LISA ACKERS v. LEONARD MITCHELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2709-10T4

LISA ACKERS,

Plaintiff-Appellant,

v.

LEONARD MITCHELL,

Defendant-Respondent,

and

UNIVERSITY OF SOUTHERN

CALIFORNIA, and STATE OF

CALIFORNIA,

Defendants.

_______________________________

October 25, 2011

Submitted October 11, 2011 - Decided

Before Judges Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10031-02.

Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys for appellant (Mitchell J. Makowicz, Jr., on the brief).

Leonard Mitchell, respondent pro se.

PER CURIAM

In this personal injury case, plaintiff appeals from an October 25, 2010 amended supplemental judgment containing prejudgment interest in the amount of $38,218.20, and a December 17, 2010 order denying reconsideration. Plaintiff contends that the judge (now retired) miscalculated the interest pursuant to Rule 4:42-11. We reverse and remand for the court to recalculate the interest.

On October 25, 2000, defendant assaulted plaintiff and injured her. On October 23, 2002, plaintiff filed a complaint seeking compensation for the injuries. On February 3, 2010, the jury awarded plaintiff $761,150.00. On February 15, 2010, the judge entered a judgment for plaintiff in the amount of $1,042,056.06, which included $280,906.06 in prejudgment interest. Plaintiff then accepted a remittitur of $173,150.00 and submitted to the judge a proposed order that included recalculated prejudgment interest of $68,971.56.

On October 25, 2010, the judge entered an amended supplemental order of judgment and reduced prejudgment interest to $38,218.20.1 The judge handwrote on the October 25 order that "[t]he interest was calculated by the [c]ourt and pursuant to Court Rule 4:4[2]-11(a)." The judge did not explain how he reached the reduced rate of interest.

Plaintiff filed a motion for reconsideration and argued that Rule 4:42-11(a)(iii) requires interest to be calculated at a rate of two percent per annum added to the varying rate set by the rule. On December 17, 2010, a different motion judge denied plaintiff's motion. The second judge handwrote on the order:

Reasons: This Court discussed this matter with [the retired judge], who advised this Court that there are no written calculations available to assist the parties in this matter. I reviewed the Court Rule and no calculations are contained therein. [The retired judge] may have the calculations in his own trial file, but that was discarded when he retired. [The retired judge] calculated the interest by Court Rule and in his discretion awarded pre-judgment interest in the last Order. He did not calculate interest on punitive damages.

On appeal, plaintiff argues that the court erred in calculating prejudgment interest by failing to add two percent per annum as required by Rule 4:42-11.

The issuance of prejudgment interest in this case is governed by Rule 4:42-11 which provides in part:

(b) Tort Actions. Except where provided by statute with respect to a public entity or employee, and except as otherwise provided by law, the court shall, in tort actions, including products liability actions, include in the judgment simple interest, calculated as hereafter provided, from the date of the institution of the action or from a date 6 months after the date the cause of action arises, whichever is later, provided that in exceptional cases the court may suspend the running of such prejudgment interest. Prejudgment interest shall not, however, be allowed on any recovery for future economic losses. Prejudgment interest shall be calculated in the same amount and manner provided for by paragraph (a) of this rule except that for all periods prior to January 1, 1988 interest shall be calculated at 12% per annum. The contingent fee of an attorney shall not be computed on the interest so included in the judgment.

Plaintiff contends that the judge failed to include two percent per annum interest pursuant to subparagraph (a)(iii) of the rule, which provides:

(a) Post Judgment Interest. Except as otherwise ordered by the court or provided by law, judgments, awards and orders for the payment of money, taxed costs and attorney's fees shall bear simple interest as follows:

. . . .

(iii) For judgments exceeding the monetary limit of the Special Civil Part at the time of entry: in the manner provided for in subparagraph (a)(ii) of this Rule until September 1, 1996; thereafter, at the rate provided in subparagraph (a)(ii) plus 2% per annum.

[R. 4:42-11.]

Defendant argues that the retired judge correctly exercised his discretion under Rule 4:42-11(b), reduced the interest to $38,218.20, and lowered the amount by not awarding prejudgment interest on the punitive damages.2 Our ability to evaluate whether the judge erred is hampered because he did not sufficiently explain the reasons for his reduction in prejudgment interest.

Rule 1:7-4(a) requires that "on every motion decided by a written order" the judge must "by an opinion or memorandum decision, either written or oral, find the facts and state [his or her] conclusions of law[.]" "The rule requires specific findings of fact and conclusions of law[.]" Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2012). Although the retired judge modified the order to reflect his rulings, he did not sufficiently adhere to this rule.

Unfortunately, because the judge is retired, we cannot remand this matter for him to provide an amplification of his reasons. As a result, we remand for the court to consider the matter anew and calculate prejudgment interest pursuant to Rule 4:42-11.

R

1 Thus, the judge entered an amended judgment in the amount of $211,368.20 representing the remittitur of $173,150.00 plus prejudgment interest of $38,218.20.

2 The jury awarded plaintiff $2,150.00 in punitive damages. It is unlikely that this amount had any appreciable impact on the judge's decision to reduce interest by $30,753.36.