DONALD R. SCHMIDT v. DAVID WATKINS, ESQ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DONALD R. SCHMIDT and

D&D PARTNERSHIP,

Plaintiffs-Appellants,

v.

DAVID WATKINS, ESQ.,

Defendant-Respondent.

____________________________

January 16, 2014

 

 

Before Judges Simonelli, Fasciale and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8688-11.

 

John B. Newman argued the cause for appellants (Newman & Simpson, LLP, attorneys; Mr. Newman, on the briefs).

 

Marc A. Greenberg argued the cause for respondent (Law Offices of David M. Watkins, attorneys; Mr. Greenberg, of counsel and on the brief).

PER CURIAM

Plaintiffs appeal from a February 26, 2013 order dismissing their complaint with prejudice for failure to appear for trial.1 We reverse.

In October 2011, plaintiffs filed their complaint against defendant seeking compensatory and punitive damages flowing from, among other causes of action, an alleged breach of contract. The court scheduled the first trial date for February 11, 2013. On January 28, 2013, plaintiffs' counsel wrote the court requesting an adjournment of the trial. He explained that a United States Magistrate ordered him to appear at a settlement conference on February 11, 2013, and stated that

[i]n addition, my client[, plaintiff Donald Schmidt,] is [seventy-eight] years old and resides in Florida from January through the first week of April. He cannot attend the trial date in February. We respectfully request an adjournment of the trial date to any date after April [fifteenth].[2]

On February 11, 2013, counsel appeared before the judge and plaintiffs' counsel renewed his request for an adjournment. The judge stated that he could dismiss the case, but that "would be harsh." The judge explained that if he were to dismiss the case on February 11, 2013, he would do so without prejudice and afford plaintiffs' counsel an opportunity to seek reinstatement of the complaint. Instead, the judge adjourned the trial until February 25, 2013.

On February 19, 2013, plaintiffs' counsel wrote the court again and explained that Schmidt would not appear for trial on February 25, 2013. Plaintiffs' counsel stated that

[Schmidt], who is now [seventy-nine] years-old, spends the winter in Florida and will be returning [to New Jersey] on April 11[, 2013.]

 

As I argued in [c]ourt on February 11[, 2013], we respectfully submit [that] there would be no prejudice to [defendant] or his counsel if this matter is tried on some date after April [eleventh]. The trial itself will not take long and we do not wish to burden the [c]ourt, [defendant,] or his counsel with unnecessary motion practice . . . when the case is truly ready for trial.

 

Counsel appeared at the February 25, 2013 trial date and the judge "dismissed" the complaint pursuant to Rule 1:2-4(a). On February 26, 2013, the court entered an order dismissing the complaint with prejudice.3

On appeal, plaintiffs argue that the judge erred by dismissing the complaint because less severe sanctions were available for Schmidt's failure to appear on the February 25, 2013 trial date.

We conduct our review of the dismissal order using an abuse of discretion standard. An abuse of discretion arises when a decision was "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted). Applying this standard, we reverse because sanctions lesser than dismissal with prejudice were available to the judge.

The applicable rule pertaining to a party's failure to appear at trial is Rule 1:2-4(a), which provides in part that "[i]f 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:

(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, . . . ; (b) the payment by the delinquent attorney or party or the party applying for the adjournment 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.

 

It is well-settled that because "'dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will erase the prejudice suffered by the non-delinquent party.'" Irani v. K-Mart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995) (quoting Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 345 (1984)). Other than monetary harm, defendant's counsel conceded that defendant has not been prejudiced by the delay.

Notwithstanding the foregoing, our courts are committed to, among other things, fairness and quality service. The judiciary must strive to follow a policy in favor of generally deciding contested matters on their merits rather than based on procedural deficiencies. See Woodward-Clyde Consultants v. Chem. & Pollution Scis., Inc., 105 N.J. 464, 472-74 (1987). "'Cases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available.'" Irani, supra, 281 N.J. Super. at 387 (quoting Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994)). Here, plaintiffs' counsel erroneously believed that if the judge dismissed the complaint for Schmidt's failure to appear on February 25, 2013, the dismissal would be without prejudice and subject to reinstatement. Plaintiffs' counsel explained to us that Schmidt therefore did not appear on the trial date for this reason.

We well understand the Law Division's need to control its schedule and to enforce court rules and scheduling orders; however, the judge had other options to address his reasonably well-founded assessment that the matter was not progressing appropriately. Under Rule 1:2-4, the court could have imposed monetary sanctions for plaintiff's failure to appear at the trial date. We hasten to add that the purpose of such sanctions is to provide incentive for compliance rather than to punish a litigant or attorney. We refer to monetary sanctions only to indicate that alternatives to dismissal of plaintiffs' complaint were available to the court.4 That is so, especially because of the lack of prejudice to defendant.

Accordingly, we reverse, remand, and direct the court to schedule the matter for trial within thirty days of this opinion.5 We do not retain jurisdiction.

1 On May 3, 2013, the court entered an order denying plaintiffs' motion to reinstate the complaint. Plaintiffs did not appeal from this order.

2 Plaintiffs' counsel represented to the judge that defendant objected to the adjournment request because plaintiff refused to accept defendant's settlement offer.

3 At oral argument before us, plaintiffs' counsel stated that he mistakenly believed that the February 26, 2013 dismissal order would be without prejudice. Plaintiffs' counsel explained to us that he believed this because on February 11, 2013, the judge indicated to counsel that the court could dismiss the complaint on that date and allow plaintiffs to seek reinstatement by motion.

4 At oral argument, plaintiffs' counsel conceded that monetary sanctions, including the attorney's fees and costs associated with this appeal, constituted an appropriate remedy. On remand, defense counsel may therefore file a motion for an order awarding him reasonable attorney's fees and costs associated with plaintiff's failure to appear, motion to reinstate the complaint, and this appeal.

5 Plaintiffs' counsel indicated to us that Schmidt is available to proceed in accordance with this time frame.