Michael J. Kelsey v. Shannon Sommerville and Annette Sommerville ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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.
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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.
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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.
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"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
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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.
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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.
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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).]
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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
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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.
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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
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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.
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