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Cimmino v. Cimmino


February 29, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-499-07.

Per curiam.


Submitted January 30, 2008

Before Judges Axelrad and Messano.

Defendant Patricia Cimmino appeals from the April 17, 2007, order awarding plaintiff Patrick Cimmino counsel fees in the amount of $1100, and the June 8, 2007, order that denied her motion for reconsideration. Defendant contends her attorney's behavior was not contumacious, that the judge failed to follow the appropriate procedural requirements contained in Rule 1:10-1 and Rule 1:10-2, and that the judge mistakenly exercised his discretion by imposing the sanction. After our review of the record and applicable legal standards, we reverse.

We recite the undisputed facts giving rise to the orders under review. On April 16, 2007, this matrimonial matter was scheduled for an Early Settlement Panel (ESP) in the Middlesex County courthouse. There had been extensive rainstorms and a portion of Route 18, a major traffic artery in the New Brunswick area, was closed. Defense counsel became ensnarled in a traffic jam as a result, and, at approximately 9:30 a.m. he called his office and arranged to have his associate contact the chambers of the presiding judge of the Family Part to advise of the delay. Defense counsel did not have plaintiff's counsel's cell phone number, and, believing the judge's staff would advise her of the delay, did not call opposing counsel's office.

The traffic congestion remained unabated and at 10:00 a.m. defense counsel contacted the presiding judge's chambers directly. He spoke to the judge's law clerk and advised her that it would be at least another hour before he could arrive at the courthouse. Counsel requested that the ESP be re-scheduled and that he be relieved of having to appear. His request was granted by the law clerk and defense counsel notified his staff by phone and then returned to his office.

Plaintiff's counsel was at the courthouse for the ESP along with plaintiff and defendant. When defense counsel had not appeared by 10:00 a.m., she called his office and was told that he was running late. Shortly thereafter, she called again and was told that he had been released by the judge and was on his way back to his office. Plaintiff's counsel called defense counsel's office a third time and was successful in actually speaking to him. She asked him to return to the courthouse since both clients were there; however, defense counsel refused. Plaintiff's counsel then advised her adversary that she intended to make a request for counsel fees.

The ex parte application was heard by a judge other than the presiding judge who was in fact out for the day. Plaintiff's counsel set forth the contacts with defense counsel and his office that she had during the morning and requested an award of fees. The judge noted that he had spoken to the presiding judge's secretary "after the call," and knew defense counsel was caught in traffic. However, he noted that the "only people that can grant an adjournment o[n] a matter that's set down for an ESP is either [the presiding judge], who's not here, his secretary . . . or me, the ESP judge." The judge continued, "[I]f [defense counsel] wanted to[], he could have gotten a hold of me." Noting that plaintiff's counsel had arrived at the courthouse that morning from Montclair, and that defense counsel's office was in nearby Metuchen, the judge determined defense counsel's excuse for his non-appearance was "inadequate," and he granted the application for counsel fees. Based upon plaintiff's counsel's representations, he awarded her $1100 and entered an order to that effect.

Defense counsel informally attempted to have the judge reconsider by forwarding a letter explaining the reasons for his non-appearance. Plaintiff's counsel responded, and the judge, in a letter dated April 23, denied this informal request, advising defense counsel that he "ha[d] no right to rely on a judge's clerk to allow you out of appearing." Noting defense counsel failed to advise his adversary, the judge concluded defense counsel's call to the law clerk was "nothing more than an excuse . . . for not showing up." The judge refused to reconsider the sanction.

Defendant thereafter moved for reconsideration by formal motion. Plaintiff's counsel filed a certification in opposition that simply noted that no one had contacted her on behalf of defendant on the morning of the ESP, and it was only upon calling defense counsel's office that she became aware of any problem. Oral argument on the motion was waived by defendant, and the judge issued his opinion on the record on June 8, 2007.

After reviewing the facts, the judge noted

[B]asically the problem here . . . is common civility. [] [S]omewhere along the way, this has been lost.

[] [W]hen I practiced when I needed a favor, I didn't call the Court first, I called my adversary first. And when the adversary either refused to or wouldn't go along with it, then I went to the Court and I gave the Court a complete rundown on what the situation was.

Now, in this case I don't know why [defense counsel], in view of all of the rain that we had and all of the traffic jams and everything else, waited until 8:15 to try to go to the courthouse . . . .

And when he was called at 10:40 and he indicated he had been released, and the Court doesn't believe that he was released, he said that it was . . . "Out of the question [for him to return]."

I think this is [] high-handed and it's uncivil toward an attorney who has been sitting here for several hours and . . . the Court's just not going to go along with this thing.

The judge denied the motion for reconsideration and also "granted [plaintiff's counsel] the right to seek additional counsel fees for defending [this] application." This appeal followed.

Defendant argues that the judge failed to properly follow the procedures governing a contempt citation outlined in Rule 1:10-1 and Rule 1:10-2 and that her attorney's behavior was, in any event, not contumacious. We agree with both propositions. However, since the judge did not expressly cite these rules in either order as a basis for imposing sanctions, we consider whether the orders may be sustained under some other rationale.

Rule 1:2-4(a) provides in pertinent part,

Failure to Appear. If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party . . . at a . . . settlement conference, or any other proceeding scheduled by the court, . . . the court may order any one or more of the following: . . . (b) the payment by the delinquent attorney or party . . . of the reasonable expenses, including attorney's fees, to the aggrieved party . . . .

Invocation of this administrative rule does not require the procedural due process safeguards that necessarily attach to a citation for contempt. In re Milita, 195 N.J. Super. 1, 3 (App. Div. 1984). We have previously held that the award of counsel fees is an appropriate response to any conduct that inconveniences or wastes the time of an adversary. Rabboh v. Lamattina, 312 N.J. Super. 487, 493 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999). We will sustain the imposition of such a sanction if it reflects the proper exercise of judicial discretion. Milita, supra, 195 N.J. Super. at 4.

However, under the facts presented, we conclude that defense counsel's non-appearance at the ESP was not "without just excuse," and therefore, the imposition of any sanction was a mistaken exercise of discretion. It is undisputed that prior to the morning of the ESP, defense counsel was unaware of the traffic delays surrounding the courthouse. It is also undisputed that he contacted the presiding judge's chambers on two occasions and was never advised that the judge was not in, nor was he referred to any other judge. Although in his opinion on the motion for reconsideration, the judge claimed disbelief that defense counsel "was released" by the presiding judge's law clerk, there is no basis set forth in the record for that conclusion. Moreover, if defense counsel obtained the approval of the presiding judge's law clerk, and was never advised the judge was absent, we are hard-pressed to see why he also needed to obtain the approval of the presiding judge's secretary or the motion judge who was handling the ESP list that day.

While it would have been appropriate for defense counsel to have contacted his adversary as quickly as possible after being released, we understand why he believed the court would convey the message to her shortly after 10:00 a.m. Moreover, when plaintiff's counsel did call her adversary, defense counsel's office did convey, first, the reason for the delay, and then the postponement of the ESP. Under all of these circumstances, we cannot conclude that defense counsel's non-appearance was without just excuse, and we therefore conclude that the imposition of sanctions in the form of counsel fees to his adversary was a mistaken exercise of judicial discretion.



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