FROSINA NASUFI v. MONICA L. MURRAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5152-10T3

FROSINA NASUFI and ARBEN NASUFI,

Plaintiffs-Appellants,

v.

MONICA L. MURRAY and

PAMELA R. MURRAY,

Defendants-Respondents.

_____________________________________

May 11, 2012

Submitted April 30, 2012 Decided

Before Judges Sabatino and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4215-07.

Seigel Capozzi, LLC, attorneys for appellants (Patrick M. Metz, on the brief).

McElroy, Deutsch, Mulvaney & Carpenter, attorneys for respondents (Everett E. Gale, III, of counsel; Sandra D. Lovell, on the brief).

PER CURIAM

Plaintiffs, Frosina1 and Arben Nasufi, appeal orders of the trial court denying their request to restore their complaint pursuant to Rule 4:50-1(f). The basis of plaintiffs' request was that their former attorney had mishandled their case and then concealed the case's dismissal from them and from his superiors at his law firm. Because the trial court did not misapply its discretion under the Rule in declining to restore plaintiff's lawsuit a year and a half after it had been dismissed, we affirm.

This is the pertinent background. Plaintiff was involved in a car accident in August 2006. In October 2007, plaintiff and her husband filed a personal injury action against defendants, seeking damages subject to the verbal threshold. Plaintiffs were represented by an associate at a law firm ("the associate"), who was also responsible for about eighty to one hundred other cases.

After discovery was completed, the case was called for trial in June 2009. The defense was prepared to proceed, but plaintiffs could not go forward because their expert witness was unavailable. Consequently, the complaint was dismissed due to plaintiffs' inability to proceed without an expert.

The associate moved to reinstate the case, and the trial court denied that motion in September 2009. Evidently, the associate did nothing else to attempt to restore the case. No appeal was taken of the complaint's dismissal, nor of the court's September 2009 denial of the ensuing motion for reinstatement. Meanwhile, the associate did not advise his clients or his superiors of the true status of the matter.

In December 2010, the associate abruptly left the law firm. A senior partner thereafter discovered during an internal review that the associate had been mishandling many of the cases assigned to him, and he had not been truthful about the circumstances. Meanwhile, plaintiff called the firm in March 2011 to inquire about the status of the case. This led to the discovery that the case had, in fact, been dismissed in 2009 while the associate was still plaintiffs' counsel of record.

Successor counsel at the firm moved in March 2011 to restore plaintiffs' complaint pursuant to Rule 4:50-1(f). The firm also filed motions for relief in about twenty other cases that the associate had mishandled while representing other clients. The motions were supported by certifications describing the firm's discovery of the former associate's malfeasance, recounting that he had misled his superiors and his clients about the actual status of many of the cases he was handling, and that he had made misleading entries in the firm's case tracking data base.

Defendants in this case opposed the restoration of plaintiffs' lawsuit, noting that over a year had passed since the case was called for trial and dismissed. They contended that plaintiffs failed to demonstrate exceptional circumstances, and that the statute of limitations and laches barred the claims.

After considering the relative equities at stake, the trial court denied plaintiffs' motion to restore. In its order of denial dated April 1, 2011, the court noted that there had already been a motion to reinstate that had been denied eighteen months earlier in September 2009, and that the time to move to reconsider or appeal that prior order had long since passed. The court acknowledged plaintiffs' contention that their former attorney had acted in an unauthorized manner, but concluded that the extraordinary relief sought under Rule 4:50-1(f) was not justified.

Plaintiffs moved for reconsideration, submitting additional certifications further detailing the associate's conduct and the steps that the firm had taken to attempt to rectify the situation. Defendants again opposed the application for relief.

Upon hearing oral argument, the court denied reconsideration on May 13, 2011. At the hearing, the court acknowledged that several other of the former associate's cases had been restored, but that such relief was not warranted in the present case, in which the matter had been called for trial and a restoration motion had already been denied in 2009. Plaintiffs now appeal, arguing that the trial court misapplied its discretion in declining to restore their case. They note that defendants have identified no specific prejudice other than a delay in the retrieval of their case file from storage.

Rule 4:50-1(f) provides that a court may vacate a judgment for "any other reason justifying relief from the operation of the judgment or order." Subsection (f) is distinguished from subsections (a), (b), and (c) of Rule 4:50-1, which are confined to specified circumstances where the relief is sought within a year from the underlying order or judgment. R. 4:50-2. In order to obtain relief under subsection (f)'s "catch-all" provision, a movant must satisfy a heavy burden of demonstrating "exceptional" circumstances. See CourtInv. Co. v. Perillo, 48 N.J. 334, 341 (1966); see also Hous.Auth. of Morristown v.Little, 135 N.J. 274, 286 (1994); Badalamentiex rel. Badalamenti v.Simpkiss, 422 N.J. Super. 86, 103-04 (App. Div.), certif. denied, 208 N.J. 600 (2011).

Our standard of review of the trial court's application of Rule 4:50-1(f) is limited. Motions under that rule are generally committed to the "sound discretion" of trial judges. Hous.Auth, supra, 135 N.J. at 283. Rulings on such motions "will be left undisturbed unless it represents a clear abuse of discretion." Ibid.; cf. UnionCounty Improvement Auth. v.Artaki, LLC, 392 N.J. Super. 141, 149 (App. Div. 2007); Gillman v. BallyMfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996).

Applying, as we must, these well-established standards that promote finality and deference to the trial courts, we affirm the trial court's denial of restoration in this particular case. The trial court clearly was mindful of the repetitive nature of the associate's neglectful conduct and took that into account on a case-by-case basis. The judge reasonably found this case distinguishable from others in which restoration had been granted, given that this matter had been called for trial, that the associate had already filed an unsuccessful motion for restoration, and that no further action had been taken for well over a year. We cannot conclude that the court abused its discretion, even though defendants' assertion of prejudice was generic in nature.

Plaintiffs incorrectly liken their situation to that in Parkerv. Marcus, 281 N.J. Super. 589 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996), in which restoration of a complaint was granted after a lawyer failed to appear for a proceeding and the lawyer had misled his clients about the dismissal of their case. The facts in Parker were more extreme, including that the lawyer had been disbarred and was uninsured. Id. at 592. Plaintiffs here may still have a remedy other than restoration.

Although we commend the forthright manner in which plaintiffs' law firm brought this situation to the court's attention, see RPC 8.3, the trial court nevertheless had a reasonable basis to withhold extraordinary relief under Rule 4:50-1(f).2

A

1 When we refer to plaintiff in the singular, we mean Frosina Nasufi rather than her husband, Arben Nasufi.

2 Given that the associate is not a party to the appeal and did not submit a certification to the trial court, we do not reach any definitive conclusions here about his actions and inactions.