SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3704-95T2
CYNTHIA CUMMINGS and
JAMES CUMMINGS,
Plaintiffs-Appellants,
v.
HARVEY BAHR and MADELINE BAHR,
Defendants-Respondents.
Argued November 6, 1996 - Decided December
3, 1996
Before Judges Muir, Jr.,See footnote 1 Kleiner, and Coburn.
On appeal from the Superior Court of
New Jersey, Law Division, Gloucester County.
Michael D. Carroll argued the cause for
appellant Cynthia Cummings (Tomar, Simonoff,
Adourian, O'Brien, Kaplan, Jacoby & Graziano,
attorneys; Mr. Carroll, of counsel and on the
brief; Julie L. Davis, on the brief).
John M. Amorison argued the cause for
respondents (Jay H. Greenblatt & Associates,
attorneys; Nicholas Kierniesky, on the
brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Plaintiffs Cynthia Cummings and John Cummings, suing per
quod, appeal from the denial of their second motion for
reconsideration of a prior decision which granted summary
judgment to defendant Madeline Bahr.See footnote 2 Our decision, affirming
the Law Division, is predicated upon the theory of judicial
estoppel and its interrelationship with R. 4:49-2.
Defendant, Madeline Bahr, is the widow of Harvey Bahr, who died of cancer in early 1992. Prior to the diagnosis of his fatal illness, Mr. Bahr performed all of the gardening chores on the ten-acre plot surrounding the family home. These chores included tending to rose bushes, planting fig trees, and cultivating grapevines. After Mr. Bahr became ill, he prepared a list of chores which still needed to be attended to on the property. Mr. Bahr had recently acquired some new fig trees and grapevines but had not had the opportunity to plant them formally. One of the tasks on Mr. Bahr's list of chores was the planting of these recent acquisitions.
On April 5, 1992, plaintiff Cynthia Cummings, accompanied by two friends, visited her mother Mrs. Bahr, the defendant. The primary purpose of that visit is in dispute.
Plaintiff contends that she visited her mother for the
primary purpose of moving the fig trees and grapevines from where
they had been placed by her father to the location where each
tree or grapevine was to be permanently planted. As a secondary
matter, she was going to partake in a spaghetti dinner. Upon her
arrival at her mother's house, plaintiff and her friends were
invited in, and refreshments were served. Later, defendant,
plaintiff, and plaintiff's two friends walked to the rear of the
property where the fig trees and grapevines had been temporarily
placed. Although plaintiff had lived with her parents on this
property, she had not visited this rear area since moving away in
1974.
Defendant contends that plaintiff, whose husband and
children were out of town, was invited to her home primarily for
dinner. After dinner, defendant accompanied her daughter and her
daughter's two friends to the rear of the property to inspect the
fig trees and grapevines to ascertain whether it was feasible to
move them.
To reach the rear of the property, the foursome was required
to walk through an unkempt, grassy area described by plaintiff as
being, more or less, "like a meadow." While the area is not
wooded, plaintiff stated in her deposition that there were fruit
trees planted in the area. Although the grass in the rear of the
home had been regularly cut by Harvey Bahr prior to his final
illness, it had not been maintained after his death. The grass
was approximately three or four inches high on that afternoon.
While walking in this area, plaintiff's foot became
entangled in a "rose runner," or "green rose cane," which was
hidden under the grass. Plaintiff, unable to untangle her leg,
fell and suffered severe leg injuries including two fractures of
her right ankle.
Plaintiff's complaint, filed April 4, 1994, alleged that
defendant was negligent in maintaining the property and in
failing to warn her of the deteriorated condition of the rear
yard including "ground tree roots." The words "invitee,"
"licensee," or "social guest" are not contained in the complaint.
There is, in fact, no allegation or discussion of plaintiff's
status on the land within the complaint. Defendant's answer
consisted of a general denial of plaintiff's allegations and
several separate defenses but did not specifically refer to
plaintiff's status.
Defendant filed a motion for summary judgment, returnable
December 1, 1995. In the brief in support of her motion,
defendant, relying on Snyder v. I. Jay Realty Co.,
30 N.J. 303
(1959), asserted that plaintiff was a social guest at defendant's
home and, as such, was a licensee. Defendant also cited Berger
v. Shapiro, 30 N.J. 89 (1959), which describes the duty owed by a
landowner to a licensee:
A possessor of land is subject to liability
for bodily harm caused to gratuitous
licensees by a natural or artificial
condition thereon if, but only if, he
(a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not
discover the condition or realize the risk,
and
(b) invites or permits them to enter or
remain upon the land, without exercising
reasonable care
(i) to make the conditions
reasonably safe, or
(ii) to warn them of the condition
and the risk involved therein.
[Id. at 99 (quoting Restatement of Torts §
342).]
Defendant also relied, in part, on defendant's deposition
testimony indicating that her deceased husband maintained the
grounds in the rear of her home, that she rarely frequented the
rear ground, and had not personally maintained that area after
her husband's death. Defendant contended that she was unaware
that rose runners grew in that area or that rose runners had
spread under and into the grass.
In plaintiff's response, it was admitted that plaintiff was
a licensee:
Plaintiff recognizes that New Jersey law
provides that a household social guest is
generally classified as a licensee even when
the guest is performing some incidental
household task. Plaintiff also recognizes
that defendant has no duty to discover latent
defects when dealing with a licensee.
However, the landowner must warn a social
guest of any dangerous condition which he or
she had actual knowledge of and of which the
guest is unaware. (Citations omitted).
Plaintiff then proceeded to cite various portions of
defendant's deposition testimony to demonstrate that, despite
defendant's disclaimer of knowledge, defendant had actual
knowledge of the dangerous condition resulting from rose runners.
Plaintiff's brief also stated that rose runners are a "dangerous
natural condition."
In deciding the motion, Judge Holston concluded:
In this case it seems to me clear that
the defendant, the mother, didn't know of the
dangerous condition and even had she known
would not likely have reasonably foreseen the
danger. Plaintiff in the exercise of
reasonable care should have been more
cautious. An owner is not liable for
injuries to a social guest when the owner is
not aware of the dangerous condition. I
don't see how a reasonable jury could find
that the defendant mother owed a duty to warn
her daughter in this case. Defendant's
deceased husband had done all the gardening
and the defendant simply had no
responsibility toward the roses. In effect
she didn't promise her daughter a rose
garden.
Plaintiff, pursuant to R. 1:7-4 and R. 4:49-2, filed a
timely motion for reconsideration. R. 4:49-2 provides, in part,
"[t]he 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." (Emphasis added).
Plaintiff's counsel's certification, filed in support of
the motion for reconsideration, sets forth the following as the
basis for reconsideration:
3. Prior [to the December 1, 1995
motion], an arbitration panel found the
defendant and the plaintiff 50" negligent
despite the argument made by defense counsel
regarding liability.
4. Although the award was appealed de
novo, and plaintiff's counsel realizes the
Court cannot rely on the factual findings of
the arbitrators, the fact that two
arbitrators found liability in favor of the
plaintiff, surely supports the conclusion
that genuine issues of fact surrounding
defendant's notice of the dangerous condition
remain outstanding and should be left for the
jury.
Plaintiff did not describe any "matters or controlling
decisions which counsel believes the court has overlooked or as
to which it has erred." See R. 4:49-2
The very language cited in R. 4:49-2 served as the response
to plaintiff's motion for reconsideration and again at oral
argument on the return date for that motion.
In denying plaintiff's motion for reconsideration, Judge
Holston repeated a portion of his factual conclusions from when
he granted defendant's summary judgment motion. He then properly
held that plaintiff was not entitled, pursuant to R. 4:49-2, to
relief. Specifically, Judge Holston stated:
[T]his defendant neither knew nor had reason
to know of a dangerous condition on her own
property. She had no requirement to go back
there and cut that grass and to ascertain
whether or not underneath that grass there
may have been rose runners. What she had an
obligation to do would be to reveal to her
daughter or any social guest that which could
not have been seen and would constitute a
dangerous condition if she knew about it or
had reason to know about it. I don't believe
she had either.
I'm satisfied also that the standards
for reconsideration haven't been met here,
There is no new law cited nor has there--is
no legal authorities about which this Court
overlooked, nor do I believe any facts which
this Court overlooked.
Plaintiff then filed her second motion for reconsideration.
In addition to submitting a brief, plaintiff's counsel filed a
certification which stated, in part:
2. Upon return to the office on January 19,
1996, [the associate who appeared on the
motion for reconsideration] and I reviewed
the denial [sic] of defendant's motion for
summary judgement and the denial of
plaintiff's motion for reconsideration.
. . . .
4. Our review of the facts . . . indicated
that several legal issues are involved that
had not been briefed or argued, and Counsel
believes that the Court has overlooked the
same.
5. I am filing this motion for
reconsideration in order to allow this Court
an opportunity to revisit the issue of
plaintiff's status as an invitee vs. a
licensee, as the case law establishes that
the plaintiff is an invitee and [sic] owed a
higher standard of care than a licensee.
Defendant responded and once again renewed his contention that
plaintiff was not entitled to relief, citing R. 4:49-2. In
addition to the R. 4:49-2 argument, defendant's letter brief also
addressed the legal distinctions of invitee and licensee status.
Judge Holston again denied plaintiff's motion stating:
Now plaintiff argues at this second
reconsideration that this Court erred
notwithstanding plaintiff's own arguments,
because plaintiff was not a social guest but
was really an invitee because the purpose of
plaintiff's visit was to move grapevines and
figs for the defendant after plaintiff's
father passed away. Since plaintiff was
there to confer a benefit on the defendant.
the plaintiff was an invitee. Defendant
would infer that analysis be required to use
reasonable care to make the premises safe,
and this includes to make a reasonable
inspection to discover defective conditions .
. . . Plaintiff therefore argues that her
mother had a duty to inspect and remedy the
roots from the rose bushes.
Now the first opposition of the
defendant is that the plaintiff is trying to
get a second bite at the same apple, that
plaintiff's brief is not directed at new law
or facts which movant feels that the Court
has overlooked or as to which it has erred.
That's the requirement of Rule 4:49-2.
Plaintiff's now attempting simply on a third
argument, by the way, by a third lawyer, to
argue a different legal theory than that
which was proffered either in opposition or
at the first reconsideration.
R. 4:49-2 was thoroughly discussed in D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990), where the court noted that "[r]econsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice." Id. at 401 (Citing Johnson v. Cyclop Strapping Corp., 220 N.J. Super. 250, 257, 263 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988); Michel v. Michel, 210 N.J. Super. 218 (Ch. Div. 1985)).
The Chancery Division judge in D'Atria specifically noted:
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 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.
[Id. at 401-02.]
It is clear that Judge Holston correctly applied R. 4:49-2
in denying plaintiff's second motion for reconsideration.
Plaintiff offered a new theory as to liability premised on a new
characterization of plaintiff's status. The factual predicates
of plaintiff's new theory were available when plaintiff responded
to defendant's motion for summary judgment. No new facts had
been uncovered by plaintiff which would warrant either the first
or second motion for reconsideration. Nor did plaintiff point to
decisions that the motion judge had overlooked or misapplied when
he granted defendant summary judgment. We also note that in
plaintiff's first motion for reconsideration counsel continued to
assert that plaintiff was a licensee. It was only when
plaintiff's counsel, an associate, discussed the matter with a
senior partner in the same law firm, that plaintiff's counsel
concluded that plaintiff was an invitee.
We also conclude that plaintiff's attempt to argue invitee status is barred by judicial estoppel. The doctrine of judicial estoppel operates to "bar a party to a legal proceeding from
arguing a position inconsistent with one previously asserted."
N.M. v. J.G.,
255 N.J. Super. 423, 429 (App. Div. 1992). See
also Levin v. Robinson, Wayne & La Sala,
246 N.J. Super. 167,
178 (Law Div. 1990); Oneida Motor Freight, Inc. v. United Jersey
Bank,
848 F.2d 414 (3d Cir.), cert. denied,
488 U.S. 967,
109 S.
Ct. 495,
102 L. Ed.2d 532 (1988); Shell Oil Co. v. Trailer &
Truck Repair Co., Inc.,
828 F.2d 205, 209 (3d Cir. 1987).
As noted in Oneida, supra:
This doctrine, distinct from that of
equitable estoppel, applies to preclude a
party from assuming a position in a legal
proceeding inconsistent with one previously
asserted. Judicial estoppel looks to the
connection between the litigant and the
judicial system while equitable estoppel
focuses on the relationship between the
parties to the prior litigation.
[848 F.
2d at 419 (citations omitted.]
Although judicial estoppel most often arises when a party
takes inconsistent positions in different litigation, as in
Levin, supra, or N.M. v. J.G., supra, it can be equally
applicable where a litigant asserts inconsistent legal positions
in different proceedings in the same litigation.
At first blush, the doctrine of judicial estoppel appears to
be well-defined. It is clear from precedent cases discussing
judicial estoppel, however, that there are different theoretical
notions about how to apply this important doctrine. See
generally Douglas W. Henkin, Comment, Judicial Estoppel--Beating
Shields into Swords and Back Again,
139 U. Pa. L. Rev. 1711
(1991); Rand G. Boyers, Comment, Precluding Inconsistent
Statements: The Doctrine of Judicial Estoppel,
80 Nw. U. L. Rev.
1244 (1986).
In particular, there is the oft-cited requirement that in
order to be judicially estopped from asserting a position
contrary to a previously asserted position, a party must have
"succeeded in maintaining that position."See footnote 3 Chattin v. Cape May
Greene, Inc.,
243 N.J. Super. 590, 620 (App. Div. 1990), aff'd
o.b.,
124 N.J. 520 (1991) (quoting Brown v. Allied Plumbing &
Heating Co.,
129 N.J.L. 442 (Sup. Ct.), aff'd,
130 N.J.L. 487 (E.
& A. 1943)); contra Levin, supra, 246 N.J. Super. at 189-90 ("no
New Jersey court has ever adopted a requirement that a party must
`successfully assert' the prior position to be judicially
estopped from later asserting a contrary position.").
We agree that a party must successfully assert a position in
order to be estopped from asserting a contrary position in future
proceedings. What "successfully assert" means, however, needs
further discussion.
It is well established that a party can seek alternative forms of relief. See R. 4:5-2. Judicial estoppel does not preclude inconsistent positions from being pleaded in the
alternative. The view espoused by some courts that judicial
estoppel does not require prior success might be seen as
infringing on the ability of parties to plead in the alternative.
Judicial estoppel does not preclude such alternate pleadings
because at the time that the pleadings are made, neither the
parties nor the court have relied on one theory over another.
Nor does judicial estoppel bar every conceivable
inconsistency. "[R]ather, it is designed to prevent litigants
from `playing fast and loose with the courts.'" Ryan Operations
G.P. v. Santiam-Midwest Lumber Co.,
81 F.3d 355, 358 (3d Cir.
1996) (citation omitted).
Prior success does not mean that a party prevailed in the
underlying action, it only means that the party was allowed by
the court to maintain the position. "The doctrine of judicial
estoppel applies to a party who has successfully and
unequivocally asserted a position in a prior proceeding . . . ."
Edwards v. Aetna Life Ins. Co.,
690 F.2d 595, 598 (6th Cir.
1982). "Whether the party . . . benefitted from its earlier
position or was motivated to seek such a benefit may be relevant
insofar as it evidences an intent to play fast and loose with the
courts. It is not, however, an independent requirement for
application of the doctrine of judicial estoppel." Ryan
Operations, supra, 81 F.
3d at 361.
It is the integrity of the judicial process that is
protected by the doctrine of judicial estoppel. Edwards, supra,
690 F.
2d at 599. Parties should not be allowed "to play fast and
loose" with the judicial system. Levin, supra, 246 N.J. Super.
at 180.
The entire controversy doctrine acts to insure that an
entire controversy will be determined in a single judicial
proceeding. Cogdell v. Hospital Ctr. at Orange,
116 N.J. 7, 26
(1989). The entire controversy doctrine exists because
"fragmented and multiple litigation takes its toll on not only
the parties but the judicial institution and the public." Id. at
23. It is this same policy concern that mandates our view of
judicial estoppel.
Thus, we conclude that a position has been "successfully
asserted" if it has helped form the basis of a judicial
determination. The judicial determination does not have to be in
favor of the party making the assertion. If a court has based a
final decision, even in part, on a party's assertion, that same
party is thereafter precluded from asserting a contradictory
position.
Courts have the right to demand precision from counsel when
making applications to the court. A court should not be put in
the position of hearing a new and contradictory theory at a
second motion for reconsideration.
In response to defendant's motion for summary judgment, plaintiff argued:
Plaintiff recognizes that New Jersey law provides that a household social guest is
generally classified as a licensee even when
the guest is performing some incidental
household task. Plaintiff also recognizes
that defendant has no duty to discover latent
defects when dealing with a licensee.
However, the landowner must warn a social
guest of any dangerous condition which he or
she had actual knowledge of and of which the
guest is unaware.
When plaintiff returned to court on their second motion for
reconsideration, counsel argued:
Of critical import to the matter at bar is
determining the status of plaintiff at the
time she was at the property. Was she an
invitee or a licensee? Originally, in the
motion for summary judgment, the defendant
had claimed that the purpose of the
plaintiff's visit was purely a social one and
therefore, plaintiff's position was that of a
mere social licensee. As a social licensee,
the standard of care is significantly
reduced. However, in reviewing the
deposition transcripts of both plaintiff and
defendant, it is clear that the plaintiff is
not a mere social licensee.
This new position is clearly antithetical to the position
that plaintiff had held fast to from the time that the initial
pleadings were filed through the first motion for
reconsideration.
Clearly, plaintiff had the ability and the obligation to
review defendant's deposition thoroughly before filing their
brief in opposition to summary judgment. Plaintiff should not be
permitted to pick and choose alternative theories of liability
and assert them ad seriatim in separate proceedings in the same
litigation.
Plaintiff had conceded the fact that she was on her mother's
property as a licensee. A final judicial determination was made
which relied on this conceded fact. Therefore, plaintiff is
judicially estopped from claiming in this, or in any other,
litigation that she was an invitee. Clearly, if she had plead
her status in the alternative, she would not have had this
problem. "A party cannot have its cake and eat it too." Duplan
Corp. v. Deering Milliken, Inc.,
397 F. Supp. 1146, 1177 (D.S.C.
1975)
Plaintiff contends that the motion judge erred in failing to permit their second motion for reconsideration. We disagree. The judge abided by the clear meaning of R. 4:49-2 and, in doing so, he clearly did not abuse his discretion. Although our reported decisions do not clearly articulate the standard of review where there is a denial of a motion for reconsideration, the standard in the Federal courts is "abuse of discretion." CNF Constructors, Inc. v. Donohoe Const. Co., 57 F.3d 395, 401 (4th Cir. 1995). We now adopt that standard as the appropriate norm for appellate review of a denial of a motion for reconsideration.
Because we conclude that plaintiff was not entitled to a reconsideration of their claim based upon the standard of care owed to an invitee, it is unnecessary to consider whether the motion judge's remarks as to the legal efficacy of that claim were correct or incorrect. Nor do we need to consider whether defendant would have been entitled to summary judgment had plaintiff initially argued "invitee" status. Those arguments
raised by plaintiff are irrelevant. Plaintiff originally argued
the law relevant to a landowner's duty to a licensee. The motion
judge fully and correctly applied the law to the facts as argued,
and concluded that defendant was entitled to summary judgment.
See Brill v. The Guardian Life Ins. Co.,
142 N.J. 520, 523
(1995). The judge thereafter correctly applied R. 4:49-2 in
denying plaintiff's consecutive motions for reconsideration and
in so ruling he did not abuse his discretion.
Affirmed.
Footnote: 1 Judge Muir did not participate in oral argument, but with the consent of the parties participated in the decision. Footnote: 2 Although the caption bears the name of Harvey Bahr, Harvey Bahr was deceased when plaintiff's complaint was filed. The record fails to explain why plaintiffs named Harvey Bahr as a party defendant. There is no order amending the caption within the record on appeal. Despite the caption, we have elected to treat defendant Madeline Bahr as the sole defendant and all references to the defense will be in the singular. Likewise, plaintiffs will be referred to in the singular for ease of description. A reference to "plaintiff" will refer to Cynthia Cummings even though James Cummings is a party. Footnote: 3 Among the other factors that courts have analyzed in determining whether judicial estoppel should apply are: whether the party seeking estoppel was a party to the prior litigation; whether the opposing party relied on the prior statement; and whether the party asserting the inconsistent statement is attempting to "play fast and loose" with the judicial system. Henkin, supra, 139 U. Pa. L. Rev. at 1723-24.