JOHN CILO v. MARK STEPHENSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0865-11T2

JOHN CILO, JR., ASSOCIATES, INC.,

Plaintiff-Appellant,

v.

MARK STEPHENSON,

Defendant-Respondent.

__________________________________

March 7, 2013

 

Submitted January 15, 2013 - Decided

 

Before Judges Lihotz and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Special Civil Part, Docket No. DC-8502-09.

 

Thomas E. Maxim, attorney for appellant.

 

Respondent has not filed a brief.

PER CURIAM

Plaintiff John Cilo, Jr., Associates, Inc. (CAI) appeals from three trial court orders related to its effort to obtain a warrant to arrest defendant, an alleged judgment debtor. We dismiss the appeal as to the first order, and affirm as to the remaining two.

CAI asserts it obtained a default judgment against defendant on a book account in the amount of $1599. Although a copy of the judgment is not provided, CAI asserts it was entered June 25, 2010. On September 24, 2010, CAI obtained an order to enforce litigant's rights, compelling defendant to respond to an information subpoena and advising him that if he failed to comply within ten days of service, "a warrant for the defendant's arrest shall issue out of this Court without further notice." Apparently, no response was received, and CAI's counsel asserts that on July 5, 2011, he forwarded a request for issuance of an arrest warrant per Rule 6:7-2(g). A copy of the request is not provided.

By order entered July 8, 2011, the court denied the request, stating as its reasons, "Denied as plaintiff waited too long to seek warrant. Serve new information subpoena." CAI's counsel argues he did not learn of the July 8 order until he inquired of the court and received the order by email on August 4, 2011.

According to plaintiff, CAI filed a motion for reconsideration the next day. The court denied the motion without prejudice by order entered August 24, 2011. The court stated as its reasons:

Denied without prejudice. "Rule 6:7-2(g) provides that the court 'may' issue an arrest warrant upon submission of the required proofs. This allows for judicial discretion to refuse issuance in appropriate circumstances." New Century Financial Services v. Nason, 367 N.J. Super. 17, 28 (App. Div. 2004). The court is satisfied that a delay of nine months between the service of an order enforcing litigant's rights and the request for issuance of an arrest warrant is an unreasonable delay that prejudices the defendant. Requiring the application for an arrest warrant to be made with reasonable promptness "provide[s] appropriate and adequate protections to debtors whose liberty interests are at stake." Id. at 28-29.

 

CAI filed a second motion for reconsideration dated August 31, 2011, asking the court, a second time, to reconsider its July 8, 2011 order and to reconsider its August 24, 2011 order. The court denied that motion on September 20, 2011, stating "Denied as plaintiff waited too long to seek warrant. Serve new information subpoena." CAI's counsel asserts he received that order on September 28, 2011.

CAI filed its notice of appeal on October 19, 2011, seeking to appeal all three orders. CAI argues that while the court has discretion to refuse to issue an arrest warrant under Rule 6:7-2(g), the mere passage of time does not justify withholding the warrant, particularly where there is no evidence in the record of prejudice to the judgment-debtor from the delay.

We dismiss CAI's appeal from the July 8, 2011 order, and affirm the subsequent orders denying reconsideration.

 

 

July 8, 2011 Order.

CAI's appeal from the July 8, 2011 order is out of time. An appellant must file a notice of appeal within forty-five days of entry of the order or judgment subject to appeal, absent an extension upon motion. R. 2:4-1(a). The forty-five day period is tolled while a motion is pending to reconsider the order from which the party seeks to appeal. See R. 2:4-3(e) (stating that the period for filing an appeal is tolled "[i]n civil actions . . . by the timely filing and service of a motion to the trial court . . . for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2"). However, the forty-five days "shall again begin to run from the date of the entry of an order disposing of such a motion." Id.

Regarding the July 8, 2011 order, the forty-five period began to run on the day it was entered. Thus, twenty-eight days had already expired when CAI filed its first motion for reconsideration. The forty-five-day period was tolled for nineteen days, while the first motion for reconsideration was pending from August 5 to August 24, 2011. However, the forty-five-day period resumed on August 24, 2011 and expired seventeen days later, on September 10, 2011, over a month before CAI filed its notice of appeal.

The period was not tolled between entry of the order and when counsel obtained a copy from the court. Compare R. 2:4-1 (stating time for appeal runs from date of entry of order), with R. 4:49-2 (stating time for motion to reconsider shall be served within twenty days of service of the order by the party obtaining it).

Nor was the time period tolled while a second motion to reconsider was pending. There are two reasons for that conclusion. First, the second motion was untimely as it relates to the July 8 order. Even if the July 8 order were served August 4, 2011, CAI filed its second reconsideration motion on August 31, 2011 more than twenty days from the August 4, 2011 date. Rule 4:49-2 makes no provision for tolling of the twenty-day period.

Second, we have no basis to conclude the repetitive motion for reconsideration was based on any ground other than originally presented in the first motion for reconsideration, as CAI has not summarized what arguments it did make. We are persuaded by federal authority that the time for filing a notice of appeal should not be tolled during the pendency of a duplicative second motion for reconsideration. See Aybar v. Crispin-Reyes, 118 F.3d 10, 14 (1st Cir. 1997) ("While an initial motion for reconsideration filed within ten days of the entry of the final judgment tolls the period in which a litigant must file a notice of appeal . . . a subsequent motion for reconsideration served within ten days of the order denying the initial motion for reconsideration but more than ten days after the entry of the original judgment does not toll the time for appealing from that judgment" (citations and quotation omitted)); Charles L.M. v. Northeast Independent School Board, 884 F.2d 869, 870 (5th Cir. 1989) ("[W]here an appellant files a second motion to reconsider based upon substantially the same grounds as urged in the earlier motion, the filing of the second motion does not interrupt the running of the time for appeal, and the appeal must be dismissed." (citation and quotation omitted)). We agree that "[t]he interest of finality requires that parties generally get only one bite at the [reconsideration] apple for the purpose of tolling the time for bringing an appeal." Id. at 871.

August 24, 2011 Order.

We affirm the court's August 24, 2011 order denying CAI's first motion for reconsideration, which was timely filed.1

We review a trial court's decision on a motion for reconsideration for an abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Our review may be distinct from review of the underlying judgment or order. Fusco v. Board of Educ. of City of Newark, 349 N.J. Super. 455, 461 (App. Div. 2002).

In assessing whether a trial court abused its discretion, we must consider the standard governing the trial court's decision.

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . .

 
Alternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence.

 
[Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

 

We cannot determine whether the trial court abused its discretion, as CAI has not indicated what facts or precedent the court overlooked. CAI has not articulated the arguments it presented to the trial court in support of its motion for reconsideration. Although an appellant generally shall not include in its appendix the brief submitted to the trial court, the brief may be submitted if "the question of whether an issue was raised in the trial court is germane to the appeal." R. 2:6-1(b). Consequently, we do not know whether CAI submitted to the court evidence or legal authorities that it would have been an abuse of discretion to ignore. Standing alone, the court's July 8 order was not so palpably incorrect or irrational that we can conclude on the sparse record before us that it was an abuse of discretion to deny the motion for reconsideration.

The court has discretion whether to issue a warrant to arrest a non-cooperative judgment debtor, so that he or she may be brought to court to respond to an information subpoena. See R. 6:7-2(g) (stating that upon the judgment-creditor's certification that the judgment-debtor has not timely complied with the information subpoena, "the court may issue an arrest warrant." (emphasis added)). We stated in New Century Financial Services, Inc. v. Nason, 367 N.J. Super. 17, 28 (App. Div. 2004), that the rule "allows for judicial discretion to refuse issuance in appropriate circumstances."

In Nason, we found the trial court erred when it engrafted service requirements not embodied in the rule. Id. at 22-25. However, we did not define what "appropriate circumstances" would warrant withholding an arrest warrant. A plausible argument one neither palpably incorrect nor irrational can be made that a trial court has the discretion to refrain from issuing an arrest warrant where the judgment-creditor unreasonably delayed the request.2

September 20, 2011 Order.

Finally, we affirm the trial court's September 20, 2011 order denying CAI's second motion to reconsider. As we have discussed, we consider the appeal from the September 20, 2011 order only to the extent the court declined to reconsider its August 24, 2011 order. As CAI has not persuaded us to disturb on appeal the court's August 24, 2011 order, we find no basis to disturb the trial court's decision, expressed in its September 20, 2011 order, not to reconsider its August 24, 2011 order.

D

ismissed as to July 8, 2011 order; affirmed as to August 24, 2011 and September 20, 2011 orders.

1 The forty-five day period following entry of the court's August 24, 2011 order expired on October 8, 2011; however, it was tolled while the motion to reconsider that order was pending.

2 Had the appeal from the July 8 order been timely presented, we would have examined whether the court's discretion was properly exercised. We would have considered whether a nine-month delay by itself constitutes "appropriate circumstances," Nason, supra, 367 N.J. Super. at 28, justifying the court's refusal to issue an arrest warrant, particularly in light of the absence of specific evidence of prejudice to the debtor, the prejudice to the creditor inherent in the non-payment of its judgment, and the safeguards built into the arrest process under the rule. See id. at 27-28 (discussing safeguards). However, we shall not deem the appeal from the order on the motion to reconsider to be a substitute for an appeal of the initial order.