Michael J. Kelsey v. Shannon Sommerville and Annette Sommerville

• Court: New Jersey Superior Court Appellate Division
• Decided: January 19, 2024
• Docket: A-2423-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2423-21

MICHAEL J. KELSEY,

Plaintiff-Appellant,

v.

SHANNON SOMMERVILLE and ANNETTE SOMMERVILLE,

Defendants-Respondents.

Submitted December 13, 2023 – Decided January 19, 2024

Before Judges Currier and Susswein.

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C- 000096-19.

Michael J. Kelsey, appellant pro se.

Adam M. Schneider, attorney for respondents.

PER CURIAM

Plaintiff appeals from the January 19, 2022 order denying his motion to

reinstate his complaint which was dismissed without prejudice in June 2021. The June 2021 order was issued sua sponte and stated if plaintiff did not file a

complaint for guardianship, the dismissal would convert to a dismissal with

prejudice. We conclude the court should have granted plaintiff's motion to

reinstate his complaint. Therefore, we reverse and remand for the trial court to

set a preemptory trial date.

The parties are neighbors and have a longstanding dispute regarding their

property line. After defendants installed a fence in 2006 or 2007, plaintiff asked

them to remove it, claiming the fence was on his property. Defendants did not

do so.

In 2011, defendants sought permission from the East Hanover Land Use

Board (Board) to construct a two-story addition on their home. Their application

included requests for certain variances. Plaintiff objected to the application,

raising the property line dispute. Defendants withdrew the application.

In April 2019, defendants applied to the Board for permission to construct

a one-story addition on their house, with variances for setbacks and location of

a garage. Plaintiff again objected to the application, reiterating the continued

dispute regarding the property line, and asserting a discrepancy between the

parties' surveys. The Board approved defendants' application with amendments.

A-2423-21 2 Thereafter, the self-represented plaintiff filed a complaint against

defendants asserting causes of action for adverse possession, trespass, and to

quiet title, and sought a declaratory judgment. In the complaint, he asserted he

was disabled and suffered from unspecified "medical ailments." He stated his

volunteer caregiver had assisted him in the proceedings before the Board in 2011

and 2019, and in filing the complaint.

In October 2019, the case was transferred to the Chancery Division. It

was referred to mediation in March 2020 but the parties were unable to reach a

settlement. A trial date was scheduled for September 9, 2020, but the trial did

not take place.1 In January 2021, the court issued a case management order

setting various deadlines and technical specifications in anticipation of a vi rtual

trial set for March 25, 2021.

Thereafter, defendants moved for summary judgment and filed a pretrial

memorandum. Plaintiff retained counsel who requested a thirty-day

adjournment of the trial date. The trial was adjourned to April 27, 2021.

On March 23, 2021, plaintiff sought leave to file an amended complaint

seeking (1) an injunction of defendants' variances, and (2) the removal of

1 The record does not reflect why the trial was not convened. A-2423-21 3 defendants' fence from plaintiff's property. Defendants opposed the motion and

plaintiff filed opposition to defendants' summary judgment application.

In early April, plaintiff's counsel requested an adjournment of the April

20, 2021 pretrial conference because of a family vacation. He also requested

the court adjourn the trial date to May 4, 2021.

In an April 21, 2021 letter, plaintiff's counsel advised the court that

plaintiff "is not well and is in need of psychiatric treatment." Counsel further

stated that plaintiff "will be seen by a doctor soon and a proper letter from this

doctor will be submitted to the court upon receipt."

On May 14, 2021, the court: (1) granted defendants' partial summary

judgment, dismissing the adverse possession claim; and (2) denied plaintiff's

motion to file an amended complaint.

On June 10, 2021, the court sua sponte entered an order of dismissal

without prejudice for failure to prosecute. The order stated: "Unless a [v]erified

[c]omplaint for [g]uardianship of [p]laintiff is filed within [thirty] days,

dismissal shall convert to a dismissal with prejudice of the above action."

On July 8, 2021 2, plaintiff's counsel sent a letter to the court seeking

reinstatement of the case on the trial calendar. Counsel explained that plaintiff

2 The letter is mistakenly dated June 8, 2021. A-2423-21 4 "has been under the care of a psychiatrist which was the basis for the dismissal

without prejudice." However, "[u]nder further evaluation, [the] doctor

determined [plaintiff] is deemed to be competent to stand trial on his own

behalf." Counsel promised to send "corroboration" of the psychiatrist's finding

once the doctor returned from vacation at the end of July and requested the court

"kindly reinstate this case on the trial calendar."

Defendants responded in a letter, opposing reinstatement of the litigation,

and citing plaintiff's "pattern" of delaying the trial. Defendants urged the court

to enforce its "specific" order and permanently dismiss the complaint.

In reply, plaintiff's counsel advised the court that plaintiff had acted in

good faith and in accordance with the recommendations of his treating doctor.

Counsel stated the doctor found plaintiff could participate in a trial with the

assistance of counsel and did not need "a guardian for his day[-]to[-]day

activities at this time." Counsel also reminded the court that defendants had also

requested adjournments at the commencement of the litigation "in an effort to

stall same while they were completing the construction of their home." He

requested that "the matter proceed to trial at the court's earliest convenience ."

On August 6, 2021, plaintiff moved to vacate the dismissal order and to

reinstate his complaint. In support of the motion, plaintiff submitted a

A-2423-21 5 certification from counsel, attached to which was a physician's note indicating

that plaintiff had "the capacity to understand, listen and digest information and

to act in a logical and rational way on such information."3

By order and written statement of reasons dated January 19, 2022, the

court denied plaintiff's motion to vacate the order of dismissal. The court found

plaintiff had not complied with the terms of the June 10, 2021 order that required

him to file a guardianship complaint, and defendants had been "significantly

prejudiced" by plaintiff's "inexcusable delays."

The court explained:

Trial has been delayed or adjourned due to plaintiff's inability to proceed since September 2020. The court has had the opportunity to interact with plaintiff and witness his demeanor, resulting in the directive to his attorney that a [c]omplaint for [g]uardianship be filed on his behalf. Without a [g]uardianship [c]omplaint, the court cannot properly ascertain whether plaintiff has the ability to act in his best interest, even if represented by counsel.

Plaintiff's continued delays have considerably prejudiced defendants in this matter. Though defendant[s] ha[ve] not attached a schedule of attorney's fees, [they] ha[ve] objected to multiple

3 The appellate record does not include this certification or the physician's note. We have derived this information from the trial court's January 19, 2022 statement of reasons issued with the order denying plaintiff's motion to vacate the dismissal order. A-2423-21 6 delays in this matter, citing prejudice to defendant[s] based on "increased legal fees." . . . .

Plaintiff did not file any compliant motion pursuant to the June 10, 2021, [o]rder, and, despite notice, filed no motion until after his case was dismissed with prejudice. Specifically, two days before the required motion was due, plaintiff filed a letter explaining why [he] would not be filing any motion.

[(citations omitted).]

The court concluded: "This case remains dismissed with prejudice."

On appeal, plaintiff contends the trial court erred in not vacating the June

10, 2021 order because: (1) it was unsigned and therefore invalid; (2) it required

plaintiff to file a guardianship complaint as a precondition to vacatur and

reinstatement of the complaint; and (3) the court did not consider the expert

medical proof that plaintiff was competent to proceed to trial.

We review the order denying plaintiff's motion for vacatur and

reinstatement for an abuse of discretion. Est. of Semprevivo ex rel. Semprevivo

v. Lahham, 468 N.J. Super. 1, 11 (App. Div. 2021).

Plaintiff correctly notes that the June 10, 2021 order is not signed by the

judge. However, plaintiff has not shown any harm resulting from this technical

oversight, which is insufficient to warrant reversal of the order on appeal.

A-2423-21 7 However, it is the court's mandate within the June 2021 order and the

procedural deficiency in the manner in which the order was issued that

constrains us to reverse the subsequent January 2022 order denying vacatur and

reinstatement. Importantly, because defendants did not file a motion for

dismissal, plaintiff was deprived an opportunity to present opposition. Instead,

the court sua sponte dismissed the case without prejudice for failure to prosecute

and required plaintiff to file a guardianship complaint to avoid dismissal with

prejudice. There is no authority for that process.

Rule 1:13-7 addresses the dismissal of civil cases for lack of prosecution;

Rule 1:13-7(a) sets forth the procedure for a dismissal:

[E]xcept as otherwise provided by rule or court order, whenever an action has been pending for four months or, if a general equity action, for two months, without a required proceeding having been taken therein as hereinafter defined in subsection (b), the court shall issue written notice to the plaintiff advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice or 30 days thereafter in general equity cases unless, within said period, action specified in subsection (c) is taken. If no such action is taken, the court shall enter an order of dismissal without prejudice as to any named defendant and shall furnish the plaintiff with a copy thereof.

[(emphasis added).]

A-2423-21 8 An action can only be dismissed by the court on its own order if a party

has failed to complete a required proceeding as defined under Rule 1:13-7(b):

failure to file (1) a proof or acknowledgement of service; (2) an answer; or (3)

an entry of default or default judgment. Plaintiff was not deficient regarding

any of those proceedings. In addition, the court did not issue written notice to

plaintiff that it intended to dismiss the case without prejudice within thirty days

if plaintiff did not comply with Rule 1:13-7(c).

Moreover, the court created its own required proceeding or required

action, that is, a guardianship complaint, in order for plaintiff to avoid dismissal

with prejudice. However, the Rule does not include that action as a premise for

a court-initiated dismissal.

Guardianship proceedings are addressed in N.J.S.A. 3B:12-24 to -29 and

Rule 4:86-1 to -8. To appoint a guardian, a court must find that a person is

incapacitated, N.J.S.A. 3B:12-24.1, with an "[i]ncapacitated individual" defined

as "an individual who is impaired by reason of mental illness or intellectual

disability to the extent that the individual lacks sufficient capacity to govern

himself and manage his affairs." N.J.S.A. 3B:1-2.

The record does not support the need for a guardianship proceeding. The

only reference to any issue relating to plaintiff's competence was in his counsel's

A-2423-21 9 April 21, 2021 letter to the court indicating that plaintiff was "not well" and

needed "psychiatric treatment." That is not sufficient to establish that plaintiff

was an "incapacitated individual." And the court's June 2021 order does not

include any reasons for its directive to plaintiff to file a guardianship complaint

or face a permanent dismissal of his action.

There may have been discussions between counsel and perhaps with the

court about plaintiff's competency. But there is no record of any such

conversations. We are supplied only with the correspondence as outlined above

and the court's brief reference in its January 2022 order that it ordered the filing

of a guardianship complaint following an "interaction" with plaintiff and

observing his demeanor.

But even accepting plaintiff's counsel raised a flag regarding plaintiff's

mental health, the record does not support an order compelling a guardianship

complaint. To the contrary, the record reflects plaintiff was examined by a

psychiatrist and within several weeks counsel informed the court and defense

counsel that the psychiatrist deemed plaintiff competent and able to participate

in a trial. Furthermore, plaintiff presented the court with documentation from

his doctor supporting his competency assessment.

A-2423-21 10 Under Rule 1:13-7(a), a plaintiff may move to vacate a dismissal order

and reinstate its complaint. "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." R. 1:13-7(a).

Plaintiff filed the motion to vacate within ninety days of the June 2021

order. Moreover, plaintiff established "good cause" warranting reinstatement of

the complaint. The June 2021 order was noncompliant with the court rules, and

plaintiff's counsel's submissions attested to plaintiff's mental competence and

the lack of any need for a guardianship proceeding, as well as his ability to go

to trial "at the court's earliest convenience." As we have previously stated:

"Good cause" is an amorphous term, that is, it "is difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the [c]ourt [r]ule being applied." Del[.] Valley Wholesale Florist, Inc. v. Addalia, 349 [N.J. Super.] 228, 232 . . . ([App. Div. 2002]). . . . Dismissals under [Rule 1:13-7] are "without prejudice." R. 1:13-7(a). Accordingly, the right to "reinstatement is ordinarily routinely and freely granted when [the] plaintiff has cured the problem that led to the dismissal even if the application is made many months later." Rivera v. Atl. Coast Rehab. [& Health Care Ctr.], 321 [N.J. Super.] 340, 346 . . . ([App. Div. 1999]).

. . . Notwithstanding the adoption of the good cause standard, we are satisfied that, absent a finding of

A-2423-21 11 fault by the plaintiff and prejudice to the defendant, a motion to restore under the rule should be viewed with great liberality.

[Gandhi v. Cespedes, 390 N.J. Super. 193, 196-97 (App. Div. 2007) (italicization removed).]

In sum, although the court may have been understandably frustrated by

the delay in proceeding to trial, the court rules do not permit a dismissal of the

complaint conditioned on the filing of a guardianship complaint. Therefore, the

court erred in denying plaintiff's motion to vacate the June 2021 order and

reinstate the complaint. Moreover, the court did not find, and defendants did

not establish, any prejudice other than a reference to legal fees. And that is an

issue that can be addressed, if appropriate, at the conclusion of the matter. As

we have stated, the court rules "are based on a policy favoring the disposition of

cases on their merits." Midland Funding LLC v. Albern, 433 N.J. Super. 494,

496 (App. Div. 2013).

Reversed and remanded to the trial court for further proceedings,

including the scheduling of a preemptory trial date. We do not retain

jurisdiction.

A-2423-21 12