On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5220-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...