On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3189-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 18, 2009
Before Judges Cuff, C.L. Miniman and Waugh.
Plaintiff appeals from an order denying his application for post-judgment interest. Finding extraordinary equitable circumstances, the motion judge denied plaintiff's motion for post-judgment interest. We reverse.
On September 24, 1995, plaintiff Robert Love was employed as a railroad worker. He alleged that he suffered an injury on the job and filed an action pursuant to the Federal Employer's Liability Act, 45 U.S.C.A. §§ 51-60. At trial, the parties stipulated liability and tried only the issues of medical causation and compensatory damages. The jury returned a verdict in favor of plaintiff awarding him $65,000 for lost wages and $0 for pain and suffering. Plaintiff appealed; we reversed and remanded for a new trial. Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532-33 (App. Div. 2004). The Supreme Court denied defendant's petition for certification. 180 N.J. 355 (2004).
On April 27, 2005, a second jury returned a verdict in favor of plaintiff in which it awarded plaintiff $350,000 for lost wages and $0 for pain and suffering. Plaintiff filed a motion for a new trial or additur. The trial judge granted an additur in the amount of $125,000 and entered an amended judgment on August 16, 2005, in the amount of $475,000. Plaintiff filed a motion for reconsideration arguing that the additur was insufficient. The motion was denied and plaintiff appealed to this court.
In our unpublished opinion, Love v. National Railroad Passenger Corp., A-1611-05, decided February 6, 2008, we affirmed the amended judgment. Thereafter, plaintiff filed a petition for certification; the Supreme Court denied this application. 195 N.J. 520 (2008). On July 15, 2008, defendant submitted to plaintiff's attorney the full amount of the amended judgment less liens.
Plaintiff filed a motion for post-judgment interest in the amount of $71,978.72 on September 2, 2008. In his October 27, 2008 letter opinion, the motion judge held that he could withhold post-judgment interest in extraordinary circumstances. He noted defendant's willingness to pay the amended judgment once it agreed to the $125,000 additur following the second trial in 2005. The motion judge cited the motion for reconsideration of the amended judgment, the appeal following the second trial, and the petition for certification and held that "those actions are just the extraordinary circumstances provided for in the rule and reaffirmed in the holding of Mehta [v. Johns-Manville Products Corp., 163 N.J. Super. 1 (App. Div. 1978)]." The motion judge also stated that "Amtrak should not be held liable to fund the endless quest of appeals being brought by the plaintiff."
Rule 4:42-11 governs the award of interest on judgments. Rule 4:42-11(a) provides that post-judgment interest shall bear simple interest, "except as otherwise ordered by the court or provided by law." Case law suggests that post-judgment interest is awarded so routinely under Rule 4:42-11 that it is almost considered a right afforded to successful litigants. See, e.g., Marko v. Zurich N. Am. Ins. Co., 386 N.J. Super. 527, 530 (App. Div. 2006) (stating that "as a matter of historical practice, post-judgment interest is routinely awarded."); Baker v. Nat'l State Bank, 353 N.J. Super. 145, 176-77 (App. Div. 2002) (discussing post-judgment interest as being awarded "almost automatically"); R. Jennings Mfg. Co. v. N. Elec. Supply Co., 286 N.J. Super. 413, 416 (App. Div. 1995) (discussing post-judgment interest as a right in holding the applicable rate of interest is as provided by rule); Bd. of Educ. of Newark v. Levitt, 197 N.J. Super. 239, 244-45 (App. Div. 1984) (finding that post-judgment interest should be awarded as a matter of "customary practice" unless the court has good cause for ordering otherwise). A judge, however, may decline to award post-judgment interest based on the presence of extraordinary circumstances. Marko, supra, 386 N.J. Super. at 531-32; Mehta, supra, 163 N.J. Super. at 6-7; Sang-Hoon Kim v. Monmouth College, 320 N.J. Super. 157, 164 (Law Div. 1998).
Decisions based on equitable considerations or extraordinary circumstances invoke the discretion of the judge. Discretionary decisions are reviewed under the abuse of discretion standard. Sears Mortgage Corp. v. Rose, 134 N.J. 326, 354 (1993). The exercise of discretion, however, is not unbounded or unfettered. Rather, discretion is informed by the law. Recently, in the context of review of a trial judge's rejection of a plea agreement, we discussed the nature of judicial discretion:
Perhaps a more accurate composite definition is that "judicial discretion" is the option which a judge may exercise between doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case. [State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004) (quoting Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952)).]
The Supreme Court has also characterized an abuse of discretion as a decision "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
This court has addressed the issue of withholding post-judgment interest twice. In Mehta, the plaintiffs commenced a personal injury action following an automobile accident. The plaintiffs were residents of Canada. 163 N.J. Super. at 2. The matter settled but delays in payment ensued when the plaintiffs did not appear at the Surrogate's Office as requested, the releases executed by the plaintiffs at the time of settlement were forwarded four months later, the plaintiffs filed a motion to amend the final judgment, and the plaintiffs failed to forward necessary information about liens for ...