Published on:

The Motion for Reconsideration: Not a Second Bite at the Apple

It is not uncommon for a litigant to be dissatisfied with a court’s order. Even if you think you have a solid case, there is no guarantee that the court will see things your way.  Additionally, judges dofile7001246481267-300x225 not always get it right.  When a court makes a legal error, the typical way to address that error is to file an appeal.  But a case has to be decided with finality on all issues to get to the Appellate Division as of right, without having to ask for permission to appeal, which is difficult to get.  If a judge makes a legal or factual error, however, during a case then a motion for reconsideration may be the appropriate course of action. This motion allows a litigant to show the judge him/herself what legal error the judge has made, point out any important facts that the judge failed to appreciate or consider before before, or to bring previously unavailable evidence to the court’s attention.   Reconsideration “is a matter within the sound discretion of the Court, to be exercised in the interest of justice.”  D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)) While it can be difficult to convince a judge to change a decision, the New Jersey Rules of Court allow litigants an opportunity to rectify bad orders.

Rule 4:49-2, which addresses a motion to alter or amend a Judgment or Order, states the following:

“. . . [A] motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any.”

However, a motion for reconsideration should not be made simply because a litigant is not happy with or disagrees with a court’s ruling. The standard on a motion for reconsideration is a high standard to meet.  As noted by our higher courts:

“Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect [***12]  or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . . Alternatively, if a litigant wishes to bring new or additional information to the Court’s attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Nevertheless, motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the Court must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration.”   Cummings v. Bahr,  295 N.J. Super. 374 (App. Div. 1996)

In the recent decision of Tomasso-Addeo v. Addeo, A-5039-15T1, (App.Div. Feb. 27, 2018), the Appellate Division reviewed a trial court decision denying the defendant’s motion for reconsideration regarding the sale of the parties’ home.  The April 4, 2016 order of the lower court granted the plaintiff $55,000 from the net proceeds of the sale of the home after the court found the defendant in violation of litigant’s rights based upon his failure to comply with an earlier June 26, 2015 consent order.

In the motion for reconsideration, the defendant argued that the order granting plaintiff the $55,000 was contrary to the parties’ previous agreement regarding the distribution of the home sale proceeds. Specifically, the parties signed a marital separation agreement (MSA), which was incorporated into their divorce judgment.  The MSA provided that the defendant could either elect to buy out the plaintiff’s equity in the former marital home for $55,000, or the parties would list the house for sale and split equally the net proceeds after closing costs. Subsequently, the parties filed a consent order which stated that the defendant would refinance the mortgage and buy out the plaintiff’s equity by paying her the $55,000 agreed upon in the MSA. The consent order further provided the parties would split equally all closing costs associated with the refinance, with the closing to occur no later than November 30, 2015.  The defendant, however, then failed to refinance the mortgage by the November 30 deadline, leading the plaintiff to file  a motion to enforce litigant’s rights.

As a result, the lower court entered an order that required the defendant to close on the refinance by April 30, 2016, or a judgment would be entered against the defendant and in favor of the plaintiff for $55,000 and the court would give the plaintiff a limited power of attorney to sell the house. The order also included a provision instructing the parties to submit a consent order the same day that would supercede the relevant provisions of the court order. The parties submitted a consent order stating defendant was unable to refinance the mortgage, and that the parties were going to re-list the home for sale.  The consent order did not address how the parties would distribute the proceeds from the sale of the house.

The defendant’s motion reconsideration requested that the court vacate provisions of the order regarding the refinance of the mortgage, alleging they conflict with the parties’ consent order. The motion also requested that the court order the parties to split equally the net proceeds, after all closing costs from the sale of the house. The court denied defendant’s motion for reconsideration of the order. The judge reasoned that there was no need to vacate provisions of the court order because the order clearly states the consent order supersedes relevant provisions of the court order. The judge went on to uphold his decision granting plaintiff $55,000 from the net proceeds from the sale of the house, reasoning defendant acted in bad faith in delaying the sale and refinancing of the house. The judge also awarded plaintiff counsel fees associated with defendant’s motion for reconsideration.

The Appellate Division affirmed the decision of the lower court, holding that the judge’s decision on the motion for reconsideration was not palpably incorrect, nor did defendant offer any evidence the trial court failed to consider.   The defendant was unable to meet the high burden of a motion for reconsideration.  These applications can be tricky because the standard is so high.   If you are in this situation, the office of James P. Yudes, A Professional Corporation may be able to help you.