On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3035-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Holston, Jr. and Grall.
Plaintiff Lucy Hagan appeals following a jury trial on her complaint alleging a violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -166, common law fraud, breach of contract, unjust enrichment, negligence and gross negligence arising from her rental of commercial property for use as a hair salon. The defendants are Peter Castro, a real estate agent employed by Century 21 Atlantic Realty (Century 21), Century 21, Rockland Management, Inc. (Rockland), the owner of the leased premises, and Abe Forst, a shareholder of Rockland. All claims other than those asserting negligence on the part of Castro and Century 21 and breach of contract by Rockland were dismissed by the court. The jurors found plaintiff thirty percent and defendants Castro and Centruy 21 seventy percent negligent and fixed damages at $65,000. They also determined that Rockland breached the lease and fixed damages at $35,000.
Defendants moved for a new trial or remittitur. The court remitted both damage awards, reducing the judgment against Castro and Century 21 to $6065.15 and the judgment against Rockland to $4665.50.*fn1
This case presents a preliminary question as to our jurisdiction to consider this appeal. We must consider appeals from final orders of a trial court, but a decision to exercise jurisdiction to review an interlocutory order is left to the discretion of this court, which is to be exercised "in the interest of justice." R. 2:2-3(a)(1); R. 2:2-4. This court cannot ignore its responsibility to determine whether interlocutory review is warranted because the parties agree to an appeal from the interlocutory order or the appellant or the trial court erroneously characterizes the order as final. See Hudson v. Hudson, 36 N.J. 549, 553 (1962) (agreement); Hogoboom v. Hogoboom, ___ N.J. Super. ___, ___ (App. Div. 2007) (slip op. at 10-11) (agreement); Parker v. City of Trenton, 382 N.J.
Super. 454, 457 (App. Div. 2006) (filing of notice appeal from an order that was interlocutory); Leonardis v. Bunnell, 164 N.J. Super. 338, 340 (App. Div. 1978) (erroneous certification of finality pursuant to Rule 4:42-2), certif. denied, 81 N.J. 265 (1979).
An order of remittitur is not a final order unless the plaintiff accepts the reduced award. When a remittitur is ordered and "the plaintiff declines the reduction, [the plaintiff] must submit to a new trial as to damages." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 496 (2001) (quoting Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 231 (1971)); see id. at 499 (disapproving dicta from Taweel on other grounds). An order granting a new trial on damages is not final. See Lanzet v. Greenberg, 126 N.J. 168, 171 (1991) (noting this court's grant of leave to appeal from an order narrowing the scope of damages to be considered on a new trial on damages); Olah v. Slobodian, 119 N.J. 119, 129 (1990) (describing a decision of this court requiring retrial as interlocutory and granting leave to appeal).
A grant of remittitur is an alternative to a grant of a new trial. It authorizes entry of a final judgment in the reduced amount only if the plaintiff consents. "Remittitur is designed to bring excessive damages awarded by a jury to the level that the court knows is within the limits of a proper verdict and thereby avoid the necessity of a new trial." Fertile, supra, 169 N.J. at 491; see Baxter v. Fairmont Food Co., 74 N.J. 588, 595 (1977). The effect of a remittiur is to "den[y] a defendant a new trial [on damages where required] if a plaintiff consents to a specified reduction in the jury award." Fertile, supra, 169 N.J. at 491. When the plaintiff declines to accept, the defendants are entitled to a new trial on damages, not an automatic reduction. When the plaintiff accepts a remittitur, the plaintiff has no right of appeal except by way of cross-appeal in the event of an appeal by defendant. Baxter, supra, 74 N.J. at 594-96; see Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950).
In this case the decision and orders on remittitur are ambiguous as to whether judgment was erroneously entered in the reduced amount, regardless of plaintiff's assent. In placing its ruling on the record, the trial court denied the motions for a new trial and granted the motions for remittitur. The order entered on the motion filed by defendants Castro and Century 21 provides that motion for a new trial is denied and, in the alternative, that judgment is entered in the amount of $6065.15. The order entered on Rockland's motion provides that the motion for a new trial is granted and, in the alternative, that remittitur is granted and judgment is entered in favor of Rockland in the amount of $4665.50. Because of this ambiguity, it is not clear that either plaintiff or defendants should have understood that plaintiff had the option to accept the reduced damage award or submit to a new trial on damages. On that basis, we conclude that this is an appropriate case for exercise of our discretion to grant leave to appeal on all issues. See R. 2:2-4; R. 2:5-6.
Plaintiff raises the following issues ...