VINCENTE TOBON v. CESAR CAVANI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5866-07T35866-07T3

VINCENTE TOBON,

Plaintiff-Appellant,

vs.

CESAR CAVANI,

Defendant-Respondent,

__________________________________

FRANCISCO VALDOVINOS,

Plaintiff-Appellant,

vs.

CESAR CAVANI,

Defendant-Respondent.

__________________________________

 

Argued March 23, 2009 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket Nos. L-822-05 and L-838-05.

Scott B. Piekarsky, Special Counsel, argued the cause for appellants (Piekarsky & Associates, L.L.C., attorneys; Mr. Piekarsky, on the brief).

Paul E. Kiel argued the cause for respondent (Harwood Lloyd, LLC, attorneys; Mr. Kiel, of counsel and on the brief).

PER CURIAM

Plaintiffs Vincente Tobon and Francisco Valdovinos appeal the Law Division's denial of their motion to vacate an order dismissing their personal injury complaints with prejudice. The dismissal was entered pursuant to Rule 4:23-5(a)(2) because of plaintiffs' ongoing failure to provide complete discovery responses. We affirm.

The pertinent chronology is as follows. After both plaintiffs were injured in an automobile accident, they retained the same law firm and filed complaints for damages against defendant Cesar Cavani, whose vehicle had struck plaintiffs' vehicle in the rear. The complaints were consolidated by the trial court.

Defendant propounded document requests and interrogatories, and served them upon the attorney who was then representing plaintiffs. Plaintiffs did not supply timely responses. Consequently, in December 2005 defendant moved pursuant to Rule 4:23-5(a)(1) to dismiss the complaint without prejudice for lack of discovery. The pendency of the motion caused plaintiffs' then-attorney to turn over certain discovery responses. Although plaintiffs contend in their brief on appeal that those discovery responses were complete, the record instead shows that the responses omitted several requested documents and other attachments.

The trial court entered an order on January 20, 2006, dismissing the complaint without prejudice. Seven days later, defense counsel mailed plaintiffs' then-attorney a letter enclosing a copy of the dismissal order, and reminding the attorney that the discovery supplied by her clients was still incomplete. Around this time, plaintiffs' counsel of record left the law firm. As she departed, plaintiffs' case file apparently was mistakenly placed with the firm's closed files.

Still lacking the outstanding discovery almost two years later, defendant moved in October 2007 to dismiss plaintiffs' complaints with prejudice, pursuant to Rule 4:23-5(a)(2). Plaintiffs, now represented by successor counsel at the same law firm, opposed the motion and cross-moved to restore the complaints, alleging that the discovery supplied was now complete. Defendant opposed the cross-motion, pointing out that certain treatment records, MRI films and discovery responses concerning plaintiffs' prior accidents still were outstanding.

On December 7, 2007, the trial court granted defendant's motion to dismiss with prejudice and denied plaintiff's cross-motion to restore. The motion judge included a handwritten notation on the signed order, stating that plaintiffs had failed to set forth exceptional circumstances to justify why "this matter was neglected for such a lengthy period of time." The order was served upon plaintiffs' counsel by letter dated December 21, 2007.

Plaintiffs did not move for reconsideration of that order within twenty days, as would have been permitted by Rule 1:7-4(b). Nor did plaintiffs file an appeal of the final dismissal within forty-five days, as permitted by Rule 2:4-1(a). Instead, after more than five months had passed, plaintiffs filed a motion with the trial court in May 2008, seeking to vacate the orders of January 20, 2006 and December 7, 2007. Plaintiffs relied in this motion upon Rule 4:50-1(f), which similarly requires a showing of exceptional circumstances. Finding no such circumstances present, the trial court denied the application on June 20, 2008. In its order denying relief under Rule 4:50-1(f), the court again noted that the matter had been "grossly neglected."

Plaintiffs now appeal. They argue that the trial court misapplied its discretion in declining to reopen the case. They emphasize that there was no arbitration or trial date established at the time when their lawsuits were dismissed. They also contend that they had fully responded to discovery demands, although, as we have already noted, that contention is belied by the record.

We are satisfied that plaintiffs' complaints were justifiably dismissed with prejudice by the trial court. Rule 4:23-5(a)(2) prescribes that such a dismissal motion "shall be granted unless . . . either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated." See also Adedoyin v. Arc of Morris County Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999) (observing that "'exceptional circumstances' . . . must be shown to avoid a dismissal with prejudice for any failure to answer that has continued more than ninety days after the dismissal without prejudice"). The trial court reasonably determined that neither of those criteria were established here when it entered the dismissal with prejudice on December 7, 2007. Discovery from plaintiffs was still outstanding at that time, despite the passage of nearly two years from the without-prejudice dismissal in January 2006.

Moreover, the motion judge had ample reason to find that no exceptional circumstances had been demonstrated to warrant the belated restoration of plaintiffs' complaints, either as to the December 2007 dismissal order or as to the ensuing order of June 2008 denying relief under Rule 4:50-1. See Rodriguez v. Luciano, 277 N.J. Super. 109, 112 (App. Div. 1994) (noting that administrative difficulties within a law office generally do not constitute exceptional circumstances). Even after the errors of plaintiffs' prior counsel were discovered, the delinquency unfortunately was not addressed in a prompt and expeditious manner.

In reviewing the propriety of a trial court's dismissal of pleadings with prejudice because of discovery violations, we consider only whether the court abused its discretion. Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). This deferential standard of review "cautions appellate courts not to interfere unless an injustice appears to have been done." Ibid.; see also Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 570-72 (App. Div. 2000). We perceive no misapplication of the trial court's discretion here, nor any manifest injustice, in light of the persisting failure of plaintiffs to furnish complete discovery responses.

Although we appreciate successor counsel's apologetic candor about this situation and his earnest desire to have the complaints restored, we discern no compelling reason to interfere with the trial court's ruling.

 
Affirmed.

We note in passing that the certification that plaintiff's counsel filed in opposition to the dismissal motion omitted the statement required under Rule 4:23-5(a)(2) confirming that his clients had been served with written notification of the pendency of the motion, in the form prescribed by Appendix II-G of the Court Rules.

Plaintiffs point out that the handwritten portion of the December 7, 2007 order was cut off from the photocopy of that order served upon them by defense counsel later that month. That copying problem still does not excuse plaintiffs' delay in seeking relief. Regardless of what was cut off from the bottom of the order, it was clear from the upper portion of the photocopy that the motion to dismiss had been granted.

(continued)

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7

A-5866-07T3

April 23, 2009