DREW BRADFORD v. DIANE GLEASON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3115-11T3

A-0437-12T3

DREW BRADFORD,

Plaintiff-Appellant,

v.

DIANE GLEASON,1

Defendant-Respondent.

______________________________________

Argued telephonically November 6, 2013 Decided November 20, 2013

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0538-10.

Drew Bradford, appellant, argued the cause pro se.

Francis T. Gleason, Jr., argued the cause for respondent.

PER CURIAM

On December 12, 2011, the trial court denied plaintiff Drew Bradford's motion to adjourn the trial and dismissed his malicious prosecution claim against defendant Diane Gleason without prejudice. Plaintiff appeals from orders entered on January 20, 2012, and August 14, 2012, which denied his motions for reconsideration. We affirm.

In the summer of 2005, plaintiff began planning a reunion for Summit High School's Class of 1965. Plaintiff asked fellow classmates Gleason and Renee Baran Hedges to assist him in the planning process, and they agreed to do so. Plaintiff's relationship with Gleason and Hedges soured soon thereafter. Among other things, plaintiff and Gleason disagreed as to the ownership of any excess monies collected from attendees, specifically the monies remaining after all reunion expenses were paid.

In October 2005, plaintiff withdrew $995.60 from a joint checking account established for the reunion. When Gleason learned that plaintiff had withdrawn the funds, she reported the matter to the Summit Police Department and demanded that plaintiff return the monies.

The reunion took place on October 15, 2005. Two days later, Gleason wrote to members of the Class of 1965 concerning what she described as the "unfortunate situation" that had developed. She said plaintiff had overdrawn the reunion's bank account. She said that the "entire matter" was being investigated by the local police.

On October 19, 2005, a detective with the Summit Police Department contacted plaintiff and told him he was investigating the withdrawal of funds from the reunion's bank account. He asked plaintiff to come to police headquarters to discuss the matter. According to the detective, plaintiff refused, claiming that he had been in charge of the reunion and the "overage" belonged to him.

The detective contacted the Union County Prosecutor's Office. An assistant prosecutor authorized the filing of a complaint charging plaintiff with one count of theft by deception. The detective then obtained a warrant for plaintiff's arrest. The warrant was executed and plaintiff was taken into custody. Plaintiff was questioned concerning his withdrawal of the monies.

Thereafter, an assistant prosecutor authorized the dismissal of the complaint and informed Gleason that plaintiff had agreed to give up any claim to the monies he had withdrawn from the reunion's bank account. The assistant prosecutor told Gleason the monies would be returned to her and she could dispose of the funds as she thought appropriate.

Plaintiff later filed a complaint in the Law Division, Union County, against Gleason and Hedges, asserting claims of malicious prosecution, intentional infliction of emotional distress, intentional deprivation of prospective economic advantage and libel. Gleason and Hedges filed motions for summary judgment, which the trial court granted.

Plaintiff filed a motion for reconsideration, which the trial court denied. Plaintiff appealed. While the appeal was pending, plaintiff settled his claims against Hedges.

Thereafter, we filed an opinion, affirming the grant of summary judgment on the claims for intentional infliction of emotional distress, intentional deprivation of prospective economic advantage and libel, but reversing the grant of summary judgment on the malicious prosecution claim. Bradford v. Gleason, No. A-5625-07 (App. Div. Aug. 13, 2009) (slip op. at 2).

Among other things, we determined that the record did not support plaintiff's claim that he was entitled to any profits realized from the reunion. Ibid. (slip op. at 14). We remanded the matter to the trial court for further proceedings. Ibid. (slip op. at 22).

Plaintiff was represented by counsel in the appeal, but plaintiff's attorney withdrew from the case and plaintiff thereafter proceeded without counsel. In March 2010, the case was transferred from Union County to Somerset County.

On September 27, 2010, plaintiff filed a motion in the Appellate Division seeking reconsideration of the August 13, 2009 decision out of time and leave to proceed as an indigent. We entered an order dated October 15, 2010, granting plaintiff leave to file the motion out of time, but denied his motions for reconsideration and leave to proceed as an indigent.

Plaintiff sought review by the Supreme Court of our October 15, 2010 order. On April 7, 2011, the Supreme Court dismissed the application for lack of prosecution.

The trial on plaintiff's malicious prosecution claim was initially scheduled for January 10, 2011, but adjourned at plaintiff's request for health reasons, which he supported with a doctor's note. The trial was rescheduled for April 4, 2011, but adjourned again at plaintiff's request for health reasons.

A trial began on April 18, 2011. The trial was to continue on April 26, 2011, but plaintiff informed the judge that he could not continue for health reasons. The judge declared a mistrial. The trial was re-scheduled for October 31, 2011, and then adjourned to December 12, 2011, at the request of Gleason's counsel.

On November 2, 2011, plaintiff filed a motion in the Appellate Division to supplement the record, to revise the August 13, 2009 opinion and for leave to proceed as an indigent. Among other things, plaintiff argued that Gleason's trial testimony warranted reconsideration of our determination that he was not entitled to the excess funds from the reunion. On that day, plaintiff wrote to the trial court seeking an adjournment of the trial, pending a decision by the Appellate Division on his motion. Defendant opposed the application.

Plaintiff submitted another letter to the trial court on November 7, 2011. He stated that an adjournment would not prejudice either party. Plaintiff also stated that the previous mistrial had been granted because he lost weight due to "dehydration," as indicated in a prescription written by a cardiologist.

On November 30, 2011, plaintiff again wrote to the trial court and referenced his pending motions in the Appellate Division. Plaintiff stated that, if his motions failed, he was going to pursue the matter in the Supreme Court. Plaintiff said the court "may wish" to adjourn the trial, "since key issues may be decided by the Appellate or Supreme Court which may impact the trial."

On December 5, 2011, the Appellate Division entered an order denying plaintiff's motions. The trial remained scheduled for December 12, 2011.

On December 8, 2011, plaintiff submitted another letter to the trial court seeking an adjournment. In this letter, plaintiff said that, during the previous five weeks, he did not have sufficient time in which to prepare for trial "due to the extensive paperwork involved with the [c]ourts." Plaintiff stated he had been in physical therapy because he had been struck by a sports utility vehicle. He also stated that he "lost some time being ill" because he had been bitten "by a large wolf spider" that was three-and-one-half inches long.

On the day of trial, plaintiff made a motion to transfer the case to another county. The trial judge determined that the application was untimely. Plaintiff then sought an adjournment for the medical reasons set forth in the December 8, 2011 submission, but the judge observed that plaintiff had not submitted a doctor's note indicating he could not go forward with the case.

Plaintiff then sought the adjournment on the ground that he had mailed a notice of petition for certification to the Supreme Court, seeking review of the Appellate Division's order of December 5, 2011. Joseph Bolles, the Assistant Civil Division Manager, contacted the Office of the Clerk of the Supreme Court and was told that the Court had not received the notice. Plaintiff also said the trial should be adjourned because he was not prepared to proceed.

The judge refused to adjourn the matter and dismissed the complaint without prejudice. The judge memorialized his decision in an order dated December 12, 2011. It appears that, at some point during the day on December 12, 2011, the Supreme Court received plaintiff's notice of petition for certification.

Thereafter, plaintiff filed a motion in the trial court seeking reconsideration of the December 12, 2011 order. The trial judge entered an order dated January 20, 2012, denying the motion. The judge determined that plaintiff had not established any basis for reconsideration of the prior order.

On January 26, 2012, the Supreme Court granted plaintiff leave to file his notice of petition for certification as within time "to the extent that plaintiff seeks review of [the] Appellate Division's 2011 judgment" but denied the application "to the extent that plaintiff seeks review of [the] Appellate Division's 2009 judgment."

Thereafter, plaintiff filed a notice of appeal from the trial court's January 20, 2012 order. The appeal was docketed as A-3115-11.

On April 9, 2012, the Supreme Court entered an order denying plaintiff's petition for certification. On July 13, 2012, plaintiff filed a motion in the Appellate Division again seeking to introduce new evidence and revise the August 13, 2009 opinion. We thereafter denied this motion.

On July 17, 2012, plaintiff filed another motion in the trial court seeking reconsideration. The trial court entered an order dated August 14, 2012, denying plaintiff's motion. Plaintiff later filed a notice of appeal from that order, and the appeal was docketed as A-0437-12. In December 2012, we consolidated plaintiff's appeals.

Plaintiff argues that the trial judge erred by refusing to reconsider the December 12, 2011 order, which denied his motion to adjourn the trial and dismissed his malicious prosecution claim without prejudice. Plaintiff contends that the judge should have adjourned the trial.

We are convinced that plaintiff's arguments are without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). However, we add the following.

A motion for reconsideration is a matter committed to the discretion of the court, "'to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is warranted only if the court's decision is incorrect or irrational, or if the court "'did not consider, or failed to appreciate the significance of probative, competent evidence.'" Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401).

Here, the trial judge initially determined that plaintiff failed to establish that an adjournment of the trial was warranted. The judge noted that the case had previously been adjourned several times. The judge also noted that, after the case had been scheduled for trial on December 12, 2011, plaintiff made several requests for an adjournment. However, plaintiff did not cite his health as a reason for these adjournment requests until he submitted a letter dated December 8, 2011. That letter was not accompanied by a doctor's note.

Moreover, while plaintiff said he had mailed a notice of petition for certification to the Supreme Court seeking review of our December 5, 2011 order, the judge determined that the Court had not received the notice. In addition, plaintiff admitted he was not prepared to proceed. We are convinced that, under the circumstances, the trial judge did not abuse his discretion by denying the adjournment request and dismissing the complaint without prejudice.

Furthermore, the judge did not err by refusing to reconsider his decision. In his reconsideration motions, plaintiff detailed his many health problems. However, plaintiff never established, with an appropriate statement from a medical professional, that his health problems were so debilitating that he could not proceed with the trial, as scheduled.

Among other things, plaintiff asserted that he sustained certain insect bites, for which medication had been prescribed. Plaintiff claimed that the medication caused him to suffer digestive problems, which impeded his trial preparation. But plaintiff's submission indicated that his digestive problems were resolved by December 7, 2011.

Furthermore, plaintiff had previously tried part of his case in April 2011. Plaintiff also conceded that in the weeks preceding the December 12, 2011 trial date, he had written twenty-two legal documents. Apparently, plaintiff had not been too ill to address legal matters in the weeks before the trial date. We are therefore convinced that the record supports the judge's refusal to reconsider the December 12, 2011 order.

Plaintiff also argues that the judge should have adjourned the trial because he had mailed a notice of petition for certification to the Supreme Court, seeking review of our December 5, 2011 order, which denied his motions to supplement the record, to revise the August 13, 2009 opinion, and for leave to proceed as an indigent. Again, we disagree.

Rule 2:9-1(a) generally provides that "supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal is taken or the notice of petition for certification filed." The rule does not apply here.

After plaintiff filed his notice of appeal from the trial court's order granting summary judgment to Gleason, this court had "supervision and control" of the appellate proceedings. When we decided plaintiff's appeal in August 2009, we remanded the matter to the trial court for further proceedings.

We thereafter denied plaintiff's motion for reconsideration, and he sought review of our judgment by the Supreme Court. The Court dismissed plaintiff's petition for certification for lack of prosecution on April 7, 2011. "[S]upervision and control" of the case was thereupon returned to the Law Division.

Thus, the trial court had jurisdiction in the matter on December 12, 2011, when the case was scheduled for trial. Plaintiff's November 2011 motion to supplement the record, to revise our August 2009 opinion and for leave to proceed as an indigent did not transfer "supervision and control" of the case to the Appellate Division because there were no "proceedings on appeal" pending in this court at the time.

Similarly, plaintiff's submission of a notice of petition for certification to the Supreme Court seeking review of our December 5, 2011 order did not divest the Law Division of jurisdiction to proceed with the trial. The notice of petition did not pertain to any appeal which had been pending in the Appellate Division. Therefore, "supervision and control" of the case remained in the Law Division.

In any event, even if Rule 2:9-1(a) applied, the record shows that when plaintiff's case was called for trial on December 12, 2011, plaintiff's notice of petition for certification had not been received by the Supreme Court. Accordingly, the trial court had jurisdiction when it entered the order denying the adjournment and dismissing the complaint.

Affirmed.

1 Defendant was incorrectly designated as "Dianne Gleason" in plaintiff's Notices of Appeal.