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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...