DOWN TO EARTH LANDSCAPING IRRIGATION CONTRACTORS INC v. THOMAS SUCHOCKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DOWN TO EARTH LANDSCAPING

IRRIGATION CONTRACTORS, INC.,

Plaintiff-Respondent,

v.

THOMAS SUCHOCKI,

Defendant-Appellant.

_____________________________________

Telephonically argued January 30, 2015 Decided October 14, 2015

Before Judges Ostrer and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-603-12.

Weir & Partners, attorneys for appellant (Wesley Fenza, of counsel and on the brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

Defendant Thomas Suchocki appeals the Law Division order denying his motion to reinstate his designation of John Eastlack, Jr. as trial counsel pursuant to Rule 4:25-4. We reverse.

We discern the following facts and procedural history from the record. On April 18, 2012, plaintiff Down to Earth Landscaping Irrigation Contractors, Inc. filed a one-count complaint against defendant alleging breach of contract. In his answer to the complaint, defendant denied all the allegations and pursuant to Rule 4:5-1(c) designated Eastlack as trial counsel. The initial trial date of August 19, 2013 was adjourned due to plaintiff's incomplete discovery. The next trial date of October 15, 2013 and at least two other trial dates were adjourned as well. The other dates, along with the reasons for adjournments, are not disclosed in the record.

Nonetheless, on June 16, 2014, the parties appeared for trial. Due to plaintiff's counsel's medical emergency at the courthouse the trial was adjourned to September 8, 2014. Two days later, after checking his upcoming trial calendar, Eastlack wrote a letter to the court advising that he was previously scheduled to start an eight-week trial on July 14, 2014 for a case that was approximately three years older than the present matter, as well as having another matter previously scheduled for trial on September 8. Both of those matters were venued in a neighboring county, and the judges presiding over those trials were identified in the letter.1 The letter did not specifically request an adjournment due to Eastlack's scheduling conflicts, however, it was implicit in the communication.

Although the record lacks supporting documentation, it appears that the trial court denied the adjournment request and waived Eastlack's designation as trial counsel without giving defendant an opportunity to be heard. In turn, defendant filed a motion to reinstate Eastlack as trial counsel and reschedule the trial to a date that did not conflict with his other trial commitments. Plaintiff did not oppose the motion. The court denied the motion on the papers on July 22, 2014, incorrectly stating that it was plaintiff's motion. The court reasoned on the record

The [c]ourt has discretion, as I view [Rule 4:5-1(c)], in granting or denying the request at hand, in waiving trial designation. Again, this case was postponed four times given the fact that the plaintiff's counsel was unavailable.

To the extent that the matter moves forward in September, the plaintiff [sic] will have to secure counsel within the firm or outside the firm that they deem appropriate. But the [c]ourt does not, under the circumstances, find that designation of trial counsel in this matter should be reinstated.

Thereafter, defendant sought to stay this matter pending an appeal of the court's denial of his motion. The court denied the request on August 26, 2014. On appeal, we disagreed and granted leave to appeal on September 5, 2014.

Before us, defendant argues that the trial court lacks the discretion under Rule 4:25-4 to waive trial counsel designation in a contract action. In the alternative, he contends that there was no basis under the rule to vacate trial counsel designation because the matter was pending for less than three years, and there was no need that the trial be held immediately. Plaintiff did not submit any opposition.

We begin with the premise that the granting or denial of an adjournment is at the discretion of the trial judge. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003). Our courts have long and consistently held to the general standard of review that an appellate court will reverse for failure to grant an adjournment only if the trial court abused its discretion, causing a party a "manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011) (citation and internal quotation marks omitted); accord Allegro v. Afton Vill. Corp., 9 N.J. 156, 161 (1952); State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926). "Calendars must be controlled by the court, not unilaterally by [counsel], if civil cases are to be processed in an orderly and expeditious manner." Vargas v. Camilo, 354 N.J. Super. 422, 431 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003).

Even so, a designated trial counsel may impact the trial calendar. A civil party may name a specific attorney as the party's designated trial counsel pursuant to Rule 4:25-4, which states in part

Counsel shall, either in the first pleading or in a writing filed no later than ten days after the expiration of the discovery period, notify the court that designated counsel is to try the case, and set forth the name specifically. If there has been no such notification to the court, the right to designate trial counsel shall be deemed waived. No change in such designated counsel shall be made without leave of court if such change will interfere with the trial schedule. In Track I or II tort cases pending for more than two years, and in Track III or IV tort cases, other than medical malpractice cases, pending for more than three years, the court, on such notice to the parties as it deems adequate in the circumstances, may disregard the designation if the unavailability of designated counsel will delay trial. If the name of trial counsel is not specifically set forth, the court and opposing counsel shall have the right to expect any partner or associate to proceed with the trial of the case, when reached on the calendar.

Though the rule does not expressly say so, designation of trial counsel provides a valid justification for an adjournment of a scheduled trial date if the named attorney has a superseding commitment in another court. SeeHarmon Cove II Condo. Ass'n, Inc. v. Hartz Mountain Indus., 258 N.J. Super. 519 (App. Div. 1992). In fact, in Harmon Cove, we implied that the trial court had no choice but to adjourn a trial where the designated trial attorney was committed to another trial. Id. at 522-23.

Initially, we must address the court's mistaken belief that the motion to seek an adjournment and vacate the court's sua sponte decision to waive designated trial counsel was filed by plaintiff. The limited record before us suggests that the first and last adjournments were due to plaintiff, and it is unclear whether defendant was responsible for any of the other adjournments noted by the court. Yet, had the court correctly recognized that the motion was filed by defendant, it is uncertain whether it still would have granted the motion. Nevertheless, the trial court misapplied Rule 4:25-4. Pursuant to the Rule, the court, on notice to the parties, "may disregard the designation if the unavailability of designated counsel will delay trial" in Track I or II tort cases pending for more than two years old, or Track III or IV tort cases, other than medical malpractice cases, pending for more than three years. Since this matter is a contract case, the clear implication is that the court has no discretion to waive designated trial counsel. Thus, the court should not have waived designated trial counsel.

As for the court's decision to reject defendant's request to adjourn the September 8 trial date, we conclude the court abused its discretion. We acknowledge the tension between the trial court's management goal to resolve cases in a timely manner with the unpredictability of forecasting the parties' trial readiness. However, the recourse taken here was not fair to defendant.

We see no reasonable effort by the trial court to address the good cause that defendant's designated trial counsel might not have been able to proceed on the September 8 trial date. See Harmon Cove, supra, 258 N.J. Super. at 522 ("Proper management procedures require that the Presiding Judges of the Divisions, and ultimately the Assignment Judges, should resolve intervicinage conflicts."). The court should have allowed designated trial counsel to remain in effect and waited closer to the September 8 trial date before determining if there was good cause to adjourn the matter due to any of the legitimate reasons provided, including the continuation of the estimated eight-week out-of-county trial starting on July 14, and considering whether the other out-of-county matter also scheduled for trial on September 8 was proceeding.

Reversed and remanded for trial.

1 We presume that the other matter scheduled for September 8 was older than the present matter because it had a lower docket number. However, the matters were filed in different counties and the record provided does not confirm our presumption.