TOWNSHIP OF HOWELL v. WILLIAM LACKEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3887-07T2 3887-07T2

TOWNSHIP OF HOWELL, a Municipal

Corporation of the State of

New Jersey,

Plaintiff-Respondent,

v.

WILLIAM LACKEY,

Defendant-Appellant.

_______________________________________

 

Submitted January 12, 2009 - Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1862-01.

Capehart & Scatchard, P.A., attorneys for appellant (Robert J. Hagerty, on the brief).

Marriott, Callahan, Blair, Greer & Bongiovanni, attorneys for respondent (Christopher J. Brennan, on the brief).

PER CURIAM

Defendant William Lackey appeals from the January 28, 2008 order granting plaintiff Township of Howell (Township) temporary possession of defendant's property. On appeal, defendant claims the trial court abused its discretion when it denied the request of his attorney to adjourn the matter or, alternatively, to continue the matter because defendant was out of the country. Defendant also contends the court abused its discretion in vacating the stay of the January 28 order. We reverse.

The present action originally stems from an order entered on March 8, 2002, finding that defendant was operating a commercial enterprise on his property in violation of a Township zoning ordinance. The order restrained and enjoined defendant from engaging in such activities. Subsequent to the entry of this order, the parties continued to have disagreements over defendant's compliance with the order, resulting in further judicial proceedings.

In May 2004, the Township obtained a court order permitting it to enter onto defendant's premises and to remove "the illegal items which are the subject matter of this litigation[.]" In October 2004, the parties entered into a Consent Order that, among other terms, provided that "several items of trash remaining on the property will be placed in a dumpster and removed from the property within 30 days. . . . [and] Defendant agrees to keep the property clean and free of equipment and debris consistent with the current zoning of the property." Eighteen months later, in March 2006, the Township filed a motion seeking an order permitting it "to remove all items stored on the property in violation of the various Court rulings in this case." The court denied the motion.

The next action initiated by the Township occurred in September 2007, when it filed yet another motion seeking to enforce litigant's rights. The Township sought an order that permitted it to "remove all items stored on the property in violation of the various Court rulings in this case." In support of the motion, the Township's Code Enforcement Official, Christian Jackson, submitted a certification in which he detailed what he described as the "long and tortured" efforts by the Township to have defendant enjoined "from continuing any non-agricultural use of his property[.]" The court, in a letter dated October 25, 2007, notified counsel that it was scheduling "a three[-]hour hearing concerning the Enforcement of Litigants Rights . . . for November 8, 2007 at 9:00 a.m." That date was subsequently adjourned to November 29 and later rescheduled to January 3, 2008.

Defendant did not appear at the January 3 hearing. His attorney did appear and represented to the court that he believed he notified his client of the January 3 date but could not be sure until he returned to his office. He indicated to the court, however, that he may have been in error in failing to notify defendant. Additionally, counsel indicated that he had corresponded with defendant via e-mail the previous week to remind defendant about the hearing date and did not receive a response from defendant until the very day of the hearing. Defense counsel explained that he received an e-mail from defendant that morning stating "I didn't know about this date and I am in Central America, I have no telephone access and I have sporadic e-mail access." The court's response to defense counsel's explanation was as follows:

Well, I don't think we can look at this in a vacuum. We have to look at this, you know, with the history of this case, which is constant agreement on his part to do things and then just complete failure to do them, based on the . . . plaintiff's allegations. And if we were to put the case off every time he came up with a story, obviously, this case would never get done.

And I think at this point, it's time to just sit down, take some testimony, and . . . go forward with it. To me, he's been given more than enough opportunity to know that the proceeding was on today, and this is a very serious proceeding. It's been going on for a long while. It's six, almost seven years old, and the Borough still hasn't gotten -- or the Township still hasn't gotten compliance with the Court's orders. And to say that, well, now he's in Central America, you know, I really don't think I'd be doing justice if I allowed the matter to be put off at this point.

The court proceeded with the hearing and declined to continue the matter for a later date to allow defendant to appear. At the conclusion of the hearing, the court entered judgment in favor of the Township and directed that it submit an order, for the court's signature, granting temporary possession of the property to the Township, issuing a writ of possession to the Sheriff, giving the Township forty-five days to tag items that it designated should be removed from the property, and affording defendant, under escort, forty-five days to remove the tagged property.

One week later, on January 10, defense counsel wrote to the court advising that he was responsible for his client's non-appearance because he mistakenly believed that his secretary had informed defendant of the new date when she in fact had not done so. He indicated that his client had returned from Central America, had livestock on the property that required care, and requested that the court reopen the hearing. Defense counsel also sought a stay of the court's order if it was not inclined to reopen the hearing. Defense counsel received no response to this correspondence from the court.

The court signed the order memorializing its January 3 oral decision on January 28. Defendant moved for a stay and, in support of the motion, submitted a certification along with certifications from his attorney and his attorney's secretary.

In defense counsel's certification, he stated his secretary had advised defendant that the November 29 date had been adjourned without a new date and that the office would advise defendant of the rescheduled date once a new date was received. Because defense counsel believed that his secretary had already advised defendant of the January 3 date, he never advised her of the new date.

In her certification, the secretary confirmed the sequence of events as described by defense counsel. She stated that "[s]hortly before November 29th, I was informed that the November 29th date was adjourned without a new date. I so informed [defendant], and let him know that we would call him back with the new date once we received it."

On March 14, the court granted a stay of its earlier order. However, the stay was contingent upon defendant posting a $100,000 bond. The Township thereafter moved for reconsideration. Defendant cross-moved for an order reducing or eliminating the requirement that he post a $100,000 bond. On April 14, 2008, defendant filed a Notice of Appeal of the January 28 order.

On April 25, the court conducted a hearing on the Township's reconsideration motion and defendant's cross-motion to reduce or eliminate the posting of the $100,000 bond. The court, in response to defense counsel's application to reopen the hearing, remarked that it did not have the jurisdiction to reopen the hearing in light of the pending appeal but nonetheless stated:

Normally, I don't have a problem if a client misses a hearing because his attorney fails to notify him. I would normally say, okay, we'll give him another bite at the apple. I'm usually very good at that. But here we have a summary judgment that was entered by Judge Lawson seven years ago, and my reading of the file, it still hasn't been complied with.

A trial court's decision to deny an attorney's request for an adjournment is a discretionary decision. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). "Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error." Ibid. (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)). Whether the evidence tends to show that the court has abused its discretion turns on the amount of prejudice suffered by the aggrieved party as a result of such refusal. State v. Smith, 66 N.J. Super. 465, 468 (App. Div. 1961), aff'd, 36 N.J. 307 (1962).

Here, it is evident both from the court's colloquy with defense counsel at the January 3 hearing and at the April 25 hearing that the motivating factor in the court's decision to deny the adjournment or a continuance was the fact that it appeared to the court that for nearly six years, defendant had continuously violated the court's March 13, 2002 order restraining and enjoining him from engaging in "any non-agricultural business/commercial use of the subject premises." That, however, was the precise disputed issue that led the court to schedule a plenary hearing.

Implicit in the court's decision to schedule a plenary hearing was its apparent determination that the competing certifications submitted in support of and against the Township's September 2007 motion to enforce litigant's rights warranted resolution through a hearing. The court was certainly permitted to find that defendant knowingly or inexcusably absented himself from the January 3 hearing and, from that conclusion, determine to proceed with the hearing in defendant's absence. However, such a conclusion should have been based solely upon findings of fact related to whether defendant had timely notice of the proceeding rather than the purported history of defendant's non-compliance with prior court orders. The court, however, characterized defendant's non-appearance as indicative of defendant's "constant agreement on his part to do things and then just complete failure to do them[.]" The court also remarked that "if we were to put the case off every time he came up with a story, obviously, this case would never get done." Yet, nothing in the record before the court in any way suggested that the two earlier adjournments from November 8 and 29 were at the request of defendant or defense counsel.

The prejudice to defendant in conducting the trial in his absence is evident from a review of his certification submitted in opposition to the Township's motion to enforce litigant's rights, in which he disputed that he had moved new equipment onto his property and denied the allegations in Jackson's certification that he had failed to comply with that portion of the 2004 Consent Order requiring him to keep the property clean and free of equipment and debris. The fact that defendant's attorney was present and able to cross-examine witnesses or to produce witnesses on behalf of defendant did not fully protect defendant's interests. The court's ruling not only denied defendant the opportunity to assist his attorney during the trial but also deprived defendant, if he chose to do so, the opportunity to testify and have the court weigh and evaluate his testimony together with all of the other evidence presented.

The court acknowledged during the April 25 enforcement hearing that its normal practice is to grant adjournments when an attorney fails to notify a client of a scheduled court appearance. We conclude that in this instance, the court mistakenly exercised its discretion when it denied defense counsel's adjournment request based upon its consideration of the contested issues before it rather than upon findings of fact related solely to whether defendant was properly notified of the proceeding and inexcusably failed to appear. We are therefore constrained to reverse and remand for a new trial.

In view of our reversal, we need not address whether the court abused its discretion in vacating the stay.

Reversed and remanded.

 

Beyond the statement that the court adjourned the November 8 hearing, contained in the certification of defense counsel's legal secretary submitted in support of defendant's application for a stay of the January 28 order, there is no other explanation in the record for the adjournments.

(continued)

(continued)

10

A-3887-07T2

February 13, 2009