DAMIAN SABLON v. ISRAEL PEREZ TOWING SERVICE

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Superior Court of New Jersey, Appellate Division.

DAMIAN J. SABLON, Plaintiff–Appellant, v. ISRAEL PEREZ and C & J TOWING SERVICE, Defendants–Respondents.

DOCKET NO. A–2882–12T1

Decided: March 13, 2014

Before Judges Parrillo and Harris. Alfred V. Gellene argued the cause for appellant (Fusco and Macaluso, attorneys;  Mr. Gellene, on the brief). Victoria J. Adornetto argued the cause for respondents (Margolis Edelstein, attorneys;  Ms. Adornetto, of counsel and on the brief).

Plaintiff Damian J. Sablon appeals from the Law Division's January 14, 2013 order dismissing his complaint with prejudice pursuant to Rule 1:13–7 and a subsequent February 22, 2013 order denying reconsideration and reinstatement of the complaint.   We reverse.

I.

The underlying facts that comprise Sablon's grievance against defendants Israel Perez and C & J Towing Service are not germane to the issues on appeal.   However, they are sufficiently unusual to warrant a very brief summary.   According to Sablon's complaint, on August 31, 2009, while driving on Bloomfield Avenue in Newark, Sablon's vehicle was struck by a runaway motor vehicle that Perez, while working for C & J Towing, had “failed to properly secure” to his tow truck.   Defendants' description, as recounted by their attorney's August 9, 2012 letter to the court, is the following:

On August 31, 2009, there was a multi-vehicle accident in the vicinity of Bloomfield and Gariside Avenues in Newark, New Jersey.   Defendant Perez was the operator of a tow truck for and on behalf of his employer, C & J [Towing], at the time of the accident, at which time an unoccupied vehicle undergoing tow fell away from the tow truck and struck Plaintiff's vehicle.

Another description of what occurred is found in a February 22, 2013 representation made by Sablon's attorney to the court:  “[F]actually[,] it's a car that dropped from a tow truck in transit, struck four other vehicles, and then struck the front of a restaurant, ultimately, causing it to come to rest.”   Notwithstanding the hearsay nature of the attorneys' versions, we recite them to highlight what appears to be substantial agreement about the happening of the incident.   Whether, as Sablon contends, “it's not a major liability issue where there's going to be a fight,” is not an issue present in this appeal.

On February 3, 2011, Sablon filed a six-count complaint in the Law Division against Perez, C & J Towing, State Farm Insurance Company, and DEF Corp. In addition to the claims seeking tort-related damages for injuries sustained in the August 31, 2009 incident, Sablon sought contract and tort remedies against his putative insurers for failing to pay Personal Injury Protection benefits pursuant to N.J.S.A. 39:6A–4.

On April 18, 2011, the Essex County Sheriff's Office returned Sablon's summons and complaint indicating that it was unable to serve C & J Towing with process because the “address is located in Elizabeth which is Union County.”   The record does not indicate the nature of Sablon's efforts to serve any of the other defendants in the weeks following the filing of the complaint.

On July 1, 2011, a sixty-day notice of pending dismissal for failure to prosecute the case was issued to Sablon.   On September 2, 2011, an automatic order dismissing the complaint without prejudice against Perez and C & J Towing was entered pursuant to Rule 1:13–7(a).

Sablon then attempted another round of service of process on both Perez and C & J Towing.   On September 26, 2011, the complaint was successfully served on Perez at his Montclair residence.1  Two days later, the Essex County Sheriff's Office reported that C & J Towing could not be served at a Newark address because C & J Towing was “no longer at address.”

In the ensuing months, Sablon discovered that C & J Towing had changed its location, but left no forwarding address.   On June 26, 2012, Sablon conducted a corporate search and discovered the identity and address (in Belleville) of C & J Towing's former registered agent.2

An unsuccessful attempt to serve the registered agent with process was conducted in July 2012.   The affidavit of service, which memorialized the effort, indicated that “the company listed is not at the address provided.   The business that is there is Sun Cleaners.”

On July 20, 2012, more than ten months after the complaint was dismissed without prejudice, Sablon filed a motion to reinstate the complaint and for substituted service on Navigators Insurance Company (Navigators) —— C & J Towing's insurance carrier.   Notice of the motion was provided to Navigators by regular and certified mail.

On August 9, 2012, one day before the motion was scheduled for disposition, Perez and C & J Towing's newly retained counsel filed opposition to the motion and sought to postpone the disposition until August 24, 2012.   Nevertheless, on August 10, 2012, the Law Division granted Sablon's motion ordering that the complaint be reinstated and granting permission to serve C & J Towing by means of substituted service on Navigators.   The order indicated, “Motion Unopposed.”

On October 9, 2012, Perez and C & J Towing filed a reconsideration motion contesting the reinstatement of Sablon's complaint and authorizing substituted service.   On January 14, 2013, the court entered an order “revers[ing] the August 10, 2012 Order restoring [p]laintiff's pleadings,” and further ordered that “[p]laintiff's pleadings shall remain stricken and administratively dismissed for lack of prosecution as to both [d]efendant Perez and C & J Towing Service, and insufficiency of process upon [d]efendant Perez.”   The order further dismissed Sablon's claims against Perez and C & J Towing with prejudice “as they are now time-barred.”   The only rationale expressed for the motion court's determination was contained in a hand-written sentence appended to the order:  “For the reasons set forth in motion.”

Sablon immediately filed his own reconsideration motion, which was denied on February 22, 2013, with the motion court declaring,

I am going to deny the motion.   I am persuad[ed] by counsel's argument that [the] defense will suffer prejudice.   They're unable to locate the driver.   And that procedurally this application is deficient in that it is —— the Court [R]ules provide relief once the appropriate motions are filed and this would not be one of them.

This appeal followed.

II.

“Our review of an order denying reinstatement of a complaint dismissed for lack of prosecution proceeds under an abuse of discretion standard.”   Baskett v. Kwokleung Cheung, 422 N.J.Super. 377, 382 (App.Div.2011) (quoting Weber, supra, 397 N.J.Super. at 262).   This is a multi-defendant case;  therefore, because reinstatement was sought beyond ninety days, the exceptional circumstances test of Rule 1:13–7 applies.3  Id. at 383–84.

Motions for reconsideration are also reviewed under an abuse of discretion standard.  Cummings v. Bahr, 295 N.J.Super. 374, 389 (App.Div.1996).   A mistaken exercise of discretion arises where “the ‘decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’ ”  United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561 (2002)).   Reviewing courts “may only disturb the decision below if it finds error which is ‘clearly capable of producing an unjust result.’ ”  Casino Reinvestment Dev. Auth. v. Teller, 384 N.J.Super. 408, 413 (App.Div.2006) (quoting R. 2:10–2).

Against this standard, because we cannot properly review the motion court's exercise of discretion due to the cryptic and incomplete explanations for its determinations, we have no choice but to reverse and remand for further proceedings.

When attending the solemn duty of considering whether to dismiss a civil action with prejudice, motion courts are doubly required to express their decisions with clarity, not only so that the parties understand why capital punishment has been inflicted on their case, but so that appellate review is capable of being performed.   Additionally, this heightened responsibility to explain such a dismissal is a corollary to our firm allegiance to a policy that favors deciding contested matter on their merits rather than based on procedural deficiencies.   See Woodward–Clyde Consultants v. Chem. & Pollution Scis., Inc., 105 N.J. 464, 472–74 (1987).  “ ‘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) (quoting Connors v. Sexton Studios, Inc., 270 N.J.Super. 390, 395 (App.Div.1994)).

Here, in both motions, the court failed to explain its decisions.   Not only did the court fail to explicate the applicable standards under Rule 1:13–7, but it neglected to articulate its consideration of the totality of the circumstances, including an analysis of whether the innocent-client doctrine was applicable.   See Ghandi v. Cespedes, 390 N.J.Super. 193, 196 (App.Div.2007) (“ ‘Courts should be reluctant to penalize a blameless client for the mistakes of an attorney.’ ”) (quoting Familia v. Univ. Hosp. of Med. & Dentistry of N.J., 350 N.J.Super. 563, 568 (App.Div.2002)).

Furthermore, notwithstanding Perez and C & J Towing's claims of prejudice, the motion court neither analyzed the significance —— under the unusual fact circumstances of this case —— of not being able to find Perez nor did it consider that Perez and C & J Towing's insurer may have been aware of the pendency of Sablon's (and the other victims') claims for many years.   On remand, the court shall reconsider whether, in fact,

defendants suffered any prejudice that would warrant dismissal.4

The vacuum created by the lack of the motion court's explanation for what it did on January 14 and February 22, 2013, leaves us unable to parse whether those decisions constituted mistaken exercises of discretion.  “Neither the parties nor the appellate court is ‘well served by an opinion devoid of analysis or citation to even a single case.’ ”  Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J.Super. 495, 498 (App.Div.2000).   Rule 1:7–4(a) clearly states that a trial “court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon ․ on every motion decided by a written order that is appealable as of right[.]”  See Shulas v. Estabrook, 385 N.J.Super. 91, 96 (App.Div.2006) (requiring an adequate explanation of basis for court's action).  “The rule requires specific findings of fact and conclusions of law․”  Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7–4 (2014).

Here, unlike in In re Trust Created by Agreement Dated Dec. 20, 1961, 399 N.J.Super. 237, 253 (App.Div.2006), aff'd, 194 N.J. 276 (2008), the motion court did not “[make] clear the extent of [its] agreement with and reliance on the” arguments of the successful parties.   The motion court did not identify what aspects of defendants' arguments it was adopting, make clear the extent of its agreement with and reliance on those arguments, or clearly set forth its reasons for adopting them.   As a result, we have no way of knowing why it determined to “reverse” its earlier reinstatement of Sablon's complaint, find service of process on Perez deficient, dismiss the complaint with prejudice, and then deny Sablon's motion for reconsideration.   These failures to provide the findings of fact and conclusions of law required by Rule 1:7–4(a) necessitate a remand for fulfillment of the court's obligation in this regard and to cement our commitment to the policy “favoring the disposition of cases on their merits[.]”  Midland Funding LLC v. Albern, 433 N.J.Super. 494, 496 (App.Div.2013).

Remanded for reconsideration and for findings of fact and conclusions of law.5  We do not retain jurisdiction.

FOOTNOTES

1.  FN1. The service of the summons and complaint did not include a notification that, at the time, the complaint was administratively dismissed without prejudice.   See Weber v. Mayan Palace Hotel, 397 N.J.Super. 257, 264 (App.Div.2007) (holding that “if a plaintiff serves a defendant with a complaint that has been dismissed pursuant to Rule 1:13–7(a), the plaintiff must so notify the defendant when serving the complaint, and must promptly file a reinstatement motion”).

2.  FN2. The corporate search in the record indicates that “C & J. Towing, Inc.” was incorporated in 1980, but its corporate status was “voided for failure to pay taxes” in 1985.

3.  FN3. Rule 1:13–7(a) provides for reinstatement of a dismissed complaint:After dismissal, reinstatement of an action against a single defendant may be permitted on submission of a consent order vacating the dismissal and allowing the dismissed defendant to file an answer, provided the proposed consent order is accompanied by the answer for filing, a case information statement, and the requisite fee.   If the defendant has been properly served but declines to execute a consent order, plaintiff shall move on good cause shown for vacation of the dismissal.   In multi-defendant actions in which at least one defendant has been properly served, the consent order shall be submitted within 60 days of the order of dismissal, and if not so submitted, a motion for reinstatement shall be required.   The motion shall be granted on good cause shown if filed within 90 days of the order of dismissal, and thereafter shall be granted only on a showing of exceptional circumstances.[ (Emphasis added).]

4.  FN4. It goes without saying that the remand court shall also reconsider whether Sablon demonstrated exceptional circumstances, but its analysis must be contextual, and shall be viewed through the lens of the totality of the circumstances.

5.  FN5. In remanding, we do not foretell the ultimate outcome of any of the motions.

PER CURIAM

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