LINDA M. PANGIONE v. FLORAL EXPRESSIONS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4400-07T14400-07T1

LINDA M. PANGIONE,

Plaintiff-Appellant,

v.

FLORAL EXPRESSIONS, INC.

and LORRAINE MONROE,

Defendants-Respondents.

________________________________________

 

Submitted March 18, 2009 - Decided

Before Judges Lyons and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1057-06.

Begelman Orlow & Melletz, attorneys for appellant (Jordan R. Irwin, on the brief).

Lansing and Hannum, attorneys for respondents (Judy M. Lansing, on the brief).

PER CURIAM

Plaintiff, Linda M. Pangione, appeals from an order dismissing with prejudice her complaint against defendants, Floral Expressions, Inc. and Lorraine Monroe. Plaintiff's complaint is based upon defendants' alleged violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 5-42. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

In the summer of 2004, plaintiff began working for defendants as a floral designer. On August 9, 2005, plaintiff's employment was terminated by defendants. On November 2, 2005, plaintiff filed suit against defendants alleging violations of LAD. On April 13, 2006, defendants filed their answer and discovery ensued. Due to reasons attributed to the parties and their counsel, discovery was protracted and the initial trial date, as well as four subsequent trial dates, was adjourned.

The trial date was eventually set for December 10, 2007. That date was adjourned at defendant's request with the consent of plaintiff due to the illness of the individual defendant. A new trial date was set for January 22, 2008. On January 2, 2008, however, plaintiff's mother died in Florida where she had been living with her eighty-nine year old husband. Accordingly, the January 22, 2008, trial date was adjourned to March 31, 2008, so that plaintiff could attend to her mother's estate and make arrangements to care for her father.

On March 25, 2006, plaintiff's counsel, by letter, sought an adjournment from the court. Plaintiff's counsel advised the court that his client had gone to Florida to be with her family. His client's intention was to return to New Jersey later in January, but unfortunately his client's sister initiated legal proceedings concerning her father's mental competency, as well as who would control the estate left to him by his deceased wife. Plaintiff's counsel further advised that his client's sister was in the process of attempting to have her father judicially declared mentally incompetent and to have herself appointed as his legal guardian.

Counsel advised that plaintiff's father was eighty-nine years old and had numerous physical problems, including a heart condition, diabetes, a limited ability to walk, and care for his daily needs, and that he required care around the clock. Plaintiff's counsel informed the court that the Florida court had appointed an attorney to serve as temporary guardian for the father and had named his client to serve as caretaker due to his numerous physical problems. Accordingly, counsel asked that the March 31 trial date be adjourned and relisted for a date in the future at which time plaintiff would be able to return to New Jersey.

The adjournment request was denied and counsel appeared on Monday, March 31, 2008, before the trial court. At that time, plaintiff's counsel renewed his request for an adjournment. Counsel again relayed the factual basis for his request and sought to have the trial adjourned to September or October 2008. The trial court scheduled the case to commence on Thursday, April 3, 2008.

On April 3, 2008, counsel for plaintiff and defendant appeared and again plaintiff's counsel sought an adjournment, advising that plaintiff was unable to leave her father due to his numerous physical ailments, as well as the pending litigation in Florida.

The trial court then conducted a hearing on the record concerning the matter. The court pointed out at the outset that the case was "backlogged" in that it was two years and four months old and it was "time to go." The court then discussed the prior settlement discussions that had been had with the court, noting "my plan would be to get the case settled, but, you know, I don't know."

The trial court then explored with the parties whether the case could be dismissed without prejudice and then refiled at a later date. Defense counsel refused to consent to such a plan. Plaintiff then, once again, attempted to explain his client's problem. The trial court stated that if plaintiff wanted to commence the trial on Monday, April 7, following the intervening weekend, that could be arranged. Again, plaintiff's counsel said that, given the precarious family situation, his client could not be here that quickly. He noted that arrangements for health care would have to be made, that his client was concerned her father might pass away during her absence, or that some other problem arising from the litigation may arise in her absence.

Defense counsel objected to any delay. Plaintiff's counsel again argued that his client would not be able to be there on Monday, April 7, but asked that a date-certain in the future be established.

The trial court in response noted that the court was facing a serious backlog situation, as well as budget cuts with respect to its personnel, and that it was not able to accommodate setting a date-certain. The court went on to say "this isn't the only case I have to worry about, Mr. Irwin. Your client may think that. She may think she's the only one in the world with problems, but I can assure you there is [sic] a lot of people with a lot of problems." The court went on to say, "I don't know that this problem is so unusual, so unique. It sounds like it's ongoing, it's not going to resolve itself. So, I am going to dismiss the case with prejudice." Following the entry of an order dismissing the case with prejudice, this appeal ensued.

On appeal, plaintiff argues that the trial court acted improperly and did not appropriately exercise its discretion when it dismissed her lawsuit, given plaintiff was unable to attend the trial due to a family crisis/emergency. Defense counsel disagrees and argues that the court did not abuse its discretion and that dismissal was the proper sanction. Defense counsel also argues she is entitled to attorney's fees as the prevailing party in this LAD action.

Rule 4:36-3(b) provides that if there is a second request for an adjournment, the court shall determine the matter. The Rule also provides, "[r]equests for adjournment should be made as soon as the need is known but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week." This request was made timely under the Rule, that is, on the Wednesday preceding the Monday of the trial week.

The determination as to whether an adjournment should have been granted rested within the sound discretion of the trial court. See State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971).

An appellate court is obliged to sustain a trial court's exercise of its discretionary power absent a clear showing that such authority has been abused. Bass v. DeVink, 336 N.J. Super. 450, 456 (App. Div.), certif. denied, 168 N.J. 292 (2001).

Our Supreme Court has said:

Although the ordinary "abuse of discretion" standard defies precise definition, it arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985). In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue. It may be "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999) (internal quotations and citations omitted). "Ordinarily, an abuse of discretion will be manifest if defendant can show that a [discretionary decision] (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Baynes, 148 N.J. 434, 444 (1997) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

[Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002).]

It is necessary, therefore, for us to review whether the trial court considered all the relevant factors and whether the court's consideration amounted to a clear error in judgment. It is clear from the transcript that the trial court's primary consideration was the vicinage's backlog and the difficulty in accommodating plaintiff's request for a trial with a date-certain in the future. It is also clear that the court did not view plaintiff's personal situation as unique or meriting any special consideration.

On the other hand, there appear to be factors which the court did not appropriately identify, weigh, and consider. The Supreme Court has stated that "[t]he judicial branch has an over-arching constitutional responsibility to guarantee the proper administration of justice. . . ." State v. Williams, 93 N.J. 39, 62 (1983). Justice clearly envisions that legal disputes will be presented to an impartial trier of fact after a reasonable period of discovery for resolution on the merits. Advancing this concept promotes the courts as the proper forum to resolve disputes between litigants and fosters public confidence in our judicial system. "One of the most important obligations of government, and in particular of the judiciary, is to legitimately preserve public confidence." In re Commitment of Edward S., 118 N.J. 118, 148 (1990).

These principles have been embodied by the Supreme Court in Rule 1:1-2, which reads, in pertinent part, that "[t]he rules

. . . shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." While the Court Rules include as one of their ends the elimination of delay, it is important to note that the goal is not the elimination of any and all delay but the elimination of "unjustifiable" delay.

We certainly recognize the significant pressures on trial judges to reduce case backlog and increase case clearance rates. Leitner v. Toms River Regional Schools, 392 N.J. Super. 80, 91 (App. Div. 2007). We also recognize that defendant opposed the adjournment and had a legitimate interest in disposing the case. But these notable objectives do not stand alone. The fundamental aim is a just determination following a trial on the merits. Dismissal with prejudice, on the other hand, is the ultimate sanction and is normally ordered only when no lesser sanction will suffice to erase the prejudice suffered by a non-delinquent party. Zaccardi v. Becker, 88 N.J. 245, 253 (1982).

Again, we recognize that there are significant and constant pressures on the trial courts to reduce backlog and increase clearance rates. Here, however, we are faced with a situation in which both parties have, during the course of litigation, sought and received trial adjournments due to personal problems. At the time of trial, this plaintiff was faced with a "Sophie's Choice." She could have abandoned her eighty-nine year old seriously ill father in Florida to pursue this litigation or she could have stayed to care for him and his affairs and see her chance of any adjudication of this litigation on the merits evaporate. Such a situation was unfortunate, special, and avoidable. It merits a solution short of dismissal with prejudice in light of the judiciary's fundamental principles. The trial court could have denied plaintiff's counsel's request for a further five month adjournment and yet it could have determined a reasonably shorter period for plaintiff to either settle her dispute with her sister or make arrangements to have her father appropriately cared for and attend a trial. Sanctions by way of fees could also have been considered. However, these avenues were not explored.

The principles of achieving a just determination and fairness in the administration of the Rules outweigh any short delay in this situation. Further, we note that there was no prejudice demonstrated by defendant in a short delay, other than her appearances at the trial call. We, therefore, conclude that the decision of the trial court was in error and a mistaken exercise of discretion. Accordingly, we reverse and remand so that a trial date can be set.

 
Reversed.

The request was timely pursuant to Rule 4:36-3(b).

Defense counsel did not raise this issue before the trial court or cross appeal. Accordingly, we do not address it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

In Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568 (2003), the Court made note of that principle and remanded the matter before it to the trial court to reconsider the court's exercise of discretion in dismissing a case with prejudice based upon plaintiff's lack of candor with respect to the ability to produce an expert witness at trial. We note that in the Kosmowski case, the case was over five years old at the time of the dismissal with prejudice and over seven years old at the time of the Supreme Court's remand.

(continued)

(continued)

11

A-4400-07T1

March 31, 2009