Opinion
DOCKET NO. A-4317-10T3
02-01-2013
BRUCE GITTO, Plaintiff-Respondent, v. CITY OF ATLANTIC CITY, CITY OF ATLANTIC CITY OFFICE OF COMPTROLLER, CITY OF ATLANTIC CITY OFFICE OF COMPTROLLER MIKE STINSON, Individually, As Agents servants and employees of City of Atlantic City, Defendants-Appellants.
Ruderman & Glickman, P.C., attorneys for appellants (Steven S. Glickman, of counsel and on the briefs; Vincent M. Avery, on the brief). Bruce Gitto, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4638-10.
Ruderman & Glickman, P.C., attorneys for appellants (Steven S. Glickman, of counsel and on the briefs; Vincent M. Avery, on the brief).
Bruce Gitto, respondent pro se. PER CURIAM
Defendant City of Atlantic City (City) appeals from the judgment of the Law Division setting an annual lifeguard pension benefit for plaintiff Bruce Gitto in the amount of $13,930.19. Defendant also challenges the court's order directing the City Comptroller's Office to provide plaintiff "retroactive reimbursement . . . for the difference between the correct amount of the annual pension of $13,930.19 and the amount of the pension [p]laintiff has received since November 1, 2007."
Because the manner in which the trial court proceeded in this case violated rudimentary principles of due process and deprived a public entity of the opportunity to present a defense against plaintiff's allegations, we reverse and remand this matter for trial or for such other proceedings as may be warranted.
I
By letter dated February 15, 2011, addressed to plaintiff and defense counsel, the court memorialized "our discussion" that occurred "during the Case Management Conference" on that date, and confirmed that a "hearing" had been scheduled for March 16, 2011, at 2:30 p.m. Although the letter does not reveal the nature of this "hearing," the court's final order,entered on March 16, 2011, recites in the preamble that "the Court [had] set this matter down for oral argument on the issues." At the time of the hearing, the parties had not engaged in any form of motion practice or submitted legal memoranda addressing any issues in the case. The court also had not identified any legal issues for the parties to address at the hearing.
The order was "prepared by the court."
At the hearing, the court awarded plaintiff the relief he sought after taking his testimony, mostly in the form of answers to the judge's direct questions or in a narrative fashion; the court also admitted into evidence documents submitted by plaintiff. The trial judge decided to proceed ex parte, despite being aware that the City's designated trial attorney was unable to attend the hearing because he was on trial before the Superior Court in Essex County. Although defense counsel did not ask for the hearing to be adjourned prior to March 16, 2011, the record shows that defense counsel advised the court of his scheduling conflict before the hearing started. This is made clear in the following statement from the trial judge:
As he does in this appeal, plaintiff appeared before the Law Division pro se.
[W]e were able to ascertain that [defense counsel] is in trial in Essex County. I was not informed until we just found out ten minutes ago [approximately 2:20 p.m.] that he was in trial or anticipated to be in trial, or that perhaps he started a trial last week that carried over, and that doesPlaintiff answered "[n]o" without further comment. At the conclusion of this hearing, the court entered judgment in favor of plaintiff, awarding the pension relief demanded in his pleading.
sometimes happen; and I assume [(addressing plaintiff directly)] that you were not informed that there was a scheduling problem.
Defense counsel's trial in Essex County started on March 14, 2011, two days before the hearing at issue here, and ended on April 14, 2011. On April 21, 2011, defense counsel wrote a letter to the trial judge in this case as follows:
I am writing to respectfully request the opportunity to file a motion for reconsideration of Your Honor's March 17, 2011 Order . . . and articulate the City's position on this matter. Although the time for filing such a motion is twenty (20) days, there were exigent circumstances that prevented me from addressing this matter sooner.
Throughout the months of March and April, I have been on my feet in a trial in Essex County Superior Court. The calendar call for that trial was on March 7, 2011, but the first day of trial did not actually commence until March 14, 2011. Thus, it was not until March 14, 2011 that I learned for the first time that I would be unable to attend oral argument in the above-referenced matter, which was scheduled for March 16,
2011. That trial concluded on April 14, 2011.
In addition to the on-going trial, my wife was unfortunately diagnosed with Basil Carcinoma on March 7, 2011. Her surgery spanned two (2) days, and took place on March 16, 2011 (the date of oral argument) and March 17, 2011.
Upon realizing that I would not be able to attend oral argument on March 16, 2011 in the above-captioned matter, I thought I had instructed my office to contact the Court and request an adjournment until after the trial in Essex County had concluded. However, it is possible that in the midst of everything that was going on at that time, I did not actually communicate this instruction.
The City is merely seeking the opportunity to articulate its position in this matter on the record, and it does not want to waste time, energy, and resources on an appeal if at all possible. For the foregoing reasons, the City respectfully requests permission to file a motion for reconsideration of Your Honor's March 17, 2011 Order.
If you have any questions or need any further information, please feel free to contact me at your convenience.
The order was actually dated March 16, 2011, and stamped "filed" on March 17, 2011.
--------
Citing Rule 1:3-4(c), which, inter alia, prohibits the enlargement of the twenty-day timeframe for the filing of a motion for reconsideration under Rule 4:49-2, the court denied defense counsel's request. Defendant now appeals, urging us to reverse the trial court's ruling, vacate the judgment, and remand the matter for trial -- where the City will have the opportunity to defend itself against plaintiff's allegations.
II
Although defendant has included in its appellate brief a detailed argument addressing the meritless nature of plaintiff's case, our decision to reverse the trial court's ruling here is based entirely on the procedural irregularities that undermine the fairness of the proceedings. As such, we will not address the merits of the case. In our view, this case requires an actual trial in which both sides have a full and fair opportunity to present their evidence and argue the legal issues involved.
As the record reflects, the trial judge herself expressed concern over the manner in which this case was proceeding:
THE COURT: I can proceed to hear your application today [(addressing plaintiff)] to approve the request in your complaint, and if I grant it there's a possibility that the City might try to move to, you know, reopen it and have me re-hear it because they were not here and represented, but I am perfectly willing to hear your application today. But I just want to tell you that if I do, and if I do grant it, that there is a possibility that such an application could be made.
On the other hand, maybe it won't be made. I don't know. It's not for me to predict that. Or if you wanted to, we can simply put it off for another day.
So I'll let you make the choice here.
[PLAINTIFF]: Judge, I'd like to present to you my --
THE COURT: That's fine.
[PLAINTIFF]: -- my information.
Rule 1:2-4(a) authorizes a trial court to impose sanctions for an attorney's failure to appear at a scheduled proceeding:
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, on the return of a motion, at a pretrial conference, settlement conference, or any other proceeding scheduled by the court, or on the day of trial, or if an application is made for an adjournment, the court may order any one or more of the following: (a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, to the Clerk of the Court made payable to "Treasurer, State of New Jersey," or to the adverse party; (b) the payment by the delinquent attorney or party or the party applying for the adjournment of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint, cross-claim, counterclaim or motion, or the striking of the answer and the entry of judgment by default, or the granting of the motion; or (d) such other action as it deems appropriate.
[(Emphasis added).]
It is well-settled, however, that the suppression of a party's pleading, and thereafter proceeding to final judgment by way of default, is a drastic sanction that should be sparingly imposed. Zaccardi v. Becker, 88 N.J. 245, 253 (1982). Courts should strive to decide cases on the merits, after giving both sides of the dispute a full and fair opportunity to present their evidence and argue the law. "[A]fter all, justice is the polestar and our procedures" are to be "applied with that in mind." N.J. Highway Auth. v. Renner, 18 N.J. 485, 495 (1955) (citations omitted).
Although there is an indisputable need to move cases swiftly through the system, courts must avoid closing the courtroom doors to a litigant whose only sin was to retain an attorney who failed to keep the court fully informed as to his scheduling conflicts. Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 406 (App. Div. 1986). However, although the attorney in this matter should have informed the court of his unavailability, the court likewise should have been clearer in apprising the parties that the March 16, 2011 "hearing" was intended as a trial date. Finally, we must also emphasize that defendant is a public entity. As such, courts should take special care to avoid entering a final judgment by default against a publicly funded entity, because the true party in interest is the innocent taxpayer.
Reversed 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