Baumann v. MarinaroBaumann v. Marinaro
This appeal involves the interrelationship between post-trial motions made pursuant to
I
This case arises from an automobile accident that occurred on October 24,1975. Plaintiff Renee A. Baumann was a passenger in a Volkswagen, owned by defendant Nicholas A. Marinaro and driven by his daughter, defendant Kimberly Marinaro. Renee and Kimberly were on their way to a party at a friend’s house when Kimberly lost control of the car and struck a utility pole. Renee hit the windshield of the car and incurred injuries including a chipped tooth, a bloody nose, pain in her spine, and cuts on her knees, forehead, and lower lip.
Renee was taken to the hospital where she was treated in the emergency room as an out-patient and released later that night. After the accident, Renee consulted two dentists, to have her chipped tooth capped; an orthopedic surgeon, to treat pain in her back and hip; a plastic surgeon, to remove two small facial scars; an osteopath, to administer heat applications to her back; and a chiropractor for 60 visits between May 1976 and July 1977, also to treat her back.
Approximately two years after the accident, Renee and her father, Claude Baumann, filed a two-count complaint against Kimberly and her father. In the first count, Renee claimed damages against both defendants due to Kimberly’s negligent operation of her father’s car. In the second count, Renee’s
At the trial, plaintiffs’ witnesses were Renee, her parents, and her chiropractor. Plaintiffs also submitted by stipulation a report from Renee’s dentist, Dr. John E. Walsh. The evidence admitted at trial focused primarily on Renee’s alleged lumbosacral spine injury, broken tooth, and hip injury.
The chiropractor testified that Renee suffered some permanent disability in her lower lumbar spine. Renee testified that she continued to suffer pain in her neck, spine and hip, and both she and her parents testified that the accident had affected her emotionally. According to their testimony, the accident caused Renee, then 17, to discontinue her previously active social life, become antagonistic and insolent toward her family, and to gain 50 pounds.
Since their trial counsel did not contact them to appear for the proceeding, defendants were not present at the trial. Defendants’ counsel called only one witness, one of Renee’s orthopedic surgeons, who testified that no corrective surgery was contemplated.
The Court granted plaintiffs’ motion for a directed verdict as to the liability of both defendants; this motion was unopposed by defendants’ trial counsel. After granting the directed verdict for plaintiffs on the liability issue, the trial court charged the jury on the issue of damages. After a brief deliberation, the jury returned and requested further clarification from the court on how it should value Renee’s injuries.
1
At that point the trial court gave the jury an abridged statement of his prior instructions. The jury returned a verdict on July 21, 1980 in the amount of $250,000.00, plus interest of $55,555.00, in favor of
The following day, July 22, counsel for both parties met with the trial judge to discuss the issue of agency and the alleged liability of Nicholas Marinaro for his daughter’s operation of the car. Thereafter, on July 31, 1980, Judge DiGisi entered an order of liability against both defendants.
Sixteen days after the jury had entered the verdict, defendants’ trial counsel filed a notice of motion that stated in part:
pursuant toRule 4:49-1 2 seeking an order for a new trial and setting aside the jury verdict rendered in favor of the plaintiff and against the defendants on the grounds that said verdict was against the weight of evidence * * * and in the alternative, if the relief hereinabove sought is denied, an order for remittitur and the monetary verdict in favor of the plaintiff will be sought * * * and further * * * in the event the application for relief hereinabove set forth are denied, the undersigned shall also seek to vacate the judgment entered against the co-defendant, Nicholas A. Marinaro. [Footnote added.]
The trial court heard this motion on September 19, 1980. At the hearing, the court stated in part:
when you weigh [the extent of the injuries] * * * I have to say that the amount of the verdict shocked my conscience. And I don’t use those words in an artistic way or have the Appellate Court think I’m using the magic words. It is in fact for the reasons of the medical testimony that was presented before * * *. It absolutely shocked me, and in this case I think it’s a clear, clear case that if it remains, if the verdict remains, that it's a miscarriage of justice under the law as to the excessiveness of the verdict in relation to the injuries that were testified to and the evidence that has been submitted to the jury and to the court.
The trial court then delivered an oral ruling, ordering a new trial limited to the issues of damages and agency. Upon plaintiffs’ subsequent motion, the court vacated this order on the grounds that defendants' August 6 motion was untimely.
Thereafter, the parties filed several motions and cross-motions, including defendants’ motion for relief from the judgment, pursuant to
Defendants filed a petition for certification and requested that we remand the case to the Appellate Division for rehearing on the issues of agency and the timeliness of Nicholas Marinaro’s motion pursuant to
We granted defendants’ petition for certification. 93
N.J.
308 (1983). We affirm the Appellate Division with respect to Kimberly, but reverse with respect to defendant Nicholas Marinaro. We hold that Nicholas Marinaro’s motion to alter and amend under
II
Defendants initially sought a new trial under
Rule l:3-4(c) provides that “[njeither the parties nor the court may * * * enlarge the time specified by * * *
The rules contain clear and definite time limitations for motions before the trial court, i.e. * * * 10 days after * * * the entry of the verdict of the jury under R.R. 4:61-2 , * * * These time limitations may not be enlarged. R.R. 1:27B(c) .
In
Moich v. Passaic Terminal & Transportation Co., Inc.,
82
N.J.Super.
353, 361 (App.Div.1964), the Appellate Division, relying on
Hodgson,
held that “notwithstanding the existence of extenuating circumstances, it has been consistently held that the trial court is without discretion to extend the time given by the rule.” In its opinion the Appellate Division noted that power to relax the ten day rule was specifically barred by the Supreme Court in its adoption of the court rules, and that any attempt to circumvent this rule “would fly in the face of the intention of the Supreme Court in barring the enlargement of the ten day
We see no reason to depart from this line of cases. The policies of expedition and finality that underlie these time limitations would be defeated by extending the time to file a motion for a new trial under
Defendants argue that since the trial court felt strongly about the excessiveness of the verdict, under
4:49-2. Motion to Alter or Amend a Judgment
Except as otherwise provided byR. 1:13-1 (clerical errors) a motion to alter or amend a judgment shall be served not later than 10 days after entry of the judgment.
Defendants’ August 6 motion contained a request for a new trial pursuant to
This interpretation has already been accepted in
Hartford Ins. Group v. Marson Constr. Corp.,
186
N.J.Super.
253 (App.Div.1982), certif.den., 93
N.J.
247 (1983), wherein the court ruled that a motion to vacate a judgment was properly characterizable as a motion to alter or amend a judgment pursuant to
Hartford, supra,
186
N.J.Super.
at 261, is the only New Jersey case that addresses this issue;
Although the motion under [59(e) ] is to “alter or amend” the judgment, it would perhaps be more accurate to say that subdivision (e) deals with motions to alter, amend, or vacate. It would be an unreasonably narrow position to hold that a judgment may be modified and amended only up to the thin line where it amounts to a vacation of the judgment altogether. [6A Moore’s Federal Practice ¶ 59.12[1] (2d ed. 1982) (emphasis in original).]
Accord, Huff v. Metropolitan Life Ins. Co.,
675
F.
2d 119, 122 (6th Cir.1982);
American Family Life Assurance Co. of Columbus v. Planned Marketing Associates, Inc.,
389
F.Supp.
1141 (E.D.Va.1974). Accordingly, we hold that a motion to vacate is included within
Further, we find from the record that as a matter of law there was sufficient evidence to rebut the factual presumption of agency between Nicholas Marinaro and Kimberly Marinaro. Thus, we hold that the trial court erred in directing a verdict against Nicholas Marinaro. See Townsend v. Great Adventure, 178 N.J.Super. 508 (App.Div.1981); Harvey v. Craw, 110 N.J.Super. 68 (App.Div.), certif. den., 56 N.J. 479 (1970); Doran v. Thomsen, 76 N.J.L. 754 (Sup.Ct.1908). Thus, as to Nicholas Marinaro only we vacate the judgment and enter judgment for him finding that he is not liable as a matter of law.
IV
Defendants also urge that they should be relieved from this judgment under
The lower courts held that defendants were precluded from using
We have held that the failure to make a timely motion under
R.
Although it is not entirely clear which part of subsection (a) defendants are relying on, it appears that they are primarily urging that trial counsel’s errors constitute “excusable neglect” under
[m]ere carelessness or lack of proper diligence on the part of an attorney is ordinarily not sufficient to entitle his clients to relief from an adverse judgment in a civil action.
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Such carelessness may be excusable when attributable to honest mistake, accident, or any cause not incompatible with proper diligence, but in such case the moving party is required to show a meritorious cause.
See also Quagliato v. Bodner,
115
N.J.Super.
133, 138 (App.Div.1971) (counsel’s tardiness in appearing on motion day was not “excusable neglect” justifying relief under
Here, the trial counsel’s errors complained of were not due to honest mistake, accident or any other course compatible with proper diligence. In re T, supra, 95 N.J. at 235. Failure to call witnesses, failure to inform defendants of the date of a hearing, failure to object to a directed verdict, and failure to file timely motions are all careless mistakes evidencing a lack of proper diligence.
Thus, we find here that the trial attorney’s actions did not constitute “excusable neglect” pursuant to
Nor do we think that defendants are entitled to relief under subsection (f) of
Because
We are convinced that the circumstances here are not so exceptional as to entitle defendants to relief under
In
Klapprott,
the plaintiff was ill, poor and unable to work when the federal district court began proceedings to cancel his
In
Ackermann,
plaintiff hired an attorney to represent him in the federal district court in denaturalization proceedings. No default was entered against him; on the contrary, defendant introduced much evidence in support of his position. Nevertheless, his citizenship was cancelled and he did not move for relief of the judgment under
Here, defendants had benefit of a trial; they were free to move for a new trial within the time limitations of
Defendants claim that their trial attorney’s “gross neglect” is sufficient to invoke
In
Boughner v. Secretary of Health, Education & Welfare,
572
F.2d
976 (3d Cir.1978), the court granted defendants’
In
Link v. Wabash R. Co.,
370
U.S.
626, 82
S.Ct.
1386, 8
L.Ed.
2d 734 (1962), the Court upheld the dismissal with prejudice of a plaintiff’s case for failure to prosecute. Although the Court did not reach the issue of whether such a dismissal could be vacated under
Y
We conclude that the motion for a new trial under
We hold that defendant Nicholas Marinaro made a timely motion under
We hold that failure to make a timely motion under
For affirmance in part; reversal in part and remandment— Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER, O’HERN and GARIBALDI — 6.
Opposed — None.
Notes
0n returning to the courtroom the jury asked the trial judge the following question, “[A]re we, the jury, to determine the exact amount of damage to be awarded to the plaintiff.... We feel at a loss as to how to determine the amount of money to be awarded. Any help would be appreciated.”
Pursuant to
1:3-4. Enlargement of Time
(c) Enlargements Prohibited. Neither the parties nor the court may, however, enlarge the time specified * * *R. 4:49-1 (motion for new trial); * * *R. 4:49-2 (motion to alter or amend a judgment) * * *.
4:49-1 Motion for New Trial
(a) Grounds of Motion. A new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge. * * * The trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.
(b) Time for Motion, Cross-Motion; Affidavit. A motion for a new trial shall be served not later than 10 days after the court’s conclusions are announced in nonjury actions or after the return of the verdict of the jury.
********
(c) On Initiative of Court. Not later than 10 days after entry of judgment the court on its own motion may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter the court may grant a motion for a new trial timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.
We disagree with the Appellate Division’s holding that the
RULE 4:50. RELIEF FROM JUDGMENT OR ORDER.
4:50-1. Grounds of Motion
On motion, with briefs, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order 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 underR. 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.