Opinion
DOCKET NO. A-4166-14T1
04-25-2016
JOSE A. ACEVEDO and ANITA M. ACEVEDO, Plaintiffs-Respondents, v. HOSAM MASIH and JOY MAKICH, Defendants-Appellants.
Rudolph & Kayal, attorneys for appellants (Stephen A. Rudolph, on the brief). Respondents have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-262-13. Rudolph & Kayal, attorneys for appellants (Stephen A. Rudolph, on the brief). Respondents have not filed a brief. PER CURIAM
In this action, plaintiff Jose A. Acevedo alleges personal injuries as a result of his vehicle being struck by a vehicle driven by defendant Hosam Masih in West Milford Township on September 23, 2011. Once discovery was completed, the parties engaged in nonbinding arbitration, which resulted in an award in plaintiffs' favor in the amount of $86,250 that defendants rejected by filing a timely demand for trial de novo. The case was thereafter scheduled for a trial to occur in Sussex County on January 20, 2015.
His wife, plaintiff Anita Acevedo, has asserted a per quod claim.
Defendant Joy Makich is the owner of the vehicle driven by Masih.
Prior to that scheduled trial date, defense counsel advised the involved civil judges in both Sussex and Morris Counties that he had two older trials scheduled in Morris on the same day. Defense counsel advised both judges he was ready to proceed on all three but sought to have the second oldest Morris case marked "ready, subject to" the oldest case and the Sussex case marked "ready, subject to" the second oldest Morris case. Counsel also advised both judges he would appear for the Morris trial call on the morning of January 20, 2015; he received confirmation from Morris that the newer cases had been marked "subject to" the oldest Morris case.
Defense counsel never waived his designation as trial counsel, pursuant to Rule 4:25-4, in these three matters.
On the other hand, at or about the same time, plaintiffs' counsel requested, with defense counsel's consent, that the Sussex judge postpone this case because plaintiffs' medical expert was unavailable. And, on the morning of the scheduled trial date, plaintiffs' counsel sought an adjournment for the additional reason that his closest friend's wife had passed away and a trial that week would interfere with his ability to attend her wake and funeral. Plaintiffs' counsel further advised the Sussex judge that he had a vacation scheduled for January 29 to February 2, 2015.
In accordance with his prior communications with the Sussex judge, defense counsel appeared in Morris for the trial call on his two older cases on the morning of January 20; while there, he received a communication from the Sussex judge seeking counsel's appearance in Sussex once he was released from Morris. In accordance with that request, defense counsel arrived in Sussex in the early afternoon. The matter got off on the wrong foot when the judge complained about defense counsel's failure to appear in the morning. When counsel showed the judge the communication he had previously faxed to chambers advising he would appear in Morris that morning on the older cases also scheduled for trial, the judge acknowledged the fax number was correct but insisted the communications "never came to us." Notwithstanding this confusion, the judge asked defense counsel whether he was ready for trial, to which counsel responded:
Judge, I am. But I've spoken with plaintiff[s'] attorney, he has indicated to me that he has certain issues that he would like to address, but I am ready, Judge.
[Emphasis added.]
When plaintiffs' counsel addressed the court, it became clear the judge was, in his own words, "rather perturbed" by the unavailability of plaintiffs' medical expert and did not view this circumstance as a sufficient ground for an adjournment. Consequently, the judge declared that
During the course of the colloquy between the judge and plaintiffs' counsel it became clear to defense counsel for the first time that the judge had previously denied plaintiffs' request for an adjournment by way of a written communication to plaintiffs' counsel. Defense counsel had not been sent this prior written communication.
some remedial issue needs to be taken, short of holding the attorneys in contempt . . . . [W]hat I am going to do is I am going to strike and suppress the de novo [request] . . ., and I'm going to direct that the parties be guided by the arbitration report. . . . Since you gentlemen did not show up for trial today, you forfeited your right on both sides to try this case, and I'm going to order that a judgment be entered in accordance with the arbitration award . . ., requiring the defendant[s] . . . pay the sum of $86,250 to the plaintiff[s].In other words, as defense counsel argued, the judge "reward[ed] the plaintiff[s] for not being ready to start trial today by giving [them] a judgment in the amount of $86,[250]." In responding to counsel's understandable consternation about the unfairness of the "remedy" crafted, the judge based his ruling on the fact that defense counsel "w[as]n't ready at 9 o'clock" (true, but for legitimate reasons) and "fail[ed] to communicate with the [c]ourt" (counsel had, in fact, timely communicated), the judge concluded that defense counsel had committed "a sanctionable offense." In refusing to reconsider what was clearly an unfounded and highly disproportionate resolution, the judge concluded:
I've done what I've done. I invite you to take it to the Appellate Division, let them sort it out, and if they think that I'm wrong, so be it.The judge later denied a formal motion for reconsideration, alluding only to his earlier holding.
Defendants were represented in the trial court by attorneys other than their appellate counsel.
Defendants were ready for trial, plaintiffs were not; defendants should not have suffered the consequences. This unnecessary appellate side trip has disserved the efficient administration of justice. The sanction imposed on defendants for having done nothing wrong constitutes an abuse of discretion that requires no further explanation from this court.
Even if the record could support a finding of some wrongdoing on defense counsel's part for not having appeared in Sussex on the morning of January 20, the only appropriate sanction would have been a monetary penalty of the type described in Rule 1:2-4, not entry of judgment. --------
The February 10, 2015 order entering judgment in favor of plaintiffs and the April 17, 2015 order denying defendants' motion for reconsideration are reversed, and the matter is remanded for trial. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION