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Ruben Fleurantin, M.D v. William Warren

October 4, 2012


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-011880-11.

Per curiam.


Submitted September 4, 2012

Before Judges Alvarez, Nugent and Ostrer.

Plaintiff Ruben Fleurantin, M.D., appeals from the dismissal without prejudice of his Special Civil Part complaint seeking to recover $7697.50 in rent and $4000 in other damages allegedly due since 2006 from his former tenant, defendant William Warren. Plaintiff is self-represented on appeal as he was in the trial court. For the reasons that follow, we affirm.

On November 14, 2011, the matter was listed for trial for the fourth time. Also listed was defendant's motion to dismiss, which asserted as grounds plaintiff's failure to produce documents, specifically, the lease for the relevant premises. Defendant first filed the motion on July 19, 2011; since that date plaintiff was granted several extensions of time to produce the lease. Additionally, by August 24, 2011, plaintiff had advised the court that he intended to retain counsel. Presumably because the motion had not been actually decided, defendant refiled in October and reminded the court on the day of trial that it was still pending.

When the parties appeared for trial, the judge was informed of the undisputed fact that the premises were owned in the name of Marci-Court Investment, L.L.C.; plaintiff acknowledged that the corporate entity alone was due any recovery from defendant. Plaintiff said the corporation was owned by his fiancee, but claimed to be a principal in that entity.

At that juncture, the trial judge advised plaintiff that pursuant to Rule 1:21-1(c), he was not entitled to pursue the matter on behalf of the corporation without counsel. Plaintiff responded that he had spoken to an attorney but not retained her, and that because of her schedule, she had directed him to ask for a one- or two-week postponement. He enumerated other reasons for needing a postponement, such as his intent to subpoena two witnesses, including the constable who had served the warrant of removal upon defendant. The trial judge denied plaintiff's request for an adjournment and referred the parties to mediation.

When mediation proved unsuccessful, the trial judge explained to plaintiff that he was dismissing the action without prejudice because of the rule's prohibition against uncounseled appearances on behalf of corporations. In response, defendant dismissed his counterclaim without prejudice. This appeal followed.

Plaintiff's principal claim of error is that the judge should have granted him an adjournment. We review appeals from the denial of a request for adjournment employing an abuse of discretion standard. State v. Miller, 420 N.J. Super. 75, 99 (App. Div. 2011); see State v. Jenkins, 349 N.J. Super. 464, 478 (App. Div.), certif. denied, 174 N.J. 43 (2002).

We note that in this case, three months before the trial date, plaintiff had informed the prior trial judge that he was retaining an attorney. The day of trial, although plaintiff asserted that he had spoken to a lawyer who instructed him to ask for a one- or two-week postponement, he conceded that he had not actually retained that individual. The matter had been listed for trial four times. Given these circumstances, no purpose would have been served by allowing plaintiff to delay the disposition of the case. Hence we see no abuse of discretion in the judge's refusal of plaintiff's request.

As to the merits of the judge's ruling, it is clear that Rule 1:21-1(c) states: "an entity, however formed and for whatever purpose, other than a sole proprietorship shall neither appear nor file any paper in any action in any court of this State except through an attorney authorized to practice in this State." Since plaintiff admits that Marci-Court Investment, L.L.C. is the sole party entitled to damages because it was both landowner and landlord, not he personally, there is no question that the rule applies.*fn1 This is not a situation such as the one found in Gobe Media Group v. Cisneros, 403 N.J. Super. 574, 576 (App. Div. 2008), in which an appeal was taken from a judgment wrongfully obtained by a party on behalf of a corporate entity. In that scenario, a remand may be equitable to allow a plaintiff the opportunity to retain counsel and thereby preserve a meritorious recovery despite the procedural error. See id. at 580. Here, plaintiff had no right to be heard in an unrepresented capacity, and chose, instead of exercising his right to retain counsel and filing a new complaint, to merely file an appeal.

The rule's proscription applies to appeals as well as the initial trial court proceedings. It cannot be disputed that plaintiff, without the benefit of counsel, seeks to recover damages on behalf of a corporation in violation of Rule 1:21-1(c). When faced with a dismissal without prejudice, rather than refiling, ...

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