SPEEDEX REALTY v. FRANKLIN TOWNSHIP LAND USE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0998-05T30998-05T3

SPEEDEX REALTY,

Plaintiff-Appellant,

v.

FRANKLIN TOWNSHIP LAND USE

BOARD,

Defendant-Respondent.

______________________________________

 

Submitted May 8, 2006 - Decided May 30, 2006

Before Judges Yannotti and Newman.

On appeal from Superior Court of New Jersey, Law Division, Warren County, L-451-04.

Speedex Realty, appellant pro se.

Vogel, Chait, Collins & Schneider attorneys for respondent (Richard L. Schneider and Thomas J. Molica, Jr., on the brief).

PER CURIAM

Plaintiff Speedex Realty appeals from an order dismissing its complaint with prejudice in an action brought in lieu of prerogative writs against defendant Franklin Township Land Use Board (Board). The basis for the dismissal was the failure by plaintiff to furnish transcripts of the proceedings before the Board within the time prescribed by the trial judge's prior orders. We now reverse.

Plaintiff filed with the Board an application for approval of a pre-existing, non-conforming use. The Board held hearings on June 2, July 7, and August 4, 2004. The Board denied the application and on September 1, 2004 adopted a resolution memorializing its decision. Plaintiff filed an action in the Law Division, Warren County, on October 13, 2004, but failed to certify that it had ordered the transcripts. An amended complaint was filed in December 2004.

On January 21, 2005, the judge granted the Board's motion and dismissed the complaint without prejudice due to certain deficiencies in the complaint. Plaintiff thereafter moved to restore the complaint and the motion was granted in an order entered on April 28, 2005. A further order was entered on June 2, 2005 which required plaintiff to assemble the record and produce the transcripts by June 22, 2005. Plaintiff requested a few more days. According to Tonie Fry, an agent of plaintiff, part of the reason for the delay in securing the transcripts was due to the Land Use Board's Administrator, Kathy Dossena, contacting the transcriber Nancy Horvath of Printed Words on May 13, 2005 and requesting the tapes be returned so that a township official could listen to the tapes which contained other matters. The tapes were returned to Printed Words on June 18, 2005. It also appeared that payment for the transcribed tapes was slow in coming and final payment was not made until July 15, 2005. Plaintiff failed to produce the transcripts by the date the motion to dismiss was heard on July 22, 2005 although delivery of the transcripts was said to be imminent. The judge granted the motion to dismiss the complaint with prejudice on that same date.

Three days later on July 25, 2005, the transcripts were delivered to plaintiff. The following day, plaintiff moved for reconsideration. The judge refused to reinstate the complaint and denied the motion for reconsideration in an order entered on September 9, 2005.

On appeal, plaintiff argues that it is entitled to its day in court, noting that not all the delay was occasioned by plaintiff. We recognize the trial judge's frustration in having orders that he had entered not complied with in a timely manner. We also note that the trial judge had afforded plaintiff additional time to produce the transcripts. However, the trial judge had other available means of addressing the delay, including sanctions, particularly for the motion for reconsideration where the order denying the motion was not entered for one and one-half month's after the motion was filed. The motion could be viewed as one brought under R. 4:50-1 where the setting aside of the judgment could be conditioned on the award of counsel fees for obtaining the judgment and in opposition to the motion for reconsideration. See John Reiner & Co. v. Dorsey Roofing Co., 187 N.J. Super. 51 (Law Div. 1982). This is especially appropriate where the cost of the motion and defending against the motion for reconsideration was to be borne by the taxpaying public. When the transcripts were received just after the weekend the motion was decided, it would have better served the interests of justice to conditionally grant the motion for reconsideration, so that the matter could be decided on the merits of the complaint and, at the same time, make plaintiff pay for defendant's attorneys fees in moving to dismiss the complaint and defending against the motion for reconsideration.

 
As a final note, we are uncertain of the legal status of plaintiff. If plaintiff is a corporation, then it may not appear without an attorney. R. 1:21-1(c). As a sole proprietorship, however, that preclusion would not apply. On remand, the judge should address whether Speedex must be represented by counsel.

Reversed and remanded.

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4

A-0998-05T3

May 30, 2006