse a trial court's exercise of discretion only "if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). Reasoned discretion requires the trial court to provide "a rational explanation," relying on established principles. Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (internal quotations omitted).

"It is well-settled that an exercise of [ ] discretion will be sustained where the trial court refuses to permit new claims and new parties to be added late in the litigation and at a point at which the rights of other parties to a modicum of expedition will be prejudicially affected." Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349, 364 (App. Div. 1989), certif. denied, 121 N.J. 617 (1990); see also Globe Motor Car Co. v. First Fid. Bank, N.A., 291 N.J. Super. 428, 429 (App. Div.) (concluding trial court did not abuse its discretion in denying motion to amend made on eve of trial, three years after the complaint was filed), certif. denied, 147 N.J. 263 (1996); Fisher, supra, 270 N.J. Super. at 467 (holding no abuse of discretion in denying late motion to add new claims and parties).

Considering plaintiffs' motion "'in light of the factual situation existing at the time each motion is made[,]'" Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256 (App. Div. 1997)), we concur with the motion judge's determination that plaintiffs "knew at the outset [the] culpable defendant was intoxicated raising the spectr[a] of a liquor liability action." Moreover, despite Seymore's extended unavailability and apparent lack of cooperation, the record reflects information necessary to investigate a possible dram shop claim was available to plaintiffs from the date of the accident. Plaintiffs' contentions to the contrary are unavailing.

First, Seymore's intoxication was evinced by the DWI charges filed following the accident. Although no dates are supplied in this record, Seymore was accessible to the court assigned to adjudicate the criminal charges and his whereabouts were fixed as he served the imposed sentence.

Second, the quantity of alcohol Seymore consumed and the establishment that had served him were contained in statements garnered by police following the accident. The December 19, 2007 expert report rendered by John Brick, Ph.D., discussed the biobehavioral effects of Seymore's "alcohol consumption and intoxication." In that report, Dr. Brick lists various documents he reviewed, including police statements and reports revealing that on May 7, 2005, "Kee Seymore patronized Cheeseburger in Paradise where along with his friend, Matthew [McLaughlin], he consumed alcohol." Apparently these facts were gleaned from Seymore's statement to police, presumably given on the date of the accident, and the police-issued drinking driver questionnaire Seymore completed. A similar statement was obtained from Matthew McLaughlin, Seymore's passenger.

Plaintiffs' argument omits any discussion of this information. We decline to speculate as to why this information, which apparently verifies Seymore was legally under the influence and had been drinking at OSI, precluded efforts to develop the claim of liability against OSI. Even if plaintiffs failed to review the police report or the witness statements, they most assuredly would have all necessary information upon receipt of Brick's report, many months prior to the submission of their motions.

Also, we are not persuaded by plaintiffs' contention of prejudice if a claim against OSI is denied or the suggestion that all parties favor the amendment, including Seymore, who acquiesced in the requests. As noted, plaintiffs' efforts to assess the available information can best be characterized as weak. Further, we draw no conclusion from Seymore's absence in this appeal.

Moreover, any assessment of the balance of possible prejudice to the parties must weigh the effect upon OSI's interests by a late amendment. See Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 195-203 (App. Div. 2006) (stating a consideration in granting motion to amend is the possible prejudice by the late amendment to the newly added parties), certif. denied, 189 N.J. 429 (2007).

OSI would have no reason to know or even consider that a patron who had drinks and appetizers almost three years earlier may have been intoxicated while served. Claiming liability for the negligent service of alcohol, plaintiff's desire to add OSI after such a significant delay would impede the restaurant's ability to marshal its defense as memories fade, employees change jobs and possible other evidence was not preserved.

In view of the record, the trial court's exercise of discretion in the face of plaintiffs' failure to consider available evidence against the likely severe prejudice to OSI by the late amendment was proper. Bonczek v. Carter-Wallace, Inc., 304 N.J. Super. 593, 602 (App. Div. 1997) (finding no abuse of discretion in denial of motion to amend where the defendant's existence and corporate function were known), certif. denied, 153 N.J. 51 (1998). Accordingly, we discern no misapplication of discretion on the part of the trial court in denying plaintiffs' motions to amend their complaints to add a new party and a new cause of action.

Affirmed.

 

The other matters were filed by individuals injured in automobile accidents also caused as a result of Seymore's loss of control of his vehicle on May 7, 2005, filed under Passaic County Docket Nos. L-1317-07, L-1274-06, L-2186-06, L-3104-06 and L-3937-06.

Throughout this opinion, "plaintiffs" refers solely to Cuttino and Allen.

(continued)

(continued)

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A-2483-08T3

June 24, 2010