CATHERINE MARTIN v. STEVEN ROBBINS, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CATHERINE MARTIN AND

ROBERT MARTIN,

Plaintiffs-Appellants,

v.

STEVEN ROBBINS, M.D. AND

CENTER FOR ORTHOPAEDICS,

Defendants-Respondents.

_______________________________

August 25, 2016

Before Judges Lihotz and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4604-08.

Law Office of Benjamin M. Delvento, P.C., attorneys for appellants (Maurice J. Donovan, on the briefs).

Dughi, Hewit & Domalewski, P.C., attorneys for respondents (Gary L. Riveles, on the brief).

PER CURIAM

Plaintiffs Catherine and Robert Martin appeal from a February 3, 2015 order dismissing, with prejudice, their medical negligence complaint against defendants Steven Robbins, M.D., and the Center for Orthopaedics (the Center) after they failed to appear for trial. On appeal, plaintiffs argue the judge mistakenly attributed all prior adjournments to them. Further, the judge unreasonably ordered dismissal even though plaintiffs' absence resulted from an unforeseen emergency and their counsel was present and willing to commence trial. Plaintiffs argue the judge abused his discretion and the order must be vacated. We agree and reverse.

After filing the complaint in 2008, this matter was administratively dismissed and then reinstated in 2010. The parties engaged in extensive discovery and the first date designated for trial was June 3, 2013. That date was adjourned on the joint request of the parties because additional discovery became necessary. Thereafter, the matter was adjourned eight times.1

The final date, requiring the matter to be tried or dismissed, was January 20, 2015.2 Both counsel appeared. Plaintiffs' counsel explained he was not seeking an adjournment and was ready for trial accompanied by his expert; however, Mr. Martin, who was eighty, had been unexpectedly discharged from the hospital, rather than transferred to a rehabilitation facility after knee replacement surgery, requiring Mrs. Martin to attend to him while attempting to get an alternative caregiver. Defendant's counsel objected to an adjournment, noting the prior history of the matter and that this was a specifically scheduled date for the case to be either tried or dismissed.

The calendaring judge considered each party's argument. After noting the lengthy scheduling history, he concluded the balance of equities fall in favor of defendants, as Mrs. Martin could have hired a nurse to provide the required care and marked the case ready for trial. Upon defendant's objection and insistence the matter be dismissed because plaintiffs were not ready to proceed to trial that day,3 the judge found

this case has been adjourned ten times and has had numerous try or dismiss dates. All the adjournment requests have been on behalf of the plaintiff[s]. The defendants have been ready to go on many, many occasions. I have heard every possible excuse. I'm sure they were all legitimate. But at some point it has to stop and I made it crystal clear last time that this would be it. So since the case is not ready to proceed today - - I understand [plaintiffs' counsel] is ready to go and there's nothing wrong with Mrs. Martin, she's ready to go. She's just simply caring for her husband[,] which I can . . . empathize with. But . . . that can be remedied. So I am going to dismiss the case with prejudice.

A February 3, 2015 order memorialized the dismissal of the complaint with prejudice and without costs. This appeal ensued.

On appeal, plaintiffs urge reversal and reinstatement, stating the events causing delay were neither deliberate nor an attempt to disregard the court's authority. Plaintiffs assert the case deserves to be considered on the merits, despite the delay.

"The right of a trial court to manage the orderly progression of cases before it has been recognized as inherent in its function." Castello v. Wohler, __ N.J. Super. __, __ (App. Div. June 20, 2016) (slip op. at 32) (quoting Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488 (App. Div.), certif. denied, 165 N.J. 607 (2000)). We generally defer to a trial judge's disposition unless convinced "the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Ibid. (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005); see also Santos v. Estate of Santos, 217 N.J. Super. 411, 415 (App. Div. 1986) ("Where a question which calls for the exercise of judicial discretion is properly presented, it is the duty of the court to consider and determine that question so that the rights of the parties may be fairly protected in an orderly manner." (citation omitted)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

The facts at hand depict a struggle repeated frequently in courtrooms around the state. On the one hand, a judge has a strong interest and designated responsibility to manage the progress of litigation to assure trial concludes in a timely manner. On the other hand, a party has an interest in his or her "day in court" to obtain an adjudication of a dispute on the merits, despite an unforeseen circumstance disrupting scheduled trial dates. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 574 (2003). Although understanding the frustration arising from the inability to finalize this matter, we conclude the judge disregarded reasonable available alternatives and the decision to dismiss this action with prejudice rises to an abuse of discretion.

Without question, a cluster of events affecting plaintiffs, defendants and their respective counsel caused repeated delay in bringing this matter to conclusion. Nothing in the record suggests the bases for prior adjournment requests were unfounded, deceptive, or untrue. Neither plaintiffs nor their counsel willfully disregarded or ignored the direction of the court. Rather, the culmination of events simply appears unlucky.

When evaluating whether a procedural violation warrants a dismissal with prejudice, which "constitutes an adjudication on the merits as fully and completely as if the order had been entered after trial[,]" Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 243 (1998) (quoting Velasquez v. Franz, 123 N.J. 498, 507 (1991)), a judge must consider the basis for noncompliance, the prejudice to the other parties, and other possible remedies to address the prejudice caused by the delay. See Santos, supra, 217 N.J. Super. at 414 ("To assure that justice not be delayed, we must efficiently manage the litigation calendar while simultaneously affording litigants and their attorneys adequate time to prepare and try their cases.").

Although aged, this principle remains a timeless guide for our courts

[C]ourts exist for the sole purpose of rendering justice between parties according to law. While the expedition of business and the full utilization of their time is highly to be desired, the duty of administering justice in each individual case must not be lost sight of as their paramount objective.

[Allegro v. Afton Village Corp., 9 N.J. 156, 161 (1952) (citing Pepe v. Urban, 11 N.J. Super. 385 (App. Div. 1951)).]

Examining the final circumstance as expressed in the record, plaintiffs' counsel and expert were ready, as were defendants. It is not clear whether a judge was immediately available to try the matter, or whether Mrs. Martin could have successfully arranged for her husband's care in time for the trial to commence later that afternoon. Under these circumstances, defendants' inconvenience was compensable monetarily, which we conclude is a sounder result than imposing the "ultimate sanction" of dismissal with prejudice, normally reserved "when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)). "Certainly, there has been no showing of prejudice to [defendant] that would outweigh the strong preference for adjudication on the merits rather than final disposition for procedural reasons . . . ." Wohler, supra, __ N.J. Super. at __ (slip op. at 35) (alteration in original) (quoting Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 207 (App. Div. 2000)).

Indeed, in Audubon Volunteer Fire v. Church Const. Co., 206 N.J. Super. 405, 407 (App. Div. 1986), we pointed out many ways short of dismissal or default to deal with problems of calendar control. We clearly indicated

Until courts have exhausted means of performing their shepherding function which do not terminate or deeply affect the outcome of a case, they ought not to bar a litigant's way to the courtroom.

[Santos, supra, 217 N.J. Super. at 415.]

See also R. 1:2-4(a) (authorizing a trial judge to impose upon "the party applying for the adjournment . . . the reasonable expenses, including attorney's fees, to the aggrieved party.")

For the reasons discussed, we vacate the dismissal and remand the matter to reinstate plaintiffs' complaint and commence trial.

1 More specifically, defense counsel sought adjournment of the September 16, 2013 and October 27, 2014 dates because of scheduling conflicts and the June 23, 2014 date because of a family issue. Plaintiffs' counsel had a scheduling conflict on December 2, 2013 and February 3, 2014, because he was on trial in another matter in the vicinage, was unavailable on April 28, 2014 because of a family emergency and suffered a serious injury in a car accident requiring adjournment of the September 2 and 8, 2014 dates. Substitute counsel for plaintiffs was also incapacitated after a car accident, requiring a continuance on December 1, 2014.

2 Prior trial listings also had been set as mandating the matter be tried or dismissed.

3 The record suggests counsel represented Mrs. Martin would be available later in the week.