Opinion
DOCKET NO. A-1820-13T2
07-10-2015
SHALOME C. RABURNEL-JOHNSON and JOE L. JOHNSON, her husband, Plaintiffs-Appellants, v. GEORGE REDD, GEORGE REDD (as employee, servant and/or representative of RED & TAN, NJ TRANSIT CORP., RED & TAN (as employee, servant and/or representative of NJ TRANSIT CORP.), COACH USA, RED & TAN (as employee, servant and/or representative of COACH USA), STAGECOACH GROUP COMPANY, COACH USA (as employee, servant and/or representative of STAGECOACH GROUP COMPANY), IDS PROPERTY CASUALTY INSURANCE COMPANY, Defendants-Respondents.
Steven P. Haddad argued the cause for appellants (Steven P. Haddad, P.C., attorneys; Stephen A. Mennella and David M. Wasserman, on the briefs). Debra A. Goldstein argued the cause for respondent George Redd (Zarwin Baum DeVito Kaplan Schaer Toddy, P.C., attorneys; Ms. Goldstein, on the brief). Michael K. Tuzzio argued the cause for respondent Red & Tan Tours, Inc. (Ronan, Tuzzio & Giannone, attorneys; Mr. Tuzzio, on the brief). Adam Kenny argued the cause for respondent IDS Property Casualty Insurance Company (Weiner Lesniak, LLP, attorneys; Mr. Kenny, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0855-11. Steven P. Haddad argued the cause for appellants (Steven P. Haddad, P.C., attorneys; Stephen A. Mennella and David M. Wasserman, on the briefs). Debra A. Goldstein argued the cause for respondent George Redd (Zarwin Baum DeVito Kaplan Schaer Toddy, P.C., attorneys; Ms. Goldstein, on the brief). Michael K. Tuzzio argued the cause for respondent Red & Tan Tours, Inc. (Ronan, Tuzzio & Giannone, attorneys; Mr. Tuzzio, on the brief). Adam Kenny argued the cause for respondent IDS Property Casualty Insurance Company (Weiner Lesniak, LLP, attorneys; Mr. Kenny, of counsel and on the brief). PER CURIAM
Plaintiffs, Shalome C. Raburnel-Johnson and Joe L. Johnson, her husband, appeal from a Law Division judgment entered in favor of defendants on a unanimous jury verdict concluding there existed no cause of action. Plaintiffs contend this verdict is against the weight of the evidence. Plaintiffs also appeal from a post-judgment order denying their motion for a new trial. We affirm.
Plaintiffs filed a complaint for injuries Ms. Raburnel-Johnson allegedly sustained in an automobile accident that occurred on February 17, 2009. According to plaintiffs, Ms. Raburnel-Johnson sat in the driver's seat of her husband's parked car, when a bus, operated by defendant George Redd and owned by defendant Red & Tan, struck the side of the car. Plaintiffs contend, as a result of the accident, Ms. Raburnel-Johnson sustained serious personal injuries to her right shoulder, neck and back, all of which required operative procedures. There was also property damage to the vehicle. Plaintiffs further alleged Mr. Johnson suffered a loss of consortium.
At trial, the jury heard testimony regarding the incident from Mr. Redd, Ms. Raburnel-Johnson, Mr. Johnson, the Jersey City police officer who responded to the scene, and two of the passengers on Mr. Redd's bus. Ms. Raburnel-Johnson's surgeon testified, to a reasonable degree of medical certainty, that as a result of the accident, she sustained herniated discs at C5-6 and L4-5, necessitating cervical fusion surgery and two-level lumbar fusion surgery, and sustained a labral tear and rotator cuff tear to her shoulder, necessitating arthroscopic surgery. However, on cross-examination, the surgeon revealed that he did not examine all relevant records pertaining to Ms. Raburnel-Johnson's medical history, including those revealing more than six years of documented shoulder problems dating back before the accident, some of which necessitated recommendations for surgery, as well as records demonstrating lower back issues that existed prior to the accident.
On October 31, 2013, the jury returned a unanimous verdict in favor of defendants. The jury found that plaintiffs did not show defendants were negligent or that the driver of the bus was the proximate cause of the accident. The jury concluded the operator of a third, "phantom vehicle" was 100% responsible. The jury further concluded that plaintiffs did not prove by objective, credible medical evidence that Ms. Raburnel-Johnson sustained permanent injury as a direct and proximate cause of the accident. The order of judgment was entered on November 4, 2013.
Plaintiffs filed a motion for a new trial on December 2, 2013, thirty-two days after the verdict was entered. On December 20, 2013, the judge denied plaintiffs' motion for a new trial on the basis that plaintiffs were out of time in filing their motion, pursuant to Rule 4:49-1.
A motion for a new trial "shall be served not later than 20 days . . . after the return of the verdict of the jury." R. 4:49-1(b). The period begins to run from the date the verdict is received in open court, and it is a non-relaxable rule, even in extenuating circumstances. R. 1:3-4(c). Spedick v. Murphy, 266 N.J. Super. 573, 587-588 (App. Div.), certif. denied, 134 N.J. 567 (1993). We have found, however, requirements of the rule may be met in situations where there is "substantial compliance" with its terms. Stegmeier v. Saint Elizabeth Hosp., 239 N.J. Super. 475 (App. Div. 1990) (finding substantial compliance with the rule where the motion papers were delivered to an independent carrier within the statutory time period).
In this case, there exists no evidence of substantial compliance. Plaintiffs filed the motion out-of-time thirty-two days after the verdict had been entered. See R. 4:49-1(b). In light of the clear and unambiguous language of Rule 4:49-1(b), we are convinced the trial court properly denied plaintiffs motion for a new trial. See Baumann v. Marinaro, 95 N.J. 380, 387-88 (1984).
"[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1; see also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009). Plaintiffs did not timely move for a new trial, and there is nothing apparent in the record warranting the conclusion that the jury reached an unjust result.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION