July 20, 2007
IFEOMA EZEKWO, PLAINTIFF-RESPONDENT,
SALVADOR SANCHEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, DC-4219-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2007
Before Judges Lintner and C.L. Miniman.
This is an appeal from the denial of a motion to vacate a judgment by default. We reverse.
The record before us establishes the following facts: On April 8, 2005, plaintiff Ifeoma Ezekwo filed a complaint in the Special Civil Part alleging installation of a defective boiler by defendant Salvador Sanchez in a three-family home owned by plaintiff, as a consequence of which plaintiff alleged a loss of tenants and income. Plaintiff sought damages in the amount of $14,125 plus costs of suit. On July 25, 2005, defendant filed an answer and separate defenses designating of Alfred V. Acquaviva as trial counsel. The matter was listed for trial for the third time*fn1 on January 27, 2006. On January 26, 2006, designated trial counsel wrote to the court advising the clerk that he had just learned that his client was out of the country and sought a further adjournment to some date after February 10, 2006, when he would be returning. The request for an adjournment was denied and Alan Mariconda agreed to appear at the call the next day because Acquaviva had several other matters scheduled for that day.
On January 27, 2006, Mariconda appeared and made another request for adjournment, which was again denied. Settlement efforts with a mediator were unsuccessful and the matter was ready for assignment to a judge for trial. Mariconda advised the court that he had to attend a municipal court matter in Paterson and was given permission to attend that proceeding and then to return for the trial of this matter. The Special Civil Part staff agreed to delay assigning the matter to a judge pending Mariconda's return from municipal court. Despite this agreement, the matter was sent to a judge for trial in Mariconda's absence. The judge recited on the record his understanding that the civil presiding judge had denied a requested adjournment and that Mariconda left the courthouse one hour earlier. As a consequence, the judge entered a default, took proofs, and entered a judgment in the amount of $14,125 plus costs on January 27, 2006.
Defendant moved to vacate the default judgment and submitted a supporting certification from Acquaviva reciting the events of January 26 and 27, 2006, and seeking to have the judgment vacated as an "oversight by the court." The moving papers did not reference any applicable court rule. The motion was opposed by plaintiff and denied by the judge on the papers on March 20, 2006, without any findings of fact or conclusions of law being stated in support of the denial.*fn2
On March 29, 2006, defendant filed a motion for reconsideration, supported by certifications from Acquaviva and Mariconda attesting to the events leading up to the entry of the judgment by default. Mr. Acquaviva refuted the facts stated by plaintiff in her opposition to the original motion and again sought to have the judgment by default vacated. The judge again denied the motion on the papers. This appeal followed. We do not have the benefit of the trial judge's thinking on the matter. Rule 1:2-4 specifies the action that a judge may take for the failure to a party to appear at trial. The rule provides:
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 day of trial, or if an application is made for an adjournment, the court may order any one or more of the following: (a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, to the Clerk of the Court . . . or to the adverse party; (b) the payment by the delinquent attorney or party or the party applying for the adjournment of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint, cross-claim, counterclaim or motion, or the striking of the answer and the entry of judgment by default, or the granting of the motion; or (d) such other action as it deems appropriate.
Our Supreme Court has cautioned courts with respect to the ultimate sanction of dismissal of a claim or suppression of an answer.
In assessing the appropriate sanction for the violation of one of its orders, the court must consider a number of factors, including whether the plaintiff acted willfully and whether the defendant suffered harm, and if so, to what degree. See Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995). Because the dismissal of a plaintiff's cause of action with prejudice is a drastic remedy, it should be invoked sparingly, such as when the plaintiff's violation of a rule or order evinces "'a deliberate and contumacious disregard of the court's authority.'" Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003) (quoting Allegro v. Afton Vill. Corp., 9 N.J. 156, 160-61 (1952)); see also Abtrax Pharm., supra, 139 N.J. at 514 ("'The dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked except in those cases . . . where the refusal to comply is deliberate and contumacious.'" (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951))). When the vindication of the court's authority standing alone is not at issue, then the prejudice suffered by the defendant also must enter into the calculus in determining the appropriate sanction. See Crispin [v. Volkswagenwerk, A.G., 96 N.J. 336, 345 (1984)]. The extent to which a plaintiff has impaired a defendant's case may guide the court in determining whether less severe sanctions will suffice. See Johnson v. Mountainside Hosp., 199 N.J. Super. 114, 120 (App. Div. 1985) (per curiam). Absent serious prejudice, lesser sanctions should be considered. Crispin, supra, 96 N.J. at 345; see also Olds v. Donnelly, 150 N.J. 424, 438-49 (1997). But when the plaintiff's disregard of a court order impairs "the defendant's ability to present a defense on the merits," the defendant will be deemed to have suffered irreparable prejudice. State v. One 1986 Subaru, 120 N.J. 310, 315 (1990); see also Perna v. Pirozzi, 92 N.J. 446, 457 (1983).
[Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115-16 (2005).]
We have long cautioned that "[e]agerness to move cases must defer to our paramount duty to administer justice in the individual case." Audubon Volunteer Fire Co. No. 1 v. Church Const. Co., 206 N.J. Super. 405, 406 (App. Div. 1986). See also Rabboh v. Lamattina, 312 N.J. Super. 487, 492-93 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999) (holding that the ultimate sanction of dismissal must be sparingly applied and only if lesser sanctions are unavailing); Santos v. Estate of Santos, 217 N.J. Super. 411, 412 (App. Div. 1986) (trial court abused its discretion in dismissing action where plaintiff's attorney was denied an opportunity to produce his California witness after being assured by the court of an opportunity to do so); Georgis v. Scarpa, 226 N.J. Super. 244, 250-54 (App. Div. 1988); Kohn's Bakery, Inc. v. Terracciano, 147 N.J. Super. 582 (App. Div. 1977).
We, too, have cautioned courts that the ultimate sanction of dismissal or suppression of defenses is to be sparingly employed.
Since dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will erase the prejudice suffered by the non-delinquent party. Cases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available.
[Irani v. K-Mart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995) (citations and quotations omitted).]
Here, there were no facts before the judge which would have supported the entry of judgment by default. It is entirely evident from the status of the case as "ready hold" that the judge acted precipitously when he chose not to await the return of Mariconda. The attorney was given leave to attend the municipal court matter and, once there, was required to remain until released. We conclude that the sanction of striking defendant's answer and separate defenses constituted a mistaken exercise of discretion. We remand the matter to the trial judge for entry of an order vacating the default and restoring the matter to the trial list.
Reversed and remanded for further proceedings consistent with this opinion.