Lawson v. Dewar

• Decision Date: 27 May 2021
• Docket Number: DOCKET NO. A-2443-20
• Citation: 468 N.J.Super. 128,256 A.3d 388
• Parties: Alfred LAWSON, Plaintiff-Appellant, v. Officer Jeff DEWAR, Officer Janos Bojtos, Sergeant Robert Lavin, Officer Brian Wertheim, Officer Keith Kilgore, Sergeant Vito Bet, Sergeant John Mazuera, Sergeant Jeffrey Raub, Captain Kevin Rivenbark, Chief Michael D. Jannone, Mayor Bob Frazen, Borough of Bound Brook, and Bound Brook Police Department, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

468 N.J.Super. 128

256 A.3d 388

Alfred LAWSON, Plaintiff-Appellant,

v.Officer Jeff DEWAR, Officer Janos Bojtos, Sergeant Robert Lavin, Officer Brian Wertheim, Officer Keith Kilgore, Sergeant Vito Bet, Sergeant John Mazuera, Sergeant Jeffrey Raub, Captain Kevin Rivenbark, Chief Michael D. Jannone, Mayor Bob Frazen, Borough of Bound Brook, and Bound Brook Police Department, Defendants-Respondents.

DOCKET NO. A-2443-20

Superior Court of New Jersey, Appellate Division.

Submitted May 5, 2021

Decided May 27, 2021

Kevin T. Flood, attorney for appellant.

Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for respondents Sergeant Vito Bet, Sergeant John Mazuera, Sergeant Jeffrey Raub, Captain Kevin Rivenbark, Chief Michael D. Jannone, Mayor Bob Frazen, Borough of Bound Brook, and Bound Brook Police Department (Susan K. O'Connor, New Brunswick, of counsel and on the brief).

Dwyer Connell & Lisbona, LLP, attorneys for respondent Officer Janos Bojtos (William T. Connell and Beth Connell O'Connor, Fairfield, on the brief).

Martin Kane Kuper, LLC, East Brunswick, attorneys for respondents Officer Jeff Dewar, Officer Brian Wertheim, and Officer Keith Kilgore, join in the brief of respondent Officer Janos Bojtos.

Michael J. Stone, Warren, attorney for respondent Sergeant Robert Lavin, joins in the brief of respondent Officer Janos Bojtos.

Before Judges Fisher, Gilson, and Moynihan.

The opinion of the court was delivered by FISHER, P.J.A.D.

In summarily deciding this interlocutory appeal and vacating the order under review, we write chiefly to point out commonly misunderstood distinctions between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders.

For context, we briefly recount the circumstances that have brought us here. Plaintiff filed a complaint in October 2017 in the Somerset vicinage against the Borough of Bound Brook and numerous of its police officers alleging, under various legal theories, that he was physically beaten, at times while handcuffed, when arrested by Bound Brook police officers two years earlier.

Discovery was extended on a number of occasions and proceeded into early February 2020. Not all discovery was completed and disputes remained about some document requests and unscheduled depositions well into March 2020, when, during a case management conference, plaintiff was invited to move for, among other things: another discovery extension; the right to conduct certain depositions; reconsideration of an order barring Nestor Crespo¹ from testifying at trial because he failed to appear for a subpoenaed deposition; an amendment to the complaint to add a civil conspiracy claim; and the turnover of all use-of-force reports for all Bound Brook police officers. On May 14, 2020, the judge denied most of the relief sought but allowed additional time for an exchange of expert reports.

As presently relevant, the judge reasoned that a turnover of the use-of-force reports was barred by an earlier protective order, leave to amend was barred because it would cause an undue delay, and the order barring Crespo from testifying was authorized by Rule 4:23-2. In June 2020, plaintiff moved for reconsideration of those three aspects of the May 14, 2020 order.

The June 2020 reconsideration motion was still pending when, for unrelated reasons, venue was transferred first to Mercer County and then to Middlesex County. The many months that elapsed before venue was finally lodged in Middlesex County, and the inability of the court to conduct a trial in this case, even now, due to the COVID-19 pandemic, have rendered illusory the Somerset judge's concern nearly a year ago about the delay additional discovery or an amendment to the complaint would have caused if plaintiff's motion were granted.

Once the case landed in Middlesex County, the pending reconsideration motion was argued on February 19, 2021. On that day, a judge new to the case rendered an oral decision and entered an order denying all relief.

Plaintiff moved for leave to appeal. We granted the motion, advising in our May 5, 2021 order that we would summarily decide this interlocutory appeal on the briefs and appendices submitted.

See R. 2:11-2. For the reasons that follow, we vacate the February 19, 2021 order and remand for the trial judge's further consideration of plaintiff's motion.

In his oral decision, the judge invoked numerous legal principles and circumstances that, he said, compelled him to refuse reconsideration of the Somerset judge's earlier order:

• he was "being asked to reconsider the decision of a coequal member of the judiciary";

• "nothing new ... [was] presented ... that hadn't been available to [or] ... presented to [the Somerset judge]" when deciding the matters questioned by the reconsideration motion;

• plaintiff failed to demonstrate the Somerset judge "acted in an arbitrary, capricious, or unreasonable manner";

• plaintiff failed to successfully navigate the "narrow corridor" of showing the prior decision was "based upon a palpably incorrect or irrational basis" or the Somerset judge "failed to appreciate the significance of probative, competent evidence," quoting Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) ;

• "the overlay [of] the law of the case," which the judge described as a doctrine that "instructs courts to respect ... the rulings of a different judge ... during the pendency of the given case unless presented by substantially different evidence, new controlling authority, or a showing that the prior ruling was clearly erroneous," citing State v. K.P.S., 221 N.J. 266, 276 (2015), and Lombardi v. Masso, 207 N.J. 517, 538 (2011), among others.

The judge rejected defendants' argument that the reconsideration motion was time-barred by referring to the substantial delay caused by the change in venue.

The problem with the judge's disposition lies with his application of principles relevant only when a judge is asked to reconsider a final order; these standards are incompatible with a request that an interlocutory order be reconsidered. The approach to those requests is significantly different.

We start with a frequent misconception about the time within which a motion for reconsideration of an interlocutory order can be filed. Defendants have argued that plaintiff was obligated to move for reconsideration within twenty days of the May 14, 2020 order. That is plainly wrong. Rule 4:49-2 sets a twenty-day time bar for filing motions to alter or amend "a judgment or order," a phrase that encompasses only final orders, as Judge Pressler long ago observed in Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 258-59, 531 A.2d 1078 (App. Div. 1987). No one has or could possibly argue the May 14, 2020 order is a final order. Rule 4:49-2 has no application here.

Because Rule 4:49-2 applies only to motions to alter or amend final judgments and final orders, and doesn't apply when an interlocutory order is challenged, so too the standard described in Cummings v. Bahr – the standard cited by the trial judge that requires a showing that the challenged order was the result of a "palpably incorrect or irrational" analysis or of the judge's failure to "consider" or "appreciate" competent and probative evidence, 295 N.J. Super. at 384, 685 A.2d 60 – did not apply to the motion before the trial judge. Instead, in ruling on the motion at hand, the judge should have been guided only by Rule 4:42-2 and its far more liberal approach to reconsideration, not the methodology employed when a motion is based on Rule 4:49-2.

Rule 4:42-2 declares that interlocutory orders "shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice." A motion for reconsideration does not require a showing that the challenged order was "palpably incorrect," "irrational," or based on a misapprehension or overlooking of significant material presented on the earlier application. Until entry of final judgment, only "sound discretion" and the "interest of justice" guides the trial court, as Rule 4:42-2 expressly states. Nearly forty years ago, Judge Michels said for this court in Ford v. Weisman, 188 N.J. Super. 614, 619, 458 A.2d 142 (App. Div. 1983) that, until the suit ends, a trial court "has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so." Accord Lombardi, 207 N.J. at 536, 25 A.3d 1080 ; Johnson, 220 N.J. Super. at 257-59, 531 A.2d 1078 ; see also Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super. 198, 248-49, 117 A.3d 200 (App. Div. 2015), aff'd o.b., Ginsberg v. Quest Diagnostics, Inc., 227 N.J. 7, 147 A.3d 434 (2016) ; Akhtar v. JDN Props. at Florham Park, LLC, 439 N.J. Super. 391, 399-400, 109 A.3d 228 (App. Div. 2015) ; Johnson v. Benjamin Moore & Co., 347 N.J. Super. 71, 82, 788 A.2d 906 (App. Div. 2002) ; Hart v. City of Jersey City, 308 N.J. Super. 487, 497-98, 706 A.2d 256 (App. Div. 1998).² By invoking Cummings, the trial judge applied the wrong standard in denying plaintiff's motion.

The judge further erred by giving undue deference to the interlocutory rulings of the Somerset judge. If a prior judge has erred or entered an order that has ceased to promote a fair and efficient processing of a particular case, the new judge owes respect but not deference and should correct the error. See McBride v. Minstar, Inc., 283 N.J. Super. 471, 481, 662 A.2d 592 (Law Div. 1994), aff'd o.b., McBride v. Raichle Molitor, USA, 283 N.J. Super. 422, 662 A.2d 567 (App. Div. 1995). The polestar is always what is best for the pending suit; it is better to risk giving offense to a colleague than to allow a case to veer off course.

Similarly, the law of the case doctrine has no bearing when a party seeks reconsideration of interlocutory discovery orders. In writing for the Supreme Court, Justice Long recognized the law of the case doctrine "is only...