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Russo-Roper v. Flynn

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 30, 2007

ANGELA M. RUSSO-ROPER AND CRAIG ROPER,*FN1 HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
FRANCIS J. FLYNN, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3632-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 10, 2007

Before Judges Fuentes and Graves.

Following a motor vehicle accident, plaintiff Angela M. Russo-Roper filed this personal injury action against defendant Francis J. Flynn. On April 6, 2005, a jury determined plaintiff failed to prove she sustained a permanent injury as a result of the motor vehicle accident. Consequently, an order of judgment was entered in favor of defendant.

On appeal, plaintiff presents the following arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO ADJOURN THE TRIAL DATE, AND THIS ERROR DEPRIVED PLAINTIFF OF HER FUNDAMENTAL RIGHT TO PARTICIPATE IN THE SELECTION OF THE JURY; THE VERDICT MUST BE REVERSED AND REMANDED FOR A NEW TRIAL.

POINT II

IT WAS ERROR TO BAR PLAINTIFF'S PROOFS REGARDING HER LOST WAGE CLAIM.

Based on our review of the record, we conclude plaintiff had a full and fair opportunity to present her case to the jury, and the trial court did not misapply its discretion in failing to adjourn the trial date. Accordingly, we affirm with only these brief comments.

Plaintiff's complaint was filed on August 22, 2003, and the case was first listed for trial on May 23, 2005. The trial was adjourned on a number of occasions, and on February 22, 2006, plaintiff requested that the trial, which was scheduled for Monday, March 6, 2006, be adjourned until April 3, 2006. That request was granted. However, on March 27, 2006, plaintiff's attorney requested a further adjournment because of other commitments, including two appeals that were scheduled for oral argument before this court on Wednesday, April 5, 2006. When that request was denied (on March 27, 2006), plaintiff's asked the trial court to enter an order memorializing its decision, and on March 29, 2006, the trial court entered an order indicating the matter was "listed try or dismiss on April 3, 2006." In an addendum to the order, the court explained:

Although plaintiff agreed to April 3, 2006, the plaintiff now requests yet another adjournment from a firm date that they had themselves suggested. . . . We advised the plaintiff that we will take notice of their Appellate Division commitment and will accommodate that commitment. Plaintiff, however, refuses to accept this and asks for another adjournment to another date that they at this point agree to. . . .

In a letter to the Assignment Judge of Passaic County, plaintiff apparently insists that they are only responsible for one or two of the adjournments. While the court's records indicate otherwise, plaintiff misses the point. It is this court's function to see to the timely administration of justice in this matter. This case is now 31 months old. Regardless of who is responsible for a case being adjourned, the longer the case is adjourned, the longer justice is delayed and the parties and the system concomitantly suffer.

At plaintiff's request, Diane Marie Acciavatti, an attorney at law of the State of New Jersey, appeared in court on Monday, April 3, 2006. Ms. Acciavatti certified:

5. I requested a second call when the case was called, and at the second call I requested that Judge Brogan reconsider his denial of the Plaintiff's adjournment request, citing that the [c]court's original denial was based upon inaccurate information. I also advised Judge Brogan that while the Plaintiff was ready to begin the trial on Thursday, April 6, her attorney Kenneth S. Thyne had a peremptory trial date on April 10, 2006[,] in a matter listed in Essex County. The Plaintiff in the Essex County matter resided in Thailand and the peremptory trial date had been selected months earlier.

6. Judge Brogan denied my request for a brief two (2) week adjournment.

7. I was assigned to the Honorable Anthony F. Graziano for trial.

8. I explained to Judge Graziano the circumstances under which neither Plaintiff nor Plaintiff's counsel was able to appear on that day.

9. Judge Graziano advised me that he had received a telephone call from Judge Brogan and that he was instructed that the trial was to begin that day.

10. I requested that Judge Graziano allow me to advise the jury pool about the specific circumstances which caused the Plaintiff and Plaintiffs' counsel not to be present, i.e.[,] that they were preparing for oral argument of a very substantial appeal.

11. Judge Graziano denied my request, however, he did allow me to advise the prospective jurors that Ms. Roper and Mr. Thyne were not present due to other professional commitments.

Prior to jury selection, Ms. Acciavatti advised the jury panel as follows:

Good afternoon, ladies and gentlemen. I hope my voice will carry to the back. My name is Diane Acciavatti and I'm an attorney with an office in Totowa. I'm here today to cover or appearing on behalf of one of my colleagues. His name is Kenneth Thyne. He's the attorney on behalf of the plaintiff. But Mr. Thyne had some other professional commitment that prevented him from being here today and that's why I'm here today. But you'll see Mr. Thyne tomorrow. And Mr. Thyne also has his office as well in Totowa.

The plaintiff, Angela Roper, also happens to be an attorney. She's also not here today for me to introduce to you. She had some professional commitment that prevented her from being here today. But you will meet her tomorrow also as well.

As represented by Ms. Acciavatti, plaintiff and Mr. Thyne were present on Tuesday, April 4, 2005, and throughout the trial. The trial was adjourned on Wednesday, April 5, 2005, to accommodate plaintiff and her attorney. Plaintiff speculates that the jury returned a "no cause" verdict because neither she nor her trial attorney were present during the jury selection process on Monday, April 3, 2004. But there is no evidence to support that assumption, and we have no reason to believe the jury did not render its verdict based solely on the evidence.

We have previously noted trial dates must be controlled by the court to ensure that cases are "processed in an orderly and expeditious manner." Vargas v. Camilo, 354 N.J. Super. 422, 431 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003). In this case, we are convinced the court reasonably accommodated plaintiff and her attorney by adjourning the trial on Wednesday, April 5, 2006. Thus, we perceive no abuse of discretion or reversible error.

Affirmed.


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