Opinion
DOCKET NO. A-0603-13T3
09-22-2014
DISCOVER BANK, Plaintiff-Respondent, v. JON Y. KEARNEY, Defendant-Appellant.
Jon Y. Kearney, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-3004-12. Jon Y. Kearney, appellant pro se. Respondent has not filed a brief. PER CURIAM
This case marks the second time plaintiff Discover Bank has sued defendant Jon Y. Kearney on the same alleged debt in the Special Civil Part. Like the earlier action, this suit was dismissed without prejudice and without the imposition of terms or conditions. Defendant appeals, and although we affirm the dismissal without prejudice, we remand for consideration of whether conditions are needed to protect or compensate defendant in light of the possibility that he may again be haled into court on this claim.
Plaintiff's first action against defendant was commenced on January 27, 2012. Defendant filed an answer and affirmative defenses on March 8, 2012, and the matter was scheduled for a trial to occur on April 17, 2012. No transcript of the proceedings has been provided, but the record includes an order which memorialized the action's "voluntary dismissal" on the trial date. The all-purpose order entered by the judge contained spaces where the dismissal could be described as being either "with" or "without" prejudice; neither box was checked.
Because defendant had filed an answer, plaintiff was not entitled to a voluntary dismissal pursuant to Rule 4:37-1(a), although that appears to be what the judge permitted. No appeal was filed in that action.
Plaintiff commenced this second action against defendant on February 25, 2013, seeking collection of the same alleged debt. Defendant unsuccessfully moved for dismissal, arguing the first action was actually dismissed with prejudice. Defendant filed an answer and affirmative defenses on April 8, 2013, and the parties appeared for trial on September 4, 2013.
Defendant has not appealed the denial of this motion.
The judge's decision recounts that defendant had failed to appear at an earlier scheduled trial, resulting in entry of a default judgment, which was later vacated by motion.
When the matter was called on September 4, 2013, plaintiff's attorney and the unrepresented defendant placed their appearances on the record, after which the following transpired:
THE COURT: All right. You have a witness here?Defendant immediately asked to be heard. He reminded the judge that this was the second time he had been sued on this alleged debt, and he rhetorically argued, "how many bites of the apple are they supposed to be getting here, Your Honor?" The judge's only response was to "note[]" defendant's objection "for the record," bringing a close to the proceedings.
[PLAINTIFF'S COUNSEL]: No, I do not.
THE COURT: I'll dismiss it without prejudice. Thank you.
[PLAINTIFF'S COUNSEL]: Okay. Thank you, Your Honor.
The unrepresented defendant then filed this appeal, arguing the judge arbitrarily granted a dismissal without prejudice. After the appeal was filed, the judge rendered a supplementary oral opinion, pursuant to Rule 2:5-1(b), in which he stated that "plaintiff's witnesses were not available" at the time of trial and that "plaintiff [had] moved for a voluntary dismissal" pursuant to Rule 4:37-1(b). The judge explained in his supplementary opinion that he deemed it inequitable to dismiss the action with prejudice, particularly because he had vacated a default judgment entered against defendant for failing to appear at an earlier scheduled trial. The judge also recognized the dismissal without prejudice could have been conditioned, but he found defendant had made no application for such conditions and that, being unrepresented, defendant would not be entitled to counsel fees.
The transcript quoted above, which contains the entire discussion on this topic, reveals only that plaintiff did not have a witness present in court. There is nothing in the record to suggest plaintiff's witness was unavailable on the trial date.
If a formal motion was filed, it is not contained in the record on appeal. We assume the "motion" to which the judge referred was just the brief utterances, which we have quoted, in open court on September 4, 2013.
Rule 4:37-1(b) states, in part, that "an action shall be dismissed at the plaintiff's instance only by leave of court and upon such terms and conditions as the court deems appropriate."
A party responding to a motion filed pursuant to Rule 4:37-1(b) is not required to file a separate motion to obtain the judge's imposition of conditions if the motion is granted. This is particularly true where a plaintiff simply orally requests a dismissal at the time of trial.
In this regard, the judge referred to "a recent Levine case." We assume he meant Segal v. Lynch, 211 N.J. 230, 260 (2012) (where the Court held, in distinguishable circumstances, that it "perceive[d] in this record no basis on which to conclude that attorneys who represent themselves are entitled to be paid for their time when all other litigants who choose to represent themselves would be denied such compensation").
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In exercising the considerable discretion permitted by Rule 4:37-1(b), a trial judge must be mindful of the principles that govern its application:
The evil aimed at by the rule "is present in any instance in which a defendant is damaged by being dragged into court and put to expense with no chance whatever (if there is a dismissal without prejudice) of having the suit determined in his favor." McCann v. Bentley Stores Corporation, 34 F. Supp. 234[, 234] (W.D. Mo. 1940). The obvious purport of our rule is to protect a litigant where a termination of the proceedings without prejudice will place him in the probable position of having to defend, at additional expense, another action based upon similar charges at another time.
[Union Carbide Corp. v. Little Precision Prod., Inc., 94 N.J. Super. 315, 317 (Ch. Div. 1967) (quoted with approval in Shulas v. Estabrook, 385 N.J. Super. 91, 97 (App. Div. 2006)).]
It does not appear the trial judge considered the prejudice caused by plaintiff's serial filings on this claim. Having carefully considered the matter, we find no fault in the trial judge's exercise of discretion in concluding that a dismissal of the action without prejudice was fair to both sides. By the same token, we do not discern from the record that the judge adequately considered defendant's right to be protected from being repeatedly haled into court on this claim. To be sure, the judge was correct in rejecting an award of counsel fees because defendant was not represented by an attorney. Defendant, however, was certainly eligible for the imposition of other conditions, such as reimbursement for his direct or even indirect expenses in appearing for a trial for which plaintiff was not ready. The judge could also have considered reimbursing defendant for any costs or other expenses defendant incurred in responding to this action, such as the preparation and filing of defendant's answer and affirmative defenses. Accordingly, we remand for the judge's determination as to whether the circumstances merited the imposition of monetary conditions as part of the dismissal without prejudice.
Affirmed in part, remanded in part. 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