NATHANIEL LAWSON v. NATIONAL CONTINENTAL INSURANCE COMPANY

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0128-12T4

NATHANIEL LAWSON,

Plaintiff,

and

NATE'S TRANSPORTATION, INC.,

Plaintiff-Appellant,

v.

NATIONAL CONTINENTAL

INSURANCE COMPANY,1

Defendant-Respondent.

_________________________________________

January 13, 2014

 

Submitted December 9, 2013 Decided

 

Before Judges Yannotti and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8900-06.

 

Joseph Cicala, attorney for appellant.

 

Methfessel & Werbel, attorneys for respondent (Jacqueline C. Cuozzo, on the brief).

 

PER CURIAM

Plaintiff Nate's Transportation, Inc. (Nate's) appeals from an order entered by the Law Division on October 10, 2012,2 which reaffirmed the dismissal of Nate's affirmative claims against defendant National Continental Insurance Company and the denial of a motion to vacate the judgment entered for defendant on its counterclaim against Nate's. We affirm.

We briefly summarize the procedural and factual context in which this appeal arises. Defendant is the servicing carrier for the New Jersey Commercial Automobile Insurance Plan (NJCAIP). Defendant issued a commercial motor vehicle policy to Nate's for the period from June 30, 2004 to June 30, 2005 (the "2004 policy"). The policy provided insurance coverage for the buses that Nate's used in its charter bus business. According to defendant, Nate's insurance application, and a subsequent memo submitted to NJCAIP, indicated that Budd Lake, New Jersey, was the rating territory for Nate's operations.

In September 2004, defendant sought to verify Nate's territory of operations so that it could calculate the premium due in accordance with NJCAIP's plan manual. Defendant forwarded an underwriting memo to Nate's seeking information on this issue, but Nate's did not respond. In October 2004, defendant issued its second and final request for the underwriting information. Having received no response, defendant issued a notice of non-renewal, indicating that coverage under the 2004 policy would expire on June 30, 2005.

After it issued this notice, Nate's responded to defendant's earlier requests for the underwriting information, and indicated that most of Nate's business was conducted in Newark, New Jersey. Because the previously-calculated premium did not reflect the Newark rating territory, defendant re-calculated the premium and determined that an additional $112,967 was due. Nate's did not pay the additional premium.

Defendant issued a policy to Nate's for the period June 30, 2005, to June 30, 2006 (the "2005 policy"). The 2005 policy identified Newark as the rating territory. However, the additional premiums due on the 2004 policy remained unpaid.

Defendant thereupon issued a notice to Nate's terminating the 2005 policy for non-payment of the premium for the 2004 policy. Nate's was informed that it could appeal the termination to the Governing Committee of NJCAIP. Nate's did not appeal. The policy was cancelled effective September 13, 2005. Nate's was credited with unearned return premium of $34,881, leaving a balance due of $76,336.3

In October 2006, Nate's and Nathaniel Lawson (Lawson), a principal shareholder of Nate's, filed a complaint against defendant, alleging that it wrongfully terminated Nate's commercial motor vehicle insurance policy. In December 2006, defendant filed an answer and asserted counterclaims against Lawson and Nate's for the unpaid premiums.

Thereafter, defendant filed a motion for summary judgment on plaintiffs' affirmative claims. Plaintiffs were represented by counsel, and counsel filed papers opposing defendant's motion. Plaintiffs' attorney waived oral argument, and on September 20, 2007, the trial court decided the motion on the papers. The court granted defendant's motion and dismissed plaintiffs' complaint.

On September 28, 2007, Lawson filed a pro se motion to vacate the trial court's September 20, 2007 order. On October 1, 2007, plaintiffs' attorney filed a separate motion for reconsideration of the court's September 20, 2007 order. Defendant opposed the motions. On October 19, 2007, the trial court entered an order denying the motions.

Defendant thereafter filed a motion for entry of judgment on its counterclaims against Lawson and Nate's for the unpaid premiums. On January 4, 2008, the court granted defendant's motion and denied another pro se reconsideration motion filed by Lawson.

In April 2008, Lawson filed a notice of appeal from the trial court's September 20, 2007 order. Defendant thereafter filed a motion to dismiss the appeal because Lawson had not filed his notice of appeal within the time required by Rule 2:4-1(a). We granted defendant's motion and dismissed the appeal.

In June 2008, plaintiffs filed a complaint against defendant in the United States District Court for the District of New Jersey, in which plaintiffs asserted claims against defendant based on violations of their federal statutory and constitutional rights. Plaintiffs also asserted a breach of contract claim.

On January 26, 2009, the district court entered an order granting defendant's motion to dismiss the complaint on substantive and procedural grounds. In February 2009, plaintiffs filed two motions in the district court seeking reconsideration of the court's order. The district court entered an opinion and order dated February 23, 2009, denying the motions.

Lawson then filed a notice of appeal to the United States Court of Appeals for the Third Circuit. In November 2009, the court issued a judgment and opinion affirming the district court's orders of January 26, 2009, and February 23, 2009.

In January 2011, plaintiffs returned to the Law Division and Lawson filed a motion in this case seeking relief from the orders previously entered dismissing plaintiffs' affirmative claims and entering judgment in favor of defendant on its counterclaims. On February 4, 2011, the trial court denied plaintiffs' motion, finding that there was no basis for the application. On the order, the court noted that Lawson was raising the same arguments that he had raised on "multiple occasions and which were also denied."

In November 2011, Lawson retained an attorney, who filed a motion in the trial court seeking relief from the judgments entered against plaintiffs. On January 11, 2012, the court heard argument on the motion and entered an order on January 19, 2012, which granted the motion to vacate the judgment against Lawson individually, and denied the motion to vacate the judgment against Nate's.

Plaintiffs thereafter filed a motion seeking reconsideration of the January 19, 2012 order. On March 1, 2012, the trial court heard oral argument and entered an order denying the motion.

In May and June 2012, Lawson filed two pro se motions seeking to vacate the judgments entered against Nate's. The trial court denied these motions on June 15, 2012, and July 13, 2012, respectively.

Although it appeared that the trial court proceedings in the case had been concluded, in June 2012, the Law Division listed the case for trial.

On the trial date, the judge assigned to the matter reviewed the procedural history of the case. The judge determined that all claims in the case had previously been resolved and there was no issue that required adjudication. Accordingly, the judge entered an order dated October 10, 2012, which stated that: (1) plaintiffs' affirmative claims against defendant were dismissed; (2) the judgment against Lawson individually was vacated; and (3) the motion to vacate the judgment against Nate's was denied. This appeal followed.

Nate's raises the following arguments for our consideration:

I. THE TRIAL COURT ERRED BY DISMISSING THE PLAINTIFF'S COMPLAINT AND NOT PERMITTING THE MATTER TO PROCEED TO TRIAL.

 

A. Nate's has made every effort to keep this case alive and has not sat on [its] rights.

 

B. The Trial Court's requirement that Nate's pay five (5) years of back counsel fees to [defendant] for it to vacate the judgment is in error and a denial of justice for those that cannot afford it.

 

II. PUBLIC POLICY DICTATES THAT NO PERSON SHALL BE DISCRIMINATED AGAINST AND THAT ALL HAVE EQUAL RIGHTS TO THE COURTS.

We reject these arguments and affirm the trial court's order of October 10, 2012.

As we have explained, in June 2012, the Law Division listed this matter for trial. However, the record shows that, by order entered on September 20, 2007, the court granted summary judgment for defendant on plaintiffs' affirmative claims. Plaintiffs' motions for reconsideration of the September 20, 2007 order were denied, and plaintiffs' appeal from that order was dismissed since their notice of appeal was not filed within the time required by Rule 2:4-1(a).

Furthermore, on January 4, 2008, the trial court entered judgment against Lawson and Nate's on defendant's counterclaim for the unpaid insurance premiums. Thereafter, the trial court denied plaintiffs' applications for relief from the judgment, but in January 2012, the court vacated the judgment entered against Lawson individually and refused to set aside the judgment against Nate's.

Thus, when the case was called for trial in July 2012, the trial court correctly found that there was no issue for the court to adjudicate. The court correctly entered an order, which re-affirmed the prior dismissal of plaintiffs' affirmative claims, the vacation of the judgment against Lawson, and the judgment entered against Nate's on defendant's counterclaim.

Nate's argues, however, that it was not afforded a full and fair opportunity to litigate the matter. We do not agree. The record shows that defendant's motion for summary judgment on plaintiffs' affirmative claims and its motion for judgment on its counterclaim were duly served upon either plaintiffs or their attorney.

Nate's therefore had the opportunity to oppose defendant's motions. The record shows that Nate's availed itself of these opportunities and plaintiffs repeatedly sought reconsideration of the orders entered on defendant's motions.

Nate's additionally argues that the trial court erroneously required it to pay the counsel fees that defendant incurred in pursuing its claim against Nate's, and in opposing plaintiffs' many applications for relief from the judgment. Again, we disagree.

It is well established that a trial court has the discretion to impose reasonable conditions when granting relief from a judgment pursuant to Rule 4:50-1. ATFH Real Prop., LLC v. Winberry Realty P'ship, 417 N.J. Super. 518, 528 (App. Div. 2010) (citing Reg'l Constr. Corp. v. Ray, 364 N.J. Super. 534, 543 (App. Div. 2003)), certif. denied, 208 N.J. 337 (2011). Such conditions are intended to ameliorate the prejudice to the party that obtained the judgment, and may include payment of counsel fees incurred. Id. at 523, 528-29.

Here, the motion judge stated that consideration of Nate's motion to vacate would require Nate's to reimburse defendant for "legal fees it incurred unnecessarily in prosecuting its judgment." However, the court was told that Nate's was no longer in business and could not bear these expenses.

Furthermore, Nate's never filed a timely appeal from the court's January 19, 2012 order, which denied the motion to set aside the judgment, or the March 1, 2012 order denying the motions for reconsideration. It is too late in the day for Nate's to challenge these orders.

Nate's further argues that the trial court should have afforded it relief from the prior orders dismissing its affirmative claims and entering judgment against it on defendant's counterclaim. Again, we disagree.

Rule 4:50-1 provides that a court may grant a party relief from a final judgment on the basis of

(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reasons justifying relief from the operation of the judgment or order.

 

Rule 4:50-2 states that motions for relief under Rule 4:50-1(a),(b) or (c) must be filed within one year after the entry of the judgment or order, while motions seeking relief under the other subsections of the rule must be made in a reasonable time.

Here, Nate's apparently relies upon subsection (f) of Rule 4:50-1 as a basis for relief from the trial court's orders. To secure relief under that subsection of the rule, Nate's must establish that the circumstances are exceptional and enforcement of the judgment or order would be unjust, oppressive or inequitable. US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 484 (2012).

Nate's contends that relief from the judgment and orders was warranted because: (1) its prior attorney allegedly handled the case inadequately, (2) it initially did not have the resources to retain a new attorney, and (3) Lawson repeatedly sought relief from the orders as a pro se litigant. These are not, however, the sort of exceptional circumstances that would warrant relief under Rule 4:50-1(f). See In re Estate of Schifftner, 385 N.J. Super. 37, 44-45 (App. Div.) (holding that the plaintiff's inability to afford an attorney did not justify relief from a judgment pursuant to Rule 4:50-1), certif. denied, 188 N.J. 356 (2006).

We have considered Nate's other arguments and conclude that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

 

1 Defendant was incorrectly named "National Continental Progressive Insurance Company" on appellant's notice of appeal.

2 Although Nate's notice of appeal indicates it is appealing an order dated July 23, 2012, the order at issue was actually entered on October 10, 2012.

3 It appears an additional $1750 was credited toward Nate's balance, thus reducing the $112,967 to $76,336.