JOSHUA THOMAS v. BOROUGH OF MONMOUTH BEACH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3249-10T3

JOSHUA THOMAS,

Plaintiff-Appellant,

v.

BOROUGH OF MONMOUTH BEACH,

Defendant-Respondent.

___________________________________

June 11, 2013

Argued May 14, 2013 Decided

Before Judges Waugh and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0956-10.

 
Craig L. Klafter argued the cause for appellant (Klafter & Mason, L.L.C., attorneys; Joshua Thomas, on the pro se briefs).

Dennis A. Collins argued the cause for respondent (Collins, Vella and Casello, L.L.C., attorneys; Mr. Collins, of counsel and on the brief).

PER CURIAM

Plaintiff Joshua Thomas appeals the Law Division's orders of November 29, 2010, which denied his motion to amend and dismissed his complaint, and January 21, 2011, which denied his motion for reconsideration. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In May 2007, the New Jersey Police Training Commission (Commission) certified Thomas to serve as a police officer. In April 2008, defendant Borough of Monmouth (Borough) hired Thomas as a part-time, Class II Special Police Officer. In January 2010, the Borough appointed Thomas as a Probationary Police Officer. The Borough terminated that employment on February 9, 2010, without a hearing.1

On February 18, 2010, Thomas filed an action in lieu of prerogative writs pursuant to N.J.S.A. 40A:14-150, which provides for review in the Superior Court of the termination of police officers in non-civil-service municipalities, such as the Borough. He also alleged that the Borough violated the New Jersey Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, because it failed to give public notice that his employment status would be considered at the February 9, 2010 council meeting.2 The Borough subsequently filed its answer.

Following various procedural steps not relevant to this appeal, the parties filed cross-motions for summary judgment. The motion judge heard oral argument on November 12, 2010. He reserved decision. On November 15, while the summary-judgment motions were pending decision, Thomas made a motion for leave to file an amended complaint, in which he sought to add a third count alleging violation of the Veterans Tenure Act, N.J.S.A. 38:16-1 to -6, which requires a showing of cause for the termination of certain veterans.

The motion judge issued a detailed written opinion on November 18, setting forth his reasons for granting summary judgment to the Borough and dismissing Thomas's complaint with prejudice. The opinion also set forth the judge's reasons for declining to consider the motion to amend on procedural grounds. An implementing order was entered on November 29.

Thomas filed a motion for reconsideration on December 28. The motion judge heard oral argument on January 21, 2011. He placed an oral decision denying the motion on the record and entered an implementing order the same day. This appeal followed.

II.

On appeal, Thomas argues that the motion judge erred in denying his motion to amend the complaint.

The motion judge did not specifically address the merits of the motion to amend in his November 18 written decision or his January 21 oral decision. Instead, he took the position that it was improper to file such a motion following oral argument of the summary judgment motions. Inasmuch as we find no specific prohibition for such a filing in the Rules of Court, we address the merits of the motion. Because we review judgments, not decisions, we may affirm on any ground. Serrano v. Serrano, 367 N.J. Super. 450, 461 (App. Div. 2004) ("Although we affirm for different reasons, a judgment will be affirmed on appeal if it is correct, even though 'it was predi cated upon an incorrect basis.'") (quoting Isko v. Planning Bd. of Livingston Twp., 51 N.J. 162, 175 (1968)), rev'd on other grounds, 183 N.J. 508 (2005).

Rule 4:9-1 provides that, once a responsive pleading is served, a complaint may be amended "only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." Generally, a decision on a motion to amend is "left to the sound discretion of the trial court, and its exercise of discretion will not be disturbed on appeal, unless it constitutes a clear abuse of discretion." Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003) (citation and internal quotation marks omitted) (citing Salitan v. Magnus, 28 N.J. 20, 26 (1958)). However, as noted, leave to amend is generally to be liberally granted. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). The motion judge must engage in a two-step evaluation, weighing "whether the non-moving party will be prejudiced, and whether granting the amendment would nonetheless be futile." Ibid. Where "the amendment is so meritless that a motion to dismiss . . . would have to be granted," a judge may deny the motion to amend under "the so-called futility prong of the analysis." Pressler & Verniero, Current N.J. Court Rules, comment 2.2.1 on R. 4:9-1 (2013).

A motion to amend a complaint following argument of cross-motions for summary judgment on which decision has been reserved comes very late in the judicial process. The basis of the motion was, in addition, more in the nature of a new legal theory for the same relief, a hearing on the merits of the termination, rather than a wholly new cause of action the factual basis for which had only just been discovered.

In any event, we are convinced that the proposed new claim is without legal merit. N.J.S.A. 38:16-1 applies to a qualifying veteran3 "whose term of employment, office or position is not now fixed by law." A probationary police officer, which was Thomas's status at the time he was terminated,4 serves for a one-year term that cannot exceed one year. Monmouth Beach, N.J., Ordinance 2-13.8(b);5 see N.J.S.A. 52:17B-69.

Thomas argues that the one-year maximum term established in N.J.S.A. 52:17B-69 does not apply to him because its stated purpose is to allow the probationer to attend a police academy, which he had already done. We need not reach that issue because, unlike the statute, the Borough's ordinance has two stated purposes, the first of which is "so that his fitness for the duties he is to perform may be determined before he is permanently appointed to the Police Department." Consequently, the fact that Thomas had already attended a police academy and been certified by the Commission does not undercut the purpose of the term created by the Borough's ordinance.

Because Thomas's appointment as a probationary officer was for a fixed period under the Borough's ordinance, the provisions of N.J.S.A. 38:16-1 were not applicable to him at the time he was terminated. We see no basis in that statute to conclude that the Legislature intended to foreclose a government employer from having the benefit of a specific probationary period to assess a new appointee's performance. Consequently, we affirm the orders on appeal.

Affirmed.

1 We note that the record contains extensive information concerning the Borough's reasons for the termination. Because the overarching issue in this case is whether Thomas was entitled to a for-cause hearing, we need not set forth those facts.

2 Thomas and his attorney were, however, present when the council considered his status in closed session.

3 We assume, only for present purposes, that Thomas was a qualifying veteran.

4 Thomas's appellant's brief does not specifically challenge the judge's dismissal of the two counts of his complaint on appeal, although the issue was addressed to some extent in his reply brief and during oral argument before us. In any event, our review of the record on appeal satisfies us that the reasons set forth in the motion judge's comprehensive written opinion for dismissal of the complaint are correct. We see no need to address them in a written decision. R. 2:11-3(e)(1)(E).

5 N.J.S.A. 38:16-1 speaks in terms of a term fixed by "law" rather than by "statute."