ANDREW M. KIMMEL v. MAUREEN S. MAIMONE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1524-07T11524-07T1

ANDREW M. KIMMEL,

Plaintiff-Appellant,

v.

MAUREEN S. MAIMONE,

Defendant-Respondent.

_________________________________

 

Argued December 16, 2008 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth County,

Docket No. FM-13-1395-06D.

Edward J. Gilhooly argued the cause for

appellant.

Terry M. Silpe argued the cause for respondent.

PER CURIAM

Plaintiff Andrew M. Kimmel appeals from the order of the Law Division dismissing his cause of action against defendant Maureen Maimone. In this suit, plaintiff alleges that, over a twelve-year period, he paid all of the costs to keep and maintain certain real property owned by defendant in Ocean Township. He thus seeks legal recognition of a proprietary interest in this property.

Plaintiff was a suspended attorney when he initially appeared pro se before the trial court. He now argues, through counsel, that the court abused its discretion in dismissing his complaint with prejudice as a sanction for his failure to attend a case management conference. We agree and reverse.

These are the salient facts. The parties were previously romantically involved and lived together in the same house for fifteen years, from 1988 to 2003. The house they shared (with defendant's son) is located in Ocean Township, and was acquired by defendant in 1986. The deed of title reflected a purchase price of $255,000. According to plaintiff, during the fifteen years he shared the house with defendant he made substantial monetary contributions toward the upkeep of the property, including paying the mortgage, real estate taxes, insurance premiums, utilities and improvements.

Defendant was married to another man when she began living with plaintiff. Plaintiff claims that in 1992, defendant was rendered "penniless" as result of a $977,847 judgment entered against her and her estranged husband from a law suit filed by the husband's family trust. In order to avoid financial ruination, defendant entered into a settlement agreement with the husband's family trust whereby she transferred to the trust funds she kept in various banks; to protect her interest in the house she shared with plaintiff, defendant further agreed to pay the trust a lump sum payment of $20,000.

In his complaint, plaintiff alleges that he gave defendant the $20,000 necessary to finalize the settlement agreement. Defendant was divorced from her husband on March 26, 1993. As part of the judgment of divorce, the husband gave up any interest he may have had in the real property located in Ocean Township.

According to plaintiff, from January 1992 to January 6, 2006, in addition to paying all of the expenses associated with the property, he also paid all of the personal expenses for defendant and her son. In 2003, plaintiff purchased for defendant a used 1998 Mercedes Benz E320, for the price of $25,000. Plaintiff claims that during this period of time, they (defendant, her son, and plaintiff) acted like a family in all respects, with plaintiff assuming complete financial responsibility for all personal and property-related expenses. He estimates that from January 1992 to January 2006, he paid as much as $1,125,000 to maintain "the family's" lifestyle.

On March 21, 2006, plaintiff, then a practicing attorney, filed a complaint against defendant reciting, in greater detail, the facts outlined here. The complaint sought recognition of an un-quantified beneficial interest in defendant's Ocean Township property, to be enforced by dividing the proceeds from the sale of the property; he requested similar relief with respect to the personal property contained in the real property. The second count of the complaint listed unjust enrichment as the grounds for relief.

Defendant filed an answer and counterclaim on April 24, 2006. Before any discovery commenced, defendant moved to discharge a lis pendens filed by plaintiff against the property. On May 31, 2006, the court granted defendant's motion to discharge the lis pendens, and entered an order precluding plaintiff from taking defendant's deposition, and denied plaintiff access to certain records he had requested defendant to bring with her to the deposition.

In the statement of reasons attached to the orders, the motion judge noted that defense counsel was willing to produce his client, provided that the deposition took place at his office. However, instead of providing plaintiff with that option, the court denied outright plaintiff's motion to take defendant's deposition.

The judge also noted that on March 28, 2006, defendant had obtained a final restraining order against plaintiff under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Citing a trial court opinion that considered the question of whether a husband subject to a restraining order could attend his wife's deposition, the motion judge concluded that he did not have to decide this issue, "[i]n view of the ruling" concerning the merits of plaintiff's cause of action.

The motion judge then analyzed plaintiff's claims, assessing the merits of plaintiff's allegations against defendant's response. At the conclusion of this analysis, the court found: "Even if all of the allegations of plaintiff's two count complaint are true, he is not, as a matter of law, entitled to any equitable distribution of this property solely in the name of defendant Maimone." The court then entered an order discharging the lis pendens.

On June 19, 2006, the trial court scheduled a case management conference. Plaintiff failed to appear. On that same date, the court entered a fill-in-the-blank form of order with the following notation: "Plaintiff's pleadings are stricken for failure to appear." Although from this statement, it is unclear whether the court intended that the dismissal be with prejudice, both the parties and the trial court behaved as if this was a final dismissal with prejudice.

On June 28, 2006, plaintiff filed a motion to reinstate his pleadings, which included his answer to defendant's counterclaim. The motion was supported by his certification indicating that he had not received notice of the case management conference. Plaintiff requested that the court reinstate his pleadings, and consider the imposition of a lesser sanction under R. 1:2-4(a). Defendant filed a cross-motion seeking to hold plaintiff in contempt for refusing to discharge the lis pendens, to enforce litigant's rights with respect to counsel fees, and to quash a subpoena plaintiff had served on defendant's sister, to take her deposition.

The motion and cross-motion were heard by the court on August 18, 2006. After again reciting the facts alleged and legal contentions advanced by plaintiff in his complaint, the motion judge denied plaintiff's motion to reinstate his pleadings, rejecting as not credible, plaintiff's certified statement that he did not receive notice of the case management conference.

Rule 1:2-4 authorizes the court to impose sanctions upon a party for failing to appear, without just excuse, at a scheduled court event. Among the sanctions available are:

(a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, either to the Clerk of the Court . . . or to the adverse party; (b) the payment by the delinquent attorney or party of the reasonable expenses, including attorney's fees, to the aggrieved party; (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; or (d) such other action as it deems appropriate.

[R. 1:2-4(a).]

It is well-settled that the sanction of dismissal of a pleading with prejudice should be one of last resort, reserved for the most egregious violations of our procedural rules. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003); Johnson v. Mountainside Hosp. Resp. Disease Assoc., 199 N.J. Super. 114 (App. Div. 1985). The court should consider lesser sanctions absent a specific finding that the delinquent conduct caused serious prejudice to either the administration of justice or an adverse party. Gonzales & Safe & Sound Sec. Corp., 185 N.J. 100, 116 (2005). Civil disputes should be decided on their merits, not as a consequence for a procedural misstep.

On this record, the sanction of dismissal of plaintiff's cause of action and the suppression of his responsive pleading cannot stand. Under Rule 1:2-4, the motion judge had at his disposal a menu of far lesser sanctions, commensurate with the relatively minor indiscretion committed by plaintiff. The use of the ultimate sanction under these circumstances was an abuse of the discretionary authority conferred upon the court by Rule 1:2-4. The order dismissing plaintiff's pleadings is vacated. The matter is remanded to the trial court for such further proceedings as may be warranted.

Reversed and remanded.

By order dated May 24, 2006, the Supreme Court temporarily suspended plaintiff from the practice of law until further order of the Court. In re Kimmel, 186 N.J. 583 (2006). As of the date of this opinion, plaintiff remains suspended. See In re Kimmel, ____ N.J. ____ (2009), Supreme Court's Order dated March 24, 2009.

Mugrage v. Mugrage, 335 N.J. Super. 653 (Ch. Div. 2000).

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A-1524-07T1

June 10, 2009