SHIRLEY MOURIN VS. WALGREENS, RD ELMWOOD ASSOCIATES, LP (L-6954-15, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 14, 2020
• Docket: A-5322-17T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5322-17T4

SHIRLEY MOURIN,

Plaintiff-Appellant,

v.

WALGREENS, RD ELMWOOD ASSOCIATES, LP,

Defendants-Respondents. _______________________________

WALGREENS EASTERN CO., INC.,

Defendant/Third-Party Plaintiff,

HOBART BUILDERS, INC.,

Third-Party Defendant. _______________________________

Argued January 23, 2020 – Decided February 14, 2020

Before Judges Nugent and Suter.

On appeal from the Superior Court of New Jersey Law Division, Bergen County, Docket No. L-6954-15. Patrick M. Metz argued the cause for appellant (Dario Albert Metz & Eyerman LLC, attorneys; Patrick M. Metz, on the brief).

Respondents have not filed a brief.

PER CURIAM

Plaintiff Shirley Mourin appeals the June 8, 2018 order that denied

reconsideration of her request to amend her complaint to include third-party

defendant Hobart Builders, LLC, as a direct defendant. Finding no abuse of

discretion, we affirm substantially for the reasons given by Judge Robert L.

Polifroni in his decision to deny the motion and to deny reconsideration.

Plaintiff filed a complaint on July 28, 2015, against defendant Walgreen

Eastern Co. Inc. (Walgreens) alleging that as a "lawful invitee" she sustained

personal injuries from a slip and fall on ice when exiting the Elmwood Park

Walgreens in January 2014. Walgreens denied liability. On May 24, 2016,

following its motion, Walgreens filed a third-party complaint against Hobart

Builders, Inc. alleging Hobart was responsible for snow and ice removal where

plaintiff fell. The third-party complaint sought common law and contractual

indemnification, contribution under the New Jersey Joint Tortfeasors

Contribution Act, N.J.S.A. 2A:53A-1 to -5, and breach of contract damages.

Hobart did not answer, and Walgreens requested entry of default.

A-5322-17T4 2 Walgreens was apportioned 90% liability and plaintiff, 10% in the

arbitration. After that the case was closed. The February 9, 2018 Stipulation of

Dismissal with Prejudice provided that the action "against the defendant/third-

party plaintiff, Walgreen[s] . . . is dismissed with prejudice and without costs to

any party involving all matters pertaining to the above captioned parties."

On April 4, 2018, plaintiff filed a motion to amend the complaint to

include Hobart as a "direct [f]irst [p]arty" defendant. The proposed second

amended complaint included a new third count which alleged Hobart was

responsible for snow removal and shoveling at the premises

In denying this motion on April 27, 2018, the trial court found a lack of

due diligence by plaintiff. The complaint was filed on July 28, 2015, and

discovery was extended five times for a total of 734 days, closing on December

10, 2017. The case was "settled as to all issues and parties" and closed on

January 24, 2018. 1 The judge reasoned plaintiff knew about Hobart's alleged

liability when it was added as a third-party defendant on May 18, 2016.

"Questions as to who was responsible for snow removal at the location in

question ought have been contemplated, and acted on during the beginning of

1 The January 24, 2018 order that closed the case is not included in the appendix. The trial judge's decision states that this January 24, 2018 order provided the case was "settled as to all issues and parties." A-5322-17T4 3 discovery . . . ." The court found a "lack of appropriate diligence in attempting

to substitute the true name of a fictitiously identified defendant." The court had

denied earlier motions by Walgreens and plaintiff to add other defendants

because that would have "cause[d] further delay."

Plaintiff requested reconsideration. In denying plaintiff's motion on June

8, 2018, the trial court found plaintiff did not provide any new information or

highlight "competent evidence that the court failed to consider." Instead

"plaintiff has simply re-argued its position from its motion to amend . . . ."

On appeal, plaintiff argues the trial court committed reversible error by

denying its motion to amend the complaint to include Hobart as a direct

defendant. She contends Hobart will not be prejudiced because it "will have the

opportunity to maintain a defense on the merits." Also, Hobart was aware it had

a contractual obligation to remove snow and ice.

The grounds for reconsideration are limited. State v. Puryear, 441 N.J.

Super. 280, 294 (App. Div. 2015). Reconsideration is not appropriate merely

because a litigant is dissatisfied with a decision. D'Atria v. D'Atria, 242 N.J.

Super. 392, 401 (Ch. Div. 1990). Reconsideration is appropriate only where "1)

the [c]ourt has expressed its decision based upon a palpably incorrect or

irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or

A-5322-17T4 4 failed to appreciate the significance of probative, competent evidence." Ibid.

Reconsideration also may be granted where "a litigant wishes to bring new or

additional information to the [c]ourt’s attention which it could not have provided

on the first application." Ibid. "[A] trial court's reconsideration decision will

be left undisturbed unless it represents a clear abuse of discretion." Pitney

Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App.

Div. 2015).

Plaintiff did not argue the trial court decided the reconsideration motion

on some palpably incorrect or irrational basis, that it failed to consider evidence,

or new evidence was presented. As such, plaintiff did not allege how the trial

court abused its discretion in denying the motion for reconsideration. Plaintiff

waived any challenge to the reconsideration order by not raising the issue in its

brief. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Drinker Biddle &

Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5

(App. Div. 2011) (noting that claims not addressed in merits brief are deemed

abandoned). See Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.

2:6-2 (2020).

The trial court did not abuse its discretion when it denied plaintiff's motion

to amend on April 27, 2018. The disposition of a motion to amend generally

A-5322-17T4 5 rests with the sound discretion of the court. Fisher v. Yates, 270 N.J. Super.

458, 467 (App. Div. 1994). We ordinarily will not disturb a trial judge's

determination on a motion to amend a pleading, unless it constitutes a "clear

abuse of discretion." Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J.

Super. 494, 506 (App. Div. 2003) (quoting Salitan v. Magnus, 28 N.J. 20, 26

(1958)).

The record supports the trial court's finding that due diligence was not

exercised. Discovery had been extended five times for a total of 734 days.

Plaintiff was aware of Hobart in 2016, after Walgreens amended its answer to

include it as a third-party defendant. The time was then to make the motion.

See R. 4:8-1(b).

Plaintiff's motion was made after the case was closed. The parties'

stipulation dated February 9, 2018, provided the case was dismissed with

prejudice "involving all matters pertaining to the above-captioned parties."

If the amendment were allowed Hobart would have to defend a slip and

fall claim that arose in 2014 without any indication witnesses and documents

are still available. And, there was nothing in the third-party complaint to alert

Hobart that plaintiff might be making a direct claim against it. Thus, we are

satisfied plaintiff had a fair opportunity to develop her claims in a timely

A-5322-17T4 6 manner. Having carefully reviewed the entire record, we find no basis to

conclude that the trial court abused its discretion when denying plaintiff 's

motion to amend the complaint.

Affirmed.

A-5322-17T4 7