On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8884-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Messano.
Defendants Donald Chiappe (Chiappe), individually and as executor of the estate of his mother Mary Chiappa, and the Estate of Mary Chiappa (the Estate) appeal a series of orders culminating in the denial of their motion to vacate a previously-entered default judgment in favor of plaintiff Saiber Schlesinger Satz & Goldstein, LLC (SSSG) in the amount of $77,908. The procedural history of the matter, closely intertwined with other litigation, is complicated and requires some explication.
SSSG represented defendants in probate litigation brought on behalf of the Estate against James K. Pryor. Defendants alleged that Pryor, an attorney who served as Mary Chiappa's court-appointed guardian while she was incompetent prior to her death, mismanaged and misappropriated her assets. At some point, the litigation was ostensibly settled, though Chiappe refused to execute the settlement agreement claiming SSSG entered into the settlement without his authority.
Sometime in July, 2003, SSSG advised Chiappe that it would no longer represent the Estate and presented him with a bill for services rendered in the litigation. On July 21, 2003, the Chancery judge entered an order in which he determined defendants were bound by the terms of the settlement. They appealed. In an unreported decision, we concluded that an evidentiary hearing was necessary to determine whether Chiappe had approved the terms of the settlement and had authorized SSSG to enter into it on behalf of the Estate. In the Matter of the Estate of Mary Chiappa, No.A-0881-03 (October 26, 2005). We remanded the matter to the Chancery judge to conduct the hearing.
In November, 2004, while the appeal was pending but before our decision, SSSG filed this complaint seeking to recover $77,908.13 in legal fees and expenses. In April, 2005, defendants filed a pro se answer and counterclaim that alleged, among other things, that SSSG had "increased the amount of their attorney's fees . . . because [Chiappe] refused to sign [the settlement agreement]," and had "breached its legal duty to [defendants] by making outrageous mistakes and/or omissions" in the probate litigation.
SSSG moved to dismiss the counterclaim based upon defendants' failure to comply with the Affidavit of Merit Statute. N.J.S.A. 2A:53A-26 through -29. On October 21, 2005, the motion judge entered an order dismissing the counterclaim with prejudice, "to the extent [it] allege[d] legal malpractice"; however, the judge denied SSSG's motion to dismiss "to the extent the counterclaim allege[d] breach of contract."
On February 16, 2006, the court notified the parties by form notice that a trial date was set for May 8. We gather that on February 17, 2006, the judge entered an order compelling Chiappe to appear for depositions. Although it is unclear from the record exactly what transpired thereafter, SSSG moved to dismiss the counterclaim and suppress defendants' answer with prejudice pursuant to R. 4:23-2(b)(3) claiming defendants had violated the court's order; defendants opposed the motion.
On March 31, 2006, the motion judge entered an order dismissing defendants' counterclaim and striking their answer without prejudice. The order reflects his decision to "treat this motion as a motion to dismiss without prejudice pursuant to R. 4:23-5." The judge conditioned the reinstatement of defendants' pleadings upon the following: 1) [Chiappe] had to "make himself available for the continuation of the deposition that he wrongfully terminated"*fn1 ; 2) defendants had to pay SSSG $500 in counsel fees as a sanction; and 3) defendants had to move for restoration and pay the appropriate fee. Lastly, the order provided
As R. 4:23-5 provides, the suppression [and] dismissal may be made with prejudice upon motion if, after 90 days, defendant has not cured the deficiencies and moved to restore. Thereafter, SSSG sought an adjournment of the May 8 trial date apparently based upon the March 31 order, but this request was denied by the civil division's presiding judge. On April 19, 2006, SSSG hand-delivered*fn2 a letter to Chiappe advising him of the adjournment request was denied and further providing,
[T]he Court expects the parties to appear on May 8, 2006 as previously noticed. However, [the presiding judge's] chambers has further advised us that in view of the fact that defendant's [a]nswer has been suppressed, and defendants' [c]ounterclaim dismissed, the Court will ...