ANDREW ALLEN v. PATRICIA CARRINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANDREW ALLEN,

Plaintiff-Respondent,

v.

PATRICIA CARRINGTON and

PHILIP CARRINGTON,

Defendants-Appellants.

____________________________________

February 25, 2014

Submitted January 13, 2014 Decided

Before Judges Harris and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2119-09.

Patricia Carrington and Philip Carrington, appellants pro se.

Zavodnick, Perlmutter & Boccia, LLC, attorneys for respondent (David Shachat, on the brief).

PER CURIAM

Pro se defendants Philip Carrington and Patricia Carrington appeal from the Law Division's March 12, 2012 order denying their Rule 4:50-1 application to vacate a February 18, 2011 judgment in favor of plaintiff Andrew Allen. We affirm.

I.

We glean the facts from the one-day, two-witness, bench trial that occurred on February 8, 2011, as well as from defendants' Rule 4:50-1 motion. Defendants, although insured, did not inform their insurance carrier of the complaint and represented themselves at trial. The Rule 4:50-1 motion, however, was prosecuted by a private attorney retained by defendants.

Defendants own real property located at 459-463 Martin Luther King Drive in Jersey City. The premises are used as a day care center and parking yard operated by the Family Collective Day Care Center, an organization affiliated with defendants.

Around 5:00 p.m. on March 4, 2009, Allen was walking on the sidewalk in front of 459-463 Martin Luther King Drive when he fell. According to Allen, he tripped on a crack in the sidewalk at that location, fell to the ground, and incurred injuries to his dentures and teeth, neck, back, knees, and hip.

After being helped to his feet, Allen drove to his dentist, Dr. Howard J. Martin, on Harrison Avenue. Allen did not call for an ambulance and did not file a police report. A few days later, Allen was attended by Dr. Medhad Elamir, and was referred to another physician, Dr. Magdy Elamir. Because Allen had struck his head in the fall, and was experiencing dizziness and headaches, he was referred to the Jersey City Medical Center for further diagnostic tests. Ultimately, Allen underwent several months of physical therapy described as "stretching," application of "hot pads," "massage," and "electric treatments" and incurred almost $12,000 in medical expenses.

Philip Carrington (Carrington) vigorously cross-examined Allen about the location of the fall, the nature of Allen's injuries, and the extent of Allen's prior medical history. Carrington contended that Allen had made prior inconsistent statements about where he actually fell, and highlighted the absence of any written confirmation, by a police or other official report, of the incident.

When Carrington testified, he admitted that there was a crack in the sidewalk adjacent to his premises, but challenged the contention that that was the location of Allen's fall. Carrington also asserted, "I do not think that . . . the crack was a danger and it was not a nuisance or was it any negligence on my part. Things do occur based upon the climate, the weather and certain elements."

In Carrington's summation, he argued that Allen's complaint should be dismissed because, among other things, Allen's testimony was suspect. Carrington claimed that Allen could not have gone to the dentist on March 4, 2009, after five o'clock, because Carrington used the same dentist and he knew that Dr. Martin did not have office hours that late. Carrington further contended that Allen's assertion that "there was nothing wrong with . . . him medically [before the incident]" was "very hard to believe." Distilled to its essence, Carrington's position was the following:

[I]t is quite hard or inconceivable for Mr. Allen to convince me that all of these injuries that he's suffering from today come from the fall that he claim[ed] he did. Again, I'm not a doctor so I'm not questioning that. My only concerns are that Mr. Allen [has] not present[ed] within the reasonable doubt that he did fall on our property on that particular day and with that Your Honor I'm asking the Court to dismiss the case for a lack of evidence that he fell that day.

The trial court reviewed the evidence and rendered an oral decision following the parties' closing arguments. The court first noted that Allen's burden of proof with respect to liability and damages was not beyond a reasonable doubt, but "he must prove [his case] by a preponderance of the evidence." It then recounted the use of direct and circumstantial evidence as sources of proof, and noted the role of credibility in the judicial decision-making process.

The trial court specifically found that "the photographs [admitted into evidence] . . . clearly show a significant . . . and substantial crack and hole in the sidewalk," which constituted a hazardous condition (notwithstanding defendants' characterization to the contrary) to pedestrians lawfully using the walkway. The court found that Allen "provided sufficient evidence for this Court to conclude that he fell in this location, fell on this sidewalk and fell as a direct and proximate result of the hole or defect in the sidewalk." However, after carefully assessing Allen's conduct, the court concluded that Allen was thirty percent negligent, and defendants were responsible for the balance of fault.

Ultimately concluding that Allen was entitled to a gross award of $35,000 ($25,000 for pain and suffering and $10,000 for unpaid medical expenses), the court molded the verdict to $24,500. The final judgment, entered a few days later on February 18, 2011, was for $25,554.16, which included prejudgment interest.

On March 18, 2011, the pro se defendants filed a motion, which the trial court treated as a motion for a new trial, styled as, "Notice of Motion to Vacate Judgment." In support of the motion, defendants submitted a series of unauthenticated maps and surveys, which supposedly demonstrated that Allen's fall occurred at 465 Martin Luther King Drive, adjacent to property owned by the City of Jersey City. By way of argument, Carrington contended that all of the data was "[n]ewly discovered evidence . . . exposed to me by a former attorney who is familiar with the area; he requested that we check the meets [sic] and bonds [sic] to determine the exact location of the accident." On April 29, 2011, the Law Division denied the motion, writing, "Motion for a new trial was filed out of time."1

Defendants did not appeal from either the judgment or order denying their motion. Instead, not quite one year after the entry of the final judgment, on February 17, 2012, defendants, now represented by counsel, filed a formal Rule 4:50-1 motion seeking to vacate the February 18, 2011 judgment on the grounds of newly discovered evidence (Rule 4:50-1(b)), fraud (Rule 4:50-1(c)), or for any other reason justifying relief (Rule 4:50-1(f)). In support of the motion, defendants submitted a number of "subpoenaed records" from Allen's doctors and health insurers that defendants' attorney had somehow obtained post-judgment. None of the documents were authenticated (or at least defendants' appellate appendix does not supply authentication).

On March 12, 2012, the trial court denied defendants' Rule 4:50-1 motion. The court wrote on the memorialization order the following:

Can't use Rule 4:50-1 to circumvent the appeal process. The issues raised herein were addressed and denied in the Court's previous decision on motion for a new trial. Further, the Court is not convinced of the existence of any fraud or misrepresentation that would require a new trial. Nor is there any newly discovered evidence.

Although we have not been provided with the motion papers, it appears that defendants filed a motion for reconsideration, which was denied by the trial court on April 23, 2012. In that order, which is not the subject of the present appeal, the court wrote:

Motion for reconsideration must specify and state the reason or basis upon which the relief is requested. Def[endant] merely states he has come into possession of new information but doesn't explain what that information is and why the information was not known before.

This appeal followed.

II.

Well-established principles guide our review. "Courts should use Rule 4:50-1 sparingly, in exceptional situations[.]" Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994). A movant has the burden of establishing the requirements of Rule 4:50-1. N.J. Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 434 (App. Div.), certif. denied, 205 N.J. 14 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 2925, 179 L. Ed. 2d 1255 (2011).

The Rule provides, in pertinent part, the following:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons . . . (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . . (f) any other reason justifying relief from the operation of the judgment or order.

[Rule 4:50-1.]

The Rule "'requires proof of exceptional and compelling circumstances' as it is '[d]esigned to balance the interests of finality of judgments and judicial efficiency against the interest of equity and fairness.'" Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004) (citation omitted).

A trial judge's "decision granting or denying an application to open a judgment rests within the sound discretion of the trial court, exercised with equitable principles in mind, and will not be overturned in the absence of an abuse of that discretion." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.) (citations omitted), aff'd, 43 N.J. 508 (1964); see also DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009) ("On appellate review, the trial judge's determination will be left undisturbed unless it represents a clear abuse of discretion." (internal quotation marks and citations omitted)).

"[A]buse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005) (citation omitted). Accordingly, our task is not "to decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursued a manifestly unjust course." Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968).

Here, the trial judge found that there was no showing of newly discovered evidence or fraud. Although a party seeking relief under subsections (b) and (c) must do so within one year after the judgment was entered, a motion filed pursuant to subsection (f) "has no such time limitation except that it must be made 'within a reasonable time.'" Palko v. Palko, 73 N.J. 395, 397-98 (1977) (quoting R. 4:50-2). Further, "a motion under (f) is addressed to the discretion of the trial court. That discretion is a broad one to be exercised according to equitable principles, and the decision reached by the trial court will be accepted by an appellate tribunal in the absence of an abuse of its discretion." Id. at 398 (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)).

Our review of the record confirms the utter absence of competent evidence of either the existence of newly discovered evidence or fraud. At the time of trial, defendants defended on the ground that Allen had not fallen where he claimed to have fallen. Defendants' acute awareness of this factual dispute required that they be prepared at trial to present competent evidence to counter Allen's assertion. Defendants made no efforts to do so beyond cross-examination. Their belated attempt to secure a survey, and present other locational data, which only depict property lines and by themselves demonstrate nothing, do not constitute newly discovered evidence. For evidence to be "newly discovered" it must be material and obtained after litigation ends, which could not have been found through the exercise of ordinary diligence. DEG, supra, 198 N.J. at 264. The unauthenticated survey and other materials were clearly capable of being obtained long before the trial, and if properly authenticated, they could have been utilized by defendants at trial in an attempt to erode Allen's credibility. The trial judge rightly rejected defendants' attempt to retry the dispute with evidence that they were fully capable of presenting during trial. Courts do not grant do-overs because litigants are ill-prepared or seek a second bite at the apple.

We further concur in the trial judge's assessment of the fraud claim. The Rule 4:50-1 motion presented no competent evidence of fraud. Again, Allen's unauthenticated medical and health insurance records were available to be discovered at the time of trial, yet defendants made no effort to obtain or utilize them. More important, in the absence of a demonstration of authenticity, see N.J.R.E. 901, the records constituted inadmissible hearsay, and were both inadmissible and incapable of impairing credibility. Contrary to defendants' argument in this appeal, the judgment was not obtained by fraud. R. 4:50-1(c).

We lastly turn to the catchall provisions of Rule 4:50-1(f). Application of subsection (f) is restricted to "'exceptional situations.'" Mancini v. EDS, 132 N.J. 330, 336 (1993) (quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984)). As the Court explained, "the very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." Perillo, supra, 48 N.J. at 341; see also Baumann, supra, 95 N.J. at 395 ("[E]ach case must be resolved on its own particular facts."). The purpose of subsection (f) is to afford relief when enforcement of a judgment would be unjust, oppressive, or inequitable. Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971).

Having the benefit of the trial court's scrupulous findings and conclusions at trial, together with its careful review and analysis of the succeeding motions, we are fully convinced that subsection (f) relief is wholly unwarranted. Defendants have not demonstrated that "it would no longer be just" to enforce the judgment. In re Guardianship of J.N.H., 172 N.J. 440, 476 (2002).

1 We presume that the lack-of-timeliness conclusion was based upon Rule 4:49-1(b), which requires a new trial motion with respect to a bench trial to be filed and served "not later than 20 days after the court's conclusions are announced." Here the deadline for such a motion would have been February 28, 2011, making defendants' filing eighteen days late.