Opinion
DOCKET NO. A-3174-14T3
02-01-2017
ALONZO SHELLY, Plaintiff-Appellant, v. LOUIS A. NEBLETT, Defendant-Respondent.
Daniel B. Needle argued the cause for appellant (Kohn, Needle & Silverman, attorneys; Mr. Needle, on the brief). Cory J. Rothbort argued the cause for respondent (Sellar Richardson, P.C., attorneys; David Della-Badia, of counsel; Mr. Rothbort, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8655-13. Daniel B. Needle argued the cause for appellant (Kohn, Needle & Silverman, attorneys; Mr. Needle, on the brief). Cory J. Rothbort argued the cause for respondent (Sellar Richardson, P.C., attorneys; David Della-Badia, of counsel; Mr. Rothbort, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Plaintiff, Alonzo Shelly, appeals from the Law Division's January 9, 2015 order dismissing her complaint against defendant, Louis A. Neblett, with prejudice and its March 6, 2015 order denying her motion for reconsideration. The court dismissed her complaint because it was filed outside the applicable statute of limitations (SOL), N.J.S.A. 2A:14-2(a), and denied reconsideration because it found that plaintiff failed to "assert[] any new reasons why [the] court erred or overlooked any factual issues."
On appeal, plaintiff concedes his action was filed after the applicable two-year limitations period, but argues that the "circumstances dictate[d]" a contrary result. Plaintiff avers he filed his complaint "within a reasonable time," his claims "were not stale," the twenty-eight-day period that lapsed after the deadline was not long enough to cause "memories to fade," and there was no evidence of any "lost evidence" or that defendant suffered any prejudice because of the delay. Plaintiff also contends that defendant was "equitably estopped" from seeking dismissal and that the court erred by denying reconsideration because it "failed to acknowledge [d]efendant's default" or appreciate the "misrepresentation" made by defendant "as to the reasons for the delay in filing an answer." We disagree and affirm.
The material facts were not in dispute and can be summarized as follows. The parties were involved in a motor vehicle accident on October 7, 2011. Within weeks of the accident, plaintiff's attorney resolved his client's property damage claim with defendant's insurance carrier and on January 27, 2012, notified it of his client's personal injury claim. He did not, however, file a complaint for damages arising from plaintiff's injuries until November 4, 2013, twenty-eight days after the statute had run.
Defendant was served with the complaint on November 26, 2013, but did not file a timely answer. Plaintiff requested a default, which the court entered on January 9, 2014. Plaintiff took no action until July 7, 2014, when his attorney requested that the court schedule a proof hearing. The court scheduled one for August 20, 2014, but it dismissed the complaint for lack of prosecution on July 11, 2014, pursuant to Rule 1:13-7. Plaintiff took no action in response to the dismissal because his attorney understood that the case would be reinstated at the proof hearing. The proof hearing was adjourned several times but was finally rescheduled for October 21, 2014.
The court's notice of dismissal, however, stated that "a formal notice of motion is now required to restore this case to active trial status." --------
Plaintiff's counsel notified defendant and his insurance carrier of the first scheduled date for the proof hearing. He also provided the carrier with copies of plaintiff's medical bills and reports. In response, the carrier assigned counsel for defendant, who sought and obtained plaintiff's attorney's consent to vacate the default. The form of consent order submitted by defense counsel stated the answer had not been filed due to defense counsel's "inadvertence." At plaintiff's request, the court postponed the proof hearing again in anticipation of defendant filing his answer.
After the court filed the consent order vacating default on October 21, 2014, defendant filed his answer on October 27, 2014. In his answer, he asserted an affirmative defense to plaintiff's claim based upon the complaint being filed outside the SOL. The litigation continued with the parties exchanging written discovery. At the time defendant filed his motion to dismiss, discovery was not scheduled to end until the following year, depositions were not scheduled, and no arbitration or trial date had been set.
On December 5, 2014, defendant filed the motion to dismiss plaintiff's complaint with prejudice, pursuant to Rule 4:6-2(e), based upon the SOL defense. Neither party requested oral argument. In his supporting certification, defense counsel did not mention that the delay in defendant's filing of his answer was due to counsel's mistake. Plaintiff opposed the motion, arguing that "defendant failed to timely raise the [SOL] defense" and suffered no prejudice by "being served with the [s]ummons and [c]omplaint two years and fifty days after the accident." Defendant contended that no unreasonable lapse occurred in asserting the defense that would warrant ignoring the mandatory dismissal of the complaint under the circumstances. Defendant contended he acted promptly by seeking dismissal and, other than the exchange of written discovery, the matter had not proceeded very far — i.e., discovery had just begun and there were no arbitration or trial dates scheduled.
On January 9, 2015, the court granted defendant's motion. The court set forth its reason on the order stating the SOL "defense was preserved in [a] pleading[] raised promptly after an appearance was entered[] and before any significant discovery was conducted." In addition, in a rider to the order, the court distinguished the facts in this case from those set forth in the cases relied upon by plaintiff. The court noted that in White v. Karlsson, 354 N.J. Super. 284, 292 (App. Div.), certif. denied, 175 N.J. 170 (2002), the motion to dismiss was made "a week before trial, after extensive discovery," and in Zaccardi v. Becker, 88 N.J. 245, 257-58 (1982), the defendant "inequitably contributed to the delay in [the plaintiff] bringing the . . . complaint" and through other conduct inapplicable to plaintiff's argument in this case.
Plaintiff filed a motion for reconsideration, which the court considered on March 6, 2015. In his motion, plaintiff asserted that the court failed to appreciate the ten-month delay caused by defendant failing to answer the complaint after being served, citing to our decision in Hernandez v. Stella, 359 N.J. Super. 415 (App. Div. 2003) in which we held that "defendants [were] estopped from [seeking dismissal] relying on plaintiff's failure to provide a physician's certification because they did not raise the point until after arbitration." Id. at 417. Plaintiff also argued that defendant's failure to raise any defense by answering the complaint in a timely fashion equated to the defendant's failure in White, supra, 354 N.J. Super. at 292, to assert its SOL defense in a timely manner. After considering counsels' written and oral arguments, the court denied the motion, reasoning that it already considered the arguments advanced by plaintiff when it dismissed the complaint in January. This appeal followed.
On appeal, plaintiff contends the court erred by dismissing his complaint pursuant to Rule 4:6-2(e). We review a grant of a motion to dismiss a complaint for failure to state a cause of action de novo, applying the same standard under Rule 4:6-2(e) that governed the motion court. See Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011). "In considering a motion to dismiss under [the rule], courts search the allegations of the pleading in depth and with liberality to determine whether a cause of action is 'suggested by the facts.'" Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div.) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)), certif. denied, 208 N.J. 368 (2011). "If a complaint must be dismissed after it has been accorded the kind of meticulous and indulgent examination [required], then, barring any other impediment[,] such as a statute of limitations, the dismissal should be without prejudice to a plaintiff's filing of an amended complaint." Printing Mart-Morristown, supra, 116 N.J. at 772.
Applying these guiding principles, we find no merit to plaintiff's arguments and affirm substantially for the reasons stated by the motion court. We add only the following brief comments.
A "plaintiff has a cause of action until the day after the applicable statute lapses." Ahammed v. Logandro, 394 N.J. Super. 179, 192 (App. Div. 2007). We recognize, however, that an SOL defense may be waived if not asserted in a timely manner, particularly if delay in asserting the defense defeats the Legislature's purpose in creating it. See Williams v. Bell Telephone Lab., Inc., 132 N.J. 109, 119-20 (1993); White, supra, 354 N.J. Super. at 292. A "defendant's behavior [that leads] the plaintiff to the reasonable conclusion that the defendant had no objection to the continuation of the case," Ahammed, supra, 394 N.J. Super. at 192, gives rise to an equitable claim that the SOL bar should not be enforced. See White, supra, 354 N.J. Super. at 290.
We do not discern any facts from the record here to lead us to the conclusion that defendant's delay in answering, regardless of fault, or participating in a quick exchange of written discovery created the inequitable circumstances that would warrant defendant being denied the right to seek dismissal based on the untimeliness of plaintiff's complaint.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION