NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3944-17T1
BERNARDO DIAZ and UNIVERSAL GENERAL INVESTMENT CORP.,
Plaintiffs-Appellants,
v.
SIXTO BOBADILLA and JUAN VARGAS,
Defendants-Respondents. ____________________________
Submitted February 26, 2019 – Decided April 8, 2019
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3309-12.
Tomas Espinosa, attorney for appellants.
Respondents have not filed a brief.
PER CURIAM Plaintiffs Bernardo Diaz and Universal General Investment Corp.
(Universal) appeal from an order entered by the Law Division on February 27,
2018, which denied their motion to vacate the court's earlier dismissal of their
complaint and restore the matter to the calendar, and an order dated March 22,
2018, which granted a cross-motion by defendants Sixto Bobadilla and Juan
Vargas to dismiss the complaint with prejudice. We reverse.
On August 10, 2012, plaintiffs filed a complaint asserting various causes
of action against defendants arising out of a contract to purchase certain real
property in Paterson. Diaz is the principal and sole shareholder of Universal.
According to the complaint, plaintiffs entered into the contract to purchase the
property from defendants, paid a deposit of $50,000, and obtained a loan
commitment. Plaintiffs alleged defendants breached the agreement.
Plaintiffs also claimed they had leased space in the property they intended
to purchase from defendants. Plaintiffs alleged that after they fell behind in their
lease payments, defendants obtained a judgment of possession for the premises.
Plaintiffs claimed defendants took possession of their machinery, equipment,
inventory, and files, which had been in the leased premises. They estimated the
property was worth more than $40,000. Plaintiffs sought specific performance
A-3944-17T1 2 of the real estate contract, compensatory and punitive damages, interest, costs
of suit, and attorney's fees.
On September 26, 2012, defendants filed an answer denying liability and
asserted various counterclaims. Thereafter, the parties engaged in discovery and
related motion practice, and the court scheduled the matter for trial on October
15, 2013. Plaintiffs' counsel submitted a trial brief and proposed jury charges
to the court.
On October 15, 2013, the parties participated in a settlement conference
with a judge, but were unable to settle the matter. According to plaintiffs, the
judge who handled the conference "stated that the case was adjourned and that
it was to be placed on call for jury trial within [six] weeks." It appears, however,
that the court dismissed the action.
On January 29, 2018, plaintiffs filed a motion to vacate the dismissal and
restore the matter to the trial calendar. They asked for oral argument on the
motion. In support of the motion, plaintiffs submitted certifications from their
attorney, Tomas Espinosa, and from Diaz.
In his certification, Espinosa asserted that on October 14, 2014, he wrote
to the court and stated that the parties had appeared for trial in October 2013,
but the trial had been adjourned because a judge was not available to try the
A-3944-17T1 3 case. Espinosa said that in chambers, a judge told the parties they would be
informed of the new trial date by mail. According to Espinosa, after "an
inordinate amount of time" had passed, he checked the court's docket and
discovered that the case had been marked as having been voluntarily dismissed.
Espinosa stated that "[t]his office never filed any request for voluntary
dismissal, and never agreed to any such dismissal. This office never executed
any stipulation of dismissal." He asked the court to reinstate the case "to the
calendar without any need of my client to file a motion." Espinosa asserted that
he had no record of any response to his letter by the court, but the court's file
includes a note that someone had called him and instructed him to file a motion.
Espinosa had no recollection of the call.
Diaz stated in his certification that after the court adjourned the trial, he
expected to receive a new trial notice within six weeks but the notice "never
came." He said that neither he nor his attorney dismissed the case voluntarily,
and he thought the dismissal was either the result of gross negligence, a reckless
mistake, or foul play.
Diaz claimed the motion to reinstate the complaint had not been filed
earlier because he had to trace certain witnesses. According to Diaz, one of the
witnesses had been deported to the Dominican Republic. He said he intended
A-3944-17T1 4 to retain an attorney to determine if that witness would be permitted to return to
the United States to testify at trial. According to Diaz, another witness had
disappeared, but he was located "a few weeks ago" in New Jersey.
Defendants opposed the motion to reinstate the action and filed a cross-
motion to dismiss the complaint with prejudice. Defendants requested oral
argument on the motions. In their supporting brief, defendants noted that
plaintiffs had not filed their motion until fifty-one months after the court
dismissed the case.
Paul E. Fernandez, counsel for defendants, provided a certification, in
which he stated that the trial had been scheduled for October 15, 2013, and the
matter assigned to a judge who conferenced the matter "at length." Fernandez
said Diaz was not present at the time.
According to Fernandez, the judge encouraged the parties to negotiate,
and they were supposed to attend a meeting in the courthouse cafeteria, but Diaz
was "nowhere to be found." Fernandez stated that the parties then appeared
before another judge, who conferenced the case and marked it ready for trial.
Fernandez said Diaz failed to appear, and the court then marked the matter as
dismissed.
A-3944-17T1 5 Fernandez claimed that plaintiffs' attorney "was aware of the dismissal."
He added that the defense witnesses who previously appeared for trial "are no
longer available and [reside] outside the United States." He asserted that
defendants "strenuously object to any reinstatement of the complaint because it
will unduly and severely prejudice" defendants.
On February 27, 2018, the judge entered an order denying plaintiffs'
motion to vacate the dismissal and restore the case to the calendar. The judge
wrote on the order, "Application denied. This case was neglected for the last 4
1/2 years." It appears the judge did not entertain oral argument on the motion.
The judge also provided no oral or written decision.
On March 22, 2018, the judge entered another order, which again denied
plaintiffs' motion to vacate the dismissal and reinstate the case, and granted
defendants' cross-motion to dismiss the complaint with prejudice. On the order,
the judge wrote only that the motion was "opposed by mot[ion] to reinstate."
The judge provided no oral or written decision. This appeal followed.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3944-17T1
BERNARDO DIAZ and UNIVERSAL GENERAL INVESTMENT CORP.,
Plaintiffs-Appellants,
v.
SIXTO BOBADILLA and JUAN VARGAS,
Defendants-Respondents. ____________________________
Submitted February 26, 2019 – Decided April 8, 2019
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3309-12.
Tomas Espinosa, attorney for appellants.
Respondents have not filed a brief.
PER CURIAM Plaintiffs Bernardo Diaz and Universal General Investment Corp.
(Universal) appeal from an order entered by the Law Division on February 27,
2018, which denied their motion to vacate the court's earlier dismissal of their
complaint and restore the matter to the calendar, and an order dated March 22,
2018, which granted a cross-motion by defendants Sixto Bobadilla and Juan
Vargas to dismiss the complaint with prejudice. We reverse.
On August 10, 2012, plaintiffs filed a complaint asserting various causes
of action against defendants arising out of a contract to purchase certain real
property in Paterson. Diaz is the principal and sole shareholder of Universal.
According to the complaint, plaintiffs entered into the contract to purchase the
property from defendants, paid a deposit of $50,000, and obtained a loan
commitment. Plaintiffs alleged defendants breached the agreement.
Plaintiffs also claimed they had leased space in the property they intended
to purchase from defendants. Plaintiffs alleged that after they fell behind in their
lease payments, defendants obtained a judgment of possession for the premises.
Plaintiffs claimed defendants took possession of their machinery, equipment,
inventory, and files, which had been in the leased premises. They estimated the
property was worth more than $40,000. Plaintiffs sought specific performance
A-3944-17T1 2 of the real estate contract, compensatory and punitive damages, interest, costs
of suit, and attorney's fees.
On September 26, 2012, defendants filed an answer denying liability and
asserted various counterclaims. Thereafter, the parties engaged in discovery and
related motion practice, and the court scheduled the matter for trial on October
15, 2013. Plaintiffs' counsel submitted a trial brief and proposed jury charges
to the court.
On October 15, 2013, the parties participated in a settlement conference
with a judge, but were unable to settle the matter. According to plaintiffs, the
judge who handled the conference "stated that the case was adjourned and that
it was to be placed on call for jury trial within [six] weeks." It appears, however,
that the court dismissed the action.
On January 29, 2018, plaintiffs filed a motion to vacate the dismissal and
restore the matter to the trial calendar. They asked for oral argument on the
motion. In support of the motion, plaintiffs submitted certifications from their
attorney, Tomas Espinosa, and from Diaz.
In his certification, Espinosa asserted that on October 14, 2014, he wrote
to the court and stated that the parties had appeared for trial in October 2013,
but the trial had been adjourned because a judge was not available to try the
A-3944-17T1 3 case. Espinosa said that in chambers, a judge told the parties they would be
informed of the new trial date by mail. According to Espinosa, after "an
inordinate amount of time" had passed, he checked the court's docket and
discovered that the case had been marked as having been voluntarily dismissed.
Espinosa stated that "[t]his office never filed any request for voluntary
dismissal, and never agreed to any such dismissal. This office never executed
any stipulation of dismissal." He asked the court to reinstate the case "to the
calendar without any need of my client to file a motion." Espinosa asserted that
he had no record of any response to his letter by the court, but the court's file
includes a note that someone had called him and instructed him to file a motion.
Espinosa had no recollection of the call.
Diaz stated in his certification that after the court adjourned the trial, he
expected to receive a new trial notice within six weeks but the notice "never
came." He said that neither he nor his attorney dismissed the case voluntarily,
and he thought the dismissal was either the result of gross negligence, a reckless
mistake, or foul play.
Diaz claimed the motion to reinstate the complaint had not been filed
earlier because he had to trace certain witnesses. According to Diaz, one of the
witnesses had been deported to the Dominican Republic. He said he intended
A-3944-17T1 4 to retain an attorney to determine if that witness would be permitted to return to
the United States to testify at trial. According to Diaz, another witness had
disappeared, but he was located "a few weeks ago" in New Jersey.
Defendants opposed the motion to reinstate the action and filed a cross-
motion to dismiss the complaint with prejudice. Defendants requested oral
argument on the motions. In their supporting brief, defendants noted that
plaintiffs had not filed their motion until fifty-one months after the court
dismissed the case.
Paul E. Fernandez, counsel for defendants, provided a certification, in
which he stated that the trial had been scheduled for October 15, 2013, and the
matter assigned to a judge who conferenced the matter "at length." Fernandez
said Diaz was not present at the time.
According to Fernandez, the judge encouraged the parties to negotiate,
and they were supposed to attend a meeting in the courthouse cafeteria, but Diaz
was "nowhere to be found." Fernandez stated that the parties then appeared
before another judge, who conferenced the case and marked it ready for trial.
Fernandez said Diaz failed to appear, and the court then marked the matter as
dismissed.
A-3944-17T1 5 Fernandez claimed that plaintiffs' attorney "was aware of the dismissal."
He added that the defense witnesses who previously appeared for trial "are no
longer available and [reside] outside the United States." He asserted that
defendants "strenuously object to any reinstatement of the complaint because it
will unduly and severely prejudice" defendants.
On February 27, 2018, the judge entered an order denying plaintiffs'
motion to vacate the dismissal and restore the case to the calendar. The judge
wrote on the order, "Application denied. This case was neglected for the last 4
1/2 years." It appears the judge did not entertain oral argument on the motion.
The judge also provided no oral or written decision.
On March 22, 2018, the judge entered another order, which again denied
plaintiffs' motion to vacate the dismissal and reinstate the case, and granted
defendants' cross-motion to dismiss the complaint with prejudice. On the order,
the judge wrote only that the motion was "opposed by mot[ion] to reinstate."
The judge provided no oral or written decision. This appeal followed.
On appeal, plaintiffs argue: (1) the trial court's orders should be reversed
because they never voluntarily dismissed their action; (2) the voluntary
dismissal should be vacated pursuant to Rule 4:50-3 because the dismissal was
the result of a deception perpetrated on the court; (3) the court's orders should
A-3944-17T1 6 be reversed because after the trial was adjourned, the court never gave the parties
a new trial date; (4) the court abused its discretion by denying plaintiffs' motion
to vacate the "false" voluntary dismissal; and (5) the court's orders should be
reversed because of misconduct by the judge who allegedly dismissed the action.
We note initially that both parties requested oral argument on the motions.
The record does not show, however, why the court did not grant the requests for
oral argument. Rule 1:6-2(d) provides in pertinent part that the court should
grant a request for oral argument in a civil action unless the motion involves
pretrial discovery or is "directly addressed to the calendar[.]" Although
plaintiffs' motion to vacate the dismissal and reinstate the complaint could be
seen as a motion "addressed to the calendar," defendants' cross-motion sought
dismissal of the complaint with prejudice. Therefore, the court should have
granted the parties' requests for oral argument.
On appeal, plaintiffs argue that the trial court erred by denying their
motion to vacate the dismissal and restore the case to the trial calendar. They
raise various arguments on this issue. We will not address those arguments, but
we will reverse the trial court's orders and remand the matter for further
proceedings because the judge failed to provide adequate reasons for his
decisions.
A-3944-17T1 7 Rule 1:7-4(a) states in pertinent part that the court "shall, by an opinion
or memorandum decision, either written or oral, find the facts and state its
conclusions of law . . . on every motion decided by a written order that is
appealable as of right[.]" A court's failure to prove adequate findings and
conclusions of law "constitutes a disservice to the litigants, the attorneys and the
appellate court." Ricci v. Ricci, 448 N.J. Super. 546, 575 (App. Div. 2017)
(quoting Kenwood Assocs. v. Bd. of Adjustment Englewood, 141 N.J. Super. 1,
4 (App. Div. 1976)). The cursory remarks written on the orders failed to explain
adequately the reasons the judge denied plaintiffs' motion and granted
defendants' motion to dismiss the complaint with prejudice.
We note that Rule 4:37-1(a) permits a plaintiff to dismiss a complaint after
a defendant files an answer or motion for summary judgment "by filing a
stipulation of dismissal specifying the claim or claims being dismissed, signed
by all parties who have appeared in the action." Such a dismissal is generally
without prejudice. Ibid. A plaintiff may also seek dismissal "by leave of court"
where he or she is unable to obtain consent. R. 4:37-1(b). A plaintiff can
thereafter seek reinstatement of the complaint for good cause shown. ASHI-
GTO Assocs. v. Irvington Pediatrics, P.A., 414 N.J. Super. 351, 359 (App. Div.
2010).
A-3944-17T1 8 Furthermore, Rule 4:50-1 is applicable to voluntary dismissals under Rule
4:37-1(a), even though the determination was not the result of an order or a final
judgment. Id. at 361; Miller v. Estate of Kahn, 140 N.J. Super. 177, 181 (App.
Div. 1976); Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:50-1
(2019) ("The rule applies to voluntary dismissals entered upon stipulation as
well as to a dismissal without prejudice entered pursuant to R[ule] 1:13-7.").
Rule 4:50-1 provides that:
[T]he court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
A motion under Rule 4:50-1 must be "made within a reasonable time;"
however, motions made under Rule 4:50-1(a), (b), or (c) must be made within
one year of the judgment or order. R. 4:50-2. When deciding if a motion for
A-3944-17T1 9 relief under Rule 4:50-1 has been "made within a reasonable time," the court
must consider "the surrounding circumstances including the length of time that
has passed and a due consideration for competing rights and interests which have
come to exist." Friedman v. Monaco & Brown Corp., 258 N.J. Super. 539, 543
(App. Div. 1992) (citing City of Newark v. (497) Block 1854, 244 N.J. Super.
402 (App. Div. 1990)).
Here, plaintiffs apparently sought relief under Rule 4:50-1(f) because their
motion to vacate the dismissal and restore the case to the calendar was filed
several years after the case was dismissed. However, relief under Rule 4:50-
1(f) "is available only when 'truly exceptional circumstances are present.'"
Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) (quoting
Baumann v. Marinaro, 95 N.J. 380, 395 (1984)).
In this matter, the motion judge did not identify whether he was applying
the good cause standard for reinstatement of a complaint under ASHI-GTO
Associates or the standards for relief under Rule 4:50-1(f). The judge noted on
the order of February 27, 2018, that plaintiffs had neglected the action for four
and one-half years after the dismissal. However, in their certifications, Diaz and
Espinosa endeavored to explain the delay. The judge did not comment on the
A-3944-17T1 10 certifications, and made no finding as to whether plaintiffs had provided credible
reasons for the delay.
Moreover, in opposing plaintiffs' motion and in support of their cross-
motion to dismiss the complaint with prejudice, defendants asserted that they
would be prejudiced if the complaint were reinstated. They claimed certain
witnesses were no longer available. The judge made no findings to whether
defendants would be prejudiced if the complaint were reinstated, as they
claimed.
We therefore reverse the orders of February 27, 2018, and March 22, 2018,
and remand the matter to the trial court for further proceedings on the motions.
If the parties wish to be heard, the court shall permit them to present oral
argument on the motions. Thereafter, the court shall make findings of fact and
conclusions of law, as required by Rule 1:7-4.
Reversed and remanded for further proceedings in conformance with this
opinion. We do not retain jurisdiction.
A-3944-17T1 11