Opinion
DOCKET NO. A-1704-14T2
04-27-2016
ESTRELLA PIEMONTESE, Plaintiff-Appellant, v. ACCOMPLISHED CHIMNEY, INC., Defendant-Respondent.
Estrella Piemontese, appellant pro se. De Marco & De Marco, attorneys for respondent (Patrick C. De Marco, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2780-13. Estrella Piemontese, appellant pro se. De Marco & De Marco, attorneys for respondent (Patrick C. De Marco, on the brief). PER CURIAM
Plaintiff Estrella Piemontese appeals from an order entered by the Law Division on October 10, 2014, which denied her motion to vacate the dismissal of her complaint and reconsider the earlier denial of an application for an adjournment. We affirm.
We briefly summarize the relevant facts and procedural history of this case. On July 16, 2013, plaintiff filed a pro se complaint against defendant Accomplished Chimney, Inc., alleging breach of contract and fraud with regard to certain construction work defendant had performed at plaintiff's home. The court issued a notice informing the parties that the case was scheduled for trial on September 15, 2014.
On August 21, 2014, plaintiff went to the courthouse and submitted a request to adjourn the trial. In the request, plaintiff stated that she was "very sick" and presently "in physical therapy and other treatments." Attached to her request was a copy of a document which stated that a physician had prescribed certain physical therapy for plaintiff's right hip tendonitis.
Also attached to plaintiff's adjournment request was a copy of a billing statement from a radiology office stating that in April 2014, "Maria Piemontese" had six x-rays, including x-rays of the spine, hip and pelvis. In addition, plaintiff's adjournment request included a copy of a statement from an orthopedic center regarding diagnostic tests and treatment provided to Maria Piemontese. Among other things, this document stated that in May and July 2014, certain x-rays were performed, and on August 1, 2014, certain injections given. Defendant did not oppose the application.
We assume that plaintiff is the "Maria Piemontese" referred to in these documents. --------
The trial court denied the adjournment request. On September 11, 2014, the court issued another notice indicating that the case was scheduled for trial on September 15, 2014. On the scheduled date, the case was called for trial. Defendant's counsel entered an appearance at the calendar call. Plaintiff was not present.
At 11:00 a.m., the trial judge noted on the record that plaintiff had "actually appeared" in the courthouse on August 21, 2014, and filled out the form requesting an adjournment. The judge observed that the adjournment request had been denied, and plaintiff had been notified that the trial date would not be adjourned.
The judge added that defendant's counsel had spoken that morning with plaintiff on the telephone. The judge said plaintiff was not in the hospital or unable to converse. According to the judge, plaintiff indicated that she thought the matter may have been adjourned. The judge stated that, "regardless of what [plaintiff] thought," she was not present in court.
Defendant's attorney stated that plaintiff had informed him she would not be coming to court. The judge confirmed that plaintiff's adjournment request had previously been denied. The judge then ruled that since the trial date had not been adjourned and plaintiff had not appeared for trial, her complaint would be dismissed with prejudice for failure to proceed and prosecute the matter.
On September 16, 2014, plaintiff filed a motion to vacate the dismissal and restore the matter for trial, and for reconsideration of the earlier denial of her adjournment application. In her motion, plaintiff stated that she had "been very sick and under physical therapy and other medical care." Plaintiff claimed that she did not know her application for an adjournment had been denied. Plaintiff asserted that she did not receive notice that she had to be in court for trial until the afternoon of September 15, 2014. Defendant opposed the motion.
The motion judge entered an order dated October 10, 2014, denying plaintiff's motion. On the order, the judge wrote that plaintiff had been in court "numerous times" at or around the time the case was scheduled for trial. The judge wrote that plaintiff knew the adjournment had been denied but chose not to appear. Plaintiff's appeal followed.
On appeal, plaintiff argues: (1) the case was "unfairly dismissed" for failure to appear on the trial date because the court never provided a decision on the adjournment request and sent a "defective" notice by regular mail, which plaintiff did not receive until the afternoon of the trial date; (2) this is "a very crucial and important case" because defendant caused "great damages" and justice must be "applied"; and (3) the case "qualifies for criminal actions" against defendant.
We have thoroughly reviewed the record and are convinced that plaintiff's arguments are without sufficient merit to warrant extended comment. R. 2:11-3(e)(1)(E). We add the following brief comments.
Trial courts have broad discretion in determining whether to grant or deny an adjournment request. State v. Jenkins, 349 N.J. Super. 464, 478 (App. Div.), certif. denied, 174 N.J. 43 (2002); State v. McLaughlin, 310 N.J. Super. 242, 259-60 (App. Div.), certif. denied, 156 N.J. 381 (1998). When reviewing the exercise of such discretion, we may not substitute our judgment for that of the trial court. Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) (citing Gittleman v. Central Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968)), certif. denied, 144 N.J. 174 (1996). We only consider whether the trial court "'pursue[d] a manifestly unjust course.'" Ibid. (quoting Gittleman, supra, 103 N.J. Super. at 179).
We are convinced that the trial court's denial of plaintiff's adjournment request was not a mistaken exercise of discretion. In her application, plaintiff asserted that she was "very sick" and receiving physical therapy and other treatment. She did not, however, provide a written statement from a physician stating that she was too ill to appear for trial.
Rather, plaintiff submitted to the trial court copies of certain medical records, which indicated that physical therapy had been prescribed for tendonitis of her right hip. There was, however, no indication that because plaintiff was having such therapy she was medically incapable of appearing for trial. Moreover, as the trial judge noted, several weeks before the trial date, plaintiff had been well enough to go to the courthouse to complete the form seeking the adjournment.
We are also convinced that the court did not err by dismissing the complaint with prejudice when plaintiff failed to appear for trial. Rule 1:2-4(a) provides in pertinent part that the trial court may dismiss a complaint 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.Dismissals for failure to appear are generally without prejudice "unless the court for good cause orders otherwise." Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 393 (App. Div. 1994) (citing R. 4:37-2(a); Woodward-Clyde Consultants v. Chemical & Pollution Sciens., Inc., 105 N.J. 464, 471 (1987)).
Furthermore, the dismissal remedy "should not be invoked except in the case of egregious conduct on the part of a plaintiff, and should generally not be employed where a lesser sanction will suffice." Ibid. Lesser sanctions include payment of defendant's costs, attorney's fees and/or out-of-pocket expenses. Ibid. Procedural dismissals, particularly dismissals with prejudice, are disfavored. Id. at 395 (citations omitted). We have observed that "[c]ases should be won or lost on their merits and not because litigants failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available." Id. at 395.
As we have explained, the trial court provided plaintiff with notice of the September 15, 2014 trial date. Plaintiff was aware of that date and sought an adjournment. Her application was denied. The trial judge noted that plaintiff had been informed that her application for adjournment had been denied. Plaintiff claims she did not receive a decision on her adjournment request. However, if plaintiff had not been told that the trial was adjourned, she was obligated to appear in court on the scheduled trial date.
Plaintiff also asserts that she did not receive a notice that the case would proceed to trial until the afternoon of the trial date, but she had received the earlier notice scheduling the matter for trial on September 15, 2014. Furthermore, after plaintiff had failed to appear for the calendar call at 9:00 a.m. on September 15, 2014, defendant's attorney called her and informed her that the case had been called for trial. Plaintiff said she was not going to come to court.
Under the circumstances, the trial judge did not mistakenly exercise his discretion by dismissing the complaint with prejudice. Plaintiff's noncompliance with the court's scheduled trial date was purposeful. Furthermore, lesser sanctions would not have been appropriate here, particularly in view of plaintiff's purposeful refusal to come to court on the trial date, even after she was called and told that the matter would be tried on that date. Moreover, plaintiff did not establish, with appropriate documentation, that she was too ill to attend to the matter.
We also conclude the motion judge did not err by denying plaintiff's motion to vacate the dismissal and restore the matter to the calendar. In support of that application, plaintiff again asserted that she had been "very sick and under physical therapy and other medical care." As we have explained, the trial judge did not err by dismissing the complaint in view of plaintiff's purposeful failure to appear. Moreover, plaintiff did not submit a statement from a physician indicating that she was too ill to appear for trial on the scheduled trial date.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION