ALFRED LAWSON VS. OFFICER JEFF DEWAR (L-8788-20, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2443-20
ALFRED LAWSON,
Plaintiff-Appellant,
v. APPROVED FOR PUBLICATION
May 27, 2021
OFFICER JEFF DEWAR, APPELLATE DIVISION
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.
______________________________
Submitted May 5, 2021 – Decided May 27, 2021
Before Judges Fisher, Gilson, and Moynihan.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Middlesex County,
Docket No. L-8788-20.
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, of counsel and
on the brief).
Dwyer Connell & Lisbona, LLP, attorneys for
respondent Officer Janos Bojtos (William T. Connell
and Beth Connell O'Connor, on the brief).
Martin Kane Kuper, LLC, 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, attorney for respondent Sergeant
Robert Lavin, joins in the brief of respondent Officer
Janos Bojtos.
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
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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 Crespo 1 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
1
Crespo was arrested when plaintiff was arrested and may have witnessed the
alleged assault on plaintiff.
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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.
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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.
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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 (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
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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. at384 – 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 (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; Johnson, 220 N.J. Super. at 257-59; see also Ginsberg ex rel.
Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super. 198, 248-49 (App. Div.
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2015), aff’d o.b., Ginsberg v. Quest Diagnostics, Inc., 227 N.J. 7 (2016); Akhtar
v. JDN Props. at Florham Park, LLC, 439 N.J. Super. 391, 399-400 (App. Div.
2015); Johnson v. Benjamin Moore & Co., 347 N.J. Super. 71, 82 (App. Div.
2002); Hart v. City of Jersey City, 308 N.J. Super. 487, 497-98 (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 (Law Div. 1994), aff'd o.b.,
McBride v. Raichle Molitor, USA, 283 N.J. Super. 422 (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
2
Ford relied on John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88 (1922),
where Justice Mahlon Pitney – a former Chancellor of New Jersey – recognized
the inherent power of a trial court to modify or rescind an interlocutory order
"at any time before final decree."
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Court, Justice Long recognized the law of the case doctrine "is only triggered
when one court is faced with a ruling on the merits by a different and co-equal
court on an identical issue." Lombardi, 207 N.J. at 539 (emphasis added). In
support, Lombardi cited Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J.
Super. 349, 356 (App. Div. 2004), aff'd o.b., 184 N.J. 415 (2005), where we held
in similar circumstances that the law of the case doctrine does not obligate a
court to "slavishly follow an erroneous or uncertain interlocutory ruling."
Interlocutory rulings are "not considered 'law of the case'" and are "always
subject to reconsideration up until final judgment is entered." Lombardi, 207
N.J. at 539 (citing Johnson, 220 N.J. Super. at 257).
We observe as well there is nothing in our jurisprudence to suggest
reconsideration of an interlocutory order is prohibited unless the movant can
provide something "new" or unless the prior judge acted in an "arbitrary,
capricious or unreasonable" manner. To the extent it may be discerned from
their submissions that defendants rely on these obstacles mistakenly erected by
the judge in denying relief, we find their arguments to be without sufficient merit
to warrant further discussion. R. 2:11-3(e)(1)(E).
In the final analysis, we urge judges not to view reconsideration motions
as hostile gestures. To be sure, some are frivolous, vexatious or merely
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repetitious, and some constitute an unwarranted attempt to reverse matters
previously decided solely because the prior judge is no longer available. But
some reconsideration motions – those that argue in good faith a prior mistake, a
change in circumstances, or the court's misappreciation of what was previously
argued – present the court with an opportunity to either reinforce and better
explain why the prior order was appropriate or correct a prior erroneous order.
Judges should view well-reasoned motions based on Rule 4:42-2 as an invitation
to apply Cromwell's rule: "I beseech you . . . think it possible you may be
mistaken." The fair and efficient administration of justice is better served when
reconsideration motions are viewed in that spirit and not as nuisances to be
swatted aside.3
Because the judge applied the wrong standards when ruling on plaintiff's
reconsideration motion, we vacate the February 19, 2021 order and remand for
the trial judge's further consideration of plaintiff's motion and his exercise of
sound discretion in determining whether any of the challenged interlocutory
rulings serve, in the words of Rule 4:42-2, "the interest of justice."
3
We should point out that this was not the trial judge's approach. He attentively
listened to the parties and exhibited a full understanding of the case and the
arguments presented. He simply applied the wrong standards in denying relief.
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We offer the following comments for guidance about the part of the
motion that concerns the bar on Crespo's trial testimony. First, the Somerset
judge mistakenly relied on Rule 4:23-2, which applies only to parties who refuse
to be sworn or answer a question after being directed to do so, and only to parties
who fail to provide discovery after being ordered to do so. Crespo is not a party.
The failure of a non-party to comply with a subpoena falls within the ambit of
Rule 1:9-5, which declares that a person's "[f]ailure without adequate excuse to
obey a subpoena . . . may be deemed a contempt of court."
Rule 1:9-5 presupposes an approach that doesn't sanction the parties but
instead calls for an order designed to compel the recalcitrant person's
compliance. A proper motion would have sought an order both finding Crespo
in civil contempt and containing other directions designed to compel his future
appearance. Defendant's motion, however, appears not to have even been served
on Crespo,4 so he was never given a chance to explain why he did not appear or,
if he had no excuse, a chance to comply and purge himself of his contempt.
Further, it is fair to assume Crespo has not felt coerced by the order if he
is even aware of it; the order simply bars his trial testimony. The Somerset
4
The proof of mailing appended to the motion to bar his trial testimony reveals
that the movant neither served nor attempted to serve Crespo with the motion.
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judge's order didn't motivate Crespo to comply; the judge took Crespo off the
hook and allowed the burden of his contempt to fall on whichever party may
have benefitted from his trial testimony. When the trial judge takes up again the
reconsideration motion, he should consider that the disposition of the original
Crespo motion should be driven by a desire to compel Crespo's compliance. See,
e.g., Catena v. Seidl, 65 N.J. 257, 262 (1974). The judge should consider what
is gained by perpetuating an order forbidding Crespo from testifying and
whether any party would be prejudiced if the order was vacated and replaced
with an order designed to compel Crespo's compliance with the subpoena.
We also point out the possibility that the issue may still have to be
considered even if, after reconsideration, the Crespo order remains in place. For
example, if a party is ultimately able to secure Crespo's appearance at trial, the
court would still be required to revisit the matter because of the court's
overriding interest in searching for the truth. See Graham v. Gielchinsky, 126
N.J. 361, 371-72 (1991). If Crespo has personal knowledge of facts relevant to
the case, his failure to previously appear for a deposition should not shut the
door to the presentation of that relevant evidence absent undue prejudice to the
parties. If he were to suddenly appear at trial, the judge would be called on to
exercise discretion and determine whether any prejudice caused by the
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circumstances may be ameliorated. It is not uncommon in these instances for a
trial judge to require that the previously unavailable witness undergo a
deposition during a break in the trial prior to his taking the stand.
In reconsidering the order barring Crespo's trial testimony, the judge
should weigh all relevant factors and consider whether the order's perpetuation
serves the ultimate goal of the fair and efficient administration of justice. R.
1:1-2(a); A.T. v. Cohen, 231 N.J. 337, 351-52 (2017); Ragusa v. Lau, 119 N.J.
276, 283-84 (1990).
We lastly point out that the Somerset judge denied other aspects of
plaintiff's prior motion by way of the May 14, 2020 order because of a concern
about the delay that the relief sought would cause. Unfortunately, despite those
intentions, the matter has been delayed for nearly a year by both a slow-moving
change of venue and the COVID-19 pandemic. Due to the cessation of most
civil jury trials over the past year, the judge now should consider not only the
merit of the parties' arguments but whether a brief delay caused by the additional
discovery or by an amendment of the complaint will further delay the trial of
this case. Undoubtedly, the court has a long queue of trial-ready cases to be
dealt with once civil jury trials are resumed. In ruling on the reconsideration
motion, the judge should assess when this case might realistically be sent out to
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trial. Once that is ascertained, the judge should then determine whether any of
the relief plaintiff seeks will delay the trial.
Vacated and remanded for further proceedings in conformity with this
opinion. We do not retain jurisdiction.
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