JUANITA GALATE v. LOUIS A. CHIAROLANZA, ESQ., individually, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5179-06T35179-06T3

JUANITA GALATE,

Plaintiff-Appellant,

v.

LOUIS A. CHIAROLANZA, ESQ.,

individually, and

CHIAROLANZA & DeANGELIS, ESQS.,

a partnership,

Defendants-Respondents.

____________________________________________________________

 

Submitted January 28, 2008 - Decided

Before Judges Lintner and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

L-4375-00.

Daniel K. Newman, attorney for appellant.

Riker Danzig Scherer Hyland & Perretti, L.L.P.,

attorneys (Lance J. Kalik, of counsel; Mr.

Kalik and Anthony J. Murphy, on the brief).

PER CURIAM

In this legal malpractice case, plaintiff Juanita Galate (Galate) appeals from an order dated April 27, 2007, denying her motion to reinstate her case, which was dismissed on March 18, 2002. We affirm.

In the underlying action, Galate sought damages for personal injuries she allegedly sustained in a motor vehicle accident on March 26, 1992. Defendant Louis A. Chiarolanza, Esq. (Chiarolanza) represented plaintiff in her personal injury action. On August 13, 1996, following a five-day trial, the jury determined "that although the defendants were 100% liable for the accident, Galate was not entitled to damages." In the present matter, filed on May 5, 2000, plaintiff claimed that Chiarolanza never advised her of settlement offers made by defendants during the course of the personal injury trial.

Chiarolanza filed an answer to plaintiff's complaint dated September 21, 2000, and on October 4, 2000, he filed a counterclaim for court costs and litigation expenses in the amount of $29,548.18, which were allegedly incurred in connection with the institution and prosecution of plaintiff's personal injury action. In her answer to the counterclaim, plaintiff "denied that any money [was] due and owing" to defendant.

After the parties engaged in discovery, the attorneys exchanged correspondence regarding a trial date. In a letter to defendant's attorney dated October 8, 2001, plaintiff's attorney asked for "some potential dates in November 2001 which are in accord with your calendar," and defense counsel advised he was available for trial on November 29 and 30, 2001.

On January 25, 2002, the Essex County, Civil Division, scheduled the case for trial on March 18, 2002. The trial notice stated that any applications for adjournments "must include: consent of parties, [and an] agreed upon date." The trial notice was received by defendant's attorney, but it was not received by plaintiff's attorney. Thus, on February 11, 2002, plaintiff's attorney was unaware that the case was already scheduled for trial, when he sent the following letter to the court, with copies to plaintiff and defendant's attorney:

Dear Judge Codey:

The above-captioned matter has been ready for trial for some time. I would appreciate it if Your Honor would consider giving this matter a trial date during late March or early April 2002. As of this writing, March 25 and April 1 are open dates on my calendar.

Thank you for your cooperation.

In an apparent effort to comply with the trial notice he received, defendant's attorney wrote the following letter to plaintiff's attorney on February 12, 2002:

We agree that this matter requires no further discovery. At this point, we have a very full calendar, including a substantial trial of an agency termination case in Trenton that will consume at least the first two weeks of April.

We are able to commit to holding the trial of this matter on May 6, 2002. If this meets with your approval, we can inform Judge Codey that we have reached an agreement.

In a follow-up letter to plaintiff's attorney dated March 12, 2002, defendant's attorney stated: "We talked last week regarding the trial date for this matter. Has the [c]ourt confirmed our agreement to begin trial on May 6, 2002?" On the scheduled trial date--March 18, 2002--neither side appeared for trial, and an order was entered dismissing the case. It is clear, however, that plaintiff's attorney did not appear for trial because he was unaware of the trial date, and defendant's attorney did not appear because he believed plaintiff's attorney "was going to seek the new May 6, [2002,] trial date that counsel had agreed upon."

It appears plaintiff's attorney never responded to the letter sent by defendant's attorney requesting confirmation the trial date was adjourned to May 6, 2002, and the court never responded to the letter from plaintiff's attorney requesting a trial date. Nevertheless, no further action was taken to obtain a trial date until July 30, 2004, when plaintiff's attorney wrote the following letter to the court:

Dear Judge Codey:

In connection with the above matter, I represent plaintiff Juanita Galate.

Our office called the Essex County Clerk to ascertain why this matter had not been given a trial date. We were advised that the case had been listed for trial on March 18, 2002, and that the matter was dismissed due to the fact that no one appeared.

My office had not been advised of any trial date and I assume that this was also true of Riker, Danzig, Esqs. who did not appear on the trial date on behalf of the defendant.

I respectfully request that this case be restored to the active trial list without the necessity of a motion and that it be given an October 2004 date.

Thank you for your attention to this matter.

In response to this request, defendant's attorney advised the court that defendant objected to plaintiff's "case being reinstated without a formal motion." Following this exchange of correspondence, nothing happened for more than two and one-half years.

On March 23, 2007, plaintiff filed a motion to reinstate her complaint and to schedule her case for trial. In a certification submitted in support of plaintiff's motion, plaintiff's attorney explained that he was never notified the case was scheduled for trial on March 18, 2002, and he did not learn of the dismissal order until his "office contacted the Essex County Civil Assignment Clerk to ascertain when this matter would be scheduled for trial." However, plaintiff's attorney did not explain why no action was taken to reinstate plaintiff's complaint between July 30, 2004, and March 23, 2007.

In his brief in opposition to plaintiff's motion, defendant argued he would suffer "irreparable prejudice" if plaintiff's complaint was reinstated because the memories of potential witnesses, who were present during plaintiff's personal injury trial in August 1996, "like the underlying defendant's attorney, the underlying defendant, and perhaps court personnel, have all long ago faded." In reply, plaintiff argued as follows:

There is no prejudice whatsoever to defendant Chiarolanza. It is a simple fact question. Certainly, defendant Chiarolanza cannot argue that he doesn't remember if he told plaintiff Galate about the settlement offer. He has remained steadfast throughout this litigation that he informed her of the settlement offer. If the jury believes him, he wins. This is a credibility determination case between two persons.

Following oral argument on April 27, 2007, the trial court denied plaintiff's motion to reinstate her complaint. The court found that the five-year delay after the dismissal of plaintiff's complaint on March 18, 2002, prejudiced defendant's ability to respond to plaintiff's claims, and it also found that plaintiff failed to articulate any explanation for the "lack of activity on this file" since July 2004.

On appeal, plaintiff presents the following arguments:

POINT I

THE MARCH 18, 2002, ORDER OF DISPOSITION IS VOID AB INITIO AND UNENFORCEABLE.

POINT II

DEFENDANTS' ARGUMENT THAT THE MARCH 18, 2002 ORDER OF DISPOSITION CONSTITUTES A FINAL JUDGMENT IN THIS MATTER IS ERRONEOUS AS A MATTER OF LAW.

POINT III

THE MOTION JUDGE ERRED IN CONCLUDING THAT DEFENDANTS HAVE SUFFERED PREJUDICE HEREIN.

POINT IV

THE MOTION JUDGE'S REFUSAL TO REINSTATE PLAINTIFF'S COMPLAINT AND TO SET A TRIAL DATE UNDER THE CIRCUMSTANCES HEREIN CONSTITUTES VIOLATION OF PLAINTIFF'S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.

POINT V

THE CHRONOLOGICAL SEQUENCE OF EVENTS IN THIS CASE DOES NOT MILITATE AGAINST REINSTATEMENT OF PLAINTIFF'S COMPLAINT.

Based on our review of the record and the applicable law, we reject these arguments and affirm.

We review a trial court's decision to deny a motion to reinstate a complaint under an abuse of discretion standard. Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007). As noted in Higgins v. Polk, 14 N.J. 490, 493 (1954): "Judicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." "In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue." Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002).

In this case, the trial court determined that plaintiff failed to present "any explanation for the . . . lack of activity" after plaintiff's attorney learned the case had been dismissed. Given the extent of the delay, the court also found that defendant would be prejudiced if plaintiff's complaint was reinstated. In our view, these findings are adequately supported by the record, and the court's decision to deny plaintiff's motion to reinstate her complaint was not an abuse of discretion.

 
Affirmed.

Because there is no need to distinguish between Louis A. Chiarolanza, Esq. and his law firm, we refer to Louis A Chiarolanza, Esq. as "defendant."

(continued)

(continued)

8

A-5179-06T3

February 22, 2008