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Moon v. Warren Haven Nursing Home

March 8, 2005

TAMMY MOON, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF ROBERTA SMITH, PLAINTIFF-RESPONDENT, AND CHARLENE MICKALOWSKI AND THOMAS HART, PLAINTIFFS,
v.
WARREN HAVEN NURSING HOME AND COUNTY OF WARREN, DEFENDANTS-APPELLANTS, AND JOHN DOES/JANE DOES, FICTITIOUS INDIVIDUALS/ENTITIES, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers whether an order granting a motion to file a late notice of claim under the New Jersey Tort Claims Act (TCA) is a final judgment from which a public entity may appeal as of right or an interlocutory judgment from which a party may appeal only in the discretion of the Appellate Division.

In December 2002, Roberta Smith fell from her bed and incurred a severe subdural hematoma at the Warren Haven Nursing Home, which is owned and operated by the County of Warren. Smith's daughter, Tammy Moon, and others (collectively, Moon) claim that the nursing home's negligent failure to provide care and treatment and its delay in transporting Smith to a hospital caused Smith's death. Pursuant to N.J.S.A. 59:8-1 to -11, a plaintiff must file a notice of claim against a public entity within ninety days of the accrual of the cause of action. After the ninetyday period has expired, a plaintiff may seek leave from the trial court to file a late notice of claim. This request must be made within one year of the accrual of the claim and the plaintiff must demonstrate extraordinary circumstances justifying the failure to timely file the notice. In December 2003, Moon filed a notice of motion seeking leave to file a late notice of claim, pursuant to N.J.S.A. 59:8-9. The trial court determined that extraordinary circumstances existed and that the late filing was warranted in the interest of justice. More specifically, the trial court found that Warran Haven either intentionally or inadvertently delayed Moon's attempts to gain information concerning the circumstances surrounding the death of her mother and may have misled her into thinking that the State was conducting an investigation.

The County filed a notice of appeal, contending that the trial court's decision was a final determination and therefore appealable as of right. Plaintiff filed a motion to dismiss the appeal, arguing that the County could not appeal from the interlocutory order because the Appellate Division had not granted the County leave to do so. The Appellate Division agreed and dismissed the appeal. The panel rejected the County's alternative argument that the Appellate Division should treat its appeal as a motion for leave to appeal nunc pro tunc.

HELD: Because the trial court's order granting plaintiff's motion to file a late notice of claim under the New Jersey Tort Claims Act resolves only the first issue, and not all issues related to the cause of action, the order is interlocutory and not final. It is, therefore, not appealable as of right.

1. New Jersey's judicial system disfavors appellate review of issues relating to matters still before the trial court. This policy of uninterrupted proceedings at the trial level with a single and complete review has resulted in the requirement that an appeal as of right will normally lie only from a judgment that is final as to all issues and to all parties. Pursuant to Rule 2:2-3(a)(1), appeals may be taken to the Appellate Division as of right from final judgments of the Superior Court trial divisions. Additionally, the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court. R. 2:2-4. Here, the trial court's order does not dispose of all issues as to all parties, but merely permits the litigation to proceed. An order that does not finally determine a cause of action but only decides some intervening matter pertaining to the cause, and which requires further steps to enable the court to adjudicate the cause on the merits, is interlocutory. (Pp. 5 -- 7).

2. The Court adopts the holding in Murray v. Barnegat Lighthouse, 200 N.J. Super. 534, 537 (App. Div. 1985) (order granting leave to file late notice of claim under TCA is interlocutory because it did not dispose of all the issues as to all the parties). The Court overrules Priore v. State, 190 N.J. Super. 127 (App. Div. 1983), which held that an order granting leave to file a late notice of claim is final and appealable as of right. The panel in Priori believed that such orders are final because a claimant may or may not decide to institute suit after the required six-month waiting period provided by N.J.S.A. 59:8-8. However, a late notice of claim, followed by a six-month waiting period, is merely the first step a plaintiff takes in pursuing its cause of action. A motion for leave to file a late notice of claim is like any other pretrial motion that focuses on a single issue; it is an intervening matter that does not resolve the merits of the cause of action. When determining whether trial courts have properly certified as final certain interlocutory orders relating to separable claims, our appellate courts have not applied a strict definition of the term"claim" but instead have focused on the legal right allegedly violated. Similarly, this Court will concentrate on the legal right allegedly violated when determining whether a trial court has resolved all issues as to all parties. Because the Court cannot conclude that an order granting a plaintiff the opportunity to litigate its claims addresses the legal right purportedly violated, the order is not a final adjudication of all the issues as to all the parties. (Pp. 7 -- 9).

3. Designating as interlocutory an order granting leave to file a late notice of claim avoids piecemeal litigation. Appeals prior to and during trial waste the time and resources of the court and the parties. A system allowing frequent appeals before or during trial in many cases would result in the separate adjudication of each issue by the trial court and the Appellate Division. The more efficient approach is to continue to vest discretion in the Appellate Division to decide when interlocutory review of non-final judgments is necessary. Not even defendant's status as a protected public entity is sufficient to disregard that well-established policy in this context. (Pp. 9 -- 10).

4. The Court's holding also is consistent with the purposes of the notice provision of the TCA, which include allowing the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bring of suit, providing the public entity with prompt notification of a claim so that it can adequately investigate and prepare a defense, giving the public entity a chance to correct the conditions that gave rise to the claim, and informing the State in advance as to the liability it may be expected to meet. By deeming these orders interlocutory, defendants are prohibited from automatically appealing all orders granting motions that seek leave to file late notices of claims. This fosters uninterrupted litigation and ensures that the judicial system will not interfere with the administrative review and settlement process. To allow the State to appeal as of right would have the opposite effect. (Pp. 10 -- 11).

5. Finally, prolonged litigation is inimical to the public interest. Appellate review prior to discovery would delay the advancement of the underlying tort claim indefinitely. The postponement of discovery, motion practice and trial may allow witnesses' memories to fade and evidence to be lost. Additionally, the taxpayers of New Jersey would bear the increased financial burden that inevitably accompanies extended litigation. (Pp. 11 -- 13).

6. Because there exist policy arguments in favor of treating orders granting the filing of a late notice of claim as final for appeal purposes, the Court refers this matter to its Civil Practice Committee for consideration. Until the Committee acts and the Court approves its recommendation, the Court deems orders granting leave to file late notices of claim under the TCA as interlocutory. (Pp. 13 -- 17).

7. The Court affirms the Appellate Division's rejection of the County's alternative request to treat its direct appeal as a timely motion for leave to appeal nunc pro tunc. Such decisions rest within that court's sound discretion. (P. 17).

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE ZAZZALI's opinion. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Justice Zazzali

Argued November 8, 2004

This appeal presents a procedural question concerning a public entity's right to appeal an order granting a motion to file a late notice of claim under the New Jersey Tort Claims Act. We must determine whether such an order is a final judgment from which a public entity may appeal as of right or an interlocutory judgment from which a party may appeal only in the discretion of the Appellate Division. For the reasons discussed below, we conclude that the order in this matter is interlocutory.

I.

The County of Warren owns and operates the Warren Haven Nursing Home. Tammy Moon and others (collectively the plaintiff) allege that in December 2002, Moon's mother, Roberta Smith, fell from her bed at the nursing home and incurred a severe subdural hematoma. Plaintiff claims that the nursing home's negligent failure to provide care and treatment, as well as its negligent delay in transporting Smith to the hospital, caused the death of plaintiff's mother.

One year after Smith's death, in December 2003, plaintiff filed a notice of motion seeking leave to file a late notice of claim, pursuant to N.J.S.A. 59:8-9, and a complaint against various defendants, including the nursing home and the County. To assert a claim against a public entity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, a plaintiff must file a notice of claim within ninety days of the accrual of the cause of action. N.J.S.A. 59:8-8. However, the TCA provides that, after the ninety day period has expired, plaintiffs may seek leave from the trial court to file a late notice of claim. N.J.S.A. 59:8-9. This request must be made within one year of the accrual of the claim, and plaintiff must demonstrate "reasons constituting extraordinary circumstances for his failure to file notice of claim within" the ninety-day period. Ibid.

At the conclusion of the hearing on plaintiff's motion, the trial court determined that "extraordinary circumstances existed" and that the "interest of justice" warranted the late filing. More specifically, the trial court found that "Warren Haven, either intentionally or inadvertently, delayed the plaintiff's attempts to gain information concerning the circumstances that surrounded the death of her mother... [and] may have misled the plaintiff[] in[to] thinking that the State ...


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