OMAR CASTRO v. UNION HOSPITAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

OMAR CASTRO and ELENA CASTRO,

his wife,

Plaintiffs-Appellants,

v.

UNION HOSPITAL, an affiliate of

Saint Barnabus Health Care System,

DR. RICHARD D. PIZZANO, DR. MICHAEL

NOBLE, DR. BRESCIA, DR. DOSKOW,

DR. DANIEL D. MATKIWSKI, DR. WALTER

MATKIWSKI, DR. DANIEL V. LASKOWSKI,

DR. ILLSE THOMAS, DR. LIPSKY,

Defendants,

and

DR. ALAN KENWOOD, DR. RICK LAMBERT,

and EMERGENCY MEDICAL ASSOCIATES,

Defendants-Respondents.

__________________________________________

August 20, 2014

Argued August 12, 2014 Decided

Before Judges Nugent and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-661-05.

Thomas F. Chansky argued the cause for appellants (Purcell, Mulcahy, Hawkins, Flanagan & Lawless, LLC, attorneys; Mr. Chansky, on the briefs).

Brion D. McGlinn argued the cause for respondents Dr. Rick Lambert and Emergency Medical Associates (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; Louis A. Ruprecht, of counsel and on the brief; Mr. McGlinn, on the brief).

Russell J. Malta argued the cause for respondent Dr. Alan Kenwood (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Thomas Conlon, of counsel; Shelby L. Ruch, on the brief).

PER CURIAM

Plaintiffs Omar Castro and Elena Castro appeal from two Law Division orders: one denying the motion they filed to reinstate their case to the trial list after they discovered that an unknown person had made an erroneous entry in the court's automated case management system (ACMS) that the case had been dismissed; the other granting defendant Alan Kenwood's cross-motion to dismiss the complaint with prejudice. When deciding the motions, the judge applied the standards for reinstating complaints dismissed for lack of prosecution under Rule 1:13-7. That Rule did not apply. The complaint had not been dismissed for lack of prosecution; in fact, it had not been dismissed at all. The judge also reached conclusions about prejudice to defendants that were unsupported by competent evidence in the record. For those reasons, we reverse and remand.

We discern the following facts from the sparse record. In March 2002 Dr. Richard D. Pizzano examined plaintiff Omar Castro and diagnosed a right inguinal hernia. Plaintiff refused to have surgery to repair it. Six months later, on September 14 at 9:29 p.m., Mr. Castro went to the Union Hospital emergency room where he complained of severe abdominal pain. Doctors admitted him the following day and performed surgery a day later. He claims to have suffered severe injuries and damages due to delayed surgery.

Plaintiffs filed a complaint on September 10, 2004, alleging that defendants Union Hospital and Doctors Richard Pizzano and Michael Noble deviated from acceptable standards of medical practice when diagnosing and treating Mr. Castro's condition, causing him to sustain damages. Plaintiff Elena Castro sued per quod.

Between September 10, 2004, when plaintiffs filed their initial complaint, and March 19, 2010, when plaintiffs' counsel signed a voluntary stipulation of dismissal with prejudice as to Dr. Noble, plaintiffs twice amended their complaint, naming additional parties. During the same time span, most defendants were dismissed from the case, either on summary judgment or because plaintiffs had failed to produce affidavits of merit. When plaintiffs signed the voluntary stipulation of dismissal with prejudice as to Dr. Noble, three defendants remained in the case: Dr. Alan Kenwood, Dr. Rick Lambert, and Emergency Medical Associates (EMA).

The voluntary stipulation as to Dr. Noble appears to have triggered the events that ultimately led to this appeal. The copy of the voluntary stipulation included in the record bears the signature of plaintiffs' attorney next to the handwritten date, "3/19/10." The signature line for defendant Noble's attorney is undated and blank. Thus, as of March 19, 2010, the stipulation had to be signed by defense counsel and filed with the court. The record includes an ACMS printout with the following entry on April 6, 2010: "MISC. VOL. DISM." Thus, it appears that the stipulation as to Dr. Noble was filed April 6, 2010.

A trial had been scheduled for April 5, 2010. Another entry in another court record states: "Proceeding: Trial. Date: 04/05/10. Status: Cancel. Proceeding Comments: Stip Dism." No subsequent entries in ACMS or any other court record have been provided in the record on appeal.

Notwithstanding the April 2010 entries in the court records, four days before the April 5, 2010 trial plaintiffs requested an adjournment, which the court denied. All counsel appeared for trial at which time plaintiffs again requested an adjournment, which the court granted. The parties parted company believing the court had rescheduled the trial for May 26, 2010. The parties and the court were all unaware that the case had been erroneously reported as dismissed in ACMS.

On May 25, 2010, plaintiffs requested another trial adjournment because Mr. Castro had suffered a stroke. In his letter requesting an adjournment, plaintiffs' counsel wrote to the clerk: "It was my understanding that this case was listed for trial on May 26, 2010. However, your office indicated that the matter was not on the trial list for that week." Counsel also stated in his letter that he had "advised [his] adversaries of this situation and [they were] working to mutually agree on a new date." According to the letter, copies were telefaxed to counsel for the remaining defendants.

Three years later, in June 2013, plaintiffs filed a motion to restore the case to the trial list. In the supporting certification, plaintiffs' counsel averred that after the trial was adjourned due to Mr. Castro's stroke, counsel "visited the Civil Assignment Office[,] . . . inquired as to the status of the case[,] . . . [and] was advised that the file had been closed and archived." That occurred in December 2012, more than two and one-half years after the case had last been listed for trial. Nothing in the record reflects that any party made any inquiry of the court or took any other action during those two and one-half years.

After several follow-up attempts to obtain the court's file, plaintiffs' counsel was informed by a judiciary employee that with the exception of a 160-page document, the case file had been purged in accordance with the New Jersey State Judiciary Records Management Policy. Consequently, the file contained no correspondence, motions, or exhibits; only pleadings and orders had been saved. After learning that the court's file had been purged, plaintiffs' counsel filed the motion to have the case restored to the trial list.

Dr. Kenwood filed a cross-motion to dismiss plaintiffs' complaint with prejudice. EMA and Dr. Lambert joined in the cross-motion. In a supporting certification, counsel for Dr. Kenwood recounted the procedural history of the case and asserted prejudice: "The defendants in this case are without question prejudiced as a result of the plaintiff's unjustified delay and lack of prosecution as plaintiffs now request the reinstatement of an action commenced approximately eight years ago, regarding alleged negligence that occurred approximately 11 years ago." Nowhere in the certification did counsel specify what constituted the prejudice suffered by defendant.

Oral argument on the cross-motions began with the judge acknowledging that "it's kind of hard to tell exactly what happened here." The judge then remarked: "But I will say that [t]he [c]ourt has to be guided, and counsel I don't think you'd disagree, by Rule 1:13-7 which governs dismissal of civil cases for lack of prosecution." The judge quoted part of that rule, and finished by stating, "[s]o the standard here then, since so much time has passed, do you agree is exceptional circumstances?" Plaintiffs' counsel replied: "Absolutely, Judge." Finding no exceptional circumstances for the "huge gap in time between May of 2010 . . . [and] December of 2012," the court denied plaintiffs' motion and granted Dr. Kenwood's cross-motion. The court commented: "I think it is very prejudicial to the defendants for them to be expected to now prepare for trial."

The court explained that if the case were reinstated, there would have to be additional discovery concerning Mr. Castro's damages. The court also stated that "it would be unfair and . . . prejudicial to the two doctors to now have to defend against the allegations which again stems from an incident in 2002." Plaintiffs appealed.

We begin our analysis with some fundamental observations. First, plaintiffs' complaint against Dr. Kenwood, Dr. Lambert, and EMA had never been dismissed. No court order had been entered dismissing the complaint against them, the parties had not filed any pleading dismissing the complaint as to them, and no administrative order or directive had been issued dismissing the complaint as to them. Rather, as all parties recognize, the case had erroneously been reported as dismissed in ACMS. The question then is why, after the lapse of a substantial period of time, plaintiffs were required to bear the burden of showing either good cause or exceptional circumstances to have the court correct its own error. Defendants have cited no authority that compels such a result, and no equitable reason supports such a result.

Indisputably, none of the litigants caused the erroneous data entry in ACMS. Had the error been discovered and called to the court's attention a day, a week, or a month after it occurred, the court likely would have corrected the error without requiring anyone to file a formal motion to restore the case to the trial list. At some point, as time passed, it should have occurred to all parties, had they thought about it, that something was amiss. That is because, generally, when a trial is adjourned it is rescheduled. In circumstances where that does not happen, ordinarily there is an order explaining why the case has been temporarily removed from the trial list. No such order was entered here.

But even if one disagrees with the proposition that all parties should have known something was amiss, plaintiffs had no greater control over the situation than any defendant. The parties were similarly situated. And all lawyers, regardless of whether they represent plaintiffs or defendants, are required to "make reasonable efforts to expedite litigation consistent with the interests of the client." R.P.C. 3.2.

Here, defendants have argued that the prejudice to them increased with the mere passage of time. In view of that argument, it would not have been inconsistent with defendants' interests for defense counsel to have made reasonable efforts to expedite the litigation once they became aware, or should have become aware, that the case was no longer on the court's trial list. That is not to suggest that anyone violated the Rules of Professional Conduct. There is absolutely no evidence of any such violation. We cite R.P.C. 3.2 merely for the proposition that all lawyers have an obligation to expedite litigation, and that with respect to that obligation, there is no basis for differentiating between plaintiffs and defendants.

For that reason, and absent a counterveiling obligation that arises under a court rule or other precedent, a court should correct an internal clerical error that has caused a case to be removed from the trial list by restoring the case to the trial list. Not to do so under such circumstances is a misapplication of discretion. After all, our courts "provide a disinterested forum for the just resolution of disputes." Ghandi v. Cespedes, 390 N.J. Super. 193, 198 (App. Div. 2007). There is no basis for closing the doors of our "disinterested forum" to litigants in those instances where personnel involved in providing the disinterested forum make clerical errors that delay the just resolution of disputes.

Here, the trial court did not base its decision on any applicable countervailing authority. Rule 1:13-7, relied on by the trial court, by its clear and unequivocal terms does not apply to a clerical error committed by an employee of the judiciary. Subsection (a) of that rule, with exceptions, applies whenever an action has been pending for four months or, if a general equity action, for two months, without a required proceeding having been taken as defined in subsection (b) of the rule. Discovering an erroneous entry in ACMS is not one of the proceedings enumerated in subsection (b). More significantly, Rule 1:13-7 authorizes the dismissal of a case without prejudice only after the court notifies the plaintiff in writing of the pending dismissal and affords the plaintiff sixty days to take appropriate action. Rule 1:13-7(a). That obviously did not happen here.

Nor does Rule 4:50, which defendants Lambert and EMA suggest should be applied as an alternative ground for upholding the trial court's decision, apply to a situation such as this where a case has not been dismissed, but rather has been erroneously reported as dismissed in ACMS. Rule 4:50 on its face applies only to "a final judgment or order." In the case before us, no final judgment or order exists.

We also reject defendants' argument that plaintiffs should be estopped or otherwise barred from arguing on appeal that Rule 1:13-7 should not apply because their attorney agreed with the motion judge's statement at oral argument that the rule in fact did apply. We are unable to conclude on this record that plaintiffs' attorney somehow led the motion judge to misapply a rule that, on its face, had no application to the facts before it. Defendants' argument warrants no further discussion. R. 2:11-3(e)(1)(E).

Lastly, we note that in the certifications they filed with the trial court, defendants asserted in conclusory fashion that they had been prejudiced. We also note that the trial court agreed with those conclusory assertions. The assertions were insufficient to demonstrate prejudice. As we have previously explained:

In resisting plaintiffs' motions for reinstatement and reconsideration, defendant argued that he was prejudiced by the passage of time. However, other than generalities ("[m]emories of witnesses clearly have faded") or conjectures ([i]t is hard to believe that a meaningful deposition of any of the plaintiffs is going to be obtainable"), defendant failed to demonstrate any prejudice whatsoever. On appeal, the most that defendant posits as prejudice are "[t]he potential unavailability of witnesses, the potential destruction or loss of evidence, lack of discovery from [p]laintiffs, [and] the lack of depositions and independent medical examinations." There is not a scintilla of evidence in the record to suggest that anything in this parade of horribles exists or is likely to come to pass . . . .

[Baskett v. Cheung, 422 N.J. Super. 377, 384-85 (App. Div. 2011) (alterations in original).]

Our opinion should not be construed as condoning the inaction of any party in this case. Certainly plaintiffs did not act diligently during the two and one-half years between the last trial listing in May 2010 and the inquiry they made of the court in December 2012. But the same can be said for defendants. Accordingly, we hold that when a case has been removed from a trial list due to a data entry error in a computer, not the fault of, or known to, the parties to the action, the case should be restored to the trial list upon motion of any party. A court confronted with such a motion should not deny it based upon conclusory assertions of opposing parties who cite no applicable countervailing authority. To dismiss a case with prejudice under those circumstances is a misapplication of discretion.

On remand, the trial court should conduct a case management conference to determine whether additional discovery concerning damages is needed as the result of the time that has passed since the case was last listed for trial; and address any other issues that may have developed due to the passage of time. If additional discovery is necessary, it should be expedited and then the action tried without further unnecessary delay.

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