WANDA WALIS v. ANTHONY GARRONE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02589-14T2

WANDA WALIS,

Plaintiff-Appellant,

v.

ANTHONY GARRONE,

Defendant-Respondent.

__________________________

November 18, 2016

Submitted October 25, 2016 Decided

Before Judges Messano and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-5572-14.

Theodore E. Kyles, Jr., attorney for appellant.

Law Offices of Curt J. Geisler, L.L.C, attorney for respondent (Amy E. Lefkowitz, of counsel and on the brief).

PER CURIAM

Plaintiff Wanda Walis filed a pro se complaint in the Special Civil Part alleging defendant Anthony Garrone breached his contract to perform repairs on plaintiff's house in Passaic. Defendant, through counsel, filed an answer. There is no indication that any discovery took place before the parties appeared in court for trial on June 3, 2014.

Plaintiff testified that she had paid defendant the full contract price of $11,000, but he removed and failed to replace certain gutters, and damaged an electrical "conduit" and the roof. Plaintiff had secured an estimate for some of the damage, but no expert appeared on her behalf at trial. Plaintiff then called her son, Robert, who lived with her in the house. Although unemployed at the time of trial, he had been involved in construction his "whole life" and most recently worked as the manager of corporate construction for a large fashion company.

The judge eventually told plaintiff an expert was necessary "to attest to the damages." The judge adjourned the trial until July 8, 2014, and told plaintiff she needed to advise the court and defense counsel by June 18 of the name of "the proposed expert or experts" she intended to use. If plaintiff failed to comply, the judge said she would "dismiss the case without prejudice and allow [plaintiff] to refile it." She told plaintiff, "If you want to take your time to get somebody, you can come back and refile."

Shortly before the July 8 trial date, plaintiff retained an architect, Gary I. Segal. Apparently, plaintiff requested an adjournment, and both parties received notice of the new date, August 6.1 Plaintiff served a handwritten request for a second adjournment on July 28, noting Segal was out-of-state until August 9, and asking for a new trial date after August 15.

On July 30, defense counsel sent a letter to the judge, stating that plaintiff had not furnished the name of her expert and requesting the matter be dismissed, as the judge had previously indicated she would. However, plaintiff appeared for trial on August 6, with a different expert, defendant failed to appear and the court entered default in favor of plaintiff.2

Defense counsel sent another letter to the court. Although dated July 30, it obviously was sent at a later time. Defense counsel stated she had checked the court's computerized records system, which reflected the matter was dismissed without prejudice, and, as a result, neither she nor defendant appeared on August 6. Defendant subsequently moved to vacate default.

The parties appeared before the judge again on October 29, and plaintiff did not have an expert witness. Defense counsel acknowledged having spoken to Segal, but stated there was no indication he had been retained. She sought dismissal of the complaint, without "further prejudice to [her] client." Plaintiff reiterated that defense counsel had been "in contact with Segal right along," and noted he had billed plaintiff for a conference call with plaintiff and defense counsel.

The judge recounted the procedural history, concluded that plaintiff had not notified the court or defense counsel of the expert she had retained by June 18, and plaintiff's adjournment request was made without notice to defendant, resulting in the August 6 default. She dismissed the complaint with prejudice, and this appeal ensued.

Plaintiff argues that the judge erred by failing to permit plaintiff's son to testify as an expert, in vacating the default and in dismissing the complaint with prejudice. The first two arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Plaintiff never offered her son as an expert witness. A motion to vacate default, pursuant to Rule 4:43-3, made applicable to the Special Civil Part by Rule 6:6-1, only requires a showing of good cause, a much less stringent standard than what is required to set aside a default judgment pursuant to Rule 4:50-1. See Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:43-3 (2016) (collecting cases). Defendant clearly demonstrated good cause for not appearing on August 6, 2014.

We also agree that plaintiff's complaint was properly dismissed on October 29, 2014. Plaintiff needed an expert to testify about defendant's alleged shoddy workmanship and the quantum of damages plaintiff suffered. See, e.g., Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 407 (2014) (holding expert testimony is necessary when "the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the [defendant] was reasonable") (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)). The failure to produce an expert is grounds for involuntary dismissal pursuant to Rule 4:37-2(b), made applicable to the Special Civil Part by Rule 6:5-1. Pressler & Verneiro, supra, comment 2.3 on R. 4:37. Further, unless the order provides otherwise, an involuntary dismissal under Rule 4:37-2(b) "operates as an adjudication on the merits." R. 4:37-2(d).

However, in discussing the interplay between sections (b) and (d) of Rule 4:37-2, the Court has said that "a dismissal with prejudice is a severe sanction that should be imposed sparingly and 'only when no lesser sanction will erase the prejudice suffered by the non-delinquent party.'" Woodward-Clyde Consultants v. Chemical & Pollution Scis., Inc., 105 N.J. 464, 471 (1987) (quoting Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 345 (1984)). In Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568 (2003), the Court addressed the factors a trial court must consider in its discretionary decision as to whether a case should be adjourned, rather than dismissed with prejudice, due to the unavailability of a plaintiff's expert

[T]he court must focus on the tension between, on the one hand, the salutary principle that the sins of the advocate should not be visited on the blameless litigant, and, on the other the court's strong interest that management of litigation, if it is to be effective, must lie ultimately with the trial court and not counsel trying the case.

[Id. at 574 (citations omitted).]

We review the judge's decision not to sua sponte adjourn the trial to permit plaintiff to obtain an expert under an abuse of discretion standard. Rocco v. N.J. Transit Rail Operations, 330 N.J. Super. 320, 343-44 (App. Div. 2000). We are sympathetic to the judge's circumstances. She had already extended courtesies to plaintiff by interrupting the trial and granting her time to obtain an expert. However, under the particular facts of this case, we conclude the judge mistakenly exercised her discretion by dismissing the complaint with prejudice.

On the first trial date, the judge interrupted the taking of testimony and explained her concern regarding the lack of an expert witness. The judge reasonably, and over defendant's objection, decided to adjourn the case and gave plaintiff some period of time to retain an expert. However, the judge made it clear that plaintiff's failure to provide the name of her expert to the court and defense counsel by a date certain would result in a dismissal without prejudice.3 In fact, the judge offered plaintiff the opportunity to dismiss the case and refile it "[i]f [she] want[ed] to take [her] time to get somebody." Plaintiff was never advised that her failure to retain an expert would result in a dismissal with prejudice.

Plaintiff, in fact, retained an expert, albeit after June 18, and paid him a retainer. When her request to adjourn the August trial date because of Segal's unavailability was apparently not granted, plaintiff appeared for trial with a different expert. Defendant failed to appear, and plaintiff secured default.

When the parties again appeared for trial in October, the judge focused on plaintiff's failure to notify defendant of her expert's name by June 18, however, defense counsel admitted she was aware that Segal was plaintiff's expert, because she actually spoke to him over the phone. She claimed uncertainty as to whether Segal was "retained." The judge also mistakenly concluded that plaintiff failed to advise defendant of the adjournment request because of Segal's unavailability, but defense counsel admitted she was advised in writing of plaintiff's application. The record also reflects the court notified defendant of the August 6 trial date, yet, relying on the court's computerized records, defendant failed to appear. In short, plaintiff was blameless for defendant's need to vacate default.

As we recently said, "[p]ro se litigants are not entitled to greater rights than litigants who are represented by counsel." Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014) (citing Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982)).

But we also recognized in Rubin in concluding that a self-represented litigant was deprived of a meaningful opportunity to be heard due to a lack of understanding of motion practice that it is "fundamental that the court system . . . protect the procedural rights of all litigants and to accord procedural due process to all litigants."

[Ibid. (quoting Rubin, supra, 188 N.J. Super. at 159).]

Under these circumstances, we affirm dismissal of plaintiff's complaint but modify the order to dismiss the complaint without prejudice. Zeiger v. Wilf, 333 N.J. Super. 258, 290 (App. Div. 2000). Plaintiff may choose to refile her complaint, understanding full well that she is required to produce expert testimony and comply with the rules of discovery governing the Special Civil Part. If plaintiff does choose to refile her complaint, we do not foreclose the court from conditioning the refiling of the complaint under "terms and conditions as the court deems appropriate." R. 4:37-1(b); Mack Auto Imports, Inc. v. Jaguar Cars, Inc., 244 N.J. Super. 254, 260 (App. Div. 1990).

Affirmed as modified.

1 Defense counsel stated that plaintiff requested the adjournment without notice to her. The court's order reflects the case was adjourned for "case management."

2 Plaintiff apparently discharged Segal in late August.

3 Contrary to defendant's assertion in his brief, the judge never ordered plaintiff to serve an expert's report by June 18, 2014.