MOHAMED HELMY v. CITY OF JERSEY CITY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5915-03T35915-03T2

MOHAMED HELMY,

Plaintiff-Respondent,

v.

CITY OF JERSEY CITY; JERSEY

CITY POLICE DEPARTMENT; GARY MOFFIT;

STEVEN COLLIER; and MARK PRYOR,

Defendants-Appellants.

_________________________________

 

Argued December 21, 2005 - Decided January 23, 2006

Before Judge Conley, Winkelstein and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3454-99, following remand by the Supreme Court. Helmy v. City of Jersey City, 178 N.J. 183 (2003).

Kathleen Walrod argued the cause for appellants (William C. Matsikoudis, Jersey City Corporation Counsel, attorney; Ms. Walrod, Assistant Corporation Counsel, of counsel; Nora L. Kallen, Assistant Corporation Counsel, on the brief).

Robert F. Gold argued the cause for respondent (Gold, Albanese, Barletti & Velazquez, attorney; Mr. Gold, of counsel; Christian Bruun, on the brief).

PER CURIAM

This litigation returns to us following a remand by the Supreme Court to the trial judge for consideration of defendants' motion for remittitur, which had not been previously resolved. Helmy v. City of Jersey City, 178 N.J. 183 (2003). On remand, the trial judge denied the remittitur application and declined to consider issues raised by defendants that had not been previously raised. Defendants appeal, we affirm.

The initial litigation arises from a complaint, which, "[r]educed to [its] essence, . . . asserted false arrest, assault and battery, intentional infliction of emotional distress, malicious prosecution, negligent training and supervision, use of excessive force, and conspiracy." Helmy v. City of Jersey City, supra, 178 N.J. at 188. Defendants answered the amended complaint and alleged various affirmative defenses, including immunity from liability under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA), without specifying any particular statutory section.

During the ensuing jury trial, the trial judge granted defendants' motion to dismiss the claim for intentional infliction of emotional distress, assault and battery, and negligent supervision and training. The judge denied the motion to dismiss the claims for false arrest, malicious prosecution, excessive force, and conspiracy. The TCA defense was not, then, pursued. Ultimately, the jury awarded compensatory damages in the amount of $500,000 based upon its conclusion that plaintiff had been maliciously prosecuted. The jury did not, however, award punitive damages. On defendants' j.n.o.v. motion, the trial judge vacated the verdict. The judge did not reach defendants' alternative request for remittitur.

We affirmed on appeal, but on plaintiff's petition for certification, the Court reversed. Helmy v. Jersey City, supra, 178 N.J. at 185. It remanded the case to the trial judge for reinstatement of the verdict; however, because the trial judge had not reached the remittitur motion, "that issue remains unresolved and should be taken up on the remand." Id. at 192.

On the remand, defendants argued that plaintiff was not entitled to any damages under the TCA because he had failed to establish a permanent injury as required by that statute. The trial judge held that defendants had failed to raise this issue when they filed for j.n.o.v. or remittitur (much less during the trial), and that he was bound to decide only what the Supreme Court had directed in its remand order, i.e., the issue of remittitur. The judge then analyzed the evidence presented at trial and denied defendants' motion for remittitur.

On appeal, defendants contend:

POINT I: THE DEFENDANT IS ENTITLED TO RAISE ALL ISSUES AS A DIRECT APPEAL OF A JUDGMENT.

A. THERE WAS NO BASIS FOR DEFENDANTS TO RAISE ANY ISSUE IN THE INITIAL APPEAL.

B. THE TIME TO COLLATERALLY ATTACK THE JURY VERDICT AND FOR ANCILLARY RELIEF SHOULD BE TOLLED.

POINT II: THE ENTRY OF AN UNLAWFUL JUDGMENT BELOW CONSTITUTED PLAIN AND REVERSIBLE ERROR. R. 2:10-2.

A. THE COURT REFUSED TO ADDRESS THE TORT CLAIMS THRESHOLD ISSUE ON THE MERITS.

1. THE TORT CLAIMS THRESHOLD ISSUE WAS TIMELY.

2. THE TORT CLAIMS STATUTE PROVIDES EXCLUSIVE AVENUE FOR RELIEF.

B. DISPOSITION OF THE TORT CLAIMS ISSUE ON THE MERITS WAS IMPORTANT.

1. THE RULES PROVIDE RELIEF FOR UNLAWFUL JUDGMENTS.

2. A COLLATERAL ATTACK INTERFERES WITH JUDICIAL EFFICIENCY AND ECONOMY.

C. THE TORT CLAIMS ACT IS AN ABSOLUTE BAR TO RECOVERY.

1. THE REMEDIAL STATUTORY PURPOSE IS TO REESTABLISH IMMUNITY.

2. TORT CLAIMS IMMUNITY PREVAILS OVER LIABILTY RECOVERY.

D. THE TORT CLAIMS THRESHOLD MAY NOT BE WAIVED.

E. THE TORT CLAIMS THRESHOLD IS A CRITICAL ELEMENT OF PLAINTIFF'S PROOFS.

POINT III: THERE WAS PROBABLE CAUSE TO ARREST AND PROSECUTE THE PLAINTIFF.

1. PROSECUTION PROCEEDED AT DISCRETION OF THE COUNTY PROSECUTOR.

2. THE PROSECUTION WAS INDEPENDENTLY EVALUATED.

POINT IV: THE ERRONEOUS JURY CHARGES BELOW CONSTITUTED PLAIN ERROR. R. 2:10-2.

A. THERE WAS A FAILURE OF PROOF.

B. MALICIOUS PROSECUTION ACTIONS ARE DISFAVORED.

C. THE CASE SUB JUDICE IS A MATTER OF FIRST IMPRESSION.

1. THERE WAS A PRIMA FACIE CASE FOR THE ELUDING PROSECUTION.

2. THE ERRONEOUS AND DEFECTIVE JURY CHARGES WERE PLAIN ERROR.

a. PROPER JURY INSTRUCTIONS ARE ESSENTIAL.

b. A JURY INSTRUCTION THAT LEADS TO AN UNJUST AND DIFFERENT RESULT IS PLAIN ERROR.

i. THE COURT FAILED TO DIFFERENTIATE AMONG THE OFFENSES ERROR.

ii. THE INSTRUCTIONS WERE INADEQUATE AS TO DAMAGES.

D. IT IS DIFFICULT TO REMEDY ERRONEOUS JURY INSTRUCTIONS.

E. THE FAILURE TO PROPERLY INSTRUCT THE JURY AS TO PLAINTIFF'S ATTORNEY FEES CONSTITUTED PLAIN AND REVERSIBLE ERROR. R. 2:10-2.

1. THE JURY INSTRUCTION WAS INADEQUATE.

2. THE DEFICIENT JURY INSTRUCTION LED TO AN UNJUST RESULT.

3. A STRONGER CAUTIONARY INSTRUCTION WAS REQUIRED.

POINT V: THE FAILURE TO GRANT REMITTITUR CONSTITUTED A REVERSIBLE ABUSE OF DISCRETION.

A. THE EVIDENCE DID NOT SUSTAIN THE JURY AWARD OF DAMAGES.

1. AN ERRONEOUS STANDARD WAS USED IN CONSIDERATION OF DAMAGES.

2. THE QUANTUM OF DAMAGES IS IMPROPERLY FORMULATED.

a. PLAINTIFF MAY NOT BE REWARDED FOR HIS OWN DELAYS.

b. THE COURT FAILED TO CONSIDER THE DIFFERNTIAL BETWEEN "DAMAGES" RESULTING FROM THE MALICIOUS AND THE "VIABLE" PROSECUTIONS.

B. THE COURT'S DETERMINATION ON REMAND WAS INCONSISTENT WITH THE DETERMINATIONS AT TRIAL.

C. THE FAILURE TO GRANT REMITTITUR CONSTITUTED A MISAPPLICATION OF THE LAW.

1. THE JURY VERDICT WAS NOT SUPPORTED BY THE RECORD.

2. ABUSE OF DISCRETION.

D. THE LAW DIVISION FAILED TO APPROPRIATELY CONSIDER REMITTITUR.

POINT VI: IT WAS REVERSIBLE ERROR FOR THE COURT BELOW [NOT] TO ORDER A NEW TRIAL.

A. NO COURT RULE PROVIDES FOR REMITTITUR.

B. A REMITTITUR MOTION MAY BE CONVERTED TO A NEW TRIAL APPLICATION.

C. LIABILITY IS AN ISSUE.

D. A NEW TRIAL IS AN APPROPRIATE REMEDY.

Point III seeks to relitigate an issue raised and decided during the original litigation, and, further, was not raised on remand. It is not properly before us, despite the contention in point I. Point IV was not raised during the original litigation or appeal or before the remand judge. We reject the contentions in point I and decline to entertain the issues raised in point IV. Point II was raised during the remand but exceeds the scope of that remand. As the trial judge said:

In this case there was a finding of malicious prosecution by the jury and the jury entered an award of compensatory damages of $500,000, no award of punitive damages.

The Supreme Court - the judgment was - the judgment was entered for the defendant notwithstanding the verdict. The Supreme Court returned the verdict - reinstated the verdict and returned it to the - this court to consider the motion for remittitur. After the verdict, the defendants made a motion for judgment notwithstanding the verdict and also for a remittitur in the event that a motion was not granted.

Since the motion for judgment notwithstanding the verdict was granted, the remittitur was not considered at the time. It is now back before the court and the express mandate of the Supreme Court to consider the remittitur motion.

The defendants supplemented . . . their arguments . . . on the remittitur motion . . . . However, the defendants raised another argument, that is they argued that there should be no verdict for the plaintiff because it was barred by the [T]ort [C]laims [A]ct in that they did not show damages that met the $3,000 threshold or didn't show damages that would be a permanent injury.

That issue was not raised at trial. That issue was not raised on the initial motion. And this matter was referred to this court by the Supreme Court with the express directive to decide the remittitur motion that had previously been timely filed. And that's what I will consider.

On defendants' motion for reconsideration, the judge added:

[A]s I initially ruled, I believe that I am restrained by the mandate of the Supreme Court under Rule 2:9-1, "the supervision and control of proceedings on appeal shall be in the Appellate Court from the time the appeal is taken . . . ." "The filing of a notice of appeal [. . .] deprive[s] the court below to act any further in the matter unless directed to do so by the Appellate Court." [Pressler, Current N.J. Court Rules, comment 1 on R. 2:9-1.] An Appellate Court's instructions to the Trial Court on remand are binding on the court. Jersey City Redevelopment Agency v. Mack Props. Co., 280 N.J. Super. 553[, 562] (App. Div. 1995).

Here the Supreme Court remanded the matter for two purposes, to reinstate the verdict and to consider the remittitur motion that was timely filed in this case and, without an instruction from the Appellate Court, I believe that I am constrained not to consider other arguments which were not timely filed in . . . the motion for a new trial filed within the 20 days after the verdict.

We agree. "'It is the peremptory duty of the trial court, on remand, to obey the mandate of the appellate tribunal precisely as it is written.'" Tomaino v. Burman, 364 N.J. Super. 224, 233 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) (quoting Jersey City Redevelopment Agency v. Mack Props., supra, 280 N.J. Super. at 562). After a remand from an appellate court, a lower tribunal's exercise of jurisdiction is limited by the remand order. In re Plainfield-Union Water Co., 14 N.J. 296, 302-03 (1954). This is so even where the pronouncement of an appellate court may be seen as manifestly erroneous. Tomaino v. Burman, supra, 364 N.J. Super. at 233. See Daniel v. Elmer, 113 N.J.L. 227, 229 (Sup. Ct. 1934) (court of original jurisdiction cannot order new trial on ground of errors "appearing on the face of the record" where appellate court has pronounced that judgment free from error).

To be sure, a broad and open-ended remand order does not preclude the remand court from considering alternate remedies or claims. See Desai v. Bd. of Adjustment of the Town of Phillipsburg, 360 N.J. Super. 586, 591-92 (App. Div.), certif. denied, 177 N.J. 492 (2003); Bubis v. Kassin, 353 N.J. Super. 415, 427-28 (App. Div. 2002), rev'd on other grounds, 184 N.J. 612 (2005). But that is not what occurred here. Rather, the remand order was precise and limited. It directed the trial judge to reinstate the verdict and to consider the remittitur issue.

Defendants nevertheless argue that they have been unfairly precluded from raising the TCA issue. They contend that, because they prevailed in the trial court in having the judgment vacated in its entirety, there was nothing for them to appeal and, when they prevailed in the Appellate Division, there was nothing on which they could have petitioned the Supreme Court for certification. Hence, they claim that it was not until the Supreme Court ordered reinstatement of the verdict that they had the opportunity to argue the TCA issue. We disagree.

Nothing prevented defendants from raising this argument as part of their post-trial motion for j.n.o.v. Just as defendants made the alternate argument that they were entitled to remittitur, they could have argued that they were entitled to judgment in their favor because of plaintiff's failure to meet the TCA's statutory threshold. Moreover, because appeals are taken from judgments, not opinions, defendants could have, without having filed a cross-appeal, argued any point on appeal to sustain the judgment. Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Borough of Leonia, 360 N.J. Super. 373, 376 n.1 (App. Div. 2003); Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443 (App. Div. 1984). That is to say,

a respondent who is merely seeking to maintain his judgment may brief and argue on the appeal any points that will sustain his judgment and if he does not brief and argue such points he will be taken to have waived them. . . . All the arguments on which the respondent relies in upholding his judgment below must be presented to [the appellate] court or be deemed to be waived.

[State v. LeFante, 14 N.J. 584, 589-90 (1954) (emphasis added).]

Accord Garden State Plaza Corp. v. S.S. Kresge Co., 78 N.J. Super. 485, 495 (App. Div.), certif. denied, 40 N.J. 226 (1963). See Baker v. Nat'l State Bank, 353 N.J. Super. 145, 160 (App. Div. 2002).

We, then, address only the remittitur/new trial issue. Pursuant to R. 4:49-1(a), a trial judge should grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Where a court determines that there has been such a miscarriage of justice, but that the quantum of damages is the sole source for it, other remedies are available, such as remittitur and additur. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490-91 (2001). "Remittitur is designed to bring excessive damages . . . to the level that the court knows is within the limits of a proper verdict and thereby avoid the necessity of a new trial." Id. at 491.

But, a trial judge should not interfere with the amount of damages assessed by a jury "unless it is so disproportionate to the injuries and resulting disabilities shown as to shock his conscience and to convince him that to sustain the award would be manifestly unjust." Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971). The judge must consider the evidence in the light most favorable to the prevailing party, Caldwell v. Haynes, 136 N.J. 422, 432 (1994), and the judgment of the initial factfinder is entitled to "very considerable respect." Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977).

On appeal, our role is even more restricted. Carey v. Lovett, 132 N.J. 44, 66 (1993). "When reviewing the amount of a damage award, an appellate court should show appropriate deference to the trial court's 'feel of the case.'" Ibid. (quoting Baxter v. Fairmount Food Co., supra, 74 N.J. at 600). We should not reverse the trial judge's ruling on a new trial motion unless we clearly conclude that there was a miscarriage of justice under the law. Caldwell v. Haynes, supra, 136 N.J. at 432. Our standard for setting aside a verdict that has been sustained by the trial judge, therefore, is a high one. Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993).

In denying defendants' motion for remittitur, the trial judge said:

Unlike a personal injury case, it's a very difficult task to assess the damages incurred by a person who has been maliciously prosecuted.

The anguish, the stress, the humiliation, the fear is somewhat of an intangible. The mere deprivation of liberty is an intangible. It's not an intangible, it's a severe injury itself. As a result of the malicious prosecution of charges, there was a deprivation of liberty in this case. It might be argued that well, there was probable cause for an arrest under eluding but at least in part the deprivation of liberty was because of the charges of aggravated assault, terroristic threats so that would be a factor to consider by the jury in making its determination.

. . . .

Here, the jury had an opportunity to assess what it would believe would be fair compensation for the deprivation of liberty, for the humiliation, taunting, that [plaintiff] underwent while in custody. Not to punish the police officer, but to compensate the plaintiff for his own anxiety, fear, torment. And with living for a period of months with a cloud over his head not knowing what his future would be, for his embarrassment, interference with his school work, embarrassment in having to advise his professors that he was charged with these serious offenses, and his humiliation and particularly his deprivation of liberty.

While it is a generous verdict -- there's also another intangible and that is the person -- plaintiff relies on the law to protect him and not to be a sword used to maliciously harm him. While it's a generous verdict, I can't find that the verdict was under those circumstances was so excessive as to be a clear and convincing miscarriage of justice.

On defendants' motion for reconsideration, the judge added:

As to the motion for reconsideration on the determination not to - denying a new trial or a remittitur plaintiff's primary argument is that in considering the damages the court considered certain affects that the arrest had on the plaintiff and the plaintiff - and the defendant argues that plaintiff would have been arrested anyway, there was probable cause to arrest the defendant on the eluding charge and cited the Supreme Court's discussion on page 191 saying that the jury's finding that Collier requested Helmy's credentials coupled with Helmy's acknowledgement that he drove away did not affect the validity of the verdict. The most that those facts could have established was that the police had probable cause to arrest and prosecute Helmy for eluding, not that they had probable cause to level four aggravated assault charges along with second degree resisting arrest and terroristic threats. Indeed, if the jury believed Helmy's version it could have concluded that the latter charges were maliciously pursued.

Certainly, the period that it took Helmy to get bail would - would be taken into consideration, it would be a substantial difference in setting bail for a defendant accused of aggravated assault, resisting arrest, terroristic threats, second degree offenses than there would be in setting bail for a person who is charged with a mere disorderly persons offense of eluding.

We find no abuse of discretion.

 
Affirmed for the reasons set forth by Judge John A. McLaughlin in his March 19, 2004, and June 16, 2004, oral decisions.

(continued)

(continued)

15

A-5915-03T32

January 23, 2006