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McLelland v. Moore

September 04, 2001

WASHINGTON MCLELLAND, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
ROBERT A. MOORE, PETER YURO, LARRY POLLEX, JOSEPH VAS, AND THE PERTH AMBOY POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, L-11925-95.

Before Judges Pressler, Kestin and Ciancia.

The opinion of the court was delivered by: Kestin, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 17, 2001

Plaintiff, a member of the Perth Amboy Police Department, sued for damages alleging, among other grounds, violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The defendants were the Police Department, the two individuals who served as Deputy Chief of Police during the time period alleged, and the Mayor and Business Administrator of the municipality. The CEPA allegations bore upon the individual parties' conduct regarding a series of events, including the handling of two gun permit applications.

During an initial trial, the trial court dismissed all but the CEPA count. As to that cause of action, the jury returned a verdict in plaintiff's favor, awarding him $5,600 for past financial loss and $72,800 for future financial loss, but nothing on his claim of damages for emotional distress. The jury also awarded $700,000 in punitive damages. The trial court then, sua sponte, dismissed the claims against the individual defendants on the basis that "[t]his was strictly a claim against the employer[.]"

Shortly after the verdict was rendered, the trial court, inter alia, denied a reserved aspect of a motion defendants had made at the close of plaintiff's case for dismissal of the CEPA claim on res judicata grounds. The premise of the motion was that the factual bases for the CEPA claim had previously been adjudicated unfavorably to plaintiff in an employment disciplinary proceeding.*fn1

Several weeks later, on defendants' motion for judgment notwithstanding the verdict or a new trial, the court granted a new trial on liability for punitive damages but denied judgment n.o.v. or a new trial on liability for compensatory damages. It also denied another motion by defendants to dismiss the complaint on res judicata grounds, denied plaintiff's motion to reconsider the dismissal of the CEPA claim against defendant Peter Yuro, denied plaintiff's motion for prejudgment interest, and reserved on plaintiff's claim for attorneys' fees until the punitive damages retrial.

Subsequently, the trial court denied plaintiff's motion for reconsideration of its decision to grant defendants a new trial on punitive damages. It also denied defendants' motion to reconsider the denial of their motion to treat the findings in the prior employment discipline proceeding as preclusive of plaintiff's CEPA claim. Finally, on its own motion, the court set aside the compensatory damages verdict on the ground that the jury had reduced the damages by 30% in the mistaken belief that plaintiff would not be taxed on the award. The order memorializing these rulings specified that the issues for retrial were the amount of past and future compensatory damages on plaintiff's CEPA claim, defendants' liability for punitive damages, and the amount of punitive damages.

In the limited retrial, after the close of evidence on compensatory damages, the jury awarded plaintiff $200,000 for emotional distress, $5,000 for past loss of the opportunity to perform off-duty work, zero for future loss of such work, $31,500 for "all other past economic loss," and $200,000 for "all other future economic loss."

At the close of evidence on punitive damages, defendants moved to dismiss that claim. The court reserved decision on the motion. The jury found defendants liable for punitive damages of $600,000.

Shortly after the retrial, plaintiff moved for enhanced counsel fees based on the success of his CEPA claim. Counsel certified total fees of $58,100 and costs of $673.60. Defendants opposed the motion. Plaintiff also moved for prejudgment interest on his CEPA claim, which defendants opposed as well.

The trial court entered an order of judgment for plaintiff against the Police Department only. The order set compensatory damages at $436,000, punitive damages at $600,000, denied prejudgment interest, and was silent as to counsel fees.

Defendants then moved for judgment notwithstanding the verdict or, in the alternative, for a new trial on both compensatory and punitive damages. In addition to opposing defendants' motion on the merits, plaintiff also argued that the motion for judgment notwithstanding the verdict or for a new trial was untimely under the twenty-day limitation period of R. 4:40-2(b) and R. 4:49-1(b).

On April 20, 1999, the trial court ruled that defendants' motion was timely because the earlier motion for judgment at the close of evidence had been timely and the absence of a ruling on it was due to the court's oversight, and that the pendency of the counsel fee issue kept the judgment from being final for any purpose. The court ordered a new trial on compensatory damages for "emotional distress" if plaintiff did not accept remittitur of that award from $200,000 to $50,000. The court also granted defendants' motion for judgment notwithstanding the verdict regarding punitive damages on the ground that none of the facts established could "serve as a basis for a punitive award[.]"

The parties entered into a consent order setting plaintiff's award for counsel fees and costs at $57,773.60. According to the terms of the order, plaintiff's attorney waived his right to an enhanced fee, and payment of the fee awarded was contingent on the outcome of this appeal.

On May 11, 1999, the trial court entered an order granting defendants' motion for judgment notwithstanding the verdict on punitive damages, granting "defendants' application" for remittitur of the compensatory damages for emotional distress to $50,000, modifying an earlier order to set $286,500 as the figure for "the total judgment[,]" and awarding plaintiff counsel fees and costs of $57,773.60 pursuant to the consent order.

In the meantime, on April 22, 1999, plaintiff had filed his notice of appeal, seeking review of the July 13, 1998 order that had granted defendants a new trial on compensatory and punitive damages, and of the March 5, 1999 order denying prejudgment interest.

The issues as framed in plaintiff's brief on appeal, however, go further:

POINT ITHE SECOND LOWER COURT'S APRIL 20, 1999 DECISION WAS VOID AB INITIO BECAUSE THE MOTIONS FOR A NEW TRIAL AND/OR JUDGMENT NOT WITHSTANDING THE VERDICT WERE NOT TIMELY FILED.

POINT II IN THE ALTERNATIVE, THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT SHOULD APPLY ONLY TO PUNITIVE DAMAGES AND NOT THE COMPENSATORY DAMAGES.

POINT III THE SECOND LOWER COURT'S GRANTING OF THE J.N.O.V. MOTION IN THE DAMAGES TRIAL WAS PLAIN AND/OR REVERSIBLE ERROR.

POINT IV THE FIRST LOWER COURT'S RELEASE OF INDIVIDUAL DEFENDANTS AND DISMISSAL OF ALL CAUSES OF ACTIONS WITH THE EXCEPTION OF CEPA IN THE LIABILITY PORTION OF THE TRIAL WAS PLAIN AND/OR REVERSIBLE ERROR.

POINT VTHE FIRST LOWER COURT ERRED IN FINDING THAT THE CASE WAS SUBJECT TO THE NEW PUNITIVE DAMAGES LAW AND THE REMOVAL OF THE ORIGINAL PUNITIVE DAMAGE AWARD WAS PLAIN AND/OR REVERSIBLE ERROR.

POINT VI THE LOWER COURT ERRED IN NOT GRANTING PLAINTIFF PRE-JUDGMENT INTEREST ON THE CEPA AWARD.

POINT VII PLAINTIFF'S COUNSEL IS ENTITLED TO FURTHER ATTORNEYS FEES FOR THE PROSECUTION OF THIS APPEAL.

On May 28, 1999, plaintiff moved in the Appellate Division for a ruling that the May 11, 1999 order was "void" due to defendants' untimeliness in moving for judgment notwithstanding the verdict.

On June 11, 1999, defendants moved for leave to file their notice of cross-appeal nunc pro tunc from the trial court's July 13, 1998 order denying defendants' motion to dismiss the complaint on res judicata grounds; denying defendants' motion for judgment notwithstanding the verdict as to the issue of liability; and denying defendants' motion for a new trial as to the issue of liability. Defendants' appeal also encompasses a challenge to the May 11, 1999 order applying remittitur in respect of the award of damages for emotional distress in lieu of granting defendants' motion for judgment notwithstanding the verdict as to that issue.

We granted defendants' motion for leave. We also reserved decision on plaintiff's invalidation motion pending ...


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