OMAR R. CHAVEZ v. ROBERT A. HULL, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1810-05T11810-05T1

OMAR R. CHAVEZ,

Plaintiff-Appellant,

v.

ROBERT A. HULL,

Defendant-Respondent,

and

ONE BEACON INSURANCE COMPANY,

Defendant.

_________________________________

 

Submitted November 13, 2006 - Decided

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Mercer County,

L-3043-03.

Joseph D. Kaplan & Son, attorneys for appellant (Martin J. Hillman, on the brief).

Backes & Hill, attorneys for respondent (Robert C. Billmeier, on the brief).

PER CURIAM

Plaintiff, Omar R. Chavez, appeals from two orders: the first, entered on September 9, 2005, and the second, entered on October 21, 2005, denying his motion to vacate a summary judgment entered on February 4, 2005, dismissing his complaint under the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35. Plaintiff asserts that the judge erred in not affording him relief under R. 4:50-1. We reverse and remand for further proceedings.

In November 2003, plaintiff filed his complaint seeking damages for personal injuries allegedly resulting from a February 22, 2003, automobile accident with defendant. On December 8, 2004, defendant moved for summary judgment returnable January 7, 2005. On December 21, plaintiff's counsel apparently contacted defendant's counsel and requested an adjournment of the motion. Despite the adjournment, plaintiff's counsel neither filed opposition nor appeared on the return date for oral argument. On February 3, 2005, the judge found that plaintiff's medical proofs were sufficient to establish a material factual issue that he sustained a permanent injury as a result of the accident. The judge concluded, however, that plaintiff failed to establish that his injuries constituted a serious impact on his life. An order memorializing the judge's decision granting defendant's motion was entered on February 4, 2005.

On June 14, 2005, DiProspero v. Penn, 183 N.J. 477, 481-82 (2005), was decided, holding a plaintiff need not show a serious life impact under AICRA. On July 25, 2005, plaintiff's attorney telephoned defendant's counsel, asking for a copy of the February 4 order for summary judgment. On August 5, 2005, plaintiff's counsel filed a motion seeking to vacate the summary judgment order, asserting that she had not received the order until it was faxed to her on July 25, 2005. Oral argument on plaintiff's motion was heard on September 9, 2005. Plaintiff's counsel argued that plaintiff was entitled to relief under R. 4:50-1(f) because the decision in DiProspero did not constitute a change in the law. The judge correctly determined that the decision in DiProspero did represent a change in the law. Rejecting plaintiff's contention, the judge, relying on Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430 (1975), concluded that exceptional circumstances under R. 4:50-1 do not apply simply because of a change in the case law.

Plaintiff moved for reconsideration. Oral argument on plaintiff's motion was heard on October 21, 2005. Plaintiff's counsel argued that through inadvertence her office had not calendared defendant's motion for summary judgment and, as a result, opposition was never filed as intended. She also argued that because her office had not received the order until July 25, 2005, plaintiff's August 5 motion, seeking reconsideration of the order for summary judgment, was timely filed within twenty days, R. 4:49-2. The judge denied plaintiff's motion for the same reasons expressed by him on September 9. He did not determine whether plaintiff was indeed served with the summary judgment order within seven days of its entry as required by R. 1:5-1, or served on July 25, 2005, as claimed.

On appeal, plaintiff's counsel essentially repeats her argument that because her office was not in receipt of the order until July 25, 2005, the August 5 motion for reconsideration was timely filed and plaintiff should be afforded "pipeline retroactivity" in accordance with the ruling in Ross v. Rupert, 384 N.J. Super. 1 (App. Div. 2006). Ross is an automobile personal injury case in which summary judgment was entered on April 16, 2004, based upon the plaintiff's failure to satisfy the verbal threshold. Id. at 3. In October 2005, the plaintiff filed a motion for relief under R. 4:50-1, following the decision in DiProspero. Ibid. Citing the holding in Hartford Ins. Co., supra, 68 N.J. at 434, the panel held that "cases dismissed beyond the time for reconsideration or appeal when DiProspero and Serrano were filed may not be reopened" on appeal. Id. at 10. In Ross, we observed that the plaintiff neither filed an appeal nor moved for reconsideration in a timely manner. Id. at 3.

It is well settled that a change in the law after entry of an order or judgment does not entitle a party to relief under R. 4:50-1. Wausau Ins. Co. v. Prudential Prop. & Cas. Ins. Co., 312 N.J. Super. 516, 519 (App. Div. 1998). A motion brought pursuant to R. 4:50-1 "may not be used as a substitute for a timely appeal." Ibid. (citing DiPietro v. DiPietro, 193 N.J. Super. 533, 539 (App. Div. 1984)); see also Pressler, Current N.J. Court Rules, comment 1.7 on R. 4:50-1(f) (2006) ("Relief under this rule will not, however, be accorded simply because of a change in the case law following entry of final judgment." (citing Hartford Ins. Co., supra, 68 N.J. at 435)).

R. 1:5-1 requires that a party obtaining a judgment serve a copy of the judgment on the adverse party within seven days. R. 4:49-2 requires service of a motion seeking reconsideration of a judgment to be filed within twenty days after service of the judgment upon all parties by the party obtaining it. Thus, if plaintiff's counsel was not served with the summary judgment order as asserted, plaintiff's August 5 motion for reconsideration was timely, notwithstanding the fact that it was filed after the decisions in DiProspero and Serrano.

Although defendant contests plaintiff's claim that the order for summary judgment was not timely served, the judge never decide the factual issue presented. He simply assumed that the summary judgment order was properly served. Without a plenary hearing, it is impossible to determine whether service of the order was late as claimed by plaintiff or timely. Likewise, whether plaintiff is attempting to use R. 4:50-1 as a substitute for failing to object to defendant's motion or follow up with a timely motion for reconsideration must be decided by a plenary hearing. Accordingly, we reverse and remand for the required plenary hearing. We do not retain jurisdiction.

 
Reversed and remanded.

Defendant's brief refers to a certification of counsel as being included in his appellate appendix. However, the certification is not attached to his appellate brief.

Plaintiff's doctor, Louis R. Beato, D.C., reported that EMG and MRI studies showed plaintiff sustained disc bulges at C5-C6 and L5-S1 and nerve root irritation, along with "continued muscle spasm and loss of range of motion in the cervical and lumbar spine," which constituted "permanent injury" and "will not heal to function normally . . . as a result of the accident."

Defendant's counsel asserts that he faxed the order for summary judgment in response to the telephone call from plaintiff's counsel. The brief and appellate record do not indicate how plaintiff learned of the existence of the order.

Serrano v. Serrano, 183 N.J. 508 (2005).

(continued)

(continued)

6

A-1810-05T1

December 6, 2006