PATRICIA BAUMANN v. JOSEPH WYSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5601-07T35601-07T3

PATRICIA BAUMANN AND

MICHELLE BAUMANN,

Plaintiffs-Appellants,

v.

JOSEPH WYSE, THOMAS WYSE

and DELORES WYSE,

Defendants-Respondents.

_____________________________

 

Argued October 14, 2009 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-545-05.

Michelle Baumann, appellant, argued the cause pro se.

Anthony H. Guerino argued the cause for respondents.

PER CURIAM

Plaintiffs, Patricia and Michelle Baumann, appeal from the June 10, 2008 order of the Law Division denying their motion to vacate a dismissal without prejudice and to restore to the active trial calendar their complaint against defendants, Joseph, Thomas and Delores Wyse. We reverse.

Plaintiffs filed their complaint on September 22, 2005, seeking damages arising from certain failed joint business ventures with defendants. On November 22, 2005, defendants filed their answer.

In an order dated August 3, 2007, plaintiffs' complaint was dismissed without prejudice for failure to provide discovery. The discovery at issue consisted of documents defendants had requested from plaintiffs during depositions. The order noted that defendants were "entitled to [those] documents . . . but must follow R[.] 4:18[.]"

On August 10, 2007, pursuant to that order, defendants' attorney served interrogatories and a written Demand for Production of Documents upon plaintiffs' counsel "in accord with [R.] 4:18 . . . ." Plaintiffs responded to defendants' discovery requests on March 13, 2008, accompanied by a cover letter in which their attorney "apologize[d] for the delay[,]" and inquired whether defendants "will consent to the vacating of the dismissal without prejudice and restoring the case to the active trial calendar." Counsel also advised that he was simultaneously filing a motion to restore the case to the calendar but sought consent to "avoid unnecessary motion practice."

In their motion, filed on March 14, 2008, plaintiffs certified that "[d]efendants' formal discovery demands have been responded to in full[,]" and noted that defendants "have never moved to dismiss the matter with prejudice." Moreover, plaintiffs asserted, defendants would not be prejudiced by restoring the case to the trial calendar because "the statute of limitations . . . on [their] contract[-]based claims . . . does not run until September 1, 2011."

In opposition papers, defendants submitted a September 22, 2006 order dismissing the complaint with prejudice and "vehemently" opposed the motion. Counsel also asserted that discovery was "still not complete."

In a reply certification, however, plaintiffs' attorney pointed out that the September 22 order had been vacated by an order of November 3, 2006, which restored plaintiffs' complaint and scheduled the completion of discovery. Plaintiffs' counsel further certified that the only discovery that was "still incomplete" was providing the deposition transcript of one of the defendants. Counsel stated that defendants were "well aware that [p]laintiffs never have received the transcripts from the [c]ourt [r]eporter[,]" noting further that the trial judge had "remarked on the record on August 3, 2007[,] that there is no rule, statute or case which requires the party taking the deposition to acquire the transcripts."

On June 10, 2008, another trial judge denied plaintiffs' motion to vacate the dismissal without prejudice and to restore the case to the active trial calendar; the judge decided the motion "on the papers[,]" and provided no statement of reasons for that decision.

We have recently recognized that the decision "[w]hether to grant or deny a motion to reinstate a complaint lies within the sound discretion of the trial court." Sullivan v. Coverings & Installations, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008). We therefore review such a decision for abuse of that discretion. Ibid.

Where, as here, no explanation is given for the judge's decision to deny plaintiff's motion, particularly in the absence of a defense motion to dismiss with prejudice, we conclude that such a decision constitutes an abuse of discretion, because it was "'made without a rational explanation [and] inexplicably departed from established policies . . . .'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Service, 779 F.2d 1260, 1265 (7th Cir. 1985)). Therefore, this order cannot stand.

Rule 4:23-5(a)(1) provides that upon the entry of an order of dismissal without prejudice, "[t]he delinquent party may move on notice for vacation of the dismissal . . . order at any time before the entry of an order of dismissal . . . with prejudice." A "restoration fee" of $100 must be paid "if the motion to vacate is made within 30 days after entry of the order of dismissal . . . , or a $300 restoration fee if the motion is made thereafter." Ibid.

Here, plaintiffs filed their restoration motion seven months after entry of the August 3, 2007 dismissal order. Other than "apologiz[ing] for the delay[,]" plaintiffs' attorney provided no explanation for the failure to comply with the time limits prescribed by the court rules. Nonetheless, the fact remains that defendants never moved for an order of dismissal with prejudice "after the expiration of 60 days from the date of the order" of dismissal without prejudice, as permitted by Rule 4:23-5(a)(2).

Defendants contend that plaintiffs are not prejudiced by the June 10, 2008 dismissal order, as they can simply re-file their complaint since the six-year statute of limitations on their contractual claims has not expired. N.J.S.A. 2A:14-1. We are satisfied, however, that under the circumstances present here, the proper redress to which plaintiffs are entitled is reversal of the order denying their motion to reinstate the complaint.

It appears that discovery in this matter is now complete and, as plaintiffs have argued, the case is "trial ready." Therefore, we concur with plaintiffs that "[t]o require a re-filing would be placing unnecessary form over function and be an even bigger waste of judicial resources." Moreover, "it is a tenet of our jurisdiction that resolution of disputes on the merits [is] to be encouraged rather than resolution by default for failure to comply with procedural requirements." St. James AME Development Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008).

In sum, we conclude that the trial judge improperly disposed of plaintiffs' motion as if there had been a defense cross-motion for dismissal with prejudice. The June 10, 2008 order is hereby reversed, and the matter is remanded for restoration to the trial calendar.

 

We have recently reiterated that "restoration of a complaint dismissed without prejudice under Rule 4:23-5(a)(1) requires that prior to reinstatement, the delinquent party satisfy the court that the outstanding discovery resulting in the dismissal order has been provided and that payment of the requisite restoration fee has been made, along with payment of any counsel fees, costs or sanctions ordered by the court. Sullivan, supra, 403 N.J. Super. at 94. Here, plaintiffs certified that "the outstanding discovery . . . has been provided[,]" ibid., but the record is devoid of any evidence that a restoration fee has been paid; also, the record does not reveal any "counsel fees, costs or sanctions ordered by the court" to date. Ibid. These issues may be addressed on remand.

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A-5601-07T3

January 14, 2010