March 12, 2008
GEORGE MONTGOMERY, PLAINTIFF-APPELLANT,
IRVINGTON BOARD OF EDUCATION, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3723-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2007
Before Judges Gilroy and Baxter.
Plaintiff George Montgomery appeals from the April 13, 2007, order of the Law Division, which dismissed his complaint against defendant Irvington Board of Education (Board). For reasons that follow, we reverse and remand.
Plaintiff is a teacher with more than twenty years of teaching experience. In March 1998, plaintiff submitted a letter to a public newspaper, criticizing Irvington's Superintendent of Schools. On April 28, 1998, the Board filed tenure charges against plaintiff, alleging he had committed conduct unbecoming a teacher, and at the same time, the Board suspended plaintiff from teaching without pay, pending disposition of the charges. The Commissioner of Education forwarded the matter to the Office of Administrative Law as a contested case.
After commencement of a plenary hearing, the parties settled and reduced the terms of settlement to a ten-page written stipulation of settlement (the Agreement). On May 18, 2000, the Administrative Law Judge (ALJ) reviewed and incorporated the Agreement into his initial decision issued that day, recommending to the Commissioner that the case be resolved pursuant to the terms of the Agreement. On July 13, 2000, following a review of the record, the Agreement, and the ALJ's initial decision, the Commissioner entered a final decision approving the settlement and dismissing the action. On April 20, 2001, believing that the Board failed to pay him the salary and other benefits described in the Agreement, plaintiff filed a verified complaint to enforce the Commissioner's final decision pursuant to Rule 4:67-6.
After the Board filed its answer, the matter was scheduled for trial on April 15, 2002, but for reasons unknown, the trial was adjourned. Between the first scheduled trial date and May 26, 2006, the action was dismissed at least twice, the initial dismissal resulting from plaintiff's counsel not having received a trial notice from the court because it had been mailed to counsel's former address. The record neither contains an explanation for the second dismissal, nor the date of the dismissal. On May 26, 2006, an order was entered restoring the complaint.
On September 21, 2006, a trial notice was sent to both parties scheduling December 4, 2006, as the trial date. On November 28, 2006, plaintiff's counsel had written defense counsel, requesting his consent to an adjournment of the trial date, because plaintiff's counsel was on trial in Morris County and was going to remain on trial in that county through the scheduled trial week of December 4, 2006. Although the document is not contained in the record, the transcript*fn1 indicates that plaintiff's counsel "had sent in a notice [to the court] asking that the case be re-listed."
On December 4, 2006, defense counsel appeared for trial, and was informed by the Presiding Judge of the Civil Division that plaintiff's counsel was on trial in Morris County. The transcript indicates that the case was initially marked "subject to" plaintiff's counsel's availability, but was then rescheduled for the following Monday.
On December 11, 2004, defense counsel appeared, and plaintiff's counsel did not. In his attempt to contact plaintiff's counsel, defense counsel left a telephone message for plaintiff's counsel advising that the matter was ready for trial. After plaintiff's counsel failed to appear, the case was dismissed. Based on a telephone conversation between court personnel and plaintiff's counsel later that day, the matter was reinstated and listed for trial the following day, December 12, 2006. Plaintiff's counsel left a telephone message for his client, who resided in Nevada, advising of the pending trial.
On December 12, 2006, both counsel appeared before the assigned trial judge. Plaintiff's counsel again requested an adjournment, advising that he was not able to reach his client. The request was denied by the Acting Presiding Judge. Following the denial of his request for an adjournment, plaintiff's counsel moved for leave to take a voluntary dismissal. After his request was denied, plaintiff's counsel then proceeded, attempting to prove plaintiff's case via documents. After the judge determined that plaintiff's proofs were not sufficient to prove a prima facie case of breach of the Agreement, the case was dismissed with prejudice.
On appeal, plaintiff argues: 1) that the trial court erroneously denied his counsel's request for an adjournment of the December 12, 2006, trial date because of plaintiff's inability to attend trial; 2) the trial court erroneously denied admission of plaintiff's proofs in the summary proceeding requesting enforcement of the terms of the Agreement as approved by the Commissioner's July 13, 2000, final decision; and 3) the denial of payment of his salary and other benefits, as provided for in the Agreement, violated his right to due process. Because we agree with plaintiff's argument that the trial court should have adjourned the December 12, 2006, trial date and rescheduled the matter for a date certain, we reverse and remand the matter to the trial court for further proceedings consistent with this opinion.
Rule 4:36-3 governs the fixing of trial dates and adjournments therefrom. Pursuant to the rule, "courts shall advise all parties of the initial trial date no less than ten weeks prior thereto." R. 4:36-3(a). That subsection of the rule further provides that "[i]f a case is not reached during the week in which the trial date falls, it shall be . . . scheduled for a date certain after consultation with counsel provided, . . . that no case shall be relisted for trial sooner than four weeks from the initial trial date without agreement by all counsel."
Adjournments from trial dates are governed by subsection (b). That subsection provides that "[a]n initial request for an adjournment for a reasonable period of time to accommodate a scheduling conflict or the unavailability of an attorney . . . shall be granted if made timely in accordance with this rule." Subsection (a) also provides that "[t]he request shall be made in writing stating the reason for the request and that all parties have consented thereto. The written adjournment request . . . shall also include a proposed trial date, agreed upon by all parties, to occur as soon as possible after the problem requiring the adjournment is resolved." Lastly, the rule states that "[r]equests for adjournment should be made as soon as the need is known, but in no event, absent exceptional circumstances, shall such request[s] be made later than the close of business on the Wednesday preceding the Monday of the trial week." R. 4:36-3(b).
Insofar as we can determine from the record, the trial court treated the first trial date after restoring the complaint on May 26, 2006, as the initial trial date, and as such, issued a ten-week notice to the parties on September 21, 2006, advising of the December 4, 2006, trial date. On Tuesday, November 28, 2006, plaintiff's counsel telefaxed defense counsel requesting consent to an adjournment of the trial date, because plaintiff's counsel was then on trial in Morris County and anticipated remaining on trial in that county through the following week.
Although the record does not contain a copy of any written communication from plaintiff's counsel to the trial court, we discern that plaintiff's counsel had informed the trial court of the scheduling conflict, because when defense counsel appeared for trial on December 4, 2006, the court informed him that plaintiff's counsel was on trial in Morris County and that the case would be "subject to him." It appears that the case was carried on a day-to-day basis during the week of December 4, 2006, subject to plaintiff's counsel's availability. We discern, however, that when the case was not reached that week, it was carried into the following week, December 11, 2006, without consultation with plaintiff's counsel, rather than being rescheduled to a new date, not sooner than four weeks from the initial trial date pursuant to Rule 4:36-3(a).
On December 11, 2006, although defense counsel appeared for trial, neither plaintiff nor his counsel appeared, because plaintiff's counsel was still on trial in Morris County and was unaware that the case was rescheduled for trial that day. Uninformed of plaintiff's counsel's continuing trial in Morris County, the court dismissed the action for failure to prosecute. After completing trial in Morris County, plaintiff's counsel received a call from court personnel and was instructed to appear for trial the following morning, December 12, 2006. Having been advised of the December 12, 2006, trial date, plaintiff's counsel immediately attempted to contact his client, who resided in Nevada, by telephone. Unsuccessful in his attempt to reach his client, plaintiff's counsel left a voicemail, advising his client of the court's instruction to appear for trial the following morning.
On December 12, 2006, plaintiff's counsel appeared without his client and attempted to settle the matter, but was unsuccessful. Plaintiff's counsel then requested a two-week adjournment because of his client's unavailability, but the request was denied. Forced to trial, plaintiff's counsel attempted to prove his client's case through documentary evidence, which the trial court rejected, and dismissed plaintiff's action for failure to establish a prima facie case.
We are satisfied that plaintiff's counsel should not have been forced to trial on December 12, 2006, but rather the trial should have been adjourned for a four-week period, pursuant to Rule 4:36-3(a). No one disputes that plaintiff's counsel was on trial for over two weeks, and that his client resided more than halfway across the country in Nevada. Under those facts, we are satisfied that the trial court mistakenly exercised its discretion in denying plaintiff's counsel's request for a brief adjournment. The adjournment should have been granted, and a date certain fixed for trial.
We recognize that this case "aged" while in the court's inventory, presumably because it had been dismissed without prejudice for failure to prosecute. However, it appears that good cause was established under Rule 1:13-7(a) to restore the matter to the active trial list, with the court entering a confirming order on May 26, 2006. Because the record does not contain a transcript of the proceedings before the Presiding Civil Judge on December 4, 2006, or before the Acting Presiding Civil Judge on December 12, 2006, we are unable to discern why the case was carried to December 11, 2006, and not rescheduled four weeks hence.
A reason why the case was carried to December 12, 2006, rather than adjourned for four weeks, may have been because plaintiff's counsel failed to fully comply with Rule 4:36-3(b) by obtaining defense counsel's consent to the adjournment, and to an agreement on a new trial date certain. If plaintiff's counsel did not comply with the rule, it is understandable that the court would have continued the case on a day-to-day basis, subject to plaintiff's counsel completing his trial in Morris County.
However, there is a genuine reluctance to impose the draconian sanction of dismissal, with or without prejudice, where the statute of limitations has run for most rule violations, where the party has not been contemptuous or caused prejudice to his or her adversary. Ghandi v. Cespedes, 390 N.J. Super. 193, 198 (App. Div. 2007). "Until courts have exhausted means of performing their shepherding function which do not terminate or deeply affect the outcome of a case, they ought not to bar a litigant's way to the courtroom," Audubon Vol. Fire Co. v. Church Constr. Co., 206 N.J. Super. 405, 407 (App. Div. 1986), particularly where the defendant has not expressed any prejudice, other than incurring legal fees by his or her counsel appearing for trial to defend against the lawsuit. See Brun v. Cardoso, 390 N.J. Super. 409, 419 (App. Div. 2006). Here, denying the request for an adjournment for plaintiff to appear and forcing plaintiff's counsel to trial without his client equated to a dismissal with prejudice.
We reverse the order of dismissal, and remand this matter to the trial court to schedule a new trial date certain.
Reversed and remanded.