ELENI M. SKORDOS v. FELIX COLAVITO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4044-09T3

ELENI M. SKORDOS,

Plaintiff-Appellant,

v.

FELIX COLAVITO & DALIA

COLAVITO,

Defendants-Respondents.

_______________________________

March 28, 2011

Submitted March 16, 2011 - Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3886-07.

Eleni M. Skordos, appellant pro se.

Law Offices of William E. Staehle, attorneys for respondents (Felicia G. Smith, of counsel and on the brief).

PER CURIAM

Plaintiff Eleni Skordos appeals from the dismissal of her automobile negligence complaint against defendants Felix and Dalia Colavito (collectively, Colavito) arising out of an automobile accident that occurred on May 21, 2005, in Nutley. From our review of the incomplete record supplied to us by the parties, together with the limited arguments contained in their briefs, we are unable to detect any errors by the Law Division capable of detrimentally affecting the interests of justice. Accordingly, we affirm.

I.

Skordos commenced this action by filing a complaint in the Law Division on May 14, 2007. Because Skordos as the appellant did not provide us with a complete record of the pleadings, see R. 2:6-1(a)(1)(A), we know neither the date when Colavito filed an answer nor the affirmative defenses, if any, claimed by them. Nevertheless, we gather that issue was joined and discovery commenced.1 The nature, scope, timing, and

progress of such discovery is not illuminated in the record, and we are loathe to assume anything about the parties' conduct during that process, except as evidenced by judicial orders. See N.J.R.E. 201(b)(4).

In spite of the sparse procedural record presented to us, we observe that on August 1, 2008, the Law Division granted Colavito's motion to dismiss Skordos's complaint without prejudice "for failure to comply with Court Order of May 23, 2008." The parties did not provide us with a copy of the May 23, 2008 order and the record is barren of even a description of its contents. It is possible, but we do not know for sure, that the May 23, 2008 order related to discovery delinquencies on the part of Skordos.

The record contains no direct information to confirm that whatever was ordered in May 2008 was ever accomplished. Nevertheless, on September 26, 2008, Skordos secured an order from the Law Division stating, "the within matter be and is hereby restored to the active court calendar upon payment of $300.00 restoration fee."2

A year passed, and again, we are unsure of what the parties were doing vis- -vis prosecution and defense of the case during that time frame. From what we can reconstruct, the "$300.00 restoration fee" was either never paid or its payment was contested. Finally, however, in a flurry of motion practice that culminated in an order dated December 4, 2009, a different Law Division judge granted a motion that permitted Skordos's attorney to withdraw as counsel, allowed Skordos thirty days "to retain new counsel," and adjourned a scheduled arbitration hearing from December 15, 2009, until January 10, 2010. Cryptically, the order also provided, "[d]efendants' motion is hereby denied."

We are unable to decipher the exact nature of defendants' motion that was denied, as again, neither party provided us with those motion papers in an appropriate appendix. However, a transcript of the oral argument of December 4, 2009, explains that defendants apparently moved to dismiss the complaint with prejudice for failure to pay the "$300.00 restoration fee."3 The motion court denied defendants' motion without prejudice, commenting, "[if] [Skordos] doesn't retain new [c]ounsel within those [thirty] days, then and you're not advised of any new [c]ounsel, you can always renew your motion, [c]ounsel."

Skordos's appellate brief without reference to an affidavit, certification, or other admissible evidence asserts that she finally obtained new substitute counsel, who tried in vain to file a notice of appearance not a substitution of counsel in the Law Division in late January 2010. See R. 1:11-2(a). The brief further contends that in early February 2010, the new attorney's notice of appearance was rejected as a nonconforming paper by the civil case processing unit of the Law Division because of a lack of an accompanying filing fee. We have not been provided with any competent evidence to suggest when, and under what terms, if any, the notice of appearance was actually accepted for filing with the court. A hearsay letter included in Skordos's appendix dated February 16, 2010, from Skordos's new attorney to the civil case processing unit of the Law Division, suggests that the earliest filing of the notice of appearance was on or after February 16, 2010.

The next substantive court event appears to have been the grant of an unopposed motion made by Colavito, and the concomitant entry of a memorializing order, by the Law Division on February 5, 2010. Without the moving papers, we are at a loss to scrutinize the grounds that were asserted for the relief that was sought, but the order states, "the complaint of plaintiff, Eleni M. Skordos, be and is hereby dismissed with prejudice pursuant to Rule 4:23-5(a)(2)."

Shortly thereafter, Skordos's new attorney filed a motion for reconsideration, seeking to vacate the February 5, 2010 order of dismissal. We have not been provided with these motion papers, and we cannot fathom the basis for invoking Rule 4:49-2's safety valve.4 However, we have reviewed the Law Division's final order of March 19, 2010, which denied Skordos's motion and provided as its rationale the following handwritten notation: "[p]laintiff provided sufficient opportunity and time to retain new counsel and failed to do so." This appeal followed.

II.

Before dismissing an action on other than substantive grounds, a trial court should stop, look, and listen. That is, because a litigant will be deprived of an opportunity to resolve the particular dispute short of a disposition on the merits, such a dismissal should be the choice of last resort. Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 52-53 (App. Div. 2003). Also, albeit in a different context, we have held the following:

There is an overriding policy which is firmly embedded in our law which disfavors the procedural dismissal of cases except on the merits. Procedural dismissal is a choice of last resort not one of the first instance. Surely, dismissal should not ordinarily, if ever, be used punitively or as a method of calendar control.

[State in re D.J.C., 257 N.J. Super. 118, 121 (App. Div. 1992).]

Nevertheless, in the absence of extraordinary circumstances none of which have been demonstrated on this record a trial court maintains a vast reservoir of principled discretion to manage and control all aspects of pretrial procedures in order to ensure the effective administration of our civil justice system. This court "generally defer[s] to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005).

Without question, a movant must provide the information that permits a trial judge to make relevant findings. See Bender v. Adelson, 187 N.J. 411, 429 (2006) (discussing the need for a movant to provide facts supporting a discovery extension requiring a showing of exceptional circumstances). So too, an aggrieved party to an appeal must supply detailed information gleaned from admissible evidence found in the proceedings in the Law Division to an appellate court sufficient to allow us to evaluate whether that party was the victim of an abuse of discretion. From our review of the record, we are unable to reach that conclusion.

It appears to us, as it apparently appeared to the Law Division, that Skordos's resolve to complete the litigational process was eroded to the point of inattention and inaction. The reasons for this nonchalance are not apparent on the record, nor are they relevant. A cavalier approach will rarely trump a discretionary decision by a trial court. As such, we discern no miscarriage of justice in the dismissal of the complaint under these circumstances.

Lastly, we have examined whether to apply Rule 1:1-2, the catch-all relaxation rule. We find that to do so would be inappropriate and itself an abuse of discretion. "That Rule 'should be sparingly resorted to,' [Pressler and Verniero, Current N.J. Court Rules, comment 2 on R. 1:1-2 (2011)] and, in this matter, it only would serve to excuse a lack of diligence." Id. at 431.

Affirmed.

1 Skordos asserts in her appellate brief, without citation to the record or reference to an affidavit or certification, that "[s]ignifcant discovery [was] completed. [Skordos] was deposed and submitted to several independent medical examinations at the request of Defendant." Skordos's brief is rife with other inadmissible factual statements that are not properly part of the record, and which we are unable to consider because they are not evidential. See Pressler and Verniero, Current N.J. Court Rules, comment on R. 1:6-6 (2011); Higgins v. Thurber, 413 N.J. Super. 1, 21 n.19 (App. Div. 2010), aff'd, ___ N.J. ___ (2011); Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied sub nom., Gonzalez v. Komatsu Forklift, U.S.A., Inc., 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006); Murray v. Allstate Ins. Co., 209 N.J. Super. 163, 169 (App. Div. 1986), appeal dismissed, 110 N.J. 293 (1988).

2 This order's reference to a "$300.00 restoration fee" gives us a hint that the May, August, and September orders, indeed, related to discovery issues. See R. 4:23-5(a)(1) (providing for the payment of a $300 restoration fee if a motion to vacate an order of dismissal for failure to provide certain discovery is filed more than thirty days after the order's entry).

3 Confusion reigned at the oral argument insofar as Skordos's departing attorney claimed not to have paid the fee, but somehow the matter was reinstated to the active trial calendar, and it was surmised that an unnamed "new [c]ounsel" for Skordos had paid the fee, "except that the new [c]ounsel has never forwarded [departing counsel] a substitution of attorney."

4 Skordos's brief appears to posit that the asserted basis for reconsideration was that neither Skordos nor her new attorney was given notice of Colavito's motion to dismiss the complaint with prejudice. This is not borne out in the sketchy evidential record provided to us. Similarly, Colavito's appellate brief argues that those motion papers were served on Skordos by regular and certified mail, but there is no affidavit or certification to support that hearsay contention. Whether these arguments were presented to the Law Division remains a mystery.