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Thomas Reese v. State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 7, 2011

THOMAS REESE, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2010-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2011 - Decided Before Judges Kestin and Newman.

Plaintiff was serving a thirty-year prison sentence with fifteen years of parole ineligibility for an armed robbery conviction by way of a guilty plea entered on February 7, 1983.

Plaintiff was sentenced on February 17, 1983. On July 7, 2000, he was resentenced by virtue of a remand from this court and received the same sentence not on the basis of a mandatory extended term, but as a result of a discretionary extended term as a persistent offender. The judgment of conviction was amended on January 17, 2002, indicating that it was "consecutive to all other sentences." It was amended again on June 14, 2002, indicating that the sentence was concurrent with any and all sentences presently being served.

The basis for plaintiff's complaint was that the State wrongfully incarcerated him beyond his maximum release date. Plaintiff's complaint alleged that there were violations of the United States Constitution and the New Jersey Tort Claims Act, specifically false imprisonment, conspiracy, fraud, intentional infliction of emotional distress, and negligence. He was represented by a paralegal commencing with the filing of the complaint. The State moved on February 16, 2007 for summary judgment. By order of March 2, 2007, the paralegal, who was handling this matter, was barred from representing plaintiff because he could not serve as plaintiff's attorney in this civil action without engaging in the unauthorized practice of law. The summary judgment motion was granted on March 16, 2007, as unopposed.

Thereafter, plaintiff submitted a motion for reconsideration and for reinstatement of his complaint. That motion was denied on April 27, 2007, and a written opinion was filed on July 25, 2008.

Almost one year later, on April 8, 2008, plaintiff filed a second motion for reconsideration and to reinstate his complaint. That motion was denied on June 20, 2008. Defense counsel's certification of service filed with the court defeated plaintiff's argument that the defense had not served him with notice of the summary judgment motion. Plaintiff's argument that he was never served with the summary judgment motion was refuted by certifications of service indicating that he had been served. The court also denied the motion because it was untimely.

On or about December 22, 2008, plaintiff filed a notice of appeal with this court, challenging both the orders of March 16, 2007 and June 20, 2008, as well as of the March 2, 2007 order barring the paralegal's continued representation of plaintiff, and a May 9, 2008, order denying his motion to reinstate the complaint. He also sought leave to file the appeal as within time. On February 3, 2009, the court denied the motion.

Plaintiff then filed another motion for reconsideration and to reinstate the complaint, his third, according to the court.

On November 20, 2009, the motion was denied. In denying the motion, the judge who had granted summary judgment and denied the two prior motions for reconsideration had this to say:

This is plaintiff's third attempt at a motion for reconsideration. Plaintiff presents no new evidence to warrant reconsideration or reinstatement of his complaint at this late date. The Court denies the motion to reinstate the complaint.

On appeal, plaintiff raises the following point for our consideration:

POINT I

THE MARCH 16, 2007 ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS SHOULD BE VACATED AND PLAINTIFF'S COMPLAINT REINSTATED AT THIS TIME.

A. Pro se pleadings liberally construed.

B. Motion was timely filed.

C. Summary Judgment standard.

D. Meritorious defense.

E. Rule 4:50-1(a), mistake, inadvertence, surprise, or excusable neglect.

F. Rule 4:50-1(c), fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.

G. Rule 4:50-1(d), the judgment or order is void.

H. Rule 4:50-1(f), any other reason justifying relief.

I. Rule 4:49-2, motion to alter or amend.

We are satisfied after reviewing the record and considering the arguments raised by plaintiff and responded to by defendant that the issues are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add, however, the following brief comment.

Plaintiff previously sought to appeal these orders, claiming orders of March 16, 2007 granting summary judgment and the order of this court of January 30, 2009 denied plaintiff leave to file a notice of appeal "as within time." We cannot sanction another belated effort to move for reconsideration. This effort at appeal fares no better than plaintiff's previous attempts.

Affirmed.

20110307

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