LEMRAC & ASSOCIATES, L.L.C. v. ZIO REALTY RIDGEFIELD PARK, L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LEMRAC & ASSOCIATES, L.L.C.,

Plaintiff-Appellant,

v.

ZIO REALTY RIDGEFIELD PARK, L.L.C.,

and RIVERSIDE PEDIATRIC GROUP, P.C.,

Defendants-Respondents.

________________________________________

March 28, 2016

Submitted December 9, 2014 Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2773-12.

Paul Speziale, attorney for appellant.

Mandel & Sawyer, attorneys for respondents (Erica Sawyer, on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

Plaintiff Lemrac & Associates, L.L.C., appeals a Law Division order dismissing its complaint with prejudice for failure to provide discovery. For the reasons that follow, we affirm.

I

Plaintiff was hired on or about December 1, 2010, by defendant Zio Realty Ridgefield Park, L.L.C., as agent for defendant Riverside Pediatric Group, P.C., to provide labor, materials, equipment, and services as required to complete the conversion of a bank building into medical offices. Under the contract, plaintiff was to be paid $177,000 for these services. At the conclusion of its work, plaintiff claimed it was due an extra $292,544 for providing additional services, such as obtaining a certificate of occupancy, and for demolition that was to have been completed by another contracted third-party.

Defendants refused plaintiff's demand for additional payment, and on April 9, 2012, plaintiff filed a complaint alleging breach of contract, unjust enrichment, and quantum meruit. The complaint did not itemize the additional services rendered, nor explain how plaintiff arrived at the demanded sum of $292,544.

In the ensuing discovery, defendants' interrogatories and a notice to produce demanded that plaintiff identify the specific services plaintiff claimed to have provided and an itemization of the costs for those services. However, plaintiff did not respond to the discovery requests. Consequently, on January 28, 2013, the trial court granted defendants' unopposed motion to dismiss plaintiff's complaint without prejudice for failure to provide discovery, pursuant to Rule 4:23-5(a)(1).

After sixty days had passed since the dismissal without prejudice was entered and because plaintiff had still failed to respond to discovery requests, defendants notified plaintiff on April 1, 2013, of their intention to file a motion to dismiss the matter with prejudice, pursuant to Rule 4:23-5(a)(2).1 The next day, defendants filed the motion to dismiss with prejudice. The motion was returnable April 19, 2013, but was adjourned to May 2, 2013. The day before the motion was to be heard, plaintiff provided responses to both the interrogatories and notice to produce. For reasons that are not clear in the record, the court twice again adjourned the return date of the motion.

On May 31, 2014, the trial court heard oral argument on the motion to dismiss with prejudice. By the time of argument, plaintiff had not made an effort to reinstate its action by filing a motion to vacate the previously entered order to dismiss without prejudice. Rule 4:23-5(a)(1); 4:23-5(a)(2). When the court remarked that a motion to vacate had not been filed, plaintiff's counsel responded: "I didn't make that yet. I thought, that we needed to get under (sic) the motion here first before I . . . did that."

In its bench decision granting defendants' motion to dismiss plaintiff's complaint with prejudice, the court found that the responses to both the interrogatories and the notice to produce were incomplete and noted the prejudice caused to defendants by plaintiff's inadequate discovery responses. Specifically, the court remarked

I -- I recognize that [plaintiff] gave some responses to interrogatories. And [plaintiff] gave documents. But nothing in this information that's before the [c]ourt, and has been provided to the defense counsel gives them any delineation in terms of how to defend themselves in terms of what you're claiming your client did and was not paid for.

. . . .

The contract itself, which the [c]ourt is looking at, is for $177,000. . . . Looking at this contract I don't know what your client was required to do and not required to do.

. . . .

The items that [plaintiff] claim[s] are additional work, for which they are entitled to payment, there is no executed change order. There is one change order . . . [so] there's an indication, obviously, that on some level your client is aware of what a change order is. This is their business. They're -- they're in construction.

And you're the plaintiff in this case. And this matter has been going on for a significant period of time. And we're at the point now where the defendant is entitled to know what is it that you're claiming you did and were not paid for; and where is the proof of that? And that it's just not evident in this case.

And at -- and no amount of additional discovery, at this point, is going to change that. Whatever it is your client is claiming they did there's no change order for. They -- and the way in which the original contract is drawn there's no indication to be able for the plaintiff to prove what they were supposed to do and what your client is claiming they did above and beyond.

So based upon this documentation and the answers to interrogatories as presently provided [defendants] can't defend them[selves]. They don t know what to defend them[selves] from. So, accordingly, I am going to grant the application.

This appeal followed.

II

On appeal, plaintiff contends that the trial court erred in dismissing its complaint with prejudice because fully responsive answers to interrogatories were provided to both counsel and the court thirty days before the return date for the motion. Plaintiff cites to St. James AME Development Corp. v. City of Jersey City, 403 N.J. Super. 480 (App. Div. 2008), and Adedoyin v. Arc of Morris County Chapter, Inc., 325 N.J. Super. 173 (App. Div. 1999), to support its contention that the production of fully responsive discovery prior to the return date of the motion precludes the court from granting the motion.

Plaintiff further contends that discovery could not have revealed the amount of damages that would have been recoverable under its quantum meruit claim. The market value of the additional work performed, such as demolition, may not have necessarily been plaintiff's actual incurred cost of labor and materials. Plaintiff argues that damages would only amount to whatever a willing buyer would pay for the additional work. Plaintiff maintains that since damages cannot be ascertained through discovery, its claim should not have been dismissed for failure to provide discovery. Plaintiff adds that to allow it to be uncompensated for the work performed constitutes unjust enrichment of defendants. None of plaintiff's arguments are persuasive.

We are guided by well-established principles. Discovery rules are designed "to 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) (citations omitted). "The decision to deny a motion to reinstate a complaint dismissed for failure to provide discovery lies within the discretion of the motion judge." A&M Farm & Garden Ctr. v. Am. Sprinkler Mech., L.L.C., 423 N.J. Super. 528, 534 (App. Div. 2012) (citations omitted).

Dismissal of a complaint under Rule 4:23-5 consists of a two-step process. First, the aggrieved party may move for dismissal without prejudice for non-compliance with discovery obligations. R. 4:23-5(a)(1). If the motion is granted, specific procedures for serving the order of dismissal must be followed. Ibid. Upon providing full and responsive discovery, the delinquent party may move to vacate the dismissal without prejudice "at any time before entry of an order of dismissal . . . with prejudice." Ibid. Second, if a delinquent party fails to cure its discovery delinquency, then "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 . . . with prejudice." R. 4:23-5(a)(2). The court shall grant the motion "unless a motion to vacate the previously entered order of dismissal . . . 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." Ibid.

The main objective of Rule 4:23-5(a), after all, is to compel discovery, not to dismiss the case with prejudice. Adedoyin, supra, 325 N.J. Super. at 180. "[I]ncomplete answers [to interrogatories] can not be automatically considered as a failure to answer under [Rule] 4:23-5." Ibid. "Thus, in cases where interrogatory answers are received before the return date of the motion to dismiss without prejudice, the party entitled to the answers cannot control the future course of the proceeding simply by asserting that the answers are not fully responsive." Ibid.

In this case, the two-step procedural requirements of Rule 4:23-5 were followed. Defendants' motion to dismiss plaintiff's complaint without prejudice for failure to provide discovery was granted when plaintiff did not oppose the motion. After plaintiff failed to provide discovery responses within sixty days of dismissal, defendants moved to dismiss the complaint with prejudice. In opposition, plaintiff argued that all responsive discovery was provided.2

However, we discern no reason to disagree with the judge's finding that plaintiff's discovery responses were unsatisfactory, nonresponsive, and left defendants unable to defend themselves. Plaintiff has not provided us with its discovery responses to support its arguments, and based on the record that has been provided, we defer to the trial court's findings.

Moreover, despite plaintiffs' opposition to dismissal with prejudice, it did not move to restore the complaint as required by Rule 4:23-5(a)(1). Accordingly, we are satisfied that the trial court properly applied our rules of court and did not abuse its discretion by dismissing plaintiff's complaint with prejudice.

Furthermore, we firmly reject plaintiff's claim that the amount of damages that it seeks to recover under the theory of quantum meruit could not be identified in discovery responses. To establish a quantum meruit claim, a party must prove: "(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services." Starkey v. Estate of Nicolaysen, 172 N.J. 60, 68 (2002) (quoting Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir. 1994)).

We see no reason why plaintiff could not have provided discovery responses which would have established the reasonable value of the services it alleged to have rendered to defendants. Contrary to plaintiff's contention, its entitlement to damages is based upon its ability to present the proper proofs, regardless of whether defendants may have received the benefit of plaintiff's services without compensation to plaintiff.

In reaching our decision to affirm, we must add that plaintiff's reliance upon St. James AME Development Corp. and Adedoyin is misplaced, and those decisions do not compel reversal in this case. In St. James AME Development Corp., we reversed the trial court's dismissal with prejudice and refusal to grant plaintiff's cross-motion to restore the complaint because plaintiff was not served a copy of the order of dismissal without prejudice, as required by Rule 4:23-5(a)(1), and also because plaintiff provided discovery prior to the return date of the motion to dismiss with prejudice. St. James AME Development Corp., supra, 403 N.J. Super. at 484-85. Either factor alone would have served as a basis to overturn the dismissal. Ibid.

In Adedoyin, we reversed the trial court's dismissal with prejudice pursuant to Rule 4:23-5(a)(2). There, we held that prior to ordering a dismissal without prejudice under Rule 4:23-5(a)(1), the motion judge should have determined whether the interrogatory answers submitted before the return date where sufficiently responsive. Adedoyin, supra, 325 N.J. Super. at 182. Since the court failed to "analyze the answers in the context of the cause of action and the discovery exchange to date, [it did not] decide whether the delinquent party has established good cause for other relief or whether the pleading must be dismissed or suppressed without prejudice under [Rule] 4:23-5(a)(1)." Ibid.

This case presents material differences with those two matters. Most importantly, unlike the delinquent parties in St. James AME Development Corp. and Adedoyin, plaintiff did not file a motion to restore its complaint as required by Rule 4:23-5(a)(2). Also dissimilar to the situation in St. James AME Development Corp., plaintiff did not provide its discovery prior to the return date of the motion to dismiss without prejudice. Further, the court here, unlike the trial court in Adedoyin, analyzed the discovery responses in the context of plaintiff's complaint and concluded they were not responsive. Under these circumstances, we conclude that the dismissal of plaintiff's complaint with prejudice for failure to provide discovery was appropriate.

Affirmed.

1 April 1, 2013, was also the discovery end date.

2 Plaintiff's brief only mentions that it provided responsive answers to interrogatory questions. However, based upon our review of the record, plaintiff argued below that the documents it provided were responsive to the notice to produce. Thus, for the sake of our analysis, we acknowledge that plaintiff contends that it provided full and complete responses to all discovery requests.