PETER CHRISTOPH v. PORT AUTHORITY OF NY/NJ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5636-08T25636-08T2

PETER CHRISTOPH,

Plaintiff-Appellant,

v.

PORT AUTHORITY OF NY/NJ,

Defendant-Respondent.

________________________________

 

Submitted May 26, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2197-07.

Lombardi & Lombardi, P.A., attorneys for appellant (Nicole M. Lombardi, on the brief).

Mark Gertner, attorney for respondent.

PER CURIAM

Plaintiff Peter Christoph appeals an April 24, 2009 order of the Law Division denying the restoration of his personal injury lawsuit against defendant, the Port Authority of New York and New Jersey. Plaintiff also appeals the Law Division's ensuing order dated June 12, 2009, denying reconsideration. For the reasons stated in this opinion, we vacate those orders and remand for evidentiary proceedings on plaintiff's application for relief.

According to plaintiff's complaint, he injured his left knee as the result of slipping on snow and ice at Newark International Airport on February 11, 2006. Plaintiff alleges that defendant, which operates the airport, and its agents, allowed a dangerous condition to persist on the premises, causing him to slip and fall.

The attorney representing plaintiff during the course of the litigation ("the trial attorney") was an income partner at a law firm in Middlesex County. The record indicates that the trial attorney had fifteen years of experience in handling personal injury matters.

During the course of discovery, plaintiff answered interrogatories and was deposed. In addition, defense counsel made a demand upon plaintiff's trial attorney for copies of plaintiff's tax returns for 2003 through 2005. Defense counsel also demanded that plaintiff sign authorizations to obtain certain medical records. According to the certification that he filed in support of his restoration motion, plaintiff signed the medical authorizations and returned them to his trial attorney, but evidently the trial attorney failed to turn those signed authorizations over to defense counsel. As for the tax returns, plaintiff does recall his trial attorney asking him for them. However, plaintiff was unable to obtain copies readily because he had filed the returns with the IRS electronically. He asserts that he told his trial attorney about that difficulty.

Defendant moved under Rule 4:23-5(a)(1) to dismiss the complaint without prejudice because of plaintiff's failure to supply the requested tax returns and medical authorizations. The trial court granted that motion on December 21, 2007. When the requested discovery was still not supplied, defendant moved for dismissal of the complaint, with prejudice, under Rule 4:23-5(a)(2).

On June 20, 2008, the trial court entered an order dismissing the complaint with prejudice. The order, the form of which was prepared by defense counsel, does not reflect whether any opposition to the motion was filed. See R. 1:6-2(a) (requiring that a form of order "shall note whether the motion was opposed or unopposed"). Nor does the order reflect that plaintiff had been served by his trial attorney, as required under Rule 4:23-5(a)(2), with written notification of the pendency of the dismissal motion. In addition, there is no indication of compliance with the Rule's requirement that "[a]ppearance on the return date of the motion shall be mandatory for the attorney of the delinquent party or the delinquent pro se party." Ibid.

Several months later, the managing partners of the law firm discovered that plaintiff's trial attorney had been remiss in his handling of numerous matters for several clients, including plaintiff. According to a certification filed by one of the named partners in the firm, the trial attorney had missed critical court deadlines, had lied to clients about the status of their cases, and had neglected to respond to incoming mail and telephone calls. When confronted about these deficiencies by the named partner, the trial attorney allegedly admitted that he had been neglectful, attributing his dereliction to longstanding depression and medical problems. The trial attorney was terminated by the law firm on February 27, 2009, and he was urged to obtain treatment for his medical and mental health issues.

When these problems came to light, the law firm conducted a comprehensive internal review of the approximately 200 client files that had been formerly assigned to the trial attorney. During the course of that review, the firm discovered that plaintiff's complaint had been dismissed with prejudice. The named partner contacted plaintiff, who stated that he had been totally unaware of the fact that his complaint had been dismissed. According to plaintiff's certification, prior to the disclosure by the named partner, he "was never informed of either the defense motion to dismiss without prejudice nor the motion to dismiss with prejudice."

The law firm filed a motion to restore plaintiff's complaint, alleging exceptional circumstances under Rule 4:50-1. The restoration motion was supported by an extensive certification of the named partner, detailing the law firm's discovery of the trial attorney's widespread misconduct and the remedial steps that the firm had taken. The motion was also supported by a certification of plaintiff, attesting to his prior unawareness of the successive motions to dismiss his case. In the meantime, plaintiff forwarded a signed authorization to defense counsel to obtain plaintiff's tax returns. He also forwarded new copies of the signed medical authorizations. Nevertheless, defendant opposed the restoration motion, arguing that plaintiff's effort to produce the requested discovery was too late and that the circumstances were not sufficiently exceptional to justify vacating the final judgment.

Despite the fact that plaintiff had requested oral argument, the trial court denied the restoration motion on the papers. In a handwritten notation on its corresponding order dated April 24, 2009, the court found "no 'extraordinary circumstances' to warrant relief under R[ule] 4:50-1 and the case law." As authority for the denial, the order cited Feinsod v. Noon, 272 N.J. Super. 248 (App Div.), certif. denied, 137 N.J. 314 (1994), a case that had been relied upon in defendant's opposing brief.

Plaintiff moved for reconsideration, arguing that the trial court had misapplied Feinsod, and had also overlooked other case law that weighed in favor of restoring the complaint. Plaintiff again requested oral argument, but once again it was not provided. Instead, the trial court issued a bench ruling in the absence of the parties, and denied the motion. In that oral opinion, the court acknowledged that it was "sympathetic" to the "plight of the . . . plaintiff," but construed the applicable case law to require denial of plaintiff's application. In particular, the court found that the trial attorney's negligence could not comprise extraordinary circumstances to enable relief under Rule 4:50-1. The court focused upon the ten-month gap in time between the order dismissing the complaint with prejudice and the filing of plaintiff's motion for restoration, and the fact that defendant "undoubtedly had relied upon" the dismissal in the interim. The court did not comment upon the apparent lack of a required appearance by plaintiff or by his former attorney on the return date of the Rule 4:23-5(a)(2) motion in June 2008. Nor did the court address the alleged non-compliance with the client notification provision in that Rule.

Plaintiff now appeals, arguing that the trial court erred in denying his motion for restoration. As part of his argument, plaintiff underscores his professed ignorance of the pendency of the motions to dismiss his complaint, and the absence of an affidavit from his former counsel, as required by Rule 4:23-5(a)(2), confirming that plaintiff had been notified about the outstanding discovery and the pending dismissal motions. Plaintiff further argues that the trial court applied the case law under Rule 4:50-1 too narrowly, and also contends that the court wrongfully deprived him of oral argument.

In analyzing the unfortunate circumstances and the related legal issues before us, we appreciate the trial court's important role in the efficient management of civil litigation. The discovery rules "further the public policies of expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation." Zaccardi v. Becker, 88 N.J. 245, 252 (1982); see also Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003). Given the trial court's role in enforcing those rules, we ordinarily afford considerable deference in reviewing orders arising out of discovery violations by litigants or their counsel. We generally will not overturn such orders, unless it is apparent that the trial court has misapplied its discretion or a manifest injustice has been caused. See, e.g., Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995); Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 570-72 (App. Div. 2000).

Those general principles being duly noted, we nonetheless perceive several distinctive aspects of this matter that warrant more critical examination. Viewing the circumstances as a whole, particularly in light of the unrefuted assertions in the certifications of plaintiff and the law firm's named partner, we conclude that the trial court's orders denying relief under Rule 4:50-1 should be provisionally vacated, and that the matter be remanded for a plenary hearing on plaintiff's application to restore his complaint.

Most significantly, we have serious concerns about the apparent non-compliance with the prerequisites for a dismissal with prejudice under Rule 4:23-5(a)(2), which resulted in plaintiff apparently being left in the dark that his lawsuit was about to be consigned to permanent dismissal. The Rule mandates a two-step process for dismissing complaints on the basis of a litigant's failure to comply with discovery requirements. First,

If a demand for discovery . . . is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to the discovery may . . . move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. . . . Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice.

[R. 4:23-5(a)(1).]

In the second step of this process,

If an order of dismissal or suppression without prejudice has been entered . . . and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. . . . The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

[R. 4:23-5(a)(2).]

Because of the drastic nature of a dismissal with prejudice, Rule 4:23-5(a) was specifically amended to require that the client owing discovery be personally served, by regular and certified mail, with a copy of the initial order dismissing the complaint without prejudice, along with an explanatory notice from his or her counsel in a form prescribed in Appendix II-A of the Court Rules. See R. 4:23-5(a)(1). Thereafter, if a motion to dismiss with prejudice is filed by the adversary because the discovery is still owing, the delinquent client again must be served by regular and certified mail, with notice of the pendency of the second motion, along with a further explanatory notice from his or her counsel in a form prescribed by Appendix II-B. See R. 4:23-5(a)(2). If the attorney cannot locate the client, he or she must provide the court with an affidavit of diligent inquiry. Ibid. As further protection to the non-moving litigant, an "[a]ppearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party." Ibid. (emphasis added). "Strict adherence to [these] procedural prerequisites . . . is required before an order of dismissal with prejudice may be entered." Pressler, Current N.J. Court Rules, comment 1.5 to R. 4:23-5(a) (2010) (citing Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368 (App. Div. 1992)); see also Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 60 (App. Div.), certif. denied, 146 N.J. 569 (1996) ("'[I]f on the return date of the with prejudice motion counsel fails to appear, or does so, but has failed to properly notice the client, the court must adjourn the motion to a date when a proper hearing may occur.'" (quoting Suarez v. Sumitomo Chem. Co., 256 N.J. Super. 683, 688 (Law Div. 1991))).

If the unrefuted assertions in plaintiff's certifications are believed, then none of these procedural requirements were fulfilled here. Plaintiff's trial attorney apparently did not tell plaintiff that his complaint had been dismissed without prejudice. Plaintiff says that he did not get the notice prescribed in Appendix II-A. Thereafter, plaintiff, having been deprived of a an informed opportunity to cure the discovery problem, was not told about defendant's filing of a motion to dismiss the complaint with prejudice. Nor was plaintiff evidently served with the strongly-worded cautionary notice required by Appendix II-B. Nor did his trial attorney submit an affidavit of diligent inquiry.

To make matters worse, the required appearance on the return date appears to have been inexplicably overlooked. If such an appearance had occurred, plaintiff or his attorney may very well have taken care of the two outstanding discovery items, and have urged the court to forbear from dismissing the case with prejudice. Alternatively, the notification to the client might have prompted earlier investigation and detection of the attorney's neglect of the file, and quicker remedial action.

We agree with the trial court and defendant that the applicable ground for relief under both Rule 4:23-5(a)(2) and Rule 4:50-1 is exceptional circumstances. We also are mindful of cases holding that various glitches in the internal office practices and calendaring systems of lawyers and law firms did not rise to the level of exceptional circumstances. See, e.g., Martinelli v. Farm-Rite, Inc., 345 N.J. Super. 306, 311-12 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002); Rodriguez v. Luciano, 277 N.J. Super. 109, 112 (App. Div. 1994). However, the present case, at least if we accept plaintiff's sworn assertions at face value, is not one of mere attorney neglect or a failure of office protocol. Instead, we seemingly have a situation in which the client apparently was deprived of the advance notice and opportunity to cure mandated by the procedures set forth in Rule 4:23-5(a). In addition, the law firm's motion addressing the failure, once it was uncovered, was reasonably prompt.

These procedural shortcomings are compounded by the trial court's ensuing failure to grant plaintiff's two requests for oral argument on the motion for restoration and the motion for reconsideration. Those were substantive, case-dispositive motions as to which plaintiff had a right to be heard, and not mere "discovery" or "calendar" motions amenable to disposition on the papers. See R. 1:6-2(d); Filipone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997).

For these numerous reasons, the orders denying relief under Rule 4:50-1 and denying reconsideration are vacated. The matter is remanded for the trial court to conduct an evidentiary hearing to evaluate the credibility of plaintiff's sworn assertions that he was never informed of the pendency of the two dismissal motions. The trial court shall have the discretion to allow for appropriate supplemental discovery on these issues, if requested. If, after hearing plaintiff's testimony and any other pertinent proofs, the trial court finds plaintiff's account to be credible, it shall issue an order restoring plaintiff's complaint, on such terms and conditions, including the shifting of reasonable counsel fees expended by the defense, as it may deem appropriate in its discretion.

Vacated and remanded. We do not retain jurisdiction.

 

Feinsod v. Noon, supra, 272 N.J. Super. at 248, the main authority relied on by the trial court in denying relief, is factually distinguishable. In Feinsod, the client failed to cooperate in getting a medical examination through her own reluctance, which was coupled with her own attorney's failure to notify of the pendency of the Rule 4:23-5 dismissal motion. Here, again, the record does not suggest any lack of cooperation by this plaintiff.

(continued)

(continued)

13

A-5636-08T2

June 18, 2010