ASSEM ABULKHAIR v. LIBERTY MUTUAL INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5984-04T55984-04T5

ASSEM ABULKHAIR,

Plaintiff-Appellant,

v.

LIBERTY MUTUAL INSURANCE COMPANY,

Defendant-Respondent.

________________________________________________________________

 

Argued April 25, 2006 - Decided May 24, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Union County, L-1439-99.

Gerald J. Monahan argued the cause for appellant.

Karen L. Kuebler argued the cause for respondent (Kramkowski, Lynes, Fabricant & Bressler, attorneys; Ms. Kuebler, on the brief).

PER CURIAM

On March 18, 1998, plaintiff, Assem Abulkhair, alleges that he was injured in a motor vehicle accident with an uninsured driver. On March 17, 1999, plaintiff filed a complaint against defendant, Liberty Mutual Insurance Company, with whom plaintiff was insured at the time of the accident, seeking an order to compel arbitration of his uninsured motorist claim. After defendant filed an answer, an order was entered on February 10, 2000 directing an uninsured motorist arbitration hearing and dismissing the complaint without prejudice, subject to restoration if the matter was not resolved by arbitration. Extensive delays were encountered, and over the next three years, no arbitration hearing was held. Plaintiff changed attorneys during this time. Defendant contends that plaintiff failed to attend appointments for an independent medical examination. In any event, on January 30, 2003, plaintiff filed a motion to restore the matter to the active calendar, supported by his attorney's certification that the most recent arbitration hearing was scheduled for May 3, 2001, but was adjourned by consent of the parties, that no new arbitration hearing had been set, and that plaintiff, although seeking restoration to the trial calendar, was still willing to attend an arbitration session if it could be scheduled. Judge Cassidy issued an order on February 21, 2003, directing that the matter be arbitrated within sixty days, and if the arbitration was not conducted within sixty days, the parties were granted leave to move for restoration to the active trial calendar.

More than a year later, on April 6, 2004, the arbitration hearing was finally held. The arbitrators rendered a gross award of $24,000 to plaintiff, but reduced it by twenty-five percent for his comparative negligence, resulting in a net award of $18,000. On April 21, 2004, plaintiff filed a request for a trial de novo pursuant to Rule 4:21A-6(c). On May 18, 2004, plaintiff filed a motion to restore the case to the active trial calendar. Judge Cassidy entered an order on June 11, 2004 restoring the case to the active trial calendar and directing that a trial date be set as soon as possible after July 1, 2004. The case was scheduled for trial on July 6, 2004.

Plaintiff and his attorney, as well as counsel for defendant, appeared before Judge Wertheimer that day. Plaintiff informed the court that he wished to dismiss his attorney. Plaintiff wanted more time to obtain a new attorney. Judge Wertheimer was unwilling to adjourn the case, which was then more than five years old. He offered plaintiff the opportunity to try the case, either with the assistance of his attorney or pro se. He also offered plaintiff a third option, namely to accept a dismissal of the complaint without prejudice, subject to the condition that plaintiff file a new action with a new attorney within sixty days, and with defendant acquiescing in a waiver of the statute of limitations. We set forth the pertinent portion of the colloquy between Judge Wertheimer and plaintiff:

THE COURT: All right, well. Here's your choices.

MR. ABULKHAIR: Your Honor, if you give me a brief time to get attorney who can --

THE COURT: No. No. I'm not going to. Here's your choices, so you can make this decision, I'm going to give you, your choices.

You can proceed today, either with Mr. Smith representing you on this case.

MR. ABULKHAIR: Okay.

THE COURT: Or you can represent yourself or you take a voluntary dismissal without prejudice. They waive the statute of limitations, you file a new matter, you get an attorney to represent you in that matter. Those are your three choices.

You go down to Judge Cassidy right now and start the trial with either Mr. Smith representing you or you representing yourself.

MR. ABULKHAIR: No, I choose the other one you say. I don't need Mr. Smith. He knows it.

THE COURT: Okay.

MR. ABULKHAIR: He has the case from --

THE COURT: Okay. So you -- you'll take a dismissal with prejudice.

MR. ABULKHAIR: But I want you to make it clear -- because you don't have to give me a hard time to get an attorney. I need, also I do want to have one.

THE COURT: Well, that's going to give you time.

MR. ABULKHAIR: Yeah. I wanna -- you you make the --

THE COURT: I'm going to put -- You file with a new attorney within 60 days, how's that? Sixty, two months?

MR. ABULKHAIR: Would be good.

THE COURT: That fair?

MR. ABULKHAIR: Is this adjournment or?

THE COURT: No, this is for a new case. This case is going to be dismissed and you're going to file this case again under a new docket number.

They're going to waive the statute of limitations and you'll get a new attorney and have to file within 60 days. It's all written down here and I ask you to sign it. I'll read it to you.

It says,

"Dismissed Without Prejudice, that means you can bring it again." Okay?

"Defendant is to waive the statute of limitations," because that probably exists now, because the case is so old, and you are to "re-file with a new attorney within 60 days." Okay? Understand?

MR. ABULKHAIR: Okay.

THE COURT: Okay.

It is plain to us from the colloquy that the judge clearly explained the options offered to plaintiff and that plaintiff understood them. Before the hearing concluded, the order was prepared, which was signed by plaintiff and counsel for defendant. Plaintiff was given a copy of the order before he left the courtroom. The order, dated July 6, 2004, provided that the case was dismissed without prejudice, that plaintiff had the right to refile with a new attorney within sixty days, and defendant would waive the statute of limitations.

On August 30, 2004, plaintiff filed a pro se motion seeking to vacate the July 6, 2004 order and reinstate the case. Plaintiff certified that he was searching for an attorney, but gave no other particulars. Documentation provided by plaintiff in a subsequent motion confirmed only one communication by plaintiff with an attorney during the sixty-day period following Judge Wertheimer's order, namely a July 15, 2004 letter from an attorney to plaintiff declining to represent him in this case. On October 8, 2004, Judge Cassidy entered an order denying plaintiff's motion.

On December 13, 2004, plaintiff filed a pro se motion for reconsideration, supported by a certification outlining some additional efforts, albeit unsuccessful, to obtain counsel. On January 21, 2005, Judge Cassidy denied the reconsideration motion.

On May 25, 2005, plaintiff filed another pro se motion seeking an order vacating Judge Wertheimer's dismissal order and reinstating the case. While the motion was pending, plaintiff engaged the services of his present attorney. The attorney made a supplemental submission to the court, and on the return date, June 10, 2005, he appeared with plaintiff and argued the motion. After hearing oral argument from both counsel, Judge Cassidy reviewed the long history of the case and the explicit provisions of Judge Wertheimer's order. She concluded "that the court has bent over backwards to try to get this case back on track and I'm not going to restore [the] case at this time." She entered an order on June 10, 2005 denying plaintiff's motion. This appeal followed.

Plaintiff argues on appeal that he was denied his day in court and that his motion to restore the case should have been allowed under Rule 4:50-1(f). That rule allows relief from a final judgment for "any other reason justifying relief from the operation of the judgment or order." Relief under this rule will be granted only in the case of truly exceptional circumstances. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994). This rule should be applied where necessary to achieve fair and just relief. Ibid. Each case must be resolved according to its particular facts. Baumann v. Marinaro, 95 N.J. 380, 395 (1984). The determination lies within the trial court's discretion, and we will reverse only where that discretion has been abused. Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993).

We find no exceptional circumstances in this case and no mistaken exercise of judicial discretion in denying plaintiff's motion to restore the case. After extraordinary delays and prior dismissals and restorations, the case came before the court for trial on July 6, 2004. Both counsel were present, and the case was trial-ready. A judge was available to try the case and was prepared to do so. Judge Wertheimer could well have insisted that this five-year-old case be tried that day, with plaintiff proceeding either with counsel or pro se. Such an order would have certainly been within the bounds of his permissible discretion.

In an effort to be very accommodating to plaintiff, the judge gave him a third option, and that is the one plaintiff accepted. In the procedural posture of the case when it came to Judge Wertheimer, the voluntary dismissal without prejudice was entered pursuant to Rule 4:37-1(b) "by leave of court and upon such terms and conditions as the court deems appropriate." Those conditions provided plaintiff with a limited opportunity to file a new action with a new attorney within a specified timeframe. If plaintiff wanted to try the case pro se, his opportunity to do so was on July 6, 2004. He was not given an adjournment of the trial so that he could try his case pro se at a later date. The purpose of the conditions was to give plaintiff one last opportunity to retain yet another attorney in this case with whom he would feel comfortable in going to trial. Plaintiff was given a copy of the order. Any attorney reviewing it would be aware that there was no need to obtain restoration of a dismissed case, but leave was plainly granted to file a new action so long as it was within the sixty-day window. Presumably plaintiff would also inform any prospective new attorney of the successful arbitration award. Plaintiff's only effort to obtain new counsel occurred on or before July 15, 2004, within the first nine days of the window.

In a somewhat different factual setting, we have recently expounded upon the considerations guiding a Rule 4:37-1(b) dismissal without prejudice. Shulas v. Estabrook, ___ N.J. Super. ___, ___ (App. Div. 2006) (slip op. at 7-20). We pointed out that the conditions attached to such a dismissal are chiefly required to protect the rights of the defendant and to prevent injury to the efficient administration of justice. Id. at ___ (slip op. at 10-11).

Defendant obviously agreed to the sixty-day statute of limitations waiver. However, if a new complaint was not filed within that limited timeframe, defendant had a right to expect final repose in this protracted litigation. Further, the efficient administration of the court system would be frustrated by allowing circumvention of Judge Wertheimer's generous order. Plaintiff was given a more-than-fair opportunity to have his day in court and should not be heard to complain for being disallowed to overreach a framework that was creatively crafted to accommodate his wishes, was fully and clearly explained to him, and which provided a reasonable means for the court to maintain an orderly calendar.

 
Affirmed.

We are informed by the record on appeal that on September 14, 2005, while this appeal was pending, plaintiff filed a new complaint against defendant in Bergen County, bearing Docket No. L-6411-05, seeking the same relief as in the case that is before us. The new case is not before us, and we will not comment further on it.

(continued)

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A-5984-04T5

May 24, 2006