On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-422-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Yannotti and Espinosa.
Plaintiff Angela Waltman appeals and defendant FYI Directories cross-appeals from an order entered by the Law Division on August 14, 2009, imposing sanctions in the amount of $5,000 upon her attorney, William Hildebrand, for failure to comply with the court rules and the court's orders in this case. For the reasons that follow, we reverse on the appeal and affirm on the cross-appeal.
The following facts are pertinent to our decision. On April 21, 2003, plaintiff filed a complaint against defendant FYI Directories (FYI), in which she alleged that defendant violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, by paying a similarly-situated male employee a higher weekly salary than the salary paid to plaintiff. With leave of court, plaintiff filed an amended complaint which added a claim for breach of contract. Plaintiff alleged that FYI's principal, William Hallessey, had promised to provide her with a fifteen percent ownership interest in the company as additional compensation for her employment but reneged on that promise.
Defendant thereafter filed a motion for summary judgment, which was returnable on September 8, 2006. Plaintiff did not file papers opposing the motion within the time prescribed by the court rules. Plaintiff provided no explanation for the late filing of her papers. In support of her argument that summary judgment should be denied, plaintiff provided the court with a certification dated September 8, 2006, and certain documents that supported plaintiff's contention that she had been offered a fifteen percent interest in FYI as additional compensation for working for the company.
The trial court considered the motion on September 22, 2006. The court found that there was insufficient evidence to support plaintiff's LAD claim. The court found, however, that plaintiff had presented sufficient evidence to raise a genuine issue of material fact on her breach of contract claim. The court entered an order dated September 22, 2006, which denied defendant's motion for summary judgment and allowed the parties to undertake further discovery.
On February 26, 2007, FYI filed a second summary judgment motion, which was returnable on March 30, 2007. The trial court adjourned the motion to April 13, 2007. At 4:30 p.m. on the afternoon before the return date, plaintiff filed the same papers that she had filed in opposition to FYI's first summary judgment motion.
The court entered an order dated April 13, 2007, granting defendant's summary judgment motion as unopposed. The court noted that it had not considered plaintiff's opposition papers because it had not been aware that the papers had been filed. The court stated on the record that it would treat the motion as unopposed because of plaintiff's repeated failure to follow the rules of court.
Plaintiff appealed from the trial court's April 13, 2007 order, and FYI cross-appealed from the order of September 22, 2006, denying its first summary judgment motion. We reversed the April 13, 2007 order and affirmed the September 22, 2006 order. Waltman v. FYI Directories, No. A-5335-06 (App. Div. June 26, 2008) (slip. op. at 16).
In addressing FYI's contention that its first summary judgment motion should have been granted because plaintiff's opposition was filed beyond the time prescribed by the court rules, we noted that the trial courts can address the late submission of motion papers in a variety of ways, including sanctions. Id. at 11 (citing Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., Inc., 206 N.J. Super. 405, 407 (App. Div. 1986); Automatic Washer Serv., Inc. v. Brunswick Burlington, Inc., 153 N.J. Super. 343 (App. Div. 1977)). We stated that we did not: condone plaintiff's counsel's dilatory conduct, and note that on remand, the court may consider appropriate sanctions therefor, we conclude that, in light of all the circumstances, the Law Division did not abuse its discretion in considering plaintiff's late opposition papers in resolving defendant's first summary judgment motion.
We also stated that the evidence before the court on the first summary judgment motion raised a genuine issue of material fact as to whether FYI's owners and representative had orally promised plaintiff a fifteen percent ownership interest in the company as additional compensation for working there. Id. at 12-13. We concluded that the trial court had properly ...