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Lisa Ackers v. Leonard Mitchell

October 25, 2011

LISA ACKERS, PLAINTIFF-APPELLANT,
v.
LEONARD MITCHELL, DEFENDANT-RESPONDENT, AND UNIVERSITY OF SOUTHERN CALIFORNIA, AND STATE OF CALIFORNIA, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10031-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 11, 2011

Before Judges Ashrafi and Fasciale.

In this personal injury case, plaintiff appeals from an October 25, 2010 amended supplemental judgment containing prejudgment interest in the amount of $38,218.20, and a December 17, 2010 order denying reconsideration. Plaintiff contends that the judge (now retired) miscalculated the interest pursuant to Rule 4:42-11. We reverse and remand for the court to recalculate the interest.

On October 25, 2000, defendant assaulted plaintiff and injured her. On October 23, 2002, plaintiff filed a complaint seeking compensation for the injuries. On February 3, 2010, the jury awarded plaintiff $761,150.00. On February 15, 2010, the judge entered a judgment for plaintiff in the amount of $1,042,056.06, which included $280,906.06 in prejudgment interest. Plaintiff then accepted a remittitur of $173,150.00 and submitted to the judge a proposed order that included recalculated prejudgment interest of $68,971.56.

On October 25, 2010, the judge entered an amended supplemental order of judgment and reduced prejudgment interest to $38,218.20.*fn1 The judge handwrote on the October 25 order that "[t]he interest was calculated by the [c]court and pursuant to Court Rule 4:4[2]-11(a)." The judge did not explain how he reached the reduced rate of interest.

Plaintiff filed a motion for reconsideration and argued that Rule 4:42-11(a)(iii) requires interest to be calculated at a rate of two percent per annum added to the varying rate set by the rule. On December 17, 2010, a different motion judge denied plaintiff's motion. The second judge handwrote on the order:

Reasons: This Court discussed this matter with [the retired judge], who advised this Court that there are no written calculations available to assist the parties in this matter. I reviewed the Court Rule and no calculations are contained therein. [The retired judge] may have the calculations in his own trial file, but that was discarded when he retired. [The retired judge] calculated the interest by Court Rule and in his discretion awarded pre-judgment interest in the last Order. He did not calculate interest on punitive damages.

On appeal, plaintiff argues that the court erred in calculating prejudgment interest by failing to add two percent per annum as required by Rule 4:42-11.

The issuance of prejudgment interest in this case is governed by Rule 4:42-11 which provides in part:

(b) Tort Actions. Except where provided by statute with respect to a public entity or employee, and except as otherwise provided by law, the court shall, in tort actions, including products liability actions, include in the judgment simple interest, calculated as hereafter provided, from the date of the institution of the action or from a date 6 months after the date the cause of action arises, whichever is later, provided that in exceptional cases the court may suspend the running of such prejudgment interest. Prejudgment interest shall not, however, be allowed on any recovery for future economic losses. Prejudgment interest shall be calculated in the same amount and manner provided for by paragraph (a) of this rule except that for all periods prior to January 1, 1988 interest shall be calculated at 12% per annum. The contingent fee of an attorney shall not be computed on the interest so included in the judgment.

Plaintiff contends that the judge failed to include two percent per annum interest pursuant to subparagraph (a)(iii) of the rule, which provides:

(a) Post Judgment Interest. Except as otherwise ordered by the court or provided by law, judgments, awards and orders for the payment of money, taxed costs and attorney's ...


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