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Ramautar v. Bob Brothers Corp.


January 18, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5220-03.

Per curiam.


Submitted December 19, 2007

Before Judges Wefing and Lyons.

Plaintiffs Edward Ramautar and Mercedes Ramautar appeal from three orders entered by the trial court: a July 14, 2006, order dismissing plaintiffs' complaint and entering default against plaintiffs for failure to proceed to trial on the assigned trial date; a December 4, 2006, order entering a default judgment against plaintiffs in favor of defendant Bob Brothers Corp. for $12,321; and a March 23, 2007, order denying plaintiffs' application pursuant to Rule 4:50-1 to set aside the order dismissing plaintiffs' complaint with prejudice. Because we find that the trial judge's exercise of discretion in granting the orders appealed from was reasonable and in accordance with law, given the factual circumstances, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On September 15, 2002, plaintiffs contracted with defendant Bob Brothers Corp., as general contractor, to renovate their home. Defendant Bob Brothers Corp. retained eight subcontractors to assist in completing the project. Plaintiffs alleged that the work was not completed in a timely, workmanlike manner, among other allegations, and instituted suit on July 21, 2003, against defendant Bob Brothers Corp.; the principal of Bob Brothers Corp., Mahboob Bhatti; and eight subcontractors. It appears that only defendants Bob Brothers Corp., its principal, Beno Stucco Systems, Inc., and American Electrical Contractor, Inc. filed answers, with Bob Brothers Corp. filing a counterclaim for funds allegedly due it.

On September 22, 2004, the court mailed its initial trial notice to the parties. The notice set the initial trial date for November 29, 2004. However, plaintiffs sought an extension of discovery, which was granted, and the initial trial date was adjourned without a date. Between October 2004 and December 2005, plaintiffs obtained five extensions of discovery. On January 20, 2006, defendants' motion for summary judgment was denied (with the exception of a contract claim against the principal of defendant).

On February 28, 2006, a case management conference was held. At that time, a case management order was entered. The order required plaintiffs' experts' reports to be due by March 21, 2006, with defendants' experts' reports to be due on April 21, 2006. The order required plaintiffs to cooperate in allowing inspection of the premises and further provided that all expert depositions were to be completed by May 31, 2006. The court's order set a final case management conference for June 8, 2006, and stated that "the Court intends to assign a trial date in June, 2006." The court conducted a conference on June 8, 2006, which was continued on June 22, 2006. At that time, the parties were unable to reach a settlement, and a trial date was set for July 10, 2006.

On June 29, 2006, plaintiffs' then-counsel, by fax and regular mail, wrote to the court requesting an adjournment. Plaintiffs' then-counsel explained to the court that this request was "the first trial listing for this case" and that he had a conflict and insufficient time "to prepare given the other demands of [his] practice."*fn1 Finally, counsel's letter stated, "More importantly, R. 4:36-3(a) requires at least eight-weeks notice of an initial trial date."

On July 10, 2006, the case came on for assignment before the presiding civil judge who denied plaintiffs' request for an adjournment and assigned the case to the trial judge for trial, to commence on July 14, 2006.

At that time, plaintiffs' then-counsel, together with counsel for the answering defendants, appeared before the trial judge. Plaintiffs' then-counsel renewed his request for an adjournment. Counsel argued that he had too little notice of trial, and that he had a conflict in that he had a workers' compensation case scheduled for July 15, 2006. Counsel argued that he was not afforded the time allotted under Rule 4:36-3 in that he did not get eight-weeks notice of a trial date under "best practices." Counsel argued that the February 28, 2006, case management order, which informed all counsel that a trial date would be set for June "doesn't undermine my entitlement to eight weeks notice of a trial date under best practices." Counsel went on to argue that "I figured best practice is a twoway street."

After the trial court heard from defense counsel, who were ready to proceed, the court reasoned that the case was approximately three years old and, under Rule 4:36-3, that counsel was on notice as of February 28, 2006, that the case would be tried in June. The court stated that counsel, knowing that the trial was specifically scheduled for June, should have been prepared if the case did not settle at the June 8 case management conference. The court stated that "the whole idea of [Rule] 4:36-3 is to give you some notice that you're in jeopardy that a trial . . . would occur." The trial court found that Rule 4:36-3 "affords you no comfort in this matter." Consequently, as plaintiffs' counsel was not prepared to move forward, the court dismissed the matter with prejudice and entered default against plaintiffs on defendants' counterclaims.

Plaintiffs' September 8, 2006, motion to set aside the default was denied, and on November 14, 2006, a proof hearing was had concerning defendants' counterclaim. Judgment in favor of defendants against plaintiffs on the counterclaim for the $12,321 was entered on December 4, 2006. On March 23, 2007, plaintiffs' motion for an order to vacate the judgment under Rule 4:50-1(f) was denied. This appeal ensued.

On appeal, plaintiffs argue that "plaintiffs have been unfairly deprived of their day in court." Plaintiffs' argument is primarily based on the interpretation and application of Rule 4:36-3. They argue that the February 28, 2006, order failed to provide adequate notice of a firm trial date in that it was vague and imposed an undue burden on counsel to "keep the month of June open." They further assert that the Rule requires an actual trial date with eight-weeks notice to counsel. Moreover, they argue that even if we were to find that there was eight-weeks notice given by virtue of the February 28, 2006, order, since the case was not reached in June, they are entitled to a four-week hiatus from the initial trial date to the new trial date, and they were not afforded that in that they were given notice on June 22, 2006, of a July 10, 2006, trial date.

In plaintiffs' notice of appeal, they appealed from the entry of judgment on the counterclaim. This judgment was entered by default. As such, it is not subject to direct appeal. R. 2:2-3. Recourse from a default judgment must be sought under Rule 4:50-1. See Haber v. Haber, 253 N.J. Super. 413 (App. Div. 1992). As plaintiffs have failed to address any arguments with respect to the court's March 23, 2007, denial of their motion to set aside the dismissal pursuant to Rule 4:50-1(f), we deem that issue to have been abandoned.

Defendants argue that the initial notice of trial was on November 29, 2004, and that there were certainly more than eight weeks from that date to the trial date. Moreover, they argue there were more than eight weeks between the June trial date and the February case management conference, which advised all parties of the June trial date. Defendants essentially argue that counsel had sufficient preparation time if counsel had recognized that a trial would occur in June. Further, defense counsel argue that plaintiffs did not raise any objection on June 22, 2006, with respect to the July 10, 2006, trial date, but waited instead until a week later.

We begin our analysis by reviewing certain applicable legal principles. We apply an abuse of discretion standard in reviewing a decision to deny a motion for an adjournment.

Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 574 (2003). Court rules are to "be construed to secure a just determination, simplicity in procedure, fairness in administration, and the elimination of unjustified expense and delay." R. 1:1-2. That rule also provides that unless otherwise stated "any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." Ibid.

Plaintiffs' counsel correctly notes that Rule 4:36-3 is a product of "best practices." "Best practices is the term used to describe the comprehensive rule changes, effective September 2000, designed to improve the efficiency and expedition of the civil litigation process and to restore state-wide uniformity in implementing and enforcing discovery and trial practices." Vargas v. Camilo, 354 N.J. Super. 422, 425 n.1 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003). We stress, however, the observation made that,

[a]lthough the phrase "best practices" describes the package of 2000 rule amendments the fact of the matter is that these rule amendments are fully incorporated into the rules and are an integral part of them. There remains, therefore, no purpose in continuing to treat them as a special body of procedural law.

[Pressler, Current N.J. Court Rules, comment 4 to R. 1:1-2 (2008).]

The polestar in a construction of the rules is to secure a just determination as well as one which advances the fair and efficient administration of justice. This requires a trial judge to balance the interests of each of the parties as well as the interests of the public in achieving an efficient and expeditious resolution of civil proceedings. See Ponden v. Ponden, 374 N.J. Super. 1, 8 (App. Div. 2004), certif. den., 183 N.J. 212 (2005). The rules, however, while flexible, must recognize the right of the public to have matters expeditiously and efficiently resolved as well as the right of the parties to resolve matters which affect their lives and property.

As Justice Clifford said in his dissent in Stone v. Old Bridge Twp., 111 N.J. 110, 125 (1988):

Our Rules of procedure are not simply a minuet scored for lawyers to prance through on pain of losing the dance contest should they trip. Those Rules have a purpose, one of which is to assist in the processing of the increasing number and complexity of cases, including appeals in this Court, that we have experienced over the last decades.

Moreover, we have recognized that the rules are a vehicle which empower individual trial judges to step in, where appropriate, and manage cases so that a case can proceed efficiently and fairly. See Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 91 (App. Div. 2007). We have also noted that "calendars must be controlled by the court, not unilaterally by [counsel], if civil cases are to be processed in an orderly and expeditious manner." Vargas, supra, 354 N.J. Super. at 431.

It is against this backdrop that we examine plaintiffs' counsel's argument that we are constrained to literally read Rule 4:36-3(a). A literal reading of the then-rule required a court to give all parties an initial trial date, no less than eight weeks prior thereto. And, literally, there was an initial trial date given on November 29, 2004. We recognize, however, that this was not a realistic trial date given the five extensions of discovery which plaintiff procured thereafter. However, the February 28, 2006, case management order clearly put plaintiffs on notice that the case was to be tried in June 2006. The Law Division judge at that conference appropriately managed a case which was approaching three years old. The judge set definite dates for experts' reports, depositions, inspections, and all parties were clearly on notice that the trial was going to go forward in June 2006.

Plaintiffs' counsel also argues pursuant to Rule 4:36-3(a) that when the trial date did not occur in June, he was then entitled to a four-week period before the trial could be relisted. Instead, he received two-and-a-half weeks notice from the June 22 conference to the July 10, 2006, trial date. We note, however, that the record does not reflect any counsel objected to the July 10 date at the time the court relisted the trial, but that it was only afterwards that counsel sought an adjournment.

Plaintiffs' counsel stresses the literal dictates of Rule 4:36-3(a), but ignores the requirements of Rule 4:36-3(b). That rule requires that adjournment requests be in writing and must state the reason for the request, and that all parties have consented to it and provide a new specified trial date. Counsel's letter does not measure up to that requirement.

In his oral argument to the court for an adjournment, counsel stated that his reasons were twofold. One is that he had a conflict with a workers' compensation case, and two, that he was not prepared. Pursuant to established Policy Directives, this older Superior Court case would take precedence over the workers' compensation case. See Administrative Office of the Court's, Directive #12-05 (Jan. 30, 2005), available at The second basis for his request was that he was not prepared, given the requirements of his practice and the time in which he received notice. We agree with the trial judge's analysis that plaintiffs' counsel was certainly on notice in February that the trial was to be scheduled sometime in June. Counsel participated in a June 8, 2006, settlement discussion that was not fruitful, as well as a June 22, 2006, settlement conference at which time he was told that the trial would occur in about three weeks. Given those notices, there is no indication why counsel could not have been prepared. Rather, he chose to stand on his literal reading of Rule 4:36-3 and assert "his entitlement" thereunder arguing that "best practices" is a twoway street.

"Often the road to misconstruction is a literal one."

Smith v. Bd. of Chosen Freeholders of Bergen County, 139 N.J. Super. 229, 238 (Law Div. 1976), aff'd, 146 N.J. Super. 45 (App. Div.), certif. den., 74 N.J. 266 (1977). Consistent with the dictates of Rule 1:1-2, we adhere, in construing the Court rules, to the principle of statutory construction that laws should be read sensibly rather than literally. Ibid. Judge Learned Hand once observed in his concurrence in Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944), "[t]here is no surer way to misread any document than to read it literally . . . ."*fn2

In this case, a literal application of Rule 4:36-3 would impermissibly restrict the trial court which is charged with managing this civil case in a fair, just, and equitable fashion in order to achieve the laudable goals of efficiency and expeditiousness in resolving disputes. While we recognize that a literal reading of Rule 4:36-3(a) may support plaintiffs' counsel's argument, the same literal reading of Rule 4:36-3(b) would defeat his application for an adjournment.

Plaintiffs' "entitlement" argument certainly ignores the fact that the court earlier, in an exercise of its discretion, on five occasions, extended the discovery period at the request of plaintiffs' counsel. He, of course, was not entitled to that relief, but received it by virtue of a judicious exercise of the court's discretion. Now, however, he wishes to rely on a literal reading of a rule to procure an "entitlement" which does not exist.

Given the recognized and substantial public interest in resolving litigation in an expeditious fashion; the fact that this litigation is over three years old; that defendants are equally entitled to a expeditious resolution of the case; and that the trial court expended considerable efforts to manage this case and provide counsel with adequate notices to prepare for trial, we agree with the trial judge's exercise of discretion dismissing the case. Consequently, we affirm.


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