CONNIE FRANZEN v. ROGER KIERCE, M.D.

NOT FOR PUBLICATION WITHOUT THE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-0

CONNIE FRANZEN and DANIEL

FRANZEN, her husband,

Plaintiffs-Appellants,

v.

ROGER KIERCE, M.D. and

MARK RANSOM, M.D.,

Defendants-Respondents.

_____________________________

November 2, 2016

Argued October 13, 2016 Decided

Before Judges Simonelli, Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5831-12.

Joseph E. Collini argued the cause for appellants (Emolo & Collini, attorneys; John C. Emolo, on the brief).

Charles E. Murray, III, argued the cause for respondent Roger Kierce, M.D. (Farkas & Donohue, LLC, attorneys; Mr. Murray, of counsel and on the brief).

Walter F. Kawalec, III, argued the cause for respondent Mark Ransom, M.D. (Marshall Dennehey Warner Colemen & Goggin, attorneys; Mr. Kawalec, on the brief).

PER CURIAM

In this medical malpractice matter, plaintiffs Connie Franzen and Daniel Franzen appeal from the January 23, 2015 Law Division order, which dismissed the complaint with prejudice pursuant to Rule 4:23-5(a)(2). We reverse.

We derive the following facts from the record. On July 2, 2012, plaintiffs retained the law firm of Breslin and Breslin, P.A. (B&B) to represent them in connection with a medical malpractice action against defendants Roger Kierce, M.D. and Mark Ransom, M.D. The retainer agreement contained the following provision

The clients shall pay all investigation and expert costs, including but not limited to expenses incurred to obtain medical engineering and other reports and testimony. These costs shall be paid in advance, if requested including the cost of expert fees for pre-trial or trial testimony. . . .

On August 2, 2012, B&B filed a complaint on plaintiffs' behalf. In a July 29, 2014 letter, B&B requested $60,000 from plaintiffs for payment of expert fees for depositions and trial expenses, as required by the retainer agreement. When plaintiffs failed to pay or communicate with B&B, on August 4, 2014, B&B filed a motion to be relieved as counsel. In an August 22, 2014 order, the court granted B&B's motion and required plaintiffs to proceed pro se and comply with all court orders. The order also allowed plaintiffs twenty-one days to substitute counsel without having to file a formal motion.

In the meantime, in an August 8, 2014 order, the court extended discovery to November 30, 2014, and required expert depositions to be completed by that date. Thereafter, defense counsel made several attempts to schedule the depositions of plaintiffs' experts, but plaintiffs did not respond. As a result, defendants filed and served separate motions to dismiss the complaint without prejudice pursuant to Rule 4:23-5(a)(1). Plaintiffs did not oppose the motions. In two November 21, 2014 orders, the court granted the motions and dismissed the complaint without prejudice as to both defendants.

On December 3 and 10, 2014, respectively, counsel for Ransom and Kierce served the November 21, 2014 order on plaintiffs along with a notice in the form prescribed by Appendix II-A. The notice advised plaintiffs, in part, that they must file a formal motion to vacate within sixty days of the entry of the order.

The sixty-day period expired on January 19, 2015. Prior thereto, on December 2 and 18, 2014, respectively, counsel for Ransom and Kierce filed and served separate motions to dismiss with prejudice pursuant to Rule 4:23-5(a)(2), returnable on January 23, 2015. Ransom's attorney mistakenly certified that he served on plaintiffs the notice in the form prescribed by Appendix II-B; however, the document attached to the certification was Appendix II-A, which was previously served on plaintiffs along with the November 21, 2014 order of dismissal without prejudice. Accordingly, the document attached to the certification only established that plaintiffs were served with notice in the form prescribed by Appendix II-A. Kierce's attorney did not certify that she served plaintiffs with the notices in the forms prescribed by Appendix II-A or B. Despite these deficiencies, the court entered two January 23, 2015 orders, granting both motions on the papers and dismissing the complaint with prejudice as to both defendants.

After retaining counsel, on April 8, 2015, plaintiffs filed a motion with this court to extend the time to file an appeal from the January 23, 2015 orders, which was granted on May 4, 2015. Plaintiffs filed their notice of appeal on May 7, 2015.

On appeal, plaintiffs argue that because defendants filed their motions to dismiss with prejudice prior to the expiration of the sixty-day period required by Rule 4:23-5(a)(2), the court abused its discretion in dismissing the complaint with prejudice.1 Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). We agree.

Rule 4:23-5(a)(2) provides as follows, in pertinent part

If an order of dismissal or suppression without prejudice has been entered pursuant to [Rule 4:23-5(a)(1)] 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 dismissal with prejudice motion may not be filed and served until the expiration of the [sixty-day] period for dismissal or suppression with prejudice even if returnable thereafter." Pressler & Verniero, Current New Jersey Court Rules, comment 1.5 on R. 4:23-5(a)(2) (2017). The Rule provides no exceptions to the sixty-day requirement, such as an exception where discovery has expired prior to the filing of the motion.

In addition, Rule 4:23-5(a)(2) provides as follows, in pertinent part

The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by [Rule 4:23-5(a)(1)] and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. . . . If the delinquent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices[.]

Accordingly, the attorney's affidavit must state that the client was served with both the order of dismissal without prejudice and notice in the form prescribed by Appendix II-A in accordance with Rule 4:23-5(a)(1). Pressler & Verniero, Current N.J. Court Rules, supra, comment 1.3 on R. 4:23-5(a)(2). The affidavit must also state that "the client was served with notice of the pendency of the with-prejudice motion, accompanied by a notice in the form prescribed by Appendix II-B." Ibid. "If the defaulting party is appearing pro se, the onus for service and filing of the required affidavit is placed on the moving party." Ibid.

"Strict adherence to the procedural prerequisites of paragraph (a) is required before an order of dismissal with prejudice may be entered." Pressler & Verniero, Current New Jersey Court Rules, supra, comment 1.5 on R. 4:23-5(a)(2). There was no strict adherence here. Defendants filed their motions to dismiss with prejudice less than sixty days from the date of the order; the certification of Ransom's attorney did not state that notice in the form prescribed by Appendix II-B was served on plaintiffs; and the certification of Kierce's attorney did not state that plaintiffs were served with the notices in the forms prescribed by Appendix II-A and -B. Defendants' failure to comply with the procedural requirements of Rule 4:23-5(a)(2) mandates reversal.

Reversed.

1 We reject defendants' argument that Rule 4:23-2(b) permitted dismissal with prejudice. Defendants did not seek to dismiss the complaint with prejudice pursuant to this Rule.