Opinion
DOCKET NO. A-1631-12T2
06-16-2014
JOSEPH G. CATULLO, Plaintiff-Appellant, and NATEX, INC., A corporation of The State of New Jersey, Plaintiff, v. PATRICK L. BARTON, Defendant-Respondent.
Joseph G. Catullo, appellant pro se. Louis Criscuoli, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-724-08.
Joseph G. Catullo, appellant pro se.
Louis Criscuoli, attorney for respondent. PER CURIAM
Plaintiff Joseph G. Catullo appeals from the October 23, 2012 Law Division order denying his motion to vacate an earlier order, dated August 21, 2012, which had refused to reinstate Catullo's complaint and ordered Catullo to "pay attorney's fees of Defendant in the amount of $2500.00 and costs [of] $230.00." We affirm.
The August 21 and October 23 orders also barred Catullo from further litigating the matter in court or with the American Arbitration Association.
I.
The genesis of the parties' dispute lies in an October 29, 2002 contract in which Catullo agreed to sell a twenty percent stock interest in Natex, Inc. to defendant Patrick L. Barton for $200,000. The corporation was the owner of real property located in Hamburg, which the parties intended to improve and develop. Things did not work out as planned, and Catullo (along with Natex) commenced this action on October 31, 2008, by filing a four count complaint against Barton seeking remedies for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duties, and unjust enrichment.
After issue was joined, the parties agreed to transfer their dispute to an arbitral forum pursuant to "Paragraph 1.06 of the parties' Agreement dated October 29, 2002." A consent order, dated July 31, 2009, provided that the litigation "shall be stayed pending resolution of the parties['] claims in arbitration, pursuant to N.J.S.A. 2A:23B-7g; however, discovery in this matter shall not be stayed and shall proceed in the normal course." Thus, although the dispute was referred to an alternate forum for resolution, the Law Division retained jurisdiction.
After invoking the administration and dispute-resolution processes of the American Arbitration Association (the AAA), the parties became embroiled in a dispute over who was responsible to shoulder the AAA's fees and costs. Ultimately, in January 2010, an AAA panel of arbitrators ruled that "the parties should split the fees of arbitration equally, subject to an ultimate allocation, which will be part of the final award in the matter." Later, in March 2010, the AAA "suspended administration of this matter as the [fee] deposits have not been paid." The parties, however, were given a thirty-day reprieve within which to pay their respective fee deposits. Because such deposits were not forthcoming, a formal order terminating "all administration on this matter" was entered by the AAA on April 15, 2010.
Apparently, Catullo paid $8000 to the AAA at the time the demand for arbitration was filed.
The parties, in turn, applied to the Law Division for remedies, which resulted in their being dispatched back to the AAA. On September 17, 2010, an order was entered stating, "this matter shall proceed back to arbitration with the [AAA], and the parties shall contact the AAA by no later than September 20, 2010, to reinstate their prior arbitration proceeding." The AAA reopened the matter on September 21, 2010.
Several months passed while the parties prepared for the arbitration hearing. During that time, the collateral dispute over AAA fees re-emerged. Meanwhile, because the Law Division retained jurisdiction, the parties received a notice that a trial in the Law Division was scheduled for April 4, 2011. Successful efforts were made to adjourn the Law Division trial date until October 31, 2011, but the arbitration hearing remained unscheduled due to the lingering problem over AAA fees.
This trial date was adjourned by the court until January 23, 2012. Later, the date was rescheduled for April 30, 2012.
Eventually, an AAA-appointed arbitrator entered a scheduling order on September 1, 2011, which, among other things notified the parties that the arbitration hearings would commence on November 15, 2011. In the Law Division, an order was entered on September 2, 2011, permitting Catullo and Natex's attorney to be relieved as counsel in the litigation. Catullo continued pro se, but Natex was required to obtain counsel no later than September 19, 2011. An attorney never entered a subsequent appearance on behalf of the corporation.
A second scheduling order was entered by the arbitrator on October 25, 2011. It provided for the arbitration hearings to begin on January 24, 2012, which coincidentally was one day after the now-scheduled trial in the Law Division. Meanwhile, the AAA fee issue continued to fester, and remained an unresolved, sore topic between the parties. On February 28, 2012, the arbitrator found that the proper fee deposits were overdue, and suspended the proceedings. However, the arbitrator gave the parties until April 27, 2012, to comply with the fee deposit requirement. Ultimately, when those fee deposits were not forthcoming, the arbitration was terminated on May 21, 2012.
Catullo responded to the suspension order by writing to the AAA, "Please be advised that as a result that monetary funds are not available at this time, therefore I request that AAA allow the proceedings to continue [] 'In Forma Paupuris' [sic]. Should AAA decline, I would expect the return of that $8000, originally paid AAA."
As earlier noted, the Law Division action had been scheduled for trial on January 23, 2012. In response to Catullo's motion for an adjournment of that trial date, the Law Division re-scheduled the trial for April 30, 2012. Neither Catullo nor an attorney for Natex appeared on the scheduled date, and the court entered an "Order of Disposition" dismissing the complaint with prejudice.
On May 21, 2012, Catullo filed a motion to reinstate the complaint. The motion requested oral argument "if this matter is contested," and sought a hearing on June 1, 2012. In support of the motion, Catullo averred that he never received a notice of the April 30, 2012 trial date, and "the case is still active befor[e] [the] AAA."
Catullo's request for oral argument is contained in a checked box next to the following words: "Requests oral argument if this matter is contested."
In response to Catullo's motion, Barton filed opposition and a cross-motion, returnable on July 13, 2012, in which he sought "sanctions against Plaintiff, Joseph Catullo for filing of a frivolous lawsuit and failure to comply with Orders of the Court dated July 31, 2009, September 17, 2010, and September 2, 2011."
The motion and cross-motion were considered by the court on August 10, 2012. Catullo did not appear, but counsel for Barton attended and made a presentation that lasted less than sixty seconds. On August 21, 2012, the court entered an order denying Catullo's motion, barring further action "either in the Courts or with the American Arbitration Association," and reallocating attorneys' fees of $2500 plus $230 costs against Catullo. A handwritten notation on the order states, "Reasonable counsel fees are ordered considering the complexity of this matter."
The order expressly states that the court "reviewed the submissions of both parties."
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Catullo immediately followed up with a reconsideration motion, filed on August 31, 2012, which sought to vacate the August 21, 2012 order. Catullo claimed that he never was advised of the August 10, 2012 oral argument, and further asserted that he had never sought oral argument in the first place.
On October 23, 2012, the motion court denied Catullo's reconsideration motion. In its statement of reasons, the court found that Catullo had no legitimate excuse for not attending the April 30, 2012 trial date because he knew or should have known of the date, to which he had consented. Furthermore, the court found Catullo's claim that he did not know of the August 10, 2012 oral argument to be doubtful. Ultimately, the court wrote:
The convoluted history here demonstrates that Plaintiff has not been truthful and has failed to respond to Court orders and notices and engaged in gamesmanship to which the Court will not be a party.Accordingly, finding no basis in Rule 4:50-1 to afford Catullo relief, the court denied his motion. This appeal followed.
II.
Catullo's initial grievance lies in the dismissal of his complaint because he failed to appear for trial on April 30, 2012. Although the Law Division's order dismissing the complaint with prejudice does not say so, it presumably was entered pursuant to Rule 1:2-4. The Rule provides, in pertinent part, as follows:
(a) Failure to Appear. If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar . . . or on the day of trial . . . the court may order any one or more of the following: (a) the payment by the delinquent attorney or party . . . of costs . . .; (b) the payment by the delinquent attorney or party . . . of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint . . .; or (d) such other action as it deems appropriate.Generally, such dismissals are without prejudice unless the court for good cause orders otherwise. Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 393 (App. Div. 1994). We employ an abuse of discretion standard in reviewing a trial court order denying a motion to vacate the dismissal of a pleading in these circumstances. ASHI-GTO Assoc. v. Irvington Pediatrics, 414 N.J. Super. 351, 359 (App. Div.), certif. denied, 205 N.J. 96 (2010); see Santos v. Estate of Santos, 217 N.J. Super. 411, 415 (App. Div. 1986) ("'judicial discretion' means sound discretion, exercised not arbitrarily or willfully, but with just regard to what is right and equitable under the circumstances and the law.") (citation omitted).
[R. 1:2-4.]
Rule 4:50-1 applies to dismissals without prejudice entered pursuant to Rule 1:13-7, see DiMura v. Knapik, 277 N.J. Super. 156, 160 (App. Div. 1994), and its principles may serve as an appropriate guide for consideration of dismissals under Rule 1:2-4, as well. "A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). We will not disturb a motion court's determination to grant or deny an application to open a judgment "unless it represents a clear abuse of discretion." Ibid. In our review, we do not "decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursued a manifestly unjust course." Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968).
Guided by these principles, we do not find that the motion court's determination constituted an abuse of discretion. Catullo displayed a casual disregard of his obligations to stay informed about court procedures, particularly beginning in 2012, when the litigation was already more than three years old. Not only was his apparent interest in the litigation waning, but also he failed to keep the mandatory arbitration alive. The motion court's refusal to reinstate the complaint is fully consistent with this inattentive behavior. Furthermore, we find no abuse of discretion in denying reconsideration. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
On appeal, Catullo's primary argument is that the court erred in entering the August 21, 2012 order because he was never properly given notice of the oral argument conducted on August 10, 2012. We find this argument both dubious and insincere. Catullo, as found by the motion court, spurned the arbitration, failed to appear for the trial, and did not show up for oral argument. This pattern of neglect bespoke what the motion court found was "gamesmanship." Because our limited scope of review requires us to analyze the Law Division's disposition under an abuse of discretion standard, we are unable to agree that Catullo's predicament was anything but self-created, and does not warrant our intervention. Moreover, Catullo's lack of participation at oral argument does not appear to have been a material factor in the judge's decision, particularly in light of the extremely limited presentation made by Barton's attorney.
More importantly, in light of the parties' agreement to arbitrate their dispute, reinstatement of the case in the Law Division would be an improper preemption of the contract between the parties. Since Catullo failed to properly advance the arbitration, which is the only forum where this matter should be resolved, revival of the complaint for a publicly funded disposition is clearly unwarranted.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION