SOUR GRAPES AND A ROTTEN APPLE – WHEN RECONSIDERATION IS MORE LIKE FRUIT SALAD

By Fox Rothschild LLP on November 10, 2012

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Litigants who are displeased with the outcome of a judicial decision can rest assured that there exist multiple avenues by which a review of the decision may occur – mainly, in the form of a motion for reconsideration or an appeal. This post focuses on the reconsideration route, which, despite the large number such motions that are filed, is actually supposed to be quite strict in its application.

As a matter of common sense and an effort to avoid an even worse judicial calendar backlog than that which currently exists, reconsideration applications are not simply a way for the unhappy litigant to get another “bite of the apple”. More often than not, however, it seems that reconsideration applications are exactly that –a way for the dissatisfied party to be heard again on the same issues with the hope that the trial judge will simply change his or her mind.

Rule 4:49-2, which applies to reconsideration motions, does not provide much by way of direction. Rather, it focuses largely on the deadline for filing. It states:

Except as otherwise provided by R. 1:13-1 (clerical errors) 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.

Various cases have fleshed out what constitutes a sufficient basis for reconsideration:

The court’s decision is based on plainly incorrect reasoning;
The court failed to consider evidence;
There is good reason for it to reconsider new information that was not available at the time of the prior judgment/order;
By correlation, the motion may not be based on facts known by the moving party prior to the entry of the judgment or order; and
The motion may not simply be an effort by the moving party to reargue the motion and expand the record – the motion is not an opportunity for the previously losing party to attempt a second “bite of the apple”.

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In the decision of Michel v. Michel, 210 N.J. Super. 218 (Ch. Div. 1985), the trial judge perfectly summed up the problems with motions for reconsideration, especially in the Family Part:

. . . This practice [filing motions for reconsideration], developed by attorneys, has become a mechanism by which unhappy litigants attempt once more to air their positions and relitigate issues already decided. It has also been employed (although not in this case) as a method by which a party extends the time in which he must appeal. . . . Additionally, it is observed that the effect of such procedure is an unnecessary duplication of court time and counsel fees to the client. Considering the volume of matrimonial motions, the result of this practice is to increase the backlog of the Court’s workload, only to be followed by, in the great majority of cases, the inevitable appeal. Thus, not only is court time duplicated and thereby wasted, but also wasted are hundreds and thousands of dollars in legal fees generated. . . . Such practice should further be discouraged inasmuch as it tends to erode the policy of according finality to decisions of the Court. If dissatisfied with a post-judgment order, a litigant has the right to appeal.

The practice of allowing motions for reconsideration, however, leaves the responding party forever open to the threat of being summoned into court to relitigate an issue presumably decided. Such is inherently unfair and offensive to our traditional notion of res judicata. To routinely permit such practice to continue approaches a legal system, which recognized neither res judicata nor a statute of limitations – the litigant must live in constant anticipation that at any time he may be brought before a court to resolve an issue, which he thought, had been resolved.

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Despite such wisdom, it is clear that the moving party in the recently unpublished (not precedential) Appellate Division decision of Proetto v. Proetto did not get the memo. Utilizing the points I have outlined above, the Appellate Division found that the moving party appealing his denied motion for reconsideration was simply – and improperly – attempting to expand the record and regargue his originally denied motion. As a result, his appeal went nowhere.
There are lessons to be learned from the above that we as matrimonial attorneys have to stress to our clients:

A second bite may have you reaching into your wallet for the other party – Simply relitigating a previously denied motion will not only likely result in a denial, but you may also be compelled to pay the other party’s counsel fees for having to respond to the application a second time;
Provide all relevant existing evidence with your original motion – Do not suddenly produce evidence to the court that you should have – and could have – produced in the first place – i.e., if you are seeking a modification of alimony and you purposely do not include your most recent tax return, do not expect the court to react so kindly when, suddenly on reconsideration, the tax return is attached to your certification as a form of “new evidence”;
Be specific – The basis of your application should not simply be that it was an unfair result – the epitome of the “sour grapes” reaction. Rather, the application needs to be specific, outlining just how the evidence upon which the trial court ruled was applied in error, or somehow overlooked a critical point that would have, and should have, resulted in a different decision.
Be strategic with your filing – If you plan on filing an appeal, filing a motion for reconsideration beforehand may simply provide the trial judge with an additional opportunity to cement the reasoning and findings for the prior decision, thereby rendering potentially more difficult the chances of success on appeal.

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Thus, while a motion for reconsideration is certainly a viable option when you receive an unfavorable result, it is important to realize that the court is not simply going to pretend that you never filed that prior motion. Rather, if anything, your second motion will be looked at with greater scrutiny to make sure that you are not trying to bite the so-called apple to its core.

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SOUR GRAPES AND A ROTTEN APPLE – WHEN RECONSIDERATION IS MORE LIKE FRUIT SALAD

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