SCOTT GURVEY v. TOWNSHIP OF MONTCLAIR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SCOTT and AMY GURVEY,

Plaintiffs-Appellants,

v.

TOWNSHIP OF MONTCLAIR,

Defendant-Respondent.

May 5, 2014

Submitted April 29, 2014 Decided

Before Judges Ostrer and Carroll.

On appeal from the Tax Court of New Jersey, Docket No. 000339-2011.

H. Scott Gurvey and Amy Gurvey, appellants pro se.

Nowell Amoroso Klein Bierman, attorneys for respondent (Anthony Marchese, of counsel and on the brief).

PER CURIAM

Plaintiffs H. Scott Gurvey and Amy Gurvey appeal from an order and final judgment entered by the Tax Court on July 20, 2012, which dismissed their complaint for the 2011 tax year with prejudice for lack of prosecution. The judgment was entered sua sponte by the court after plaintiffs failed to appear for trial on July 13, 2012. For the reasons that follow, we reverse and remand for reconsideration.

Plaintiffs are the owners of residential property located in defendant Township of Montclair. In February 2011, plaintiffs filed a complaint1 challenging Montclair's assessment on the property for the tax years 2009, 2010, and 2011. On December 14, 2011, following a plenary hearing, the court entered an order: (1) that it did not have subject-matter jurisdiction to hear plaintiffs' tax appeals for the tax years 2009 and 2010; and (2) that it had jurisdiction to hear plaintiffs' complaint for the 2011 tax year, which would proceed in the normal course.

Following unsuccessful motions by plaintiffs to recuse the judge and for reconsideration of the December 14, 2011 order, the court entered a Case Management Order (CMO) on February 29, 2012. The CMO set dates for the exchange of discovery and expert reports, and scheduled a July 13, 2012 trial date. The record does not reflect whether the parties were present, either personally or telephonically, when the CMO was entered. The CMO contains a recital that it was "mailed electronically and by first class mail this day by the court to the plaintiffs and to counsel for [] defendant."

The record reveals that on March 28, 2012, plaintiffs sent an e-mail to the court, indicating that they had yet to be served with the CMO. In response, the court e-mailed the CMO to both plaintiffs and defendant's counsel.

Plaintiffs failed to appear for trial on July 13, 2012.2 Consequently, on July 20, 2012, the court prepared an order and final judgment dismissing their complaint with prejudice, citing Rule 8:8-4(a). Other than indicating that plaintiffs had failed to provide the court with a reason for their non-appearance at trial, the judgment does not explain why the complaint was dismissed with prejudice, or whether consideration was given to any less severe sanction.

While plaintiffs raise a host of issues that are not germane to this appeal, essentially they seek reversal of the July 20, 2012 order. They contend that (1) the order was entered sua sponte by the court, without proper notice or hearing; (2) defendant Montclair failed to produce discovery that the court assured them would be compelled prior to adjudication; and (3) the court failed to provide plaintiff Amy Gurvey, who is physically disabled, reasonable accommodations under the Americans with Disabilities Act (ADA), 42 U.S.C.A. 12101 to -12213, and that adjournments of the scheduled hearing date were denied in violation of the ADA.

Defendant disputes plaintiffs' claim of lack of notice, pointing out that the court twice sent them the CMO that contained the trial date. Defendant additionally notes that plaintiffs had earlier failed to appear on October 28, 2011, for the plenary hearing on the jurisdiction issue, causing it to be rescheduled for December 9, 2011.

Rule 8:8-4 provides as follows:

If any party fails to appear the court may order any one or more of the following:

(a) In the absence of an appearance by a plaintiff, dismiss the complaint;

(b) In the absence of an appearance by a defendant

(1) proceed to hear the matter on the designated date;

(2) dismiss the counterclaim, if any;

(c) Take such other action authorized by Rule 1:2-4(a) as it shall deem appropriate.

In dismissing the complaint with prejudice after plaintiffs failed to appear for trial, the judge relied solely on subsection (a) of the rule. We note, however, that while (a) provides for dismissal as an available remedy, it does not mandate that such dismissal be entered with prejudice. In a related context, we have noted the harshness of such remedy, especially where its effect may be to preclude a litigant's claim entirely. See, e.g., Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 268-69 ("there is a general disinclination to invoke the ultimate sanction of dismissal where the statute of limitations has run").

Nor does dismissal constitute the only available remedy upon a party's non-appearance. Rather, subsection (c) of Rule 8:8-4 expressly allows the court to take such other action authorized by Rule 1:2-4(a) as it shall deem appropriate. Rule 1:2-4(a), in turn, while similarly authorizing dismissal of a complaint, also permits lesser sanctions, such as requiring the delinquent party to pay costs and fees to the court, or to the adversary party. As the Comment to the rule makes clear, "[t]he dismissal sanction based on an attorney's failure to appear must be a recourse of last resort not to be invoked unless no lesser penalty is adequate in view of the nature of the default and its attendant prejudice to other parties . . . . At least the same degree of indulgence applies to the non-appearance of a pro se party." See Pressler & Verniero, Current N.J. Court Rules, Comment 1 to Rule 1:2-4 (2014) (citations omitted).

In the present case, beyond plaintiffs' mere non-appearance, there is no indication in the record whether the court gave any consideration to the circumstances surrounding their failure to appear for trial. Thus, we are unable to conclude whether their failure to appear was contumacious or, as they contend, excusable. Equally important, the record fails to reveal whether the court considered available lesser sanctions, before entirely barring plaintiffs from pursuing their claims.

Accordingly, we reverse the Tax Court's order of July 20, 2012, and remand the matter to the court for reconsideration in light of all of the relevant circumstances. The court shall determine, in view of those circumstances, whether some lesser sanction is appropriate in lieu of dismissal. The court shall make appropriate findings of fact and conclusions of law. R. 1:7-4(a).

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

1 The record on appeal does not include a copy of the complaint.

2 The record does not include a transcript of the July 13, 2012 proceedings, nor have we been advised whether the court made any formal findings on that date.