On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Pressler, Dreier and Kleiner. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiff, Brendon Connors, appeals both from the dismissal of his small claims complaint in the Special Civil Part and from the denial of his motion to vacate the dismissal.
Plaintiff instituted this action for breach of contract alleging that defendant, Sexton Studios, failed to deliver reproduction quality transparencies for which plaintiff had paid. The transparencies were allegedly flawed and had to be corrected at a cost of $850. The case was listed for October 23, 1992 at 9:00 a.m., but plaintiff was late arriving to court. He claims that he left New York City at 6:30 a.m., but had traffic delays through the Lincoln Tunnel into New Jersey. He then picked up the evidence and proceeded to the courthouse. He found the parking lot full and drove around until he could find a parking spot. He reached the courtroom indicated in the trial notice only to find that the Judge was sitting in a different courtroom. On the way to the proper courtroom he met defendant's principal, Harry Sexton, and his attorney. Mr. Sexton shook his hand and stated "[n]o hard feelings, the case has been dismissed." Plaintiff asked Mr. Sexton and his attorney to return to the courtroom with him so that he could explain the situation to the Judge and have the case heard, but they declined. When plaintiff reached the courtroom the clerk was still calling the list. Plaintiff waited until the call was completed and then approached the clerk. He informed plaintiff
that the matter had indeed been dismissed, but that he could make a motion to vacate the dismissal.
Plaintiff made the appropriate motion, but was informed by the trial Judge that he holds his trial call at 9:15 a.m., affording an extra fifteen minutes in case litigants had trouble parking, but that if a plaintiff is not there with his or her witnesses when the case is called, the matter is dismissed. The Judge refused to restore the case because defendant's principal and his attorney had appeared, defense counsel representing at the motion that they had even had an expert witness with them.
The sanctions for failure to appear are established by R. 1:2-4 which provides:
(a) Failure to Appear. If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar . . . or on the day of trial . . . the court may order any one or more of the following: (a) the payment by the delinquent attorney or party . . . of costs, in such amount as the court shall fix, to the clerk of the county in which the action is to be tried . . . or to the adverse party; (b) the payment by the delinquent attorney or party . . . of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint . . .; or (d) such other action as it deems appropriate.
Generally, such dismissals are without prejudice unless the court for good cause orders otherwise. Cf. R. 4:37-2(a); Woodward-Clyde Consultants v. Chemical & Pollution Sciences, Inc., 105 N.J. 464, 471, 523 A.2d 131 (1987). In any event, the dismissal remedy, especially, as here, a dismissal with prejudice, should not be invoked except in the case of egregious conduct on the part of a plaintiff, and should generally not be employed where a lesser sanction will suffice. Cf. Woodward-Clyde Consultants, supra, 105 N.J. at 471, 523 A.2d 131; Johnson v. The Mountainside Hosp., 199 N.J. Super. 114, 119-120, 488 A.2d 1029 (App.Div.1985).
Ordinarily, one or more of the lesser sanctions of the rule would apply, namely, the payment of defendant's costs, attorney's fees and/or out-of-pocket costs for the first appearance. In this case, however, there are two reasons why such payment will not be ordered. The first is a conditional reason, since the trial Judge
never determined whether there was "just excuse" for plaintiff's late appearance, or whether plaintiff failed "to give reasonable attention to the matter." If in fact plaintiff's late appearance was caused by a traffic tie-up in the Lincoln Tunnel, parking difficulties in the courthouse lot, and the change of courtroom from the one appearing in the trial notice, no sanction at all might have been indicated. If plaintiff has truthfully represented that he left his work in New York at 6:30 a.m. for a 9:00 o'clock noticed trial in Camden, his conduct may have been blameless. The ...