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Appellate Division Issues Ruling Explaining Distinction Between Motions for Reconsideration of an Interlocutory Order Versus a Final Order

By on June 11, 2021 in Court Rulings with 0 Comments

In the published Appellate Division decision of Lawson v. Dewar, 2021 N.J. Super. LEXIS 69 (App. Div. May 27, 2021), the Court addressed the “commonly misunderstood distinctions” between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders.  This case concerns a complaint by the plaintiff Alfred Lawson against the Borough of Bound Brook and numerous of its police officers alleging that he was physically beaten, at times while handcuffed, when arrested by the Bound Brook police officers.  At issue in this decision was the motion for reconsideration of the trial court’s order as to certain requests made during discovery.

This case ended up in the Appellate Division on an interlocutory appeal (interlocutory means before the final conclusion of the case) to review the trial court’s decision to bar the turnover of use-of-force reports, denying leave to amend the complaint to add a civil conspiracy claim and bar a potential witness, Nestor Crespo, from testifying at trial because he failed to appear for a subpoenaed deposition.  The original motion, addressing these issues, was decided on May 14, 2020. 

In June 2020, the plaintiff filed his motion for reconsideration of these three aspects of the judge’s order.  For some unknown reason, while that motion was pending, the lawsuit was transferred from Mercer County and then to Middlesex County.  The Middlesex County judge heard the motion for reconsideration on February 19, 2021 and denied all the requested relief.  The plaintiff then filed an application with the Appellate Division for leave to appeal, which was granted.

The Appellate Division noted that the basis for the Middlesex County judge’s denial of the prior judge’s order was that

  • He was being asked to reconsider the decision of a co-equal member of the judiciary;
  • There is nothing new presented that had not been available to or presented to the prior judge when deciding the original motion;
  • Plaintiff failed to demonstrate that the prior judge acted in an arbitrary, capricious or unreasonable manner;
  • That plaintiff failed to successfully navigate “the narrow corridor of showing the prior decision was based upon a palpably incorrect or irrational basis where the prior judge failed to appreciate the significance of probative, competent evidence;”
  • The overlay of the law of the case instructs courts to respect the rulings of a different judge during pendency of the given case “unless presented by substantially different evidence, new controlling authority, or a showing that the prior ruling was clearly erroneous.”

The Appellate Division noted that the trial court judge did reject the defendant’s argument that the reconsideration motion was time barred by referring to the substantial delay caused by the change in venue.

The Appellate Division found a multitude of problems with the Middlesex County judge’s rationale in denying the motion for reconsideration and took this opportunity in this published decision to “point out commonly misunderstood distinctions between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders.”

First, the Court pointed out that the judge’s disposition lies with his application of principles relevant to a motion to reconsider a final order which are incompatible with a request that an interlocutory order be reconsidered.  The Appellate Division noted that a frequent misconception concerns the time which to file a motion for reconsideration of an interlocutory order.  Under R. 4:49-2, there is a 20 day time bar for filing motions to alter or amend a judgment or order.  However, this rule only applies to final orders and, hence, this rule had no application to the order issued by the first judge because it was not a final order.

Also, because the standard cited by the trial court judge, requiring 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 or probative evidence” did not apply to this motion.  Instead, the Appellate Division pointed out that the judge should have been guided by R. 4:42-2 and its far more liberal approach to reconsideration, not the methodology employed when a motion is reconsidered based upon R. 4:49-2.

Under rules governing reconsideration, an interlocutory order “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.”  Further, a motion for reconsideration of an interlocutory order does not require a showing if the challenged order was “palpably incorrect,” “irrational,” or based on a misapprehension or overlooking of significant material based on the earlier application.”  The Appellate Division emphasized that until entry of final judgment only “sound discretion” and the “interest of justice” guides the trial court.  The Appellate Division pointed out prior case law that held 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.”

Further, the Appellate Division found that the Middlesex County judge made a mistake by giving undue deference to the interlocutory rulings of the prior judge.  The Court specifically stated that: “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.”

The Court also noted that the law of the case doctrine has no bearing when a party seeks reconsideration of interlocutory discovery orders.  The law of the case doctrine “is only triggered when one court is faced with the ruling on the merits by a different and co-equal court on an identical issue.”  The Appellate Division pointed to a prior Supreme Court case in which the Court 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.”  As the Supreme Court pointed out: “interlocutory rulings are not considered the law of the case and are always subject to reconsideration up until final judgment is entered.”

The Appellate Division also noted that “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.”

Finally, the Appellate Division urged judges “not to view reconsideration motions as hostile gestures.”  It noted that “some are frivolous, vexatious or merely repetitious, and some constitute an unwarranted attempt to reverse matters previously decided solely because the prior judge is no longer available.”  However, the Appellate Division further noted that some reconsideration motions “argue in good faith a prior mistake, a change in circumstances, or the court’s misappreciation of what was previously argued” and “present the court with an opportunity to either reinforce and better explain why the prior order was appropriate or correct a prior erroneous order.” 

In conclusion, the Appellate Division found that the Middlesex County judge applied the wrong standards when ruling on plaintiff’s motion for reconsideration. Hence, the Court vacated the Middlesex County judge’s February 19, 2021 order and remanded the matter back to the trial judge’s further reconsideration of plaintiff’s motion and “his exercise of sound discretion in determining whether any of the challenged interlocutory rulings served, in the words of R. 4:42-2, the interest of justice.”

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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