Opinion
DOCKET NO. A-0864-11T2
03-04-2013
ABOUBACAR DEMI, Plaintiff-Appellant, v. JUAN B. AZCONA and MARIA M. AZCONA, Defendants-Respondents.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7506-08. Alexander Dranov, attorney for appellant. Law Offices of Robert A. Raskas, attorneys for respondents (Philip Y. Ing, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7506-08.
Alexander Dranov, attorney for appellant.
Law Offices of Robert A. Raskas, attorneys for respondents (Philip Y. Ing, on the brief). PER CURIAM
Plaintiff Aboubacar Demi appeals from the January 3, 2012 order dismissing his civil complaint after his attorney failed to pay sanctions assessed against him. We affirm the sanctions, reverse the dismissal of the complaint, and remand the case back to the Law Division to be restored to the active trial calendar.
The record shows that plaintiff and defendant Juan B. Azcona were involved in a motor vehicle accident on October 25, 2007. Plaintiff filed a civil complaint against Juan as the driver of the vehicle and Maria Azcona as the owner of the vehicle. After discovery and mandatory arbitration, the case was ready for trial. On October 18, 2010, counsel for both parties informed the court at the trial call that the case was ready to proceed as an expedited trial as to damages only with defendants admitting liability.
On October 21, 2010, the trial court entered a consent order setting forth the conditions of the expedited trial agreed to by all the parties. While awaiting the arrival of the jury, defense counsel objected to plaintiff's counsel's use of a skeleton model as a visual aid to the jury. The trial court sustained the objection, holding that the plaintiff's counsel's use of this model would convert his remarks into testimony. After an extended colloquy between the court and plaintiff's counsel, the judge offered him the choice of an expedited trial or a full trial. Counsel chose a full trial but indicated that he was not able to proceed with one that day. The court then dismissed plaintiff's case with prejudice. Plaintiff appealed.
In the ensuing appeal, we affirmed the trial court's evidentiary ruling prohibiting plaintiff from using the skeleton form as a visual aid. However, we reversed the trial court's dismissal of plaintiff's case with prejudice and remanded to the trial court for exploration of the availability of lesser sanctions. The panel reasoned as follows:
It is a fundamental precept of our laws that justice favors adjudication of civil disputes based on the merits. Thus, the ultimate sanction of dismissal with prejudice for a procedural violation should be used sparingly, "when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995) (internal quotations and citation omitted). A trial court abuses its discretionary authority to manage the cases that come before it when it dismisses a complaint with prejudice for a procedural violation without first exploring the suitability of lesser sanctions. Georgis v. Scarpa, 226 N.J. Super. 244, 251 (App. Div. 1988).
Here, the record only shows that plaintiff's counsel answered "no" when the judge asked him if he was prepared to proceed with either an expedited trial or a full trial. At this point, the court should have ascertained the reasons for counsel's lack of preparation and how much time he needed to proceed. Only after gathering this information is the court in a position to determine whether a sanction is warranted and, if so, its severity.
We thus reverse the trial court's order dismissing plaintiff's case with prejudice and remand the matter for the court to determine if a remedy, short of dismissal with prejudice, is warranted for plaintiff's inability to proceed to trial following the court's evidentiary ruling. In fashioning
the appropriate sanction, the goal is to provide reasonable relief to the non-delinquent party, protect the integrity of case management orders, and ensure the orderly administration of scarce judicial resources while preserving the right of civil litigants to have their disputes decided on the merits.
[Demi v. Azcona, No. A-1466-10T2 (App. Div. Aug. 5, 2007) (slip op. at 6-7).]
At the September 19, 2011 remand hearing, the trial court determined that plaintiff's counsel did not provide an adequate explanation of why he was unwilling to proceed on the day set for trial. The court further found that this unwillingness to proceed with a scheduled trial unfairly burdened both defense counsel and the judiciary's case management system. He concluded that sanctions of $500 payable to defense counsel and $500 payable to the Clerk of the Superior Court would be an appropriate remedy for the inconvenience created by plaintiff's failure to proceed as scheduled. In a September 27, 2011 order, the court provided that the matter would not be restored to the active trial calendar until the sanctions were paid, and if they were not paid within forty-five days, the case would be dismissed with prejudice. On January 3, 2012, because counsel did not pay the sanctions, the court dismissed the case with prejudice. This appeal followed.
We start our discussion by noting that "a trial judge has great discretion in the manner he or she manages a case." Conrad v. Michelle & John, Inc. , 394 N.J. Super. 1, 10 (App. Div. 2007). That said, however, "the sanction of dismissal with prejudice for a procedural violation must be a recourse of last resort." Id. at 11. Here, the record shows that plaintiff's counsel, after representing that he was ready to proceed and the jury having been summoned, declined to proceed because of an unfavorable evidentiary ruling. We are satisfied that the monetary sanctions imposed for counsel's noncompliance, while severe, were not an abuse of the court's discretion. Thus, we affirm the trial court's imposition of sanctions against plaintiff's counsel.
We are nevertheless troubled by the trial court requiring dismissal of plaintiff's complaint with prejudice for his counsel's failure to pay the properly imposed monetary sanction. Although plaintiff's counsel's conduct may have been worthy of a sanction, a litigant need not suffer for his counsel's unwarranted behavior and generally should not be precluded from receiving a trial on the merits of his claim. Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 346 (1984). "Cases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available." Irani v. K-Mart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995) (citation omitted). "Eagerness to move cases must defer to our paramount duty to administer justice in the individual case." Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., Inc., 206 N.J. Super. 405, 406 (App. Div. 1987). Thus, "[u]ntil 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." Id. at 407. A court can generally ascertain methods short of dismissal to address case management issues. Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007).
We discern no basis in the record justifying plaintiff suffering dismissal of his complaint due to his counsel's dereliction. No significant prejudice to defendants has been established or even alleged. We thus find arbitrary and unreasonable the trial court's September 27, 2011 order provision which required dismissal of the complaint if counsel did not pay the sanctions. Consequently, we reverse the January 3, 2012 order dismissing the complaint based upon counsel's failure to pay and direct that the matter be restored to the active trial calendar. We again emphasize that plaintiff has the right to have a trial on the merits of his complaint. The sanction order can be amended to provide that the monetary sanctions, if not paid by a date certain, can be reduced to judgment and docketed.
We deem all other arguments raised by plaintiff, which do not pertain to the prior remand, to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part and remanded. 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