ELDRIDGE HAWKINS, II VS. ROBERT D. PARISIÂ (L-1665-11, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2569-14T2
ELDRIDGE HAWKINS, II,
Plaintiff-Appellant,
v.
ROBERT D. PARISI, Individually
and Officially, TOWNSHIP OF
WEST ORANGE,
Defendants-Respondents,
and
STEVE MANNION, Individually,
DECOTIIS FITZPATRICK AND COLE,
Defendants.
_____________________________________
Submitted February 2, 2017 – Decided June 7, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-
1665-11.
Eldridge Hawkins, II, appellant pro se.
Trenk, DiPasquale, Della Fera & Sodono,
P.C., attorneys for respondents Robert D.
Parisi and Township of West Orange (Richard
D. Trent, of counsel; Mark Y. Moon and
Franklin Barbosa, Jr., on the brief).
DeCotiis, FitzPatrick & Cole, LLP, attorneys
for respondents Steve Mannion and DeCotiis,
FitzPatrick & Cole, join in the brief of
respondents Robert D. Parisi and Township of
West Orange.
PER CURIAM
Plaintiff Eldridge Hawkins, II, appeals from a December 19,
2014 Law Division order denying his motion for reconsideration
of a June 6, 2014 order dismissing his fifth amended complaint
with prejudice, and other orders. After reviewing the record
and applicable legal principles, we affirm.
I
In 2010, plaintiff filed his original complaint in this
wrongful termination action. Over the course of this
litigation, plaintiff amended his complaint five times. The
defendants and claims included in the original and first through
fourth amended complaints were dismissed with prejudice.
Although the court granted leave to plaintiff to file a fifth
amended complaint, it restricted him from asserting any claim
that accrued prior to a certain date.
Plaintiff eventually filed a fifth amended complaint
acceptable to the court. In that complaint he named four
defendants. Two defendants and all but one count were dismissed
with prejudice in February 2014. The remaining count and
defendants were dismissed with prejudice by order dated June 6,
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2014. That order also definitively declared, "Plaintiff's Fifth
Amended Complaint be and is hereby dismissed with prejudice in
its entirety." Another order entered that day denied as moot
plaintiff's motion to dismiss with prejudice defendants'
counterclaim. The court found plaintiff's motion moot because
"no counterclaim exists any more."
Five months later, in November 2014, plaintiff filed a
notice of motion to "reconsider and to clarify the status of
these proceedings and all of this court's orders, to reinstate
the original . . . complaint and subsequent dismissals without
prejudice, and allow plaintiff to file a sixth amended complaint
. . . and . . . reopen[] . . . the discovery period for 120
days." Plaintiff's notice of motion stated he was seeking
reconsideration under Rule 4:42-9 and Rule 4:50-1.
In his motion papers, plaintiff argued he was entitled to
file a sixth amended complaint and that Rules 4:42-9 and 4:50-1
supported his request for reconsideration. The arguments on
these issues were limited to the following:
[Plaintiff suggests] that this Court
allow plaintiff to file yet another (6th)
amended complaint, alleging all causes of
action against all defendants other than
Parisi and West Orange, which have apparent
dismissal with prejudice recorded. Of
course, said allowance might be considered
by the co-defendants as being prejudicial to
them as their procedural strategies may have
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been planned with the expectations of not
being in the case without West Orange.
Thus, it might be considered that the only
appropriate way to proceed is pursuant to R.
4:49-2 and R. 4:50-1, 2, to vacate all
Orders of dismissal, require answers to be
filed to a newly filed complaint and
discovery to take place before any
dispositive motions are allowed to be filed.
On December 19, 2014, the court denied plaintiff's motion.
In its written opinion, the court stated it denied plaintiff's
motion for reconsideration for the reasons expressed by those
defendants who had filed a response to the motion. In their
response, defendants contended plaintiff was time-barred under
Rule 4:49-2 from seeking reconsideration of the June 6, 2014 or
any other order. In addition, the court further stated it
purposely did not cross-out a provision in plaintiff's form of
order because "that part of the order is undeniably correct."
That provision stated, "[T]he complaint against all defendants
in the within case whether or not ever previously dismissed or
dismissed with or without prejudice are hereby dismissed with
prejudice."
We note the trial court did not in its December 19, 2014
order in fact dismiss any additional defendants. There were no
defendants to dismiss; the last had been dismissed on June 6,
2014. Although the record reflected all parties had been
dismissed with prejudice, in his certification in support of his
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motion, plaintiff requested the court state in an order whether
the "remaining parties of record in this case were dismissed
with prejudice;" hence, the apparent reason plaintiff provided
the subject provision in his form of order.
II
On appeal, plaintiff presents the following arguments for
our consideration:
POINT I: PLAINTIFF-APPELLANT'S NOV 19, 2014
NOTICE OF MOTION FOR RECONSIDERATION SHOULD
HAVE BEEN GRANTED AND FAILURE TO DO SO WAS A
CLEAR ABUSE OF JUDICIAL DISCRETION CAUSING
PLAINTIFF-APPELLANT A MANIFEST INJUSTICE
POINT II: THE MOTION JUDGE ABUSED HIS
DISCRETION BY INTER ALIA, NOT DECIDING
PLAINTIFF'S MOTIONS OR DISMISSING SAME
WITHOUT STATING FACTS OR REASONS
POINT III: PLAINTIFF-APPELLANT'S FACTS,
CIRCUMSTANCES AND DENIAL OF DUE PROCESS
RIGHTS WERE SO EGREGIOUS AS TO NECESSITATE A
RECONSIDERATION AND AN APPELLATE COURT'S
INTERVENTION TO DECLARE THE MOTION JUDGE'S
DENIAL OF PLAINTIFF'S RECONSIDERATION MOTION
AND THE DECEMBER 19, 2014 ORDER TO BE
DECLARED EXTRAORDINARY CIRCUMSTANCES
REQUIRING AND VACATING OF ALL THE ORDERS
REFERENCED IN THE DECEMBER 19, 2014 ORDER[1]
In his notice of appeal, plaintiff sought the review of
twenty-two orders entered by the trial court from October 2011
through December 19, 2014. Defendants filed a motion before us
1
There were no orders referenced in the December 19, 2014
order.
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seeking to limit plaintiff's appeal of any order to only those
which had been entered not later than seventy-five days before
March 3, 2015, the day he filed his notice of appeal. We
entered an order providing the following:
The trial court's June 6, 2014 order
dismissed plaintiff's Fifth Amended
Complaint "with prejudice in its entirety."
Plaintiff's "reconsideration" motion filed
November 19, 2014 was ineffective to
preserve his appeal rights with respect to
the June 6, 2014 order and all orders
entered prior to that date. Defendant's
notice of appeal was timely only as to the
December 19, 2014 order denying
reconsideration. This appeal is limited to
that order.
After carefully reviewing the record and the briefs, we
conclude plaintiff's arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We add the following comments.
Plaintiff contends the court failed to provide, as required
by Rule 1:7-4(a), its reasons for entering the December 19, 2014
order. This rule states, "[t]he court shall, by an opinion or
memorandum decision, either written or oral, find the facts and
state its conclusions of law thereon in all actions tried
without a jury, on every motion decided by a written order that
is appealable as of right . . . ." Plaintiff overlooked the
written opinion attached to the December 19, 2014 order, in
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which the court expressly stated it was denying plaintiff's
motion for reconsideration for the reasons set forth in
defendants' response.
We recognize "the clearly better practice is for the court
to make its own statement." See Pressler & Verniero, Current
N.J. Court Rules, cmt. 1 on R. 1-7:4 (2017). However, a court's
reliance on the reasons posited by a party when granting or
denying a motion is permissible, as long as the court "make[s]
the fact of such reliance explicit." Ibid.; see also Allstate
Ins. Co. v. Fisher, 408 N.J. Super. 289, 301 (App. Div. 2009).
Here, we conclude a court's adoption of the reasons
proffered by defendants in their response to plaintiff's motion
was sufficient. In reaching the determination to deny plaintiff
relief, the court explicitly stated it based its decision on the
reasons advanced by defendants. Therefore, we discern no error.
As for the substantive issues before us, there is no
question plaintiff's attempt to seek reconsideration of any
orders on or before June 6, 2014 was well out of time. See R.
4:49-2 (mandating that a motion for reconsideration "shall be
served not later than 20 days after service of the judgment or
order").
Plaintiff also argues he was entitled to relief under Rule
4:50-1. However, before the trial court, plaintiff did not
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articulate the basis for which he was entitled to relief under
this rule, failing to identify even the subsection of this
rule, see R. 4:50-1(a)-(f), upon which he relied.
Plaintiff now argues he is entitled to relief under
subsections (a) and (b) of Rule 4:50-1, which provide in
pertinent part:
On motion, with briefs, and upon such terms
as are just, the court may relieve a party
or the party's 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 under R. 4:49
. . . .
However, these arguments were not raised before the trial court
and, "[g]enerally, an appellate court will not consider issues,
even constitutional ones, which were not raised below." State
v. Galicia, 210 N.J. 364, 383 (2012). Even if these arguments
had been raised, the trial court did not address the
applicability of Rule 4:50-1 in its opinion and, thus, we
decline to do so in the first instance. See Duddy v. Gov't
Emps. Ins. Co., 421 N.J. Super. 214, 221 (App. Div. 2011).
Affirmed.
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