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Lorenzo v. Cleary

February 14, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6065-03.

Per curiam.


Submitted December 19, 2007

Before Judges Sapp-Peterson and Messano.

Plaintiff Edwin Lorenzo appeals from the November 3, 2006, order that dismissed his complaint against defendant John Cleary with prejudice "for plaintiff's failure to appear at the October 23, 2006 trial." This is the second time we have been asked to review the dismissal of plaintiff's complaint because he failed to appear on the trial date. In an unreported decision, Lorenzo v. Cleary, No. A-1355-05 (App. Div. July 26, 2006), we reversed and remanded the matter for trial. Having now reviewed the record in light of the arguments advanced by plaintiff on this appeal, we must once again reverse the order under review and remand the matter for trial.

Plaintiff is an inmate at East Jersey State Prison and has represented himself in these proceedings. His complaint against defendant Cleary, an Eatontown police officer, allegedly arose out of law enforcement's response to a domestic violence dispute between plaintiff and defendant Katherine Cosentino.*fn1

Plaintiff's complaint was initially dismissed with prejudice when he failed to appear for trial on August 8, 2005, and he appealed.

We noted that plaintiff successfully secured an order to produce himself from prison for trial. Thereafter, defendant's request for an adjournment was granted and a new trial date was set. Because plaintiff had not secured an order to produce for the new trial date, he failed to appear, and his complaint was dismissed with prejudice. Lorenzo, supra, No. A-1355-05 (Slip op. at 3).

We reasoned that it was reasonable for plaintiff to have assumed that the original order to produce would have been extended because of the adjournment. We concluded that the judge should have sua sponte issued another order to produce plaintiff for the adjourned trial date, or, alternatively, requested defense counsel, who secured the adjournment in the first instance, to prepare the order for the judge's signature. Ibid. We reversed and remanded the matter for trial.

On remand, in a letter to the assignment judge, plaintiff requested a status conference by telephone so as to avoid "confusion due to [his] incarceration," and a date for trial. On September 5, 2006, the civil division manager sent plaintiff a letter advising him that the trial date was now set for October 23, 2006. He also advised plaintiff that the court had prepared an order to produce plaintiff, but that the costs of transportation, $842.56, would be plaintiff's responsibility. He suggested plaintiff contact the social services department in the correctional facility to arrange payment.

Also on September 5, 2006, plaintiff filed a motion seeking an order to produce both himself and his "inmate advisor." On September 19, 2006, the civil division manager again wrote to plaintiff advising that an order to produce had already been sent to the "Central Transport Unit," and reiterating the trial date.

On October 12, 2006, defense counsel wrote to the trial judge and requested an adjournment of the trial date to November 27. A copy was forwarded to plaintiff at the prison. On October 22, plaintiff wrote to the judge noting the case had been adjourned to November 27, 2006, that he was having difficulty having the Sheriff subpoena his witnesses, and that he was still waiting for the court to rule on his motion.

Unbeknownst to plaintiff, defendant's adjournment request was denied and defendant appeared before the trial judge on October 23. Plaintiff, who believed the case was adjourned, failed to appear. Defense counsel moved for a dismissal of the complaint with prejudice. The judge noted "this matter has been pending for some time, and [] [the] [c]court has done everything in its power to provide [plaintiff] with the forms and information necessary to get himself here." Then, indicating that he wanted the record to be "as clean and as clear [] as possible," the judge asked defense counsel to "place on the record your best understanding of what the facts of this case are from the plaintiff's position and from the defense position so I can better understand it . . . ."

Over the next thirteen pages of transcript, defense counsel set forth the basic allegations of the complaint and the defense to same. The judge then dismissed the complaint finding the court had "ma[de] total arrangements" to produce plaintiff, plaintiff "was aware of today's date," and plaintiff had adequate money to pay for the ...

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