Moon v. Warren Haven Nursing Home

• Decision Date: 08 March 2005
• Citation: 867 A.2d 1174,182 N.J. 507
• Parties: Tammy MOON, Individually and as Administratrix of the Estate of Roberta Smith, Plaintiff-Respondent, and Charlene Mickalowski and Thomas Hart, Plaintiffs, v. WARREN HAVEN NURSING HOME and County of Warren, Defendants-Appellants, and John Does/Jane Does, fictitious Individuals/entities, Defendants.
• Court: New Jersey Supreme Court

867 A.2d 1174

182 N.J. 507

Tammy MOON, Individually and as Administratrix of the Estate of Roberta Smith, Plaintiff-Respondent, and Charlene Mickalowski and Thomas Hart, Plaintiffs, v. WARREN HAVEN NURSING HOME and County of Warren, Defendants-Appellants, and John Does/Jane Does, fictitious Individuals/entities, Defendants.

Supreme Court of New Jersey.

Argued November 8, 2004.

Decided March 8, 2005.

Nancy C. Gage, Assistant County Counsel, argued the cause for appellants (Joseph J. Bell, Jr., Warren County Counsel, attorney).

Jeffrey M. Russo, San Francisco, CA, argued the cause for respondent.

Karen L. Jordan, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel). Justice ZAZZALI delivered the opinion of the Court.

This appeal presents a procedural question concerning a public entity's right to appeal an order granting a motion to file a late notice of claim under the New Jersey Tort Claims Act. We must determine whether such an order is a final judgment from which a public entity may appeal as of right or an interlocutory judgment from which a party may appeal only in the discretion of the Appellate Division. For the reasons discussed below, we conclude that the order in this matter is interlocutory.

I.

The County of Warren owns and operates the Warren Haven Nursing Home. Tammy Moon and others (collectively the plaintiff) allege that in December 2002, Moon's mother, Roberta Smith, fell from her bed at the nursing home and incurred a severe subdural hematoma. Plaintiff claims that the nursing home's negligent failure to provide care and treatment, as well as its negligent delay in transporting Smith to the hospital, caused the death of plaintiff's mother.

One year after Smith's death, in December 2003, plaintiff filed a notice of motion seeking leave to file a late notice of claim, pursuant to N.J.S.A. 59:8-9, and a complaint against various defendants, including the nursing home and the County. To assert a claim against a public entity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, a plaintiff must file a notice of claim within ninety days of the accrual of the cause of action. N.J.S.A. 59:8-8. However, the TCA provides that, after the ninety day period has expired, plaintiffs may seek leave from the trial court to file a late notice of claim. N.J.S.A. 59:8-9. This request must be made within one year of the accrual of the claim, and plaintiff must demonstrate "reasons constituting extraordinary circumstances for his failure to file notice of claim within" the ninety-day period. Ibid.

At the conclusion of the hearing on plaintiff's motion, the trial court determined that "extraordinary circumstances existed" and that the "interest of justice" warranted the late filing. More specifically, the trial court found that "Warren Haven, either intentionally or inadvertently, delayed the plaintiff's attempts to gain information concerning the circumstances that surrounded the death of her mother ... [and] may have misled the plaintiff [ ] in[to] thinking that the State was conducting an investigation." The trial court then ordered that plaintiff be permitted to file a late notice of claim.

The County filed a notice of appeal from that order. In the notice, the County responded "yes" to the question: "Have all issues as to all parties been disposed of in this action in the trial court or agency?" In an accompanying civil case information statement, the County listed its primary proposed issue on appeal as the trial court's abuse of discretion in granting plaintiff's motion to file a late notice of claim.

The Clerk of the Appellate Division then wrote to the County and inquired "whether the determination being appealed [was] final." The County replied that the order permitting the late notice of claim was a "final determination which is appealable as of right." The County also requested, in the alternative, that the Appellate Division grant it leave to appeal nunc pro tunc. In reply, the Clerk of the Appellate Division informed the parties that it was "returning, unfiled, the [notice of appeal] as [the] computer docket [did] not show [that a] ... final judgment, decision or action [had] yet been entered for which an appeal [could have been] filed." However, the clerk also sent the parties a notice of docketing and a scheduling order that outlined a briefing schedule.

Plaintiff filed a motion to dismiss the docketed appeal, contending that the County could not appeal from the interlocutory order because the Appellate Division had not granted the County leave to do so. The Appellate Division agreed with plaintiff and, by order, dismissed the appeal. The court cited Murray v. Barnegat Lighthouse, 200 N.J.Super. 534, 537, 491 A.2d 1290 (App.Div.1985) (finding order granting leave to file late notice of claim under TCA interlocutory), in support of its determination that the appeal was interlocutory, not final. The panel also "reject[ed] the County's alternative argument that [the Appellate Division] should treat its appeal as a motion for leave to appeal (R. 2:2-4; R. 2:5-6) nunc pro tunc."

We then granted the County's petition for certification. Moon v. County of Warren, 181 N.J. 286, 854 A.2d 920 (2004). The Attorney General of New Jersey, as amicus curiae, also filed a brief in support of the County's argument that the order permitting the late filing of a notice of claim is final.

II.

A half-century ago, Justice Brennan outlined the policy underlying restrained appellate review of issues relating to matters still before the trial court:

[O]ne of the fundamental underlying postulates of our present judicial system [is] that a judicial system better serves the public interest by uninterrupted trials than would be the case if final dispositions were suspended pending appellate review of intermediate action in the cause. We favor the ... approach[ ] [that] "lays its stress upon the inconvenience and expense of piecemeal reviews and the strong public interest in favor of a single and complete trial with a single and complete review...."

[Trecartin v. Mahony-Troast Constr. Co., 21 N.J. 1, 5-6, 120 A.2d 733 (1956) (quoting In re Appeal of Pa. R.R. Co., 20 N.J. 398, 404, 120 A.2d 94 (1956)).]

Justice Brennan further cautioned that improvidently hearing appeals during the pendency of trial court proceedings would" `encourage an unseemly parade to the appellate courts and... add to the time and expense of administration.'" Ibid. (quoting Dickinson Indus. Site v. Cowan, 309 U.S. 382, 389, 60 S.Ct. 595, 599, 84 L.Ed. 819, 825 (1940)). More recently, Justice Clifford observed that, in light of that policy, "[t]he emphasis in New Jersey upon an uninterrupted proceeding at the trial level with a single and complete review has resulted in the requirement that an appeal as of right will normally lie only from a ... judgment... that is final as to all issues and to all parties." Robert L. Clifford, Civil Interlocutory Appellate Review in New Jersey, 47 Law & Contemp. Probs. 87, 88 (1984) (internal citations omitted).

Although the remarks of Justices Brennan and Clifford arose in circumstances different from those now before us, they provide context for our analysis.

III.

Under our court rules, "appeals may be taken to the Appellate Division as of right ... from final judgments of the Superior Court trial divisions." R. 2:2-3(a)(1). Additionally, "the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court...." R. 2:2-4. In this matter, we hold that the trial court order granting a plaintiff's motion to file a late notice of claim under the TCA is interlocutory and not final. It is, therefore, not appealable as of right. Several factors inform our conclusion.

First, and perhaps most fundamentally, this order does not dispose of all issues as to all parties, but merely permits the litigation to proceed. In Murray, supra, the Appellate Division explicitly held that an order granting leave to file a late notice of claim under the TCA was interlocutory because it did not dispose of all the issues as to all the parties. 200 N.J.Super. at 535, 491 A.2d 1290; see also Escalante v. Tp. of Cinnaminson, 283 N.J.Super. 244, 247, n. 1, 661 A.2d 837 (App.Div.1995)

(finding order granting leave to file late notice of claim interlocutory). By definition, an order that "does not finally determine a cause of action but only decides some intervening matter pertaining to the cause[,] and which requires further steps ... to enable the court to adjudicate the cause on the merits[,]" is interlocutory. Black's Law Dictionary 815 (6th ed.1990).

The County relies on Priore v. State, 190 N.J.Super. 127, 129, 462 A.2d 191 (App.Div.1983), for the proposition that the order is final and appealable as of right. There, the Appellate Division held that because "the claimant may or may not proceed with the institution of suit after the six month waiting period," the order "granting leave to file a late notice of claim resolves the only issue in controversy." Ibid. Because the motion presented a single issue for the trial court to review, upon resolution of that issue the trial court had disposed of all issues as to all parties.

Because the panel in Priore, supra, focused only on the effect of the trial court's decision on the plaintiff's motion rather than its relationship to the entire cause of action, we disagree with that holding. A late notice of claim, followed by a six-month waiting period, is merely the first step a plaintiff takes in pursuing its cause of action. Contrary to the panel's characterization in Priore, a motion for leave to file a late notice of claim is like any other pretrial motion that focuses on a single issue; it is an intervening matter that does not resolve the merits of the cause of action....