BOULEVARD CLEAN ERS INC SAM HEO v. LICCARDI FORD INC SEYMOUR JOHNSON EDWARD CASTILLO (2013)

Defendant Liccardi Ford, Inc. (Liccardi),¹ appeals from the March 19, 2012 determinations of the Law Division requiring the parties to engage in binding arbitration and permitting defense counsel to withdraw from representation.   Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

The record reveals the following facts and procedural history.

Sam D. Heo purchased a vehicle from Liccardi in May 1998, and thereafter transferred ownership of the vehicle to his business, Boulevard Clean-ers, Inc. In January 2000, Heo returned to Liccardi and purchased an extended warranty plan without informing Liccardi that the vehicle had been transferred.   When Heo subsequently brought the vehicle to Liccardi for repairs, the warranty company refused to cover the costs because Heo was no longer the owner of record.

In August 2000, Heo and Boulevard (collectively plaintiffs) filed a complaint against Liccardi, the warranty companies, and John Does. In November 2001, following a proof hearing, the court entered a default judgment against Liccardi for $62,178.   However, the default judgment was vacated after Liccardi claimed it never received notice of the hearing.   In March 2002, the court again entered judgment after Liccardi failed to attend arbitration.   The court ultimately vacated this judgment as well because Liccardi did not receive notice of the arbitration date.

In June 2003, plaintiffs moved to compel arbitration and Liccardi moved to reinstate the matter to the active trial calendar.   On February 20, 2004, the court restored the matter to the trial calendar.

In May 2004, plaintiffs voluntarily withdrew their complaint, but subsequently filed a new complaint in July 2004.   In March 2005, Liccardi moved to dismiss plaintiffs' complaint, which the court denied.   In April 2007, the court entered an order memorializing the parties' agreement to submit the matter to binding arbitration with a retired Superior Court judge and Liccardi's agreement to pay for the arbitration.

The designated retired judge could not entertain the arbitration because he had a conflict of interest pertaining to defense counsel.   The parties' attorneys provided conflicting statements about their disagreement with respect to the appointment of a new arbitrator.   In any case, they finally agreed in May 2008 to appoint a second retired Superior Court judge as the arbitrator.   Between May 2008 and December 2008, plaintiffs' counsel suffered from a serious illness requiring hospitalization.   Subsequently, the parties' attorneys discussed various options for setting an arbitration date, but ultimately, they did not come to an agreement.

In August 2010, the second retired judge was recalled to the Union County bench and could not proceed with the arbitration.   In June 2011, defense counsel was appointed to the Union County bench, and he could no longer represent defendant.   At that point, the first retired judge's conflict of interest became moot.

In October 2011, plaintiffs filed a motion to compel arbitration.   On December 22, 2011, the court heard oral argument and issued an order permitting Liccardi to decide whether to proceed to arbitration or to reinstate the lawsuit.   Liccardi chose to restore the matter to the active trial calendar.   Plaintiffs moved for reconsideration of the December 22, 2011 order.   Substituted defense counsel also filed a motion to be relieved from representing Liccardi.   Liccardi had not signed a retainer agreement and its insurer refused to continue to pay counsel fees because Liccardi's policy limit had been reached.

The motion judge discussed the multi-year delay which had influenced his thinking and resulted in the December order.   He stated that the only reason Liccardi was given the option to proceed to arbitration or have the lawsuit reinstated was because “the ball was dropped” and he wanted the matter resolved.   On March 19, 2012, the motion judge agreed that nothing had changed since the parties agreed to arbitrate in 2007.   Therefore, he granted plaintiffs' motion for reconsideration and signed an order compelling arbitration.   The judge also permitted substituted counsel to withdraw from representing defendant.   It is from this decision that Liccardi appeals.

II.

On appeal, Liccardi argues that plaintiffs' motion for reconsideration was not timely because Rule 4:49–2 permits only twenty days for filing a motion for reconsideration and plaintiffs filed theirs after twenty-five days.   We disagree because Rule 4:49–2 time restrictions do not pertain to interlocutory orders.  Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 257 (App.Div.1987), certif. denied, 110 N.J. 196 (1988).   In fact, the trial court has inherent power, to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment.  Ibid.

There is no question that the December 22, 2011 order was interlocutory because it gave Liccardi the opportunity to choose between reinstating the matter to the trial calendar or submitting to arbitration.   Based upon defendant's choice, the court would have been required to take further action.   Because the December 2011 order was not final, the time restraints in Rule 4:49–2 did not apply.

Next, Liccardi contends that the judge failed to comply with the standard for granting a motion for reconsideration.   We disagree.   Motions for reconsideration are left to the discretion of the court and are granted when the court has expressed its opinion on a palpably incorrect or irrational basis or when it is obvious the court did not consider competent evidence.   D'Atria v. D'Atria, 242 N.J.Super. 392, 401 (Ch. Div.1990).   Liccardi argues that there was no palpably incorrect or irrational basis for the court's December 2011 opinion giving Liccardi the option to choose between arbitration and proceeding to trial.   Rather, according to Liccardi, the judge's December 2011 opinion correctly considered the long delay in resolving the matter and the unfairness of requiring it to submit to arbitration after so many years.   According to Liccardi, the judge properly used his discretion in giving it a choice between trial and arbitration and thus, there was no reason to revisit that determination.   We disagree.

In rendering his December 22, 2011 determination, the judge considered equitable principles regarding the long delay and the unfairness to Liccardi.   However, the judge failed to give proper deference to the parties' agreement to arbitrate.   The parties had consented to arbitrate in 2007, and while there was a delay revolving around the appointment of an arbitrator and setting of an arbitration date, the essential agreement to arbitrate was never disturbed.   The December 2011 determination failed to properly consider that agreement.   Thus, we agree that the motion judge correctly granted plaintiffs' motion for reconsideration.   The judge noted, it is unequivocal that the parties chose to arbitrate this matter in 2007.   Nothing has changed since then.   The motion judge's reconsideration of his December 2011 decision was proper in light of the fact that he had failed to properly consider the parties' agreement to arbitrate.

Finally, Liccardi disagrees with the motion judge's decision to grant defense counsel's motion to withdraw from representation.   It is within the sound discretion of the court to grant or deny a motion to be relieved as counsel.   Jacobs v. Pendel, 98 N.J.Super. 252, 255 (App.Div.1967).   Liccardi argues that the motion judge abused his discretion because the insurance company that had previously managed the litigation was derelict in defending the matter, and Liccardi would not be capable of obtaining adequate representation.   We disagree.   The motion judge properly used his discretion when granting defense counsel's motion to withdraw from representation.   Moreover, notwithstanding defendant's claim that it will be incapable of obtaining adequate representation, we agree with the motion judge's conclusion that Liccardi is a long-established business and will be capable of retaining the attorney of its choice.

The motion judge properly granted plaintiffs' motion for reconsideration, as well as defense counsel's motion to withdraw from representation.

Affirmed.

FOOTNOTES

FN1. Seymour Johnson and Edward Castillo are not participating in the appeal..  FN1. Seymour Johnson and Edward Castillo are not participating in the appeal.

PER CURIAM