JIMMIE GORE v. BENJAMIN WARD

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3529-15T2

JIMMIE GORE,

        Plaintiff-Appellant,

v.

BENJAMIN WARD and CITY OF TRENTON,

         Defendants-Respondents.


              Argued January 9, 2018 – Decided January 26, 2018

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Docket No. L-
              2685-11.

              Roger S. Mitchell          argued    the    cause    for
              appellant.

              John Morelli argued the cause for respondent
              (Walter D. Denson, Acting Director of Law,
              City of Trenton, attorney; Peter J. Cohen,
              Assistant City Attorney, on the brief).

PER CURIAM

        Plaintiff Jimmie Gore filed a complaint in the Law Division

in October 2011, seeking damages for personal injuries he allegedly

sustained on May 11, 2010, when the automobile he was driving
collided with a vehicle owned by defendant City of Trenton and

operated by its employee, defendant Benjamin Ward.          On April 5,

2013, the trial court granted defendants partial summary judgment

dismissing plaintiff's claim for pain and suffering pursuant to


N.J.S.A. 59:9-2(d) for failure to prove a permanent injury.           The

parties thereafter entered into a settlement, pursuant to which

plaintiff received $7500 and he in turn released defendants "for

all claims for [personal injuries]" sustained in the May 11, 2011

accident.   On December 15, 2013, a stipulation of dismissal with

prejudice was filed with the court.

     In January 2016, plaintiff filed a pro se motion seeking to

vacate the April 5, 2013 order and restore the case to the trial

calendar.    Plaintiff   contended   the   trial   court   inadvertently

failed to consider his medical expert's report that asserted he

sustained a permanent injury in the May 2010 accident.         Plaintiff

argued that, based upon the "fraudulent misrepresentation" that

he had not suffered a permanent injury, he was denied a fair

hearing and his due process rights were violated.

     The trial court denied the motion on March 4, 2016.           In an

oral opinion, the court found plaintiff's motion was time-barred

and otherwise failed to satisfy the standards for relief from

judgment pursuant to Rule 4:50-1.



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     On appeal, plaintiff argues he was denied due process when

the trial court ruled on defendants' motion for partial summary

judgment   without   considering   all   the   evidence,   including   his

expert medical report.     For the first time on appeal, plaintiff

also argues the settlement should be vacated under Rule 4:50-1

because he was "misinformed and unaware of the true facts" and

relied on "misleading inducements" by his attorney.

     Having reviewed the record, we find plaintiff's arguments

lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).    We add only the following limited comments.

     Under Rule 4:50—1, the trial court may relieve a party from

an order or judgment for the following reasons:

           (a) mistake, inadvertence, surprise, or
           excusable neglect; (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; (d) the
           judgment or order is void; (e) the judgment
           or order has been satisfied, released or
           discharged, or a prior judgment or order upon
           which it is based has been reversed or
           otherwise vacated, or it is no longer
           equitable that the judgment or order should
           have prospective application; or (f) any other
           reason justifying relief from the operation
           of the judgment or order.




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       Motions   made     under   Rule   4:50-1   must   be   filed     within    a

reasonable time.     R. 4:50-2; see also Deutsche Bank Trust Co. Ams.

v. Angeles, 
428 N.J. Super. 315, 319 (App. Div. 2012).                    Motions

based on Rule 4:50-1(a), (b), and (c) must be filed within a year

of the judgment.         Angeles, 
428 N.J. Super. at 319.            However, the

one-year limitation for subsections (a), (b), and (c) does not

mean that filing within one year automatically qualifies as "within

a reasonable time."        Orner v. Liu, 
419 N.J. Super. 431, 437 (App.

Div. 2011); R. 4:50-2.

              [T]he one-year period represents only the
              outermost time limit for the filing of a
              motion based on Rule 4:50-1(a), (b)[,] or (c).
              All Rule 4:50 motions must be filed within a
              reasonable time, which, in some circumstances,
              may be less than one year from entry of the
              order in question.

              [Orner, 
419 N.J. Super. at 437.]

       A motion for relief under Rule 4:50-1 should be granted

sparingly and is addressed to the sound discretion of the trial

court, whose determination will not be disturbed absent a clear

abuse of discretion.        U.S. Bank Nat'l Ass'n v. Guillaume, 
209 N.J.
 449,    467    (2012).       "[A]buse    of   discretion      only    arises     on

demonstration of 'manifest error or injustice[,]'" Hisenaj v.

Kuehner, 
194 N.J. 6, 20 (2008) (quoting State v. Torres, 
183 N.J.
 554, 572 (2005)), and occurs when the trial court's decision is

"made without a rational explanation, inexplicably departed from

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established    policies,   or   rested    on   an   impermissible   basis."

Guillaume, 
209 N.J. at 467 (quoting Iliadis v. Wal-Mart Stores,

Inc., 
191 N.J. 88, 123 (2007)).          Accordingly, this court's 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, we find no abuse of discretion by the trial court.

Plaintiff's motion to vacate the April 5, 2013 order sought relief

under subsection (a) of the rule, based on mistake, inadvertence,

surprise, or excusable neglect.     The motion was filed two and one-

half years after entry of the order.           Consequently, it was time-

barred under Rule 4:50-2, as the motion judge properly found.              To

the extent plaintiff's motion can be construed as seeking relief

under   Rule   4:50-1(c)   based   on    fraud,     misrepresentation,     or

misconduct, Rule 4:50-2 similarly bars any such claim.

     Finally, to the extent plaintiff now contends he is entitled

to relief under Rule 4:50-1(f), we decline to consider arguments

raised for the first time on appeal.           See Nieder v. Royal Indem.

Ins. Co., 
62 N.J. 229, 234-35 (1973) (discussing the limited

                                    5                               A-3529-15T2
circumstances in which an appellate court will consider an argument

first raised on appeal).      However, even if we were to consider

this contention, relief under this subsection of the rule is only

available when "truly exceptional circumstances are present."

Guillaume, 
209 N.J. at 484 (quoting Hous. Auth. of Morristown v.

Little, 
135 N.J. 274, 286 (1994)).             "The rule is limited to

'situations in which, were it not applied, a grave injustice would

occur.'"   Ibid. (quoting Little, 
135 N.J. at 289).

      Plaintiff's   assertions   fail     to   meet   that    standard   here.

Plaintiff was represented by counsel, and subsequent to the entry

of   partial   summary   judgment,   he    negotiated        and   accepted    a

settlement.    No exceptional circumstances have been established

more than two years later to warrant relief from the April 5, 2013

order or the settlement under Rule 4:50-1(f).

      Affirmed.




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