June 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK HOUCK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2012
Before Judges Sabatino and Ashrafi.
Once again we are called upon to rescue a litigant and his lawyer who were dilatory in pursuing their case in the trial court. Defendant Mark Houck appeals from a January 7, 2011 order of the Law Division denying his motion for reconsideration of a prior order dismissing his appeal from a municipal court conviction. Despite the trial court's careful consideration of the arguments raised and its detailed explanation of the reasons why it dismissed the appeal and denied reconsideration, we are constrained to reverse because defendant ultimately was prepared to go forward with the appeal. This quasi-criminal appeal should be decided on its merits if possible.
After four days of trial in the Municipal Court of Keyport spanning a time period from October 2008 through May 2010, defendant was convicted of disorderly conduct, N.J.S.A. 2C:33-2, and a fine, the amount of which is not revealed in our record, was imposed upon him. The municipal court stayed collection of the fine pending defendant's appeal to the Law Division under Rule 3:23.
Defendant filed a timely notice of appeal on June 8, 2010, and paid a $1,000 deposit for the transcripts of the municipal court proceedings. By invoice dated August 11, 2010, and addressed to the attorney for defendant, the court transcriber indicated that transcripts for the four trial dates had been prepared, she acknowledged the deposit paid, and she provided an accounting of the total charges and the balance due from defendant for the transcripts.
On August 13, 2010, the Law Division entered an order scheduling a trial de novo under Rule 3:23-8(a) on October 1, 2010, and requiring that defendant file a brief fourteen days before that date. On September 16, 2010, the attorney for defendant requested a forty-five-day extension to file a brief because he had not received the trial transcripts. The court adjourned the trial de novo to November 12, 2010.
On October 20, 2010, the Law Division issued an order dismissing the appeal without prejudice. The order stated that the court and the prosecutor's office had received copies of the trial transcript and that the court had advised defendant to obtain a copy from the prosecutor's office. The order also stated that a new deadline of October 8, 2010, had been set for defendant to file his brief but he still had not done so.
On November 12, 2010, defendant filed a motion for reconsideration of the dismissal order. Defense counsel stated in a certification that he had yet to receive the transcripts and that he had requested a copy from the prosecutor's office, but that office had declined to provide a copy to him.
The prosecutor's office filed a response, acknowledging that defense counsel had requested a copy and that it did not provide one. The prosecutor's reason, however, was that defendant still owed the transcriber a balance of $566.46.
Although the prosecutor's office objected to the implication that it was responsible for the delay in the appeal, the prosecutor did not oppose reinstatement of the appeal provided that defendant paid the amount owed to the court transcriber.
The court transcriber then wrote an undated letter to the court stating that "[a]s of this date" defendant still had not paid the balance due for the transcripts.
On December 16, 2010, one day before the return date for defendant's motion for reconsideration, defense counsel wrote to the court enclosing a copy of defendant's check in the amount of $549.85*fn1 for the transcripts and requesting a further adjournment of the motion because counsel's mother had just passed away. The court adjourned the motion to January 7, 2011.
One day before the adjourned return date, counsel wrote to the court again asking for yet another adjournment because he had civil motions scheduled for the same date in three counties. Counsel also stated that he was willing to waive oral argument on defendant's motion for reconsideration if the court denied his request for adjournment.
The court denied the additional adjournment and placed a detailed oral decision on the record on January 7, 2011. The court recited the facts as we have done in this opinion and then stated that defense counsel had not been entirely candid with the court in explaining why he had not received the transcripts on schedule. The court stated that counsel had shifted responsibility for defendant's failure to obtain transcripts to the court transcriber and the prosecutor's office when counsel knew or should have known that the blame was his and his client's for failing to pay the fees due.
The court also stated that it had received an email from the court transcriber on December 20, 2010, stating that her fees had now been paid and the transcripts would be sent to defense counsel that day. The court stated that defense counsel had more than a week to prepare a brief before the return date of the motion for reconsideration but had not done so. For those reasons, the court denied defendant's motion for reconsideration and declined to reinstate defendant's appeal.
Rule 3:23-8(b) authorizes the court to require a brief to be filed before the date fixed for a trial de novo on appeal from a municipal court conviction. Rule 3:23-7 authorizes the dismissal of an appeal from the municipal court for failure of the appellant to prosecute the matter. The trial court acts within its proper authority in enforcing its orders and court rules, and dismissal is an ultimate sanction available to the court. Kohn's Bakery, Inc. v. Terracciano, 147 N.J. Super. 582, 584-85 (App. Div. 1977).
The court must strive, however, to follow a judicial policy in favor of generally deciding contested matters on their merits rather than based on procedural deficiencies. Woodward-Clyde Consultants v. Chem. & Pollution Sciences, Inc., 105 N.J. 464, 474 (1987). "'Cases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available.'" Irani v. K-Mart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995) (quoting Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994)).
We are sympathetic to the trial court's need to control its schedule and to enforce court rules and scheduling orders. This is not a case where the trial court dismissed the appeal and denied reinstatement without considering the moving party's arguments and without stating its findings and conclusions on the record. We also recognize the importance of appellants obtaining transcripts promptly so that appeals of municipal court convictions may be completed without undue delay.
On the other hand, defendant timely paid a $1,000 deposit for transcripts and eventually paid the remaining balance of $549.85 within several months of the original due date. We are reluctant to bar the courthouse door in these circumstances and turn him away from a decision on the merits of his appeal. See Kohn's Bakery, Inc., supra, 147 N.J. Super. at 585.
The Law Division had other options to address its reasonably well-founded assessment that defendant and counsel had not been entirely candid in requesting adjournments. Under Rule 1:2-4, the court could have imposed monetary sanctions for defendant's self-created failure to meet the deadlines set for the filing of his brief. We make no determination here as to whether such sanctions should have been imposed, and we hasten to add that the purpose of such sanctions is to provide incentive for compliance rather than to punish a litigant or attorney. We refer to monetary sanctions only to indicate that alternatives to dismissal of defendant's appeal were available to the court to enforce its orders.
Reversed and remanded. On remand, the Law Division shall set a new schedule for the filing of briefs on the merits and a new date for the trial de novo. We do not retain jurisdiction.