April 16, 2009
SANTIAGO VAZQUEZ, PLAINTIFF-APPELLANT,
GUISEPPE F. DIMENZA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2620-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 25, 2009
Before Judges Payne and Newman.
Plaintiff Santiago Vazquez appeals from an order dismissing his complaint with prejudice. We now reverse and remand.
The essential facts may be summarized as follows. Plaintiff's counsel failed to appear for a settlement conference on March 7, 2008, before the presiding civil judge because plaintiff's attorney had requested adjournment of the settlement conference by way of a faxed letter indicating that he was beginning a trial in Union County and could not, therefore, attend. A settlement conference could not be rescheduled because there was a trial date already set for March 17, 2008. In connection with that trial date, plaintiff's attorney wrote a letter on March 13, 2008, to the presiding civil judge requesting the matter be marked "subject to" because he was in trial before Judge Brock in Union County Superior Court, citing the docket number of the case. By letter of March 14, 2008, defendant's counsel requested a "subject to" marking because of being on trial in Atlantic County, citing the case name and docket number.
According to defendant's counsel, his office was contacted by the court and was told to appear on March 17, 2008, notwithstanding the request for a "ready hold" marking. The same type of contact was purportedly made to plaintiff's counsel's office although, according to plaintiff without certification or affidavit, no one in his office received any communication from the court.
In any event, someone from defendant's counsel's law firm was present before the civil presiding judge, answered the call and was told to appear on March 19, 2008, before Judge Graziano for trial.
Plaintiff failed to appear on March 19, 2008. The matter was administratively dismissed without prejudice.
No order was ever received indicating that plaintiff's complaint was dismissed. Nevertheless, defense counsel confirmed that the complaint was dismissed by contacting the Passaic County Civil Division Manager. When more than ninety days passed from the calendar entry of dismissal of plaintiff's complaint and no application had been made to restore the complaint, defense counsel filed a motion to dismiss with prejudice on June 27, 2008. The motion was returnable on July 18, 2008, before Judge Graziano. After conferencing the matter, Judge Graziano referred counsel to the presiding judge of civil. On August 1, 2008, plaintiff's counsel faxed the civil presiding judge a letter setting forth the history of the case and the "subject to" marking that was requested and indicated further that he had not received an order dismissing the case.
In dismissing the case with prejudice in an order of August 5, 2008, for failure to restore the matter within ninety days after dismissal without prejudice, the civil presiding judge noted the following: "Court records indicated plaintiff's counsel failed to appear on March 19, 2008, after he initially reported to Judge Graziano on March 17, 2008, and told to appear on March 19, 2008, or to call. Plaintiff's counsel failed to appear or contact Judge Graziano."
On appeal, plaintiff's counsel contends that his office had never received any notification that the "subject to" marking had not been granted and that he was otherwise required to appear.
A dismissal of a complaint with prejudice relating to the call of the calendar is pursuant to Rule 1:2-4(a). That Rule provides as follows:
(a) 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 on the call of a calendar, on the return of a motion, at a pretrial conference, settlement conference, or any other proceeding scheduled by the court, or on the day of trial, or if an application is made for an adjournment, the court may order any one or more of the following: (a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, to the Clerk of the Court made payable to "Treasurer, State of New Jersey," or to the adverse party; (b) the payment by the delinquent attorney or party or the party applying for the adjournment of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint, cross-claim, counterclaim or motion, or the striking of the answer and the entry of judgment by default, or the granting of the motion; or
(d) such other action as it deems appropriate.
This Rule has been interpreted to provide that the dismissal sanction based on an attorney's failure to appear is the recourse of last resort not to be invoked unless no lesser penalty is adequate, giving due regard to the nature of the default and its attendant prejudice to other parties. Johnson v. Mountainside Hosp., Resp. Disease Assoc., 199 N.J. Super. 114 (App. Div. 1985). As we noted in Audubon Volunteer Fire v. Church Const. Co., 206 N.J. Super. 405, 406 (App. Div. 1986), in a related context, [o]rdinarily, the swift movement of cases serves the parties' interests, but the shepherding function we serve is abused by unnecessarily closing the courtroom doors to a litigant whose only sin is to retain a lawyer who delays filing an answer during settlement negotiations. Eagerness to move cases must defer to our paramount duty to administer justice in the individual case.
Here, the limited record is distinguished by its absence of certifications or affidavits to those facts which are outside the record. R. 1:6-6. The court indicated that plaintiff's counsel failed to appear on March 19, when he "initially reported to Judge Graziano on March 17, 2008, and told to appear" does not square with the letters that have been submitted. Plaintiff's counsel, who was not actively engaged at trial on March 17, 2008, although the trial was continuing, did not appear before Judge Graziano on March 17, and was unaware that he had to reappear on March 19, 2008. All of this was placed before the presiding civil judge prior to his dismissing the complaint with prejudice.
We are satisfied that the ultimate sanction of dismissal should not have been invoked under these circumstances. There were sanctions that could have been imposed upon the delinquent attorney for plaintiff which would include any reasonable expenses, including attorney's fees to the aggrieved party, and the court may still impose such sanction based upon defendant counsel's certification of expenses attributable to counsel's failure to appear. Plaintiff should also file an expeditious motion to restore plaintiff's complaint to the calendar.
Reversed and remanded for further proceedings consistent with this opinion.
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