Opinion
DOCKET NO. A-1178-10T4
09-07-2012
L.E.G., individually and as natural parent of E.G., Plaintiff-Appellant, v. EAST ORANGE BOARD OF EDUCATION, Defendant-Respondent.
Robert A. Vort argued the cause for appellant. Adam S. Herman argued the cause for respondent (Adams Stern Gutierrez & Lattiboudere, LLC, and Schwartz Simon Edelstein & Celso, LLC, attorneys; Cherie L. Adams, of counsel and on the brief; Mr. Herman, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves and J. N. Harris.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3821-09.
Robert A. Vort argued the cause for appellant.
Adam S. Herman argued the cause for respondent (Adams Stern Gutierrez & Lattiboudere, LLC, and Schwartz Simon Edelstein & Celso, LLC, attorneys; Cherie L. Adams, of counsel and on the brief; Mr. Herman, on the brief). PER CURIAM
Plaintiff L.E.G. is the mother of E.G. (fictitiously Edwin), who is now fifteen years old. Plaintiff appeals from an order denying her motion to file a second amended complaint. After reviewing the record and the applicable law, we affirm.
In the summer of 2006, after Edwin completed the third grade, he was referred for an evaluation by the East Orange Child Study Team. Based on the evaluation, it was determined that Edwin was eligible for special education and related services, and an Individual Education Plan (IEP) was developed for him. Plaintiff signed the initial IEP on September 13, 2006, thereby consenting to its implementation during the 2006-2007 school year. The IEP stated that Edwin would receive "in-class support for all subjects," and he would receive two hours of instruction at home each week. However, the 2006-2007 IEP did not provide for a one-on-one aide for Edwin.
On July 23, 2007, plaintiff filed a notice of claim for damages on behalf of her son under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Plaintiff stated in her tort claim notice that her son injured his right leg "as a result of a fall down stairs at school" on May 11, 2007. She described the accident as follows:
Nine year old special needs child was assigned a one-on-one aide. Child was sent to the bathroom alone, without aide, and fell down the stairs. Medical attention was required[.] Child's father was forced to bring child to hospital because school personnel failed to obtain an ambulance or proper medical intervention.
On the same date, July 23, 2007, plaintiff filed a petition on behalf of her son for a due process hearing with the State Director of Special Education Programs. The petition was filed against defendant, the East Orange Board of Education (Board), the entity responsible for providing special education services to Edwin. Plaintiff alleged in the petition that the Board failed to comply with "the very basic requirements of the IEP and [Edwin] was failing miserably in school." Plaintiff also claimed Edwin's regular education teachers had not been informed of his disability, and they "were engaging in a pattern of harassment and abuse of [Edwin] for the very issues that are related specifically to his disability."
Plaintiff and the Board, with the assistance of their respective counsel, resolved the issues raised in plaintiff's due process petition, and the parties entered into a written settlement agreement (Agreement) on September 6, 2007. After the agreement was approved by the Board, it was incorporated into a final order by an Administrative Law Judge on December 19, 2007. The order noted the petition alleged violations of the Individuals with Disabilities Education Act, 20 U.S.C.A. 1400 to 1482, and the parties "voluntarily agreed to resolve all disputed matters."
The agreement provided, in pertinent part, as follows:
9. The Board agrees to reimburse the parent $2,000 toward expenses in this matter. This amount is in full satisfaction of any claims the parent could raise for reimbursement under 20 U.S.C.A. § 1415 or any other federal or state statute. The parties agree that neither party shall be considered a prevailing party for any purpose. The reimbursement will be issued in accordance with Board procedure after receipt of documentation of expense.
10. In exchange for the services and reimbursement outlined herein, the parent, individually and on behalf of [Edwin], waives any and all claims that were or could have been raised against the Board to date regarding [Edwin's] education. The parent hereby releases same. This specifically excludes the pending Tort Claim Action.
11. This Agreement has been entered into freely, willingly and voluntarily, without duress or coercion and with the opportunity to consult with counsel of their choosing. The parties acknowledge that they were represented by counsel that they are pleased with their respective representation in this matter and that they understand the contents of this Settlement Agreement and Release.
12. This Agreement shall be governed by the laws of the State of New Jersey and operates as a release of the claims as set forth herein.
In May 2009, plaintiff filed a two-count complaint in the Superior Court against the Board. Count one alleged the Board was responsible for Edwin's injuries on May 11, 2007, when he fell down the stairs, because "a teacher or other person employed by defendant and with supervisory authority over [Edwin], sent [him] to the bathroom without a one-on-one aide." In the second count of the complaint, plaintiff asserted a claim under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49.
Defendant filed a motion to dismiss plaintiff's complaint in August 2009. Based on the parties' negotiated Agreement, the Board argued that plaintiff had "waived all claims against the Board" except for the tort claim relating to the May 11, 2007 accident.
In response to the Board's motion to dismiss plaintiff's initial complaint, plaintiff's attorney acknowledged that "defendant's motion is not without merit," and he filed a cross-motion to file an amended complaint "limited to the reserved tort claim." The Board then withdrew its motion to dismiss plaintiff's complaint. On September 11, 2009, the court granted plaintiff's cross-motion to file an amended complaint, which only alleged the Board was negligent on May 11, 2007, when Edwin was injured at school.
After the Board filed an answer to the first amended complaint, the parties engaged in discovery limited to the accident on May 11, 2007. However, on July 23, 2010, plaintiff moved to file a second amended complaint, which included the same allegations that were set forth in the due process petition and plaintiff's initial complaint. In a supporting certification, plaintiff's attorney stated:
When the Court denied defendant's prior motion to dismiss the initial complaint and granted plaintiff's cross-motion to serve and file the amended complaint, I deleted too many provisions from the initial complaint. That was my error, and I submit that the Court should not attribute my error to plaintiff who saw neither the original nor the first amended complaint.
The Board opposed plaintiff's motion, and the court denied the application on September 16, 2010. The motion judge noted on the order that the proposed complaint contained claims that "were previously settled. There was an accord and satisfaction. [Plaintiff] waived these claims and [is] now estopped from raising them again."
"Of course, the granting of a motion to file an amended complaint always rests in the court's sound discretion." Kernan v. One Washington Park, 154 N.J. 437, 457 (1998). Our review of a trial court's denial of a motion for leave to file an amended complaint is limited to determining whether the court abused its discretion. Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 513 (App. Div.), certif. denied, 162 N.J. 131 (1999). A trial court decision will constitute an abuse of discretion when the "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 571 (2002)). Although motions to amend are liberally granted, "the analysis is not complete until the requested amendment is examined to determine whether it is futile." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006).
In this case, the trial court reasoned that it would have been futile to grant plaintiff's motion to file a second amended complaint because the additional claims in the proposed complaint "were previously settled." Based on our independent review of the record, we have concluded there is substantial credible evidence to support the trial court's decision, and we find no abuse of discretion. See Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 257 (App. Div. 1997) (noting "'there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.'") (quoting Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995)).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION