February 4, 2009
ELEANOR CAPOGROSSO, PLAINTIFF-APPELLANT,
30 RIVER COURT EAST URBAN RENEWAL COMPANY, LEFRAK ORGANIZATION, INC., 30 EAST HAMPTON HOLDING CORP., LF EAST HAMPTON, LIMITED PARTNERSHIP, FERMIN GARCIA, TOWER AMERICA MANAGEMENT, LLC, AND JAMIE CASTANO, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5298-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 15, 2008
Before Judges Lisa, Reisner and Alvarez.
This case arises out of two slip and fall accidents that occurred on January 6, 2002 and July 19, 2004*fn1 in the lobby of the Jersey City apartment building in which plaintiff, an attorney, resided. During the course of the litigation, plaintiff was represented at various times by three different law firms. After the court permitted plaintiff's third attorney to withdraw in November 2006, a new peremptory trial date was set for April 2007. Plaintiff appeared at that time, without counsel, and refused to proceed. The court denied her adjournment request and dismissed her claims with prejudice.
Plaintiff appeals from various orders entered throughout the course of the litigation. Included among them, are the order allowing her counsel to withdraw and the order dismissing her case with prejudice. We are satisfied that in entering those two orders there was no mistaken exercise of discretion, and we therefore affirm those orders. Because of that disposition, it is unnecessary for us to address plaintiff's arguments regarding the other orders appealed from.
On October 7, 2003, the law firm of Gainey & McKenna filed a complaint on plaintiff's behalf alleging personal injuries from a fall on January 6, 2002. By leave granted, plaintiff filed an amended complaint on July 29, 2005, alleging that she was injured in a second fall, on July 19, 2004.
On December 8, 2004, plaintiff was deposed and testified that she had not been involved in any accidents after her January 6, 2002 fall. That answer, of course, was false.
In August 2005, plaintiff changed attorneys. She retained the services of Jonathan Koles of Koles, Burke & Bustillo. On February 28, 2006, the case was assigned to Judge Antonin for trial.*fn2
On April 12, 2006, the case came before Judge Messano. Koles moved to be relieved as counsel, certifying that when he questioned plaintiff about why she testified at her December 2004 deposition that she did not have any accident or injuries after January 2002, she gave contradictory explanations. Initially, plaintiff said she did not recall her deposition testimony. She also explained that she misunderstood the question. She also said her then attorney advised her to deny the subsequent slip and fall and she intended to tell the jury she denied the subsequent accident "on advice of counsel." Finally, she said she would "make something up" that the jury would believe and for Koles not to worry about the discrepancy. Koles determined that he was ethically required to move to be relieved as counsel, as plaintiff intended to perjure herself in her trial testimony. Judge Messano granted the motion. The order allowing Koles to be relieved as counsel also adjourned the trial until May 15, 2006 and provided that if new counsel did not appear by May 12, 2006, plaintiff would be deemed pro se.
On April 28, 2006, plaintiff met with John W. Baldante of Levy, Angstreich, Finney, Baldante, Rubenstein & Coren, P.C. (the Levy firm), and signed a retainer agreement. As a result of a conference call between the court and counsel for all parties on May 2, 2006, the May 15, 2006 trial date was adjourned. On May 10, 2006, Baldante informed plaintiff that he chose not to represent her. He applied to the court on May 22, 2006, asking to be allowed to decline representation or, alternatively, to be allowed to withdraw as counsel. Plaintiff opposed the motion.
On July 24, 2006, Judge Messano denied the Levy firm's request to decline representation or to withdraw as counsel. The judge noted that plaintiff and Baldante had provided differing accounts of what transpired between them. Although Baldante contended that he made clear to plaintiff his limited retention for file review, plaintiff insisted that no such limitation was stated to her. The retainer agreement did not contain such a limitation. The judge therefore determined that the Levy firm did not provide sufficient grounds for relieving counsel under RPC 1.16.
The Levy firm moved for reconsideration. Judge Messano denied the motion in an order of August 18, 2006.
The trial had been scheduled for September 5, 2006, but was rescheduled to November 28, 2006. On that date, plaintiff did not appear in court. (She was apparently on vacation and would not return until the next day.) On November 28, 2006, R. Erick Chizmar of the Levy firm appeared and requested the opportunity to meet in camera and out of the presence of defense counsel with Assignment Judge Gallipoli. That request was granted, and the discussion occurred on the record. Chizmar explained that his firm should be allowed to withdraw because if forced to proceed it would be suborning perjury. He also advised that plaintiff insisted in the last several weeks that his firm subpoena Judge Gallipoli to testify as a trial witness, apparently because of some remarks that were entered by the court in a defamation case. The firm did not agree that Judge Gallipoli should be subpoenaed. Chizmar explained that plaintiff threatened to file ethics charges if the firm did not comply with her demand and, if she lost the trial, she would sue them for legal malpractice.
Judge Gallipoli said he would not decide the issue without plaintiff being present. He adjourned the trial until the next day, and directed counsel to file further certifications in support of their application. He noted that this recent conduct by plaintiff might well provide a basis for revisiting the issue of whether the Levy firm should be relieved. Chizmar filed a motion for further reconsideration, supported by a certification stating that the firm would be required to perpetrate a fraud if required to continue representing plaintiff, as she had failed to mention her second accident during her sworn deposition or to multiple medical providers, yet indicated to counsel that she could explain these inconsistencies to a jury. The certification further detailed the threats as Chizmar had explained to Judge Gallipoli.
On November 29, 2006, plaintiff appeared in court. Judge Gallipoli asked plaintiff to read the moving papers submitted by the Levy firm. She refused to do so and requested a sixty-day adjournment. The judge persisted that, within the next thirty minutes, she should read the papers and she would then be allowed to respond. Plaintiff persisted in her refusal to read the papers or to address the issue in court that day.
Judge Gallipoli granted the Levy firm's motion to be relieved as counsel and assigned a new trial date of April 9, 2007. He made perfectly clear to plaintiff that this was a peremptory trial listing and she would be required to proceed on that date either with new counsel or pro se. He stated:
I'm going to give this case a trial date, which is going to be the first Monday after Easter Sunday. You will proceed on that trial date as your own attorney or with a new attorney. If you get a new attorney, that attorney has to be ready to proceed with no reason to be excused from representing you. If the attorney makes a -- makes an application to be relieved and he is relieved, you have to be ready to proceed pro se on your own.
After Judge Gallipoli rendered his ruling, he stated that Chizmar's formal written application to be relieved as counsel would be marked as "filed." Plaintiff accused the judge of making a decision without even having read the papers. The judge responded that he made a decision "based on what was placed on the record yesterday, which was reaffirmed by your conduct in front of me today."
The April 9, 2007 trial date was carried until April 23, 2007. On that date, plaintiff appeared before Judge Sarkisian. She was unrepresented by counsel and said she did not plan on trying the case. She said she tried to obtain a new attorney, but admitted that her efforts had only occurred in the previous few weeks.
Judge Sarkisian stated "I want to confirm with you now . . . that you refuse to proceed to present this case to a jury, correct?" Plaintiff responded "Yes, because I don't have counsel." When the judge began to render his decision from the bench, plaintiff interrupted him to state that her failure to retain new counsel was "No fault of my own." Judge Sarkisian asked plaintiff to remain quiet, or he would ask her to leave the courtroom.
When the judge observed that plaintiff had not exercised enough urgency in proceeding to obtain new counsel, plaintiff again interrupted. Her outbursts prompted the judge to remark that "[t]his conduct is endemic and relative [sic] to the contumacious conduct that you have reflected in not complying with the Court's order." Plaintiff then chose to leave the courtroom before the judge finished rendering his decision.
Judge Sarkisian denied plaintiff's request for an adjournment and granted defendant's request to dismiss plaintiff's complaint with prejudice. He found that plaintiff had more than ample time in which to obtain new counsel, yet she had made inadequate attempts. He further found that plaintiff refused to present her case to a jury, and thus she refused to comply with the court's November 29, 2006 order. The judge also rejected plaintiff's argument that Judge Gallipoli, as the assignment judge, did not have jurisdiction over the Levy firm's motion to be allowed to withdraw.
The judge recognized that dismissal of a party's cause of action is a drastic punishment that should normally not be invoked except in cases where the actions of the parties show a deliberate and contumacious disregard of the court's authority. He found this to be such a case, considering its history and plaintiff's disregard of court orders and her conduct.
On appeal, plaintiff raises these arguments:
POINT I THE TRIAL COURT VIOLATED THE PLAINTIFF-APPELLANT'S DUE PROCESS RIGHTS BY DISCHARGING COUNSEL ON THE DAY OF TRIAL AND NOT AFFORDING THE PLAINTIFF-APPELLANT AN OPPORTUNITY TO REVIEW THE MOTION FOR WITHDRAWAL AND TO FILE HER OPPOSITION PAPERS.
POINT II RES JUDICATA BARRED THE TRIAL COURT FROM OVERRULING THE PRIOR DECISION OF THE HONORABLE CARMEN J. MESSANO.
POINT III THE TRIAL COURT ERRONEOUSLY PERMITTED THE WITHDRAWAL OF COUNSEL AT THE EVE OF TRIAL BECAUSE IT CAUSED UNDUE PREJUDICE TO THE PLAINTIFF-APPELLANT.
POINT IV A SECOND MOTION FOR RECONSIDERATION IS NONEXISTENT AND WOULD BE TIME-BARRED IF IT DID EXIST, THEREFORE, THE TRIAL COURT DID NOT HAVE JURISDICTION TO CONSIDER THE DEFENDANTS-RESPONDENTS SECOND MOTION FOR RECONSIDERATION.
POINT V THE TRIAL COURT'S DISMISSAL OF THE CASE SHOULD BE REVERSED, COUNSEL SHOULD BE REINSTATED, AND THE CASE SHOULD GO TO TRIAL AS SOON AS POSSIBLE.
POINT VI THE COURT SHOULD ALLOW THE COMPLAINT TO BE AMENDED TO INCLUDE THE TESTIMONY REGARDING THE LOST PROFITS OF ELEANOR CAPOGROSSO, P.C.
POINT VII THE COURT SHOULD REVERSE THE TRIAL COURT'S ORDER GRANTING DEFENDANTS-APPELLANTS' MOTION FOR RECONSIDERATION AND SHOULD PRECLUDE THEIR LIABILITY EXPERT'S REPORT BECAUSE IT WAS TIME-BARRED BY THE CASE MANAGEMENT ORDER.
POINT VIII THE TRIAL COURT'S ORDER DENYING AN ADVERSE [INFERENCE] AGAINST THE DEFENDANTS-APPELLANTS DUE TO THE ABSENCE OF THE LOG BOOK SHOULD BE REVERSED.
POINT IX PLAINTIFF-APPELLANT['S] MOTION FOR TRANSFER OR CHANGE OF VENUE SHOULD BE GRANTED BECAUSE THERE IS A SUBSTANTIAL DOUBT WHETHER THE PLAINTIFF-APPELLANT COULD RECEIVE A FAIR AND IMPARTIAL TRIAL IN HUDSON COUNTY.
Plaintiff's first four points pertain to Judge Gallipoli's order relieving the Levy firm as counsel. Plaintiff first argues that her due process rights were violated because she was not given an opportunity to review the motion for withdrawal made on November 28 and 29, 2006, and to file opposition papers.
"Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner." Doe v. Poritz, 142 N.J. 1, 106 (1995). Therefore, the minimum requirements of due process are "notice and the opportunity to be heard." Ibid. However, due process is "a flexible [concept] that depends on the particular circumstances." Ibid.
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950) (citations omitted). See also Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed. 2d 30, 42 (1978) (holding that "[t]he purpose of notice under the Due Process Clause is to apprise an affected individual of, and permit adequate preparation for, an impending 'hearing'" which may affect their legally protected interests).
Our courts have held that "[t]here can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice." Dep't of Law and Pub. Safety v. Miller, 115 N.J. Super. 122, 126 (App. Div. 1971). Thus, a party has received adequate notice if the notice reasonably apprises the party of the issues involved with the motion, and permits the party adequate preparation for responding to those issues. Memphis Light, supra, 436 U.S. 1, 13, 98 S.Ct. at 1562, 56 L.Ed. 2d at 41; Miller, supra, 115 N.J. Super. at 126.
Although plaintiff did not receive any advance written notice of the motion until she arrived in court on the morning of November 29, 2006, she refused to accept and look at the motion papers at that time. Had she read them, she would have been apprised of the issues to be raised on the motion. Miller, supra, 115 N.J. Super. at 126. The judge offered her the opportunity to review the papers and become acquainted with the issues, and plaintiff was therefore given the opportunity for adequate preparation but rejected it. Memphis Light, supra, 436 U.S. at 13, 98 S.Ct. at 1562, 56 L.Ed. 2d at 41. Thus, any inadequate notice was largely the result of plaintiff's own actions. Had plaintiff reviewed the papers, she could have raised any opposition verbally. She could have then also made an informed request, if appropriate, for further time, with an explanation of why she needed additional time, and the judge could have made an appropriate ruling.
In these circumstances, in light of plaintiff's complete recalcitrance, we are not persuaded that she was deprived of her due process rights. Even if there was error, it would have been harmless in this case. See State v. Tyler, 88 N.J. Super. 396, 405 (App. Div. 1965), cert. denied, 384 U.S. 992, 86 S.Ct. 1898, 16 L.Ed. 2d 1008 (1966) (affirming order resentencing defendant because, while there was procedural error, defendant's guilt was "beyond question" and his sentence was within statutory limits; also noting that defendant was not denied any substantive rights). As we will discuss, the Levy firm had sufficient reasons to withdraw and its motion would have been granted in any event.
We are unpersuaded by the authorities upon which plaintiff relies. In Rubin v. Rubin, 188 N.J. Super. 155, 156-59 (App. Div. 1982), we held that the trial court mistakenly exercised its discretion in refusing to permit a pro se litigant to address, either orally or in writing, the merits of a motion he opposed, because "[w]hen an unrepresented litigant appears in court pursuant to a notice of motion, reasonably expecting from the text of the notice that his procedural rights will be protected by his appearance in court on the noticed date, he is ordinarily owed the fulfillment of that expectation." In the case before us, plaintiff was given the opportunity to examine the motion papers and be heard orally on the motion. She refused to review the papers or discuss the merits of the application. Rubin has no application here.
Also misplaced is plaintiff's reliance on Bell v. Bell, 217 N.J. Super. 245 (Ch. Div. 1986). That case dealt with the time limitations in the court rules for filing motion papers and serving them upon an adversary. Id. at 249. Bell is not analogous to this case.
Plaintiff's arguments in Point II (that Judge Gallipoli was barred by principles of res judicata from "overruling" Judge Messano's prior order denying the Levy firm's motion to withdraw) and Point IV (that no procedure exists for a second reconsideration motion) lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). It is sufficient to say that the doctrine of res judicata applies to final judgments. Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989). Res judicata has no application to reconsideration of interlocutory orders while the case is still pending. Similarly, we reject plaintiff's argument that a second reconsideration motion under Rule 4:49-2 was not authorized and, in any event, was time barred. The time prescription of that rule "applies only to final judgments and orders. A motion to amend or reconsider interlocutory orders may be made at any time until final judgment in the court's discretion and in the interests of justice." Pressler, Current N.J. Court Rules, comment 1 on R. 4:49-2 (2009). Trial courts possess the inherent power "to review, revise, reconsider and modify [their] interlocutory orders at any time prior to the entry of final judgment." Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988).
In her third point, plaintiff argues that Judge Gallipoli erred in permitting the Levy firm's withdrawal on the eve of trial. She contends it caused her undue prejudice. We do not agree. Plaintiff was given more than four months to find a new attorney and prepare for trial. Any prejudice here was self-inflicted by her failure to act responsibly.
RPC 1.16(a) requires a lawyer to withdraw from representing a client if "the representation will result in violation of the Rules of Professional Conduct or other law." RPC 1.16(b) allows a lawyer to withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
Because the Levy firm did not have plaintiff's consent, it was required to obtain leave of court in order to withdraw. R. 1:11-2(a)(2) (outlining requirements for withdrawal subsequent to setting of trial date). An attorney may withdraw from a case "for justifiable and lawful cause, after giving proper notice and obtaining leave of court." Jacobs v. Pendel, 98 N.J. Super. 252, 255 (App. Div. 1967). "The granting of leave by the court is generally in the discretion of the court and depends upon such considerations as proximity of the trial date and possibility for the client to obtain other representation." Ibid.
Judge Gallipoli did not mistakenly exercise his discretion in granting the Levy firm's motion to withdraw as counsel as the firm presented several "justifiable causes" for its withdrawal under RPC 1.16(b). Jacobs, supra, 98 N.J. Super. at 255. In her deposition concerning the 2002 accident, plaintiff had denied that she was involved in any subsequent accident or injury, even though the 2004 accident had occurred only a few months prior to the deposition. She had also failed to mention the 2004 fall to several medical providers.
The Levy firm certified that plaintiff had given several conflicting explanations, which we have previously set forth, as to why she did not mention the 2004 accident. This conduct implicates RPC 1.16(b)(3), which allows for withdrawal if a client has used the services of a lawyer to perpetrate a fraud.
Additionally, plaintiff had insisted that her counsel subpoena a sitting judge so that he could be cross-examined on his decision in a previous case. Plaintiff thus insisted on taking action with which her lawyers had a fundamental disagreement. See RPC 1.16(b)(4). Also, when counsel informed her that this strategy was ill-advised, she threatened to file ethics charges against her attorneys and sue them if she lost. The judge correctly found that the Levy firm should not be forced to continue representing plaintiff with the threat of ethics charges or future litigation hanging over it. Such conduct by plaintiff rendered her representation unreasonably difficult. See RPC 1.16(b)(6).
Plaintiff had also repeatedly refused to sign an affidavit regarding any discipline on her New York law license in violation of a February 7, 2006 order, despite her attorneys' telling her it was necessary to do so. This conduct contributed to her attorneys' difficulty in representing her. Ibid.
It is clear to us that Judge Gallipoli acted well within his discretion in finding several "justifiable causes" for the Levy firm's withdrawal. Jacobs, supra, 98 N.J. at 255. And, as previously stated, plaintiff was not unduly prejudiced by the decision. She was given more than four months, which was sufficient time, to find new counsel. Ibid.
Finally, we address plaintiff's fifth point, that Judge Sarkisian erred in dismissing her complaint with prejudice. She argues that the order should be reversed, counsel should be reinstated, and the case should go to trial. We do not agree. We find no mistaken exercise of discretion by Judge Sarkisian in dismissing plaintiff's complaint with prejudice.
A trial court has the inherent authority to impose appropriate sanctions for noncompliance with court orders. Rabboh v. Lamattina, 312 N.J. Super. 487, 492 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999). The Supreme Court has addressed this authority in the context of a violation of a discovery order in Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995), but this principle applies equally to the trial court's authority to impose appropriate sanctions for noncompliance with a case management order. Rabboh, supra, 312 N.J. Super. at 492. Rule 4:37-2(a) states that "the court in its discretion may on defendant's motion dismiss an action or any claim against the defendant" for failure of the plaintiff to comply with any order of the court. "Such a dismissal shall be without prejudice unless otherwise specified in the order." Ibid.
Dismissal of a cause of action with prejudice is a "drastic remedy," that is only appropriate where a plaintiff's actions are found to be "fundamentally unfair" and "an affront to the court's authority." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115, 119 (2005). The sanction of dismissal with prejudice "should be invoked sparingly, such as when the plaintiff's violation of a rule or order evinces a deliberate and contumacious disregard of the court's authority." Id. at 115 (internal quotations omitted). However, the decision to dismiss a cause of action is "peculiarly within the sound discretion of the trial court." Allegro v. Afton Vill. Corp., 9 N.J. 156, 161 (1952).
Applying these principles, we are satisfied that Judge Sarkisian did not exceed the bounds of his discretion in dismissing plaintiff's complaint with prejudice. At the November 29, 2006 hearing, after years of delay and failure to cooperate with her attorneys and the court, plaintiff was told clearly and emphatically that the April 2007 trial date was not subject to adjournment and that she must be prepared to proceed with trial with or without counsel at that time. However, plaintiff appeared on the trial date without counsel and refused to proceed pro se. In light of the procedural history and course of events in this case, plaintiff's actions could fairly be characterized as "an affront to the court's authority." Gonzalez, supra, 185 N.J. at 119. The case was over four years old and had been scheduled for trial on a number of prior occasions. Although she was given more than four months to retain new counsel, plaintiff failed to do so. When she appeared at the April 2007 trial date, she clearly had no intention of proceeding with trial and her attitude toward the court evinced a disregard for the court's authority.