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Canino v. D.R.C. Co.

Decided: October 1, 1986.

JAMES M. CANINO AND KATHLEEN RAPHAEL, EXECUTRIX OF THE ESTATE OF ALVIN RAPHAEL, DECEASED, PLAINTIFFS-RESPONDENTS,
v.
D.R.C. COMPANY, ET AL., DEFENDANTS-APPELLANTS



On appeal from Superior Court, Chancery Division, Hudson County.

Michels, O'Brien and Landau. The opinion of the court was delivered by Landau, J.s.c. (temporarily assigned).

Landau

Here James P. Dugan appeals from an order adjudicating him to be in contempt of court for failing to complete his testimony at a deposition ordered by the court. The trial judge based his order on the authority of R. 4:23-2(b)(4) which authorizes a court to treat, ". . . as a contempt of court the failure to obey any [discovery] orders. . . ."

The principal issue raised on appeal is whether such an order may be issued under the court's inherent powers without complying with the procedures set forth in R. 1:10-1, et seq. We conclude that it may not.

The notice of appeal also includes the court's award of counsel fees and costs related to the motion. As this issue has not been briefed by appellant, it is deemed abandoned.

The order of contempt resulted from plaintiff's motion which sought to compel compliance with a discovery order in a Chancery lawsuit. The motion, brought under R. 4:23-2, also requested that Dugan, who is an attorney at law, be held in contempt of court for his asserted failure to comply with an earlier order to testify at depositions. Contempt was summarily adjudicated on return of the motion without adopting the procedures of either R. 1:10-1 or R. 1:10-2.

The critical ordering paragraphs read:

(1) Defendant, James P. Dugan, be and hereby is held and adjudged to be in Contempt of Court in that he violated a bench ruling rendered by the court on September 13, 1985 which was included in a consent order executed on September 26, 1985.

(2) Defendant, James P. Dugan, as a result of said contempt, is herewith fined the sum of $1,000 to be paid on or before November 15, 1985, by his attorney's check made payable to the Clerk of Hudson County, such check to be forwarded to the court for deposit with the Clerk. (Emphasis Supplied)

The transcript of the motion proceedings, as well as the language of the order quoted above make clear that the "fine" of $1,000 was imposed as a sanction and penalty for violation of the court's previous order. Plainly, it did not compel future

compliance, nor did it indirectly compensate the aggrieved party for additional costs incurred as a result of noncompliance.

Perusal of the evolution of R. 4:23-2 demonstrates that the inherent authority of a court to impose what was referred to as a "fine" in a "civil contempt" was based on the notion of a "compensatory fine" indirectly reimbursing an aggrieved party for costs engendered by reason of the "civil contempt." See, Schnitzer and Wildstein, New Jersey Rules Serv., AIV-760. ...


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