ANGELINA MAISONET v. SUZANNE M. GLAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0766-08T20766-08T2

ANGELINA MAISONET and JEANNETTE

MAISONET,

Plaintiffs-Appellants,

v.

SUZANNE M. GLAD and QUINTIN M. GLAD,

Defendants-Respondents,

and

NEW HAMPSHIRE INSURANCE COMPANY,

Defendant.

______________________________________

 

Argued April 21, 2010 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7754-06.

Hector I. Rodriguez argued the cause for appellants.

Chris E. Piasecki argued the cause for respondents (Graziano, Piasecki, Whitelaw & Simko, L.L.C., attorneys; Mr. Piasecki, on the brief).

PER CURIAM

Plaintiffs, Angelina and Jeannette Maisonet, appeal from the dismissal of their complaint with prejudice after they failed to pay counsel fees imposed as a sanction for reinstating the complaint, which was previously dismissed due to numerous discovery violations. We affirm.

The complaint stems from a motor vehicle accident occurring on September 27, 2004. At that time, Angelina was a passenger in a motor vehicle operated by Jeannette on How Lane, near its intersection with Marigold Street, in New Brunswick when their vehicle collided with a vehicle operated by defendant Suzanne Glad and owned by Quinton Glad. Plaintiffs filed their complaint in Superior Court seeking to recover damages for the injuries they allegedly sustained as a result of the accident. They named the Glads as defendants, as well as New Hampshire Insurance Company. Plaintiffs later stipulated to a dismissal of the complaint against the insurance company.

The remaining defendants filed an answer to the complaint and propounded interrogatories upon plaintiffs which they failed to timely answer. On August 27, 2007, defendants moved to dismiss the complaint for failure to provide the requested discovery. Plaintiffs provided some of the requested discovery and defendants withdrew their motion. In October, however, defendants once again filed a motion to dismiss the complaint for failure to provide discovery, specifically, the requisite physician certifications pursuant to N.J.S.A. 39:6A-8(a) for actions arising out of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to -35. Defendants agreed to a two-week extension on the return date of the motion. Plaintiffs' counsel claimed that although the physician certifications were requested on October 17, 26, 31 and November 1, the certifications were not provided. The court granted defendants' motion and dismissed the complaint without prejudice on November 16.

The discovery end date for the completion of all discovery was January 22, 2008. By that date, plaintiffs had not yet provided the outstanding discovery and therefore had not sought reinstatement of the complaint. The outstanding certifications were provided to defense counsel on February 21, 2008, less than three weeks before the scheduled March 12 arbitration date. The court dismissed plaintiffs' complaint on March 12 for failure to appear at the scheduled arbitration. This arbitration related solely to the personal injury protection aspect of the case against the insurance company. Additionally, the Glads' attorney had apparently notified the court in January that no one would be appearing at the March 12 arbitration, given the November 16 order dismissing the complaint against the Glads without prejudice for discovery violations.

On March 20, the parties appeared before the court on defendants' motion to dismiss plaintiffs' complaint with prejudice for failure to reinstate the complaint within ninety days. Although acknowledging that plaintiffs' discovery obligations had not been satisfied, whether due to plaintiffs' counsel's "fault, the doctor's, or a combination[,]" the court determined to exercise its discretion to impose a remedy that if:

[plaintiffs' counsel] wants to proceed with this, then maybe there ought to be reimbursement to [defense counsel] and [defense counsel's] client for the time to get here. That [e]nsures that [plaintiffs' counsel's] client still has an action, if there's an injury, but does not harm [defense counsel] or [defense counsel's] client in terms of the additional cost. That to me would seem to be an appropriate remedy.

The court indicated to counsel that it intended to reinstate the complaint subject to payment of reasonable counsel fees. Plaintiffs' counsel sought clarification and expressed the need for an arbitration date. The court responded:

I'm not setting an arbitration date. I'm not setting a trial date. I'm not changing anything. I do not have a complete history of the case, other than what's been supplied to me and discussed. . . . I have the fact that it's been dismissed at arbitration for failure to appear. I'm going to vacate that and reinstate it, and I'm sure they'll set up another arbitration.

My anxiety is that your adversary is going to want to do dep[osition]s of your expert . . . [t]here's going to be no report, and we'll be back here. But I'll cross that bridge when I get to it.

The reality is, I have to consider whether I'm going to include that in the order somehow; . . . some kind of scheduling, and I'm . . . hesitant to do that because I don't really know where the case is. But if all you've got, [defense counsel], is a certification without an expert report at this late stage and it's not only after the discovery end date, but after the initial arbitration date, you may be precluded from getting expert reports and you may be precluded from proceeding in your case because there's no expert reports. A certification is not an expert report.

The court memorialized its findings in an order dated May 6, 2008. The order reinstated plaintiffs' complaint upon plaintiffs' payment of defendants' attorney fees of $1,789.31 within 30 days. The order expressly provided "that upon reinstatement of plaintiff[s'] complaint, the matter will be scheduled for a case management conference to set an arbitration date and trial date[.]" Plaintiffs never paid the counsel fees as ordered.

On August 6, 2008, defendants moved to dismiss plaintiffs' complaint with prejudice for failure to comply with the May 6 order. The court entertained arguments on August 29, 2008. On that same date, the court entered an order dismissing plaintiffs' complaint with prejudice. Plaintiffs' counsel argued that plaintiffs failed to pay the counsel fees because the court's May 6 order did not extend discovery and that is what had been discussed during the earlier motion. The court responded that "[e]verything was conditioned upon your payment of counsel fee[s], that was in there. That's not been done." The court expressed its inability to understand why plaintiffs' counsel failed to follow the court's order and concluded that if the order had been followed, it suspected that defense counsel would have acceded to any reasonable additional discovery request from plaintiff, and if defense counsel failed to agree, the court "would have ordered [defense counsel] to be fine with it [in order] to give you the appropriate time to respond to it, but [the court] cannot countenance your complete disregard of the order."

Plaintiffs appealed the August 29 order in early October. Defendants cross-appealed that portion of the May 6, 2008 order permitting reinstatement of plaintiffs' complaint. On May 7, 2009, we dismissed plaintiffs' notice of appeal for failure to file a timely brief. Plaintiffs made an untimely motion to reinstate the appeal in July 2009, which defendants opposed. By order dated August 23, we permitted plaintiffs to respond to allegations contained in defendants' opposition papers that plaintiffs' counsel misrepresented certain facts in their motion. Plaintiffs' reply to defendants' opposition was also untimely. We denied plaintiffs' motion to reinstate their appeal by order dated October 20. Plaintiffs moved for reconsideration. We reinstated plaintiffs' appeal on November 17, and permitted defendants to move for counsel fees upon disposition of the appeal.

On appeal, plaintiffs contend that the court erred when it failed to simply reinstate plaintiffs' complaint in its May 6, 2008 order and also erred when it failed to extend discovery at that time as well. Additionally, plaintiffs urge that the court erred when it failed to find that plaintiffs established exceptional circumstances that warranted a further extension of discovery. Finally, plaintiffs urge that they established good cause for reinstatement of their appeal. We find none of plaintiffs' arguments persuasive, including plaintiffs' contention that they established good cause for reinstatement. We nonetheless elect to consider plaintiffs' appeal on the merits because, as the motion judge expressed, the imposition of the sanction of counsel fees is an appropriate alternative, in this particular case, to dismissal of the appeal on procedural grounds.

The decision to grant or deny a motion seeking reinstatement of a complaint dismissed with prejudice for non-compliance with discovery demands is committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of a mistaken exercise of that discretion. Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008) (citing Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 22-23 (App. Div. 2007)); see also Comeford v. Flagship Furniture Clearance Ctr., 198 N.J. Super. 514, 517 (App. Div. 1983), certif. denied, 97 N.J. 581 (1984). We will "decline to interfere with such matters of discretion unless it appears that an injustice has been done." Ibid. We see no reason to interfere based upon this record.

Plaintiffs' counsel's explanation that he refused to comply with the court's order because it failed to include an extended discovery end date cannot, as the trial court stated, be "countenance[d]." Although the transcript of the March 20, 2008 proceeding clearly reflects otherwise, if plaintiffs' counsel was without the benefit of the transcript and believed the court intended to include an extension of discovery in the order, plaintiffs' counsel could have, upon notice to defense counsel, informally sought clarification of the court's order. Moreover, plaintiffs' counsel could have taken a more formal route by filing a motion for reconsideration pursuant to Rule 4:49-2. What plaintiffs' counsel was not, however, permitted to do, was to deliberately elect to disregard the court's order by not having his clients pay the reinstatement sanctions as ordered by the court. In re Carton, 48 N.J. 9, 16 (1966) ("There must be no defiance of a court, least of all by one of its officers. . . . One . . . must obtain a stay or obey the order. He [or she] may not ignore it."). It is unclear from the record whether plaintiffs' counsel undertook this course of action with or without the consent of plaintiffs. We are mindful that the sins of one's attorney should not be visited upon the client if to do so would deny a deserving litigant his or her day in court. Rabboth v. Lamattina, 312 N.J. Super. 487, 491-92 (App. Div. 1998), cert. denied, 160 N.J. 88 (1999). Nonetheless, the record here reflects repeated discovery failures throughout the course of the litigation, including failing to timely move for a discovery extension and failing to subpoena records which plaintiffs' counsel believed plaintiffs' doctors were not providing in a timely manner.

The ultimate sanction of dismissal with prejudice should be imposed "only sparingly." Zaccardi v. Becker, 88 N.J. 245, 253 (1982). "'The dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked except in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious.'" Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995) (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)). A litigant "invites this extreme sanction by deliberately pursuing a course that thwarts persistent efforts to obtain the necessary facts." Id. at 515.

Here, the motion judge, during the March 20, 2008 oral argument on defendants' motion to dismiss plaintiffs' complaint with prejudice, attempted to balance plaintiffs' right to have their day in court against the procedural infirmities evident in the record. The court concluded that defendants had not been irremediably prejudiced by plaintiffs' delay in satisfying discovery demands, and then fashioned what it perceived was the appropriate remedy, the imposition of the sanction of counsel fees as a condition for reinstatement of the complaint.

From this record, we are satisfied that Judge Bradley J. Ferencz thoughtfully evaluated plaintiffs' counsel's explanation for not complying with the court's May 6 order and appropriately concluded that the disregard for the court's order was deliberate. Plaintiffs not only intentionally disregarded Judge Ferencz's May 6 order for reinstatement but also had a long pattern of inaction. For example, plaintiffs did not oppose defendants' October 8, 2007 motion to dismiss without prejudice for failure to provide the certifications, which resulted in the first dismissal on November 16, 2007. Plaintiffs also failed to take any formal action to extend the discovery period beyond January 22, 2008 other than the arguments presented on March 20, 2008. Defendants were forced to bring repeated motions to keep the case active. Judge Ferencz was therefore well within his discretion in ordering the ultimate sanction of dismissal of the complaint with prejudice.

 
The remaining argument that the court erred in failing to extend discovery when it issued its May 6, 2008 order is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It is evident from the court's colloquy with counsel during the March 20, 2008 hearing on the motion to dismiss plaintiffs' complaint with prejudice, which was denied, that upon payment of the requisite counsel fees, the court would have extended discovery during the case management conference that it contemplated having once the complaint was reinstated.

Affirmed.

Because plaintiffs share the same surname, we refer to them with their respective first names. In doing so, we intend no disrespect.

Plaintiffs argue that they did not oppose the motion because "Allcare Medical & Rehabilitation Group, vis- -vis its chiropractor and medical director, Dr. Anthony Patras, apparently ignored the undersigned's numerous written and telephonic requests" for the certifications.

(continued)

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11

A-0766-08T2

June 28, 2010