Opinion
DOCKET NO. A-0670-12T1 DOCKET NO. A-0671-12T1 DOCKET NO. A-0672-12T1 DOCKET NO. A-0673-12T1 DOCKET NO. A-0674-12T1 DOCKET NO. A-0675-12T1
11-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KIMBERLY HULEJ AND LEXINGTON NATIONAL INSURANCE CO., Defendants-Appellants. STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN SPEARNOCK AND AMERICAN RELIABLE INS. CO., Defendants-Appellants. STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL NORQUIST AND AMERICAN RELIABLE INS. CO., Defendants-Appellants. STATE OF NEW JERSEY, Plaintiff-Respondent, v. NICHOLAS TYLKA AND AMERICAN RELIABLE INS. CO., Defendants-Appellants. STATE OF NEW JERSEY, Plaintiff-Respondent, v. MONTCELL DODD AND AMERICAN RELIABLE INS. CO., Defendants-Appellants. STATE OF NEW JERSEY, Plaintiff-Respondent, v. VITO PADULO AND AMERICAN RELIABLE INS. CO., Defendants-Appellants.
Richard P. Blender argued the cause for appellants. Kenneth Wesley Thomas argued the cause for respondent (Lanza & Lanza, LLP, attorneys for respondent; Mr. Thomas, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal Nos. 19-2012, 20-2012, 21-2012, 22-2012, 23-2012 and 24-2012.
Richard P. Blender argued the cause for appellants.
Kenneth Wesley Thomas argued the cause for respondent (Lanza & Lanza, LLP, attorneys for respondent; Mr. Thomas, of counsel and on the brief). PER CURIAM
In these consolidated bail remission appeals, the defendant-sureties seek review of the six August 3, 2012 orders entered by the Law Division denying their motions to treat their appeals from the City of South Amboy municipal court as if timely filed. We reverse and remand for an evidentiary hearing.
Each individual defendant had been charged with one or more offenses in South Amboy, was admitted to bail, and released pending trial. For reasons that are neither relevant nor apparent from the scant motion record, the charged individuals failed to appear at scheduled court events, and their bails were forfeited. Subsequently, each defendant was apprehended and the associated bench warrant vacated.
On various dates in 2010, the individuals' sureties filed applications under Rule 7:4-5 to vacate the bail forfeitures. For reasons that remain perplexing, these motions were not considered by the municipal court for several years. Finally, on February 7, 2012, a hearing on the motions was conducted, which resulted in the municipal court denying each surety's application. Orders memorializing the municipal court's action were entered on March 8, 2012.
On April 16, 2012, thirty-nine days after the execution of the orders, each surety filed a motion seeking an order permitting it
to file a Notice of Appeal to the Superior Court of New Jersey, Law Division, Middlesex County, Nunc Pro Tunc from an order of the Honorable James P. Hoebich, South Amboy Municipal Court dated March 8, 2012, wherein the court denied the Motion to Vacate the Bail Forfeiture.In support of each motion was a certification from the sureties' attorney Richard P. Blender, Esq., which explained that he never received the March 8, 2012 orders until April 10, 2012.
Blender did receive at least one order, dated March 8, 2012, in a timely fashion. That order, however, concerned a bail remission application similarly argued on February 7, 2012, in a case captioned State v. Darrell Thomas, but is not part of the present appeal. South Amboy contends that Blender's receipt of the Thomas order belies his claim that he never received the other six orders entered on March 8, 2012. On remand, the Law Division may consider this circumstance as part of its overall assessment whether to enlarge the time for appeal.
Blender further indicated that immediately after the February 7, 2012 hearing, he submitted proposed forms of order to the municipal court judge, but never heard anything for days. Blender then sent letters by facsimile transmission on February 28, March 13, and April 10, 2012, to the municipal court administrator requesting copies of the orders. Blender also averred that he telephoned South Amboy's attorney on March 26, 2012, seeking assistance in obtaining copies of the signed orders. Copies of Blender's February 28, March 13, and April 10 letters requesting copies of the orders were attached to his certification.
In response to the sureties' motions, South Amboy submitted the certification of its municipal court administrator, Mary Kate Vacca, which stated that on March 8, 2012, Vacca "mailed Mr. Blender copies of the Orders signed by Judge Hoebich denying his motion in this and the other matters argued on February 7, 2012." Vacca further asserted that "April 10, 2012, is the second time I provided Mr. Blender with copies of the Orders signed by Judge Hoebich." Copies of Vacca's March 8 and April 10 cover letters to Blender were attached to Vacca's certification.
Without oral argument or an evidentiary hearing, the Law Division denied the sureties' motions on August 3, 2012. The identical memorializing orders stated the following:
Defendant has failed to demonstrate any good cause necessary to support its request for non [sic] pro tunc relief insofar as this Court finds that Defendant was in receipt of the March 8, 2012, Order denying Defendant's motion to Vacate the Bail Forfeiture in the above captioned matter by no later than March 8, 2012.This appeal followed.
Defendants' projected appeals to the Law Division are governed by Rule 3:23-2, which provides that a person — here, a surety — aggrieved "by a final post-judgment order entered by a court of limited jurisdiction shall appeal therefrom . . . within 20 days[.]" Although Rule 1:3-4(c) prohibits the enlargement of the time specified in Rule 3:23-2, the former rule parenthetically limits itself to "appeals to the Law Division from judgments of conviction in courts of limited criminal jurisdiction." Defendants' putative appeals were not of that kind. Instead, they sought redress for grievances visited upon them pursuant to Rule 7:4-5 governing bail forfeitures, not Rule 7:9-2, which governs judgments of conviction. Accordingly, the twenty-day limitation of actions applicable to defendants' Law Division appeals may be "relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." R. 1:1-2(a).
The Law Division judge, in concluding that each "[d]efendant was in receipt of the March 8, 2012 Order . . . by no later than March 8, 2012," necessarily rejected Blender's version of events in favor of Vacca's. Because this choice was based upon nothing more than a paper record and is bereft of explanation, contrary to Rule 1:7-4(a), we are constrained to remand the matter for an evidentiary hearing and explanation of reasons. See, e.g., Lopez v. Swyer, 62 N.J. 267, 275 (1973) (courts should conduct an evidentiary hearing to determine whether the discovery rule should apply in statute of limitations disputes); Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 24 (2004) (recognizing "commonsense position that a plenary hearing should be conducted only when the certifications of counsel raise material factual disputes that can be resolved solely by the taking of testimony"); State v. Preciose, 129 N.J. 451, 462-63 (1992) (an evidentiary hearing is appropriate if factual disputes exist in a prima facie ineffective assistance of counsel claim); Segal v. Lynch, 211 N.J. 230, 263-66 (2012) (holding that if there is a genuine, material, and legitimate factual dispute an evidentiary hearing is appropriate to resolve it).
We do not foretell the ultimate result of the evidentiary hearing. On remand, the Law Division will necessarily be required to consider the oral testimony of, at least, Blender and Vacca in order to resolve their factual dispute. Upon consideration of logic, credibility, and application of the burden of proof, which will be upon the sureties to demonstrate their entitlement to an enlargement of the time for appeal, the court will decide anew the six motions for nunc pro tunc relief. Only if that determination is made in favor of the sureties will the Law Division then consider the merits of the bail remission issues.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION