August 16, 2007
MARK WAGENHOFFER, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2401-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 7, 2007
Before Judges S.L. Reisner and Lyons.
Plaintiff, Mark Wagenhoffer, appeals from an order denying his motion to file a late notice of claim pursuant to N.J.S.A. 59:8-9 and an order entered denying his motion for reconsideration. We affirm.
The following factual and procedural history is relevant to the issues advanced on appeal. Plaintiff did not appear for a court date on a criminal indictment. The bail bond company that had posted his bail, therefore, hired bounty hunters at a cost of $1000 to find him and bring him to court. The bounty hunters arrested plaintiff on June 9, 2005, when he was in municipal court in Paterson for unrelated traffic matters. On August 29, 2005, plaintiff was scheduled to attend a status conference regarding the underlying criminal matter for which the bail bond had been posted. At that time, the attorney for the bail bond company filed a motion objecting to his bail being reinstated. The Law Division judge then ordered plaintiff to pay the bail bond company the $1000 it paid for the bounty hunters before the bond would be reinstated. Plaintiff contends that he should not have been ordered to pay the $1000 because he had notified the court that his address had changed and the court sent the notice to appear to an old address. Plaintiff further asserts that his public defender at the status conference represented that he would look into what could be done to recoup the $1000 but that the plaintiff did not hear from the public defender, nor did the public defender return any of plaintiff's calls regarding this topic.
Plaintiff was arrested on October 8, 2005, and held at the Morris County jail, apparently on other charges. Plaintiff alleges that, while incarcerated at the Morris County jail, he asked a paralegal there to help him with his claim concerning the $1000 but that she refused. Plaintiff was then released on November 5, 2005, from the Morris County jail and states that he was then homeless as a result of his incarceration. Plaintiff was arrested again thirty-eight days later on December 13, 2005, and held at the Passaic County jail. He asserts that during periods of his incarceration, he did not receive any assistance from prison or jail administrations in pursuing his claim concerning the $1000.
Plaintiff filed a notice of motion seeking leave to file a late notice of tort claim dated May 12, 2006. Plaintiff argued in his affidavit in support of that motion that he could not file his notice within the ninety-day time limit required by the Tort Claims Act because he was incarcerated and that he had been relying upon his public defender to advise him as to how to proceed. He also pointed out that following his release from his incarceration on November 5, 2005, he was homeless and he had received no telephone call back from the public defender.
He also argues that since August 29, 2005, the occurrence date, he had been incarcerated in three different county jails and had requested assistance but had been denied his "constitutional right to the assistance of filing meaningful papers with the court." By order dated June 23, 2006, plaintiff's motion seeking leave to file the tort claim was denied. The trial court noted that plaintiff failed to show extraordinary circumstances.
Plaintiff then filed a motion for reconsideration which was heard on August 11, 2006. In plaintiff's motion, he argued that the court overlooked "the fact that I was denied my constitutional right to access to the courts and with assistance in preparing & filing of meaningful legal papers that all persons incarcerated have." Following oral argument, by way of a video teleconference, the trial judge denied the motion for reconsideration. By way of a letter dated January 26, 2007, the trial court stated that the motion for reconsideration was denied because plaintiff's argument that his constitutional rights were denied was considered by the trial court when it originally passed on his application. Further, the judge stated that plaintiff did not supply the court with sufficient reasons as to why the trial court had allegedly erred pursuant to Rule 4:49-2. This appeal ensued.
On appeal, plaintiff argues that he appropriately filed his motion seeking leave to file a late tort claim in accordance with N.J.S.A. 59:8-9 and that he has shown that he did not procrastinate, nor was he ambivalent, that there were extraordinary circumstances, and that his constitutional right of access to the court had been denied during the ninety-day time limit imposed by N.J.S.A. 59:8-8. Plaintiff further argues that the State has not shown that it would be prejudiced by the late filing and that any doubts with respect to permission to file should be in favor of the claimant and that the court erred in permitting the State to file an untimely opposing brief.
We begin our consideration of these arguments by restating applicable legal principles. N.J.S.A. 59:8-8 requires a claim pursuant to the Tort Claims Act to be presented "not later than the ninetieth day after accrual of the cause of action."
N.J.S.A. 59:8-9 provides that a claimant who fails to file notice of a claim within ninety days after the accrual of the cause of action may, in the discretion of the court, "be permitted to file such notice at any time within one year after the accrual of his [or her] claim, provided that the public entity or public employee has not been substantially prejudiced thereby." Such an application to the court must demonstrate "sufficient reasons constituting extraordinary circumstances for [the claimant's] failure to file notice of claim" within the ninety days prescribed by N.J.S.A. 59:8-8. N.J.S.A. 59:8-9. The Supreme Court has recently outlined the history of this section:
Until 1994, the Tort Claims Act applied a fairly permissive standard when claimants sought to file notices of late claims. Claimants had to demonstrate only "sufficient reasons" for the delay, and that the State would not be prejudiced as a result. N.J.S.A. 59:8-9 (Comment). The Legislature enacted a more demanding standard when the TCA was amended in 1994 to require that the "sufficient reasons" for late filing must constitute "extraordinary circumstances." N.J.S.A. 59:8-9, as amended by L.1994, c.49 § 5.
Although that change in language "suggested that the amendment may have signaled the end to a rule of liberality," Zois v. New Jersey Sports and Expo. Auth., 286 N.J. Super. 670, 675 (App. Div. 1996), the new version "does not define what circumstances are to be considered 'extraordinary' and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of 'extraordinary' on the facts presented." Allen v. Krause, 306 N.J. Super. 448 (App. Div. 1997); Ohlweiler v. Chatham, 290 N.J. Super. 399, 404 (App. Div. 1996); O'Neill v. Newark, 304 N.J. Super. 543, 551 (App. Div. 1997); Margolis and Novack, Claims Against Public Entities, Comment to N.J.S.A. 59:8-9 at 161-62 (1999) (observing that pre-1994 rule that each case had to be determined on basis of its own facts will apply to 1994 amendment). [Lowe v. Zarghami, 158 N.J. 606, 625-26 (1999).]
We have noted that, "[t]here is little to guide us in interpreting the meaning of extraordinary circumstances." Maher v. County of Mercer, 384 N.J. Super. 182, 190 (App. Div. 2006).
In Bounds v. Smith, the United States Supreme Court held that, "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed. 2d 72, 83 (1977). The Bounds decision, however, was directed toward assuring access to the courts for prisoners so that they might address their sentences or challenge their conditions of confinement. There are no cases which require prisons to provide either a library or legal services for civil claims unrelated to one's confinement. Cf. Pasqua v. Council, 186 N.J. 127, 149 (2006). In Lewis v. Casey, Justice Scalia explained the limits of Bounds:
Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration. [518 U.S. 343, 355, 116 S.Ct. 2174, 2182, 135 L.Ed. 2d 606, 620 (1996).]
In this case, plaintiff, in essence, argues that extraordinary circumstances were shown which would require his notice of late claim be accepted. In particular, plaintiff argues that he was incarcerated for a significant period of time during the initial ninety-day period and thereafter, and that his constitutional right of access to the courts was impeded during the ninety-day time limit set forth in N.J.S.A. 59:8-8 by virtue of his incarceration.
The ninety-day period of time in which a claim is required to be filed runs from the date of the accrual of the cause of action. There is no dispute that the cause of action accrued on August 29, 2005. The deadline, therefore, for filing a claim would have expired on November 27, 2005. During that ninety-day period, the record indicates that plaintiff was incarcerated from October 8 through November 5, 2005, a total of twenty-eight days. Therefore, it is clear that plaintiff had sixty-two days in which he could have prosecuted and explored his claim. We find no merit in plaintiff's argument that his incarceration constitutes an extraordinary circumstance under N.J.S.A. 58:8-9. The word "extraordinary" means "going far beyond the ordinary degree, measure, limit; . . . very unusual; exceptional; remarkable." Webster's New World College Dictionary 504 (4th ed. 2001). While incarceration maybe somewhat unusual, there is no indication that plaintiff was unable to use the mail or even a phone on occasion while he was incarcerated. Moreover, his incarceration still allowed him over sixty days to pursue his claim during the initial ninety-day period.
Plaintiff's argument that his attorney did not respond to him is also without merit. There is no indication that counsel was retained by him to pursue this civil claim, and moreover, it is established that an attorney's forgetfulness does not constitute an extraordinary circumstance. See Zois, supra, 286 N.J. Super. at 674; Iaconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294, 297 (App. Div. 1989); certif. denied, 121 N.J. 592 (1990).
Plaintiff's argument that his constitutional right of access to the courts was denied by virtue of his incarceration is also without merit. As Lewis makes clear, his constitutional right of access to the court is only with respect to his confinement and the criminal charges related thereto. 518 U.S. at 355, 116 S.Ct. at 2182, 135 L.Ed. at 620. The State is not obligated to provide legal services to those that are incarcerated to pursue civil claims unrelated to their incarceration. See Pasqua, supra, 186 N.J. at 149. Again, we note there was no impediment to plaintiff during the ninety-day period or thereafter, whether he was incarcerated or not, communicating with counsel or others in order to perfect his claim.
Plaintiff's argument that the State's brief on the motion was out-of-time appears unfounded. Pursuant to Rule 1:6-3(a), the State's papers were to be filed and served eight days before the return date, unless the court relaxes that time. The motion was returnable on June 23, 2006, and the papers are dated June 15, 2006, eight days prior in accordance with the rule. Moreover, if the brief was not actually filed on that date, we note that the court may relax the time under the rule.
Plaintiff's argument that the court in effect abused its discretion in not granting the motion to file a late claim also fails. N.J.S.A. 59:8-9 provides that a judge shall review an application and permit a late filing in his or her discretion. It is a well-established principle that, "discretion means legal discretion, in the exercise of which the trial judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly. Implicit is conscientious judgment directed by law and reason and looking to a just result." Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960) (citing Sokol v. Liebstien, 9 N.J. 93, 99 (1952), Rossetti v. Pub. Serv. Coordinated Transp., 53 N.J. Super. 293, 298 (App. Div. 1958)). The Court has said that when a decision is left to a court's discretion, what is meant is "discretion founded on the facts and the applicable law and not simply an undisciplined whim." State v. Daniels, 38 N.J. 242, 249, cert. denied, 374 U.S. 837, 83 S.Ct. 1885, 10 L.Ed. 2d 1057 (1963). It explained:
The concept has particular meaning in connection with the scope of review on appeal, for it is axiomatic that a trial court's conclusion in such situations will not be upset unless there has been a so-called "abuse" of discretion. Courts use that term not in the sense of an invidious motivating influence, but rather in the connotation of a "mistaken exercise" - i.e., "that the courts' ruling went far enough from the mark to become reversible error." [Id. at 249-50 (citing Hager v. Weber, 7 N.J. 201, 213-14 (1951); Smith v. Smith, 17 N.J. Super. 128 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952)).]
In this case, we are convinced that the trial judge made findings of fact based upon credible evidence in the record and appropriately interpreted the phrase, "extraordinary circumstances," such that his determination was based on logic and reason. We find, therefore, no abuse of discretion in the court's decision and affirm.*fn1