On certification to the Superior Court, Appellate Division.
For affirmance in part; reversal in part and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J.
This appeal involves the interrelationship between post-trial motions made pursuant to R. 4:49-1, R. 4:49-2 and R. 4:50-1. Specifically, the issues presented are: (1) May the time to file a motion for a new trial under R. 4:49-1 be extended under extenuating circumstances; (2) Does a motion to alter and amend judgment under R. 4:49-2 include a motion to vacate judgment; (3) Does an untimely motion for a new trial under R. 4:49-1 preclude a motion for relief from judgment under R. 4:50-1; and (4) What grounds are necessary to sustain a motion under R. 4:50-1(a) or (f)?
This case arises from an automobile accident that occurred on October 24, 1975. Plaintiff Renee A. Baumann was a passenger in a Volkswagen, owned by defendant Nicholas A. Marinaro and driven by his daughter, defendant Kimberly Marinaro. Renee and Kimberly were on their way to a party at a friend's house when Kimberly lost control of the car and struck a utility pole. Renee hit the windshield of the car and incurred injuries including a chipped tooth, a bloody nose, pain in her spine, and cuts on her knees, forehead, and lower lip.
Renee was taken to the hospital where she was treated in the emergency room as an out-patient and released later that night. After the accident, Renee consulted two dentists, to have her chipped tooth capped; an orthopedic surgeon, to treat pain in her back and hip; a plastic surgeon, to remove two small facial scars; an osteopath, to administer heat applications to her back; and a chiropractor for 60 visits between May 1976 and July 1977, also to treat her back.
Approximately two years after the accident, Renee and her father, Claude Baumann, filed a two-count complaint against Kimberly and her father. In the first count, Renee claimed damages against both defendants due to Kimberly's negligent operation of her father's car. In the second count, Renee's
father claimed damages for lost services and for medical expenses.
At the trial, plaintiffs' witnesses were Renee, her parents, and her chiropractor. Plaintiffs also submitted by stipulation a report from Renee's dentist, Dr. John E. Walsh. The evidence admitted at trial focused primarily on Renee's alleged lumbosacral spine injury, broken tooth, and hip injury.
The chiropractor testified that Renee suffered some permanent disability in her lower lumbar spine. Renee testified that she continued to suffer pain in her neck, spine and hip, and both she and her parents testified that the accident had affected her emotionally. According to their testimony, the accident caused Renee, then 17, to discontinue her previously active social life, become antagonistic and insolent toward her family, and to gain 50 pounds.
Since their trial counsel did not contact them to appear for the proceeding, defendants were not present at the trial. Defendants' counsel called only one witness, one of Renee's orthopedic surgeons, who testified that no corrective surgery was contemplated.
The Court granted plaintiffs' motion for a directed verdict as to the liability of both defendants; this motion was unopposed by defendants' trial counsel. After granting the directed verdict for plaintiffs on the liability issue, the trial court charged the jury on the issue of damages. After a brief deliberation, the jury returned and requested further clarification from the court on how it should value Renee's injuries.*fn1 At that point the trial court gave the jury an abridged statement of his prior instructions. The jury returned a verdict on July 21, 1980 in the amount of $250,000.00, plus interest of $55,555.00, in favor of
plaintiff Renee Baumann; the jury allowed no award to Claude Baumann for medical expenses or lost services. The trial court then directed that an order of judgment be prepared.
The following day, July 22, counsel for both parties met with the trial judge to discuss the issue of agency and the alleged liability of Nicholas Marinaro for his daughter's operation of the car. Thereafter, on July 31, 1980, Judge DiGisi entered an order of liability against both defendants.
Sixteen days after the jury had entered the verdict, defendants' trial counsel filed a notice of motion that stated in part:
pursuant to Rule 4:49-1*fn2 seeking an order for a new trial and setting aside the jury verdict rendered in favor of the plaintiff and against the defendants on the grounds that said verdict was against the weight of evidence * * * and in the alternative, if the relief hereinabove sought is denied, an order for remittitur and the monetary verdict in favor of the plaintiff will be sought * * * and further * * * in the event the application for relief hereinabove set forth are denied, the undersigned shall also seek to vacate the judgment entered against the co-defendant, Nicholas A. Marinaro. [Footnote added.]
The trial court heard this motion on September 19, 1980. At the hearing, the court stated in part:
when you weigh [the extent of the injuries] * * * I have to say that the amount of the verdict shocked my conscience. And I don't use those words in an artistic way or have the Appellate Court think I'm using the magic words. It is in fact for the reasons of the medical testimony that was presented before * * *. It absolutely shocked me, and in this case I think it's a clear, clear case that if it remains, if the verdict remains, that it's a miscarriage of justice under the law as to the excessiveness of the verdict in relation to the injuries that were testified to and the evidence that has been submitted to the jury and to the court.
The trial court then delivered an oral ruling, ordering a new trial limited to the issues of damages and agency. Upon plaintiffs' subsequent motion, the court vacated this order on the grounds that defendants' August 6 motion was untimely.
Thereafter, the parties filed several motions and cross-motions, including defendants' motion for relief from the judgment, pursuant to R. 4:50-1, filed on October 30, 1980. The trial
court denied this motion, saying that to grant it would allow defendants to circumvent R. 4:49-1 and R. 1:3-4(c).*fn3 The Appellate Division affirmed the trial court holding that defendants' motion for a new trial, pursuant to R. 4:49-1, was untimely and that the court had no discretion to extend the time even "under extenuating circumstances." The court also agreed that a motion for relief pursuant to R. 4:50-1 "cannot circumvent the ten day time limitation in R. 4:49-1 to challenge the weight of evidence supporting a jury verdict" or to review trial error.
Defendants filed a petition for certification and requested that we remand the case to the Appellate Division for rehearing on the issues of agency and the timeliness of Nicholas Marinaro's motion pursuant to R. 4:49-2. Defendants argued that the motion made on August 6, 1980 included a motion to vacate the judgment against defendant, Nicholas Marinaro under R. 4:49-2. We temporarily remanded the case to the Appellate Division. On rehearing, the Appellate Division affirmed the trial court.
We granted defendants' petition for certification. 93 N.J. 308 (1983). We affirm the Appellate Division with respect to Kimberly, but reverse with respect to defendant Nicholas Marinaro. We hold that Nicholas Marinaro's motion to alter and amend under R. 4:49-2 included a request to vacate the judgment against him, and was timely. We further hold that there was sufficient evidence to rebut the presumption of agency against him.