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Aboubacar Demi v. Juan B. Azcona and Maria M. Azcona


August 5, 2011


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7506-08.

Per curiam.


Submitted July 5, 2011

Before Judges Cuff and Fuentes.

Plaintiff Aboubacar Demi appeals from the order of the trial court dismissing with prejudice his personal injury action against defendants Juan B. Azcona and Maria M. Azcona on the day the case was scheduled for trial. We reverse and remand this matter for trial.

The material procedural facts underpinning this appeal are not disputed. Plaintiff and defendant Juan B. Azcona were involved in a motor vehicle accident on October 25, 2007. Plaintiff filed a complaint on September 17, 2008, naming Juan as the driver of the car that collided with plaintiff's car; Maria was named as a defendant only because she owned the car Juan was driving at the time of the accident.

The matter proceeded through discovery and mandatory Rule 4:21A-1 arbitration, resulting in an award of $17,500 in favor of plaintiff on May 28, 2010. Defendants filed a timely demand for a trial de novo, and the case was scheduled for trial on September 20, 2010. At plaintiff's request, the trial date was adjourned to October 18, 2010. On this date, counsel for both sides appeared at the trial call, answered "ready," and agreed to proceed through an "expedited trial"*fn1 limited to damages, with defendants conceding liability. However, the case was not reached that day and the matter was adjourned to October 21, 2010.

On October 21, 2010, the judge entered a consent order reflecting the terms and conditions of the expedited trial. At one point before the jury's arrival, defense counsel objected to plaintiff's counsel's use of a skeletal model as an aid to explain to the jury the nature and extent of plaintiff's injuries. Defense counsel emphasized that, given the absence of live witnesses in an expedited trial, plaintiff's counsel's "explanation" was tantamount to his testifying as a medical expert.

In response, plaintiff's counsel insisted that he needed to use this kind of demonstrative evidence to convey to the jury the nature and extent of his client's injuries. The trial court disagreed and sustained defense counsel's objection. The judge held that permitting plaintiff's counsel to use this model in his opening and closing statements to the jury would convert his remarks into testimonial evidence.

From this point, the record shows plaintiff's counsel's increasing frustration with the trial judge's ruling. Equally clear in the record is the judge's irritation with plaintiff's counsel's continued remarks showing his displeasure at what counsel believed was an unfair restriction on the way he wanted to present his case to the jury in this summary proceeding. In an effort to defuse the situation, the court addressed plaintiff's counsel as follows:

[A]n expedited trial exists for the purpose of a plaintiff and a defendant coming to an agreement and that agreement results in an introduction of evidence without the necessity of providing authentication of documents. If any term needs to be explained to the jury that -- contained in a document, one of two things happens:

[e]ither there is no expedited trial and some witness on the witness stand who's sworn and who is qualified as an expert or as a fact witness who has the appropriate knowledge, should it be [an] item that can be testified to by a fact witness as opposed to an expert; [o]r often times by consent, the parties will agree to a glossary of terms that will be submitted to the jury [at] the same time that the . . . agreed upon documents are submitted to the jury.

Now you have a choice, you can either have an expedited trial [under] the terms . . . I have described, where the only evidence is what . . . the jurors hear on the witness stand and the documents that are submitted in evidence; [o]r you have a non-expedited trial where the evidence that you wish to prove comes from witnesses testifying on the witness stand together with any admissible evidence.

You get to pick. Even though you've already consented to an expedited trial, I will consider if it is your request to waive that expedited trial request. Which is it [addressing plaintiff's counsel by name]?

This explanation and ultimate query from the court was followed by several transcribed pages in which plaintiff's counsel repeatedly expressed his disagreement with the court's ruling. This finally ended when the court addressed plaintiff's counsel as follows:

THE COURT: [P]lease stop repeating yourself [addressing plaintiff's counsel by name] we have a jury in the hall. Now you have now indicated that [you] are not interested in an expedited trial, yes?

PLAINTIFF'S COUNSEL: Not on these terms. I am interested in a trial on fair terms.

THE COURT: Please answer the question. Are you interested in an expedited trial under the terms in which I described?


THE COURT: Thank you. Now are you interested in a full trial?


THE COURT: Right now?


THE COURT: You will be. I'm going to call the jury into the room. Do you want me to do that?


THE COURT: Are you prepared to proceed with one or the other, sir?


THE COURT: Expedited trial as I defined it or a full trial?

PLAINTIFF'S COUNSEL: I just said no.

THE COURT: Do you have an application?



DEFENSE COUNSEL: Oh yes, I moved for dismissal.

THE COURT: The matter of Aboubacar Demi v.

Juan Azcona, . . . is dismissed with prejudice.

Plaintiff now appeals, arguing the court erred in dismissing his case with prejudice and in its ruling preventing his attorney from using a skeletal model as part of his opening and closing remarks to the jury. We agree the trial court erred when it dismissed plaintiff's case with prejudice without exploring the availability of lesser sanctions. We reject, however, plaintiff's argument attacking the soundness of the court's ruling preventing his counsel from using a skeletal model as part of counsel's opening and closing remarks to the jury in an expedited trial format.

It is a fundamental precept of our laws that justice favors adjudication of civil disputes based on the merits. Thus, the ultimate sanction of dismissal with prejudice for a procedural violation should be used sparingly, "when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995) (internal quotations and citation omitted). A trial court abuses its discretionary authority to manage the cases that come before it when it dismisses a complaint with prejudice for a procedural violation without first exploring the suitability of lesser sanctions. Georgis v. Scarpa, 226 N.J. Super. 244, 251 (App. Div. 1988).

Here, the record only shows that plaintiff's counsel answered "no" when the judge asked him if he was prepared to proceed with either an expedited trial or a full trial. At this point, the court should have ascertained the reasons for counsel's lack of preparation and how much time he needed to proceed. Only after gathering this information is the court in a position to determine whether a sanction is warranted and, if so, its severity.

We thus reverse the trial court's order dismissing plaintiff's case with prejudice and remand the matter for the court to determine if a remedy, short of dismissal with prejudice, is warranted for plaintiff's inability to proceed to trial following the court's evidentiary ruling. In fashioning the appropriate sanction, the goal is to provide reasonable relief to the non-delinquent party, protect the integrity of case management orders, and ensure the orderly administration of scarce judicial resources while preserving the right of civil litigants to have their disputes decided on the merits.

By contrast, the trial court's ruling preventing plaintiff's counsel from using a skeletal model in his opening and closing statements to the jury was a reasonable exercise of its discretionary authority. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We discern no legal basis to interfere with it and thus affirm substantially for the reasons expressed by the trial judge.

Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

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