EDWIN LORENZO v. JOHN CLEARY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1853-06T21853-06T2

EDWIN LORENZO,

Plaintiff-Appellant,

v.

JOHN CLEARY, Eatontown

Police Officer,

Defendant-Respondent,

and

RUSSELL ANDERSON; MICHAEL

H. BURNS; JAMES NOVAK,

Sayreville Police Officers;

VIVIAN COSENTINO and

KATHERINE COSENTINO,

Defendants.

________________________________________________________________

 

Submitted December 19, 2007 - Decided

Before Judges Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6065-03.

Edwin Lorenzo, appellant pro se.

Chamlin, Rosen Uliano & Witherington and Gene J. Anthony, attorneys for respondent (Charles J. Uliano, on the brief).

PER CURIAM

Plaintiff Edwin Lorenzo appeals from the November 3, 2006, order that dismissed his complaint against defendant John Cleary with prejudice "for plaintiff's failure to appear at the October 23, 2006 trial." This is the second time we have been asked to review the dismissal of plaintiff's complaint because he failed to appear on the trial date. In an unreported decision, Lorenzo v. Cleary, No. A-1355-05 (App. Div. July 26, 2006), we reversed and remanded the matter for trial. Having now reviewed the record in light of the arguments advanced by plaintiff on this appeal, we must once again reverse the order under review and remand the matter for trial.

Plaintiff is an inmate at East Jersey State Prison and has represented himself in these proceedings. His complaint against defendant Cleary, an Eatontown police officer, allegedly arose out of law enforcement's response to a domestic violence dispute between plaintiff and defendant Katherine Cosentino. Plaintiff's complaint was initially dismissed with prejudice when he failed to appear for trial on August 8, 2005, and he appealed.

We noted that plaintiff successfully secured an order to produce himself from prison for trial. Thereafter, defendant's request for an adjournment was granted and a new trial date was set. Because plaintiff had not secured an order to produce for the new trial date, he failed to appear, and his complaint was dismissed with prejudice. Lorenzo, supra, No. A-1355-05 (Slip op. at 3).

We reasoned that it was reasonable for plaintiff to have assumed that the original order to produce would have been extended because of the adjournment. We concluded that the judge should have sua sponte issued another order to produce plaintiff for the adjourned trial date, or, alternatively, requested defense counsel, who secured the adjournment in the first instance, to prepare the order for the judge's signature. Ibid. We reversed and remanded the matter for trial.

On remand, in a letter to the assignment judge, plaintiff requested a status conference by telephone so as to avoid "confusion due to [his] incarceration," and a date for trial. On September 5, 2006, the civil division manager sent plaintiff a letter advising him that the trial date was now set for October 23, 2006. He also advised plaintiff that the court had prepared an order to produce plaintiff, but that the costs of transportation, $842.56, would be plaintiff's responsibility. He suggested plaintiff contact the social services department in the correctional facility to arrange payment.

Also on September 5, 2006, plaintiff filed a motion seeking an order to produce both himself and his "inmate advisor." On September 19, 2006, the civil division manager again wrote to plaintiff advising that an order to produce had already been sent to the "Central Transport Unit," and reiterating the trial date.

On October 12, 2006, defense counsel wrote to the trial judge and requested an adjournment of the trial date to November 27. A copy was forwarded to plaintiff at the prison. On October 22, plaintiff wrote to the judge noting the case had been adjourned to November 27, 2006, that he was having difficulty having the Sheriff subpoena his witnesses, and that he was still waiting for the court to rule on his motion.

Unbeknownst to plaintiff, defendant's adjournment request was denied and defendant appeared before the trial judge on October 23. Plaintiff, who believed the case was adjourned, failed to appear. Defense counsel moved for a dismissal of the complaint with prejudice. The judge noted "this matter has been pending for some time, and [] [the] [c]ourt has done everything in its power to provide [plaintiff] with the forms and information necessary to get himself here." Then, indicating that he wanted the record to be "as clean and as clear [] as possible," the judge asked defense counsel to "place on the record your best understanding of what the facts of this case are from the plaintiff's position and from the defense position so I can better understand it . . . ."

Over the next thirteen pages of transcript, defense counsel set forth the basic allegations of the complaint and the defense to same. The judge then dismissed the complaint finding the court had "ma[de] total arrangements" to produce plaintiff, plaintiff "was aware of today's date," and plaintiff had adequate money to pay for the costs of transportation based upon a partial settlement of the case with other defendants.

The judge then continued,

I understand there was a prior [j]udge who heard the motion for summary judgment . . . . I need to make clear . . . that this [c]ourt does not understand and disagrees with that prior [c]ourt's ruling. And[,] while I won't rule on it at this point, because in fact this matter is being dismissed for failure to prosecute, it seems fundamentally clear that there is no cause of action, giving this plaintiff every reasonable inference of all the facts that have been presented to this [c]ourt.

Concluding "there is nothing that would make this case proceed to trial," the judge requested defense counsel to submit an order dismissing the case for "failure to prosecute."

On October 26, 2006, defense counsel served plaintiff and the judge with a proposed order dismissing the complaint with prejudice. On October 30, plaintiff wrote to the trial judge objecting to the dismissal. He noted that neither defense counsel nor the court ever advised him that defendant's adjournment request was denied. Noting the amount of transportation costs involved, plaintiff argued that he could not have been expected to pay the money "without knowing whether the trial date ha[d] been adjourned."

We do not know whether the judge ever considered plaintiff's letter. However, on November 3, 2006, the judge entered an order dismissing the complaint with prejudice and this appeal ensued.

Rule 1:2-4(a) provides in pertinent part,

If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party . . . on the day of trial, . . . the court may order any one or more of the following: . . . (c) the dismissal of the complaint, cross-claim, counterclaim or motion, or the striking of the answer and the entry of judgment by default, or the granting of the motion . . . .

Dismissal of a complaint is "a recourse of last resort not to be invoked unless no lesser penalty is adequate . . . ." Pressler, Current N.J. Court Rules, comment 1 on R. 1:2-4 (2008). A dismissal under the rule is generally without prejudice, unless the court finds good cause to order otherwise. Woodward-Clyde Consultants v. Chemical & Pollution Sciences, Inc., 105 N.J. 464, 471 (1987). Dismissal with prejudice is not appropriate unless the circumstances present "egregious conduct on the part of a plaintiff." Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 393 (App. Div. 1994). The same standards apply to pro se litigants. Id. at 394.

We think the judge mistakenly exercised his discretion by dismissing plaintiff's complaint in the first instance because plaintiff had a reasonable excuse for his non-appearance. Although the judge may not have received plaintiff's October 22 letter that revealed he was functioning under the mistaken assumption that the case had been adjourned, we must assume he ultimately received that correspondence as well as plaintiff's letter of October 30 before signing the order of dismissal. In other words, at the time of the entry of the order dismissing plaintiff's complaint with prejudice, the judge knew that plaintiff failed to appear because he believed that the case had been adjourned until November 27, 2006, and because he did not want to pay the transportation fees without reason.

To the extent defendant argues that plaintiff should not have presumed the case was adjourned and should have appeared on the October 23, 2006, trial date, we reject that contention for a reason that is directly attributable to defendant's omission. Pursuant to paragraph eight of the "Statewide Adjournment Procedure for Civil Trials and Arbitrations," Directive #6-04 issued May 14, 2004, once an adjournment is requested, a "[t]imely response will be given to the party requesting the adjournment, who will then be responsible for communicating the decision to all other parties."

The record fails to disclose when and why defendant's request for an adjournment was denied. The transcript from the day of trial does not disclose any discussion of the subject nor any inquiry by the judge as to whether defense counsel had notified plaintiff the request was denied. However, it is apparently undisputed that neither defense counsel nor the court apprised defendant of the denial. Under all these circumstances, we fail to see how the trial judge concluded that plaintiff's absence was "without just excuse." R. 1:2-4(a).

We must also express our dismay at the trial judge's decision to express an opinion that plaintiff's case was "fundamentally" without merit based solely upon defense counsel's ex parte recitation of the facts. Although the judge was careful to indicate the complaint was being dismissed because plaintiff failed to appear, it is quite clear that the judge disagreed with his colleague's denial of summary judgment and reached a conclusion about the merits of the litigation without ever hearing from plaintiff.

We have held that the dismissal of a complaint on the day of trial absent compliance with Rule 4:46 is a violation of due process. Klier v. Sordoni Skanska Const. Co., 337 N.J. Super. 76, 83 (App. Div. 2001). In Klier, after hearing from plaintiff's counsel as to his "best case," the judge dismissed plaintiffs' complaint against one of the defendants without a trial. Id. at 81-82.

The situation here is obviously more egregious. Plaintiff was not even present as defense counsel set forth plaintiff's "best case"; moreover, having previously defeated summary judgment, it was improper for plaintiff to once again face summary disposition without formal notice and compliance with Rule 4:46. On remand, the case should be assigned to another judge to conduct any further proceedings or the trial.

Lastly, plaintiff has raised a number of arguments regarding his obligation to pay for the costs of transportation associated with his trial. At various points in his papers, plaintiff has advised that he is indigent, yet, he acknowledges that he is "willing to make arrangements to pay for transportation costs by making payments [in] installments." We direct plaintiff's attention to N.J.A.C. 10A:3-9.13(b), which requires the costs of transportation to be "paid in advance" by plaintiff, and we leave the particulars to be resolved between him and the Department of Corrections.

Reversed and remanded.

We gather from the record that Cleary is the only remaining defendant in the case.

(continued)

(continued)

10

A-1853-06T2

 

February 14, 2008