BREONNAH ALBERT, et al. v. V. CHARMAINE EDWIN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0277-05T30277-05T3

BREONNAH ALBERT, an infant

by her Guardian Ad Litem

NIKOL ALBERT, NIKOL ALBERT,

individually and YOLANDA DOCK,

Plaintiff-Appellants

V.

CHARMAINE EDWIN, MILDRED NEAL,

MARIE WILLIAMS, ROSA M. ARIAS

and LIBERTY MUTUAL INSURANCE

COMPANY,

Defendant-Respondents.

______________________________

 

Argued May 23, 2006 - Decided June 13, 2006

Before Judges Collester and S.L Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County,

L-235-04.

Maurice J. Langer argued the cause for appellants.

John T. Sullivan argued the cause for respondent Charmaine Edwin (Lamb, Kretzer, Reinman & Roselle, attorneys; Mr. Sullivan, on the brief).

PER CURIAM

Plaintiffs, Breonnah Albert and Yolanda Dock, appeal from an order of the trial court entered on August 19, 2005, denying their motion to restore their case to the trial calendar. We affirm, without prejudice to plaintiffs' right to file a motion with the trial court for further relief.

I

Albert, an infant represented by her guardian ad litem, and Dock, an adult, filed a personal injury lawsuit on January 13, 2004, against defendants Charmaine Edwin, Mildred Neal, Marie Williams, Rosa M. Arias and Liberty Mutual Insurance Company. The complaint alleged that plaintiffs were passengers in a car driven by Edwin with consent of the car's owner Neal, and that the Neal/Edwin vehicle was involved in a collision with a car driven by Williams and owned by Arias. They alleged negligence on the part of the individual defendants. They also made PIP claims against Liberty Mutual, the insurer of the Neal/Edwin vehicle.

Neal and Liberty Mutual were served with the complaint, and they filed an answer to the complaint on May 26, 2004. Plaintiffs were unable to serve Edwin, but failed to file a motion for leave to make substituted service on her insurer, Liberty Mutual. They also did not serve Arias and Williams. Meanwhile, the case against Neal and Liberty Mutual continued. On August 7, 2004, the complaint against Edwin, as well as against Arias and Williams, was dismissed without prejudice for lack of prosecution, pursuant to R. 1:13-7.

On January 7, 2005, the complaint against Neal and Liberty Mutual was dismissed for failure to provide discovery. After discovery was provided, the complaint against Neal and Liberty Mutual was resolved on August 29, 2005, by a voluntary stipulation of dismissal with prejudice.

In the interim, Edwin's assigned counsel wrote to plaintiffs' counsel repeatedly seeking consent to file an answer, seeking proof of service on his client, and then asking him whether he intended to move to restore the complaint against Edwin or to withdraw or dismiss the complaint. See R. 1:13-7(a). Defense counsel all but beseeched plaintiffs' counsel to diligently pursue his clients' case. Nonetheless, plaintiffs' counsel did not file a motion for substituted service on Edwin's insurer and evidently did not otherwise respond to defense counsel's letters.

On August 1, 2005, plaintiffs filed a motion to reinstate the case to the active trial calendar as to Edwin, Williams and Arias. In support of the motion, plaintiffs' attorney filed a certification, attesting to the difficulties he had had in attempting to obtain service on Edwin, Williams and Arias. He alleged that a woman named Jeanette Douglas was named in the police report as having been the driver of the Neal vehicle, but that Douglas had told him that her identification was stolen, and that investigation revealed that the driver was really Charmaine Edwin. He documented the fact that he had hired an investigator to search for Edwin, Williams and Arias. He asserted that Liberty Mutual had assigned counsel for Edwin, but wanted proof that she had been served before filing an answer. He admitted that

my office was moving this case along but I failed to inform the Court of the difficulties I was having locating and then attempting to serve the defendants Williams, Edwin and Arias.

I took great pains in trying to locate all the possible defendants since my clients . . . were injured in this accident, and we needed all the insurance coverage we could find.

In addition, we had to satisfy the entire controversy doctrine.

He also alleged that he had provided interrogatory answers and medical records to counsel for Edwin. While he asserted that he "could" still file a motion for substituted service, he did not accompany his motion to restore the complaint with a motion for substituted service on any of the defendants.

On August 19, 2005, the trial court denied the motion to restore the case, noting:

Application is denied. Despite efforts to contact [and] serve potential defendants plaintiff fails to mention why a motion to restore wasn't made until . . . 1 year after case was dismissed. The case can be reinstated even though service was not achieved.

Plaintiffs filed a Notice of Appeal from this order on September 19, 2005.

On August 17, 2005, plaintiffs filed a motion for leave to make substituted service on New Hampshire Insurance Company, the insurer of the Arias/Williams vehicle, pursuant to Feuchtbaum v. Constantini, 59 N.J. 167, 178 (1971). Counsel did not file a similar motion with respect to Edwin. At oral argument, counsel contended the failure to include Edwin in the motion was due to a clerical error in his office. The motion for substituted service on New Hampshire Insurance was granted on September 15, 2005.

Although it is not properly before us, because it is not the subject of any notice of appeal or amended notice, we note that on October 7, 2005, the trial court granted a motion filed by Edwin's attorneys to dismiss plaintiffs' complaint against Edwin with prejudice. That order indicated that "while this matter is dismissed with prejudice there has been no ruling on the substance of this matter so if the statute of limitations has not run plaintiff is not precluded from re-filing." Since Albert is a minor, she could re-file; Dock would be barred by the statute of limitations.

II

In Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263 (App. Div. 1989), we drew an analogy between R. 1:13-7 and R. 4:23-5(a) in terms of the effect of a dismissal without prejudice under those Rules:

The principle is best exemplified by the practice followed under R. 4:23-5(a). When the rule is used against a plaintiff it specifically provides for the dismissal of the complaint and the reinstatement of the same complaint upon plaintiff satisfying certain conditions. Clearly, reinstatement of a complaint dismissed under this rule, even after the applicable statute of limitations has run, does not give rise to a statute of limitations defense that did not exist before the dismissal. It is in recognition of the principle that the filing of a new complaint may implicate the statute of limitations that courts have been loathe to deny a motion to reinstate a complaint dismissed under R. 4:23-5(a) when lesser sanctions will suffice. Jansson v. Fairleigh Dickinson University, 198 N.J. Super. 190 (App.Div.1985). As we observed in Crews v. Garmoney, 141 N.J. Super. 93, 96 (App.Div.1976), "there is a general disinclination to invoke the ultimate sanction of dismissal where the statute of limitations has run." See, Schlosser v. Kragen, 111 N.J. Super. 337 (Law.Div.1970); W. Milford Tp. Bd. of Ed. v. Rockwell Mfg. Co., 173 N.J. Super. 506 (Law.Div.1980).

[Id. at 268-69.]

We find the analogy apt and draw it further. Under Rule 4:23-5(a)(1), a party whose complaint has been dismissed without prejudice may obtain reinstatement upon filing a motion demonstrating that the failure to provide discovery, which gave rise to the dismissal, has been cured. In other words, the party must demonstrate that it has taken steps to permit the case to move forward. By analogy, a party seeking to reinstate a complaint dismissed under R. 1:13-7, must demonstrate that the party has taken the appropriate steps to permit the case to move forward. R. 1:13-7(d).

In this case, where plaintiffs let almost a year go by without seeking to reinstate the complaint, it was incumbent on them to demonstrate, in their motion to reinstate, that they were taking the necessary steps to serve absent defendants so that the case could actually move forward. The appropriate procedure would have been a motion for substituted service on the defendants' insurance companies filed simultaneously with, or as part of, the motion to reinstate. Such a filing would assure the judge considering the reinstatement motion that plaintiffs were actually prepared to pursue their complaint and that the case could move forward as soon as the motions were granted. In this case, by contrast, plaintiffs' counsel did not file the motion for substituted service on Williams and Arias until more than two weeks after he filed the reinstatement motion. And he evidently did not supplement his reinstatement motion with evidence that he had filed the substitute service motion. Hence, all that was before court on the reinstatement motion was a litany of unsuccessful efforts to serve defendants with no assurance that counsel would actually take the necessary and common-sense steps to pursue the case. In these circumstances, we find no abuse of the trial court's discretion in denying the motion.

Although it is not properly before us by an amended notice of appeal, we note that the trial court's October 7, 2005 order dismissing the complaint with prejudice was entered after plaintiffs filed their notice of appeal on September 19, 2005, and therefore it appears the trial court lacked jurisdiction to enter the order. Our decision is therefore without prejudice to plaintiffs' right to file a motion with the trial court under R. 4:50-1 to vacate the October 7 order and to reinstate the complaint against Williams and Arias based upon the court's September 15, 2005 order permitting substitute service on their insurer. In the same R. 4:50 motion plaintiff may also seek leave to make substituted service on Edwin's insurer and seek to reinstate the complaint against Edwin. While we do not decide here whether such motions, if promptly made, should be granted, with or without imposition of sanctions on plaintiffs' counsel, we note the overriding policy concern that the ultimate sanction of dismissal with prejudice not be visited on innocent clients due to their attorneys' mistakes. See Mason, supra, 233 N.J. Super. at 268-69.

Affirmed.

 

Since there is no dispute that all defense counsel have been supplied with plaintiffs' discovery responses, perhaps all parties might attempt to resolve the underlying case.

(continued)

(continued)

9

A-0277-05T3

June 13, 2006