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Mitchell v. Campana


November 28, 2007


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-249-02.

Per curiam.


Argued October 2, 2007

Before Judges Coburn, Grall and Chambers.

Plaintiffs Thomas and Geneva Mitchell appeal from an order dismissing their complaint with prejudice for failure to comply with discovery orders and denying their cross-motion to reinstate the complaint. R. 4:23-5. The defendants are the City of Newark, its Department of Water and Sewer Utilities, and its employees Luiggi Campana and Bob Whitley. The order was entered pursuant to Rule 4:23-5. Although the trial court erred by failing to compel plaintiffs' attorney to fulfill his obligations under Rule 4:23-5(a)(1)-(3), we conclude that the procedural error was not clearly capable of producing an unjust result. R. 2:10-2. Accordingly, we affirm.

Plaintiffs' complaint alleges breach of a written contract and includes a claim for damages based on lost rents. On April 5, 2005, this court reversed a grant of summary judgment in favor of defendants and remanded for further proceedings. See Mitchell v. City of Newark, No. A-1779-03 (App. Div. April 5, 2005). The facts and procedural history pertinent to this appeal follow.

By order of November 2, 2005, the trial court set an end date for discovery, January 20, 2006, and a trial date, February 27, 2006.

On November 29, 2005, defendants served a notice to produce. Because of a dispute about the authenticity of the hand-written contract at issue, defendants requested the "original." Because plaintiffs claim damages for lost rents, defendants sought plaintiffs' federal and state income tax returns for five years -- 1994, 1995, 1996, 1997 and 1998.

On January 26, 2006, defendants moved to dismiss plaintiffs complaint and plaintiffs moved to compel depositions. On March 2, 2006, the court entered an order adjourning the trial and compelling plaintiffs to provide responses to all requests included in the November 29, 2005, document request on or before March 14, 2006. The order further provided that "upon receipt of the . . . documents," defendants would be required to schedule depositions requested by plaintiffs. Trial was rescheduled for May 8, 2006.

Plaintiffs did not move for an order limiting discovery or assert a privilege. See R. 4:10-2(e); R. 4:10-3. Instead, by letter dated March 13, 2006, plaintiffs' attorney advised: plaintiffs do not have the original contract; Geneva Mitchell is "resisting turning over the tax documents as she believes same are private to her"; and Thomas Mitchell would be willing to sign authorizations allowing defendants to obtain his tax returns if defendants supplied the authorizations. By letter dated March 16, 2006, plaintiffs' attorney provided defendants with some, but not all, of their tax documents for two of the five tax years.

On March 22, 2006, defendants moved to dismiss plaintiffs' complaint without prejudice due to their failure to comply with the March 2, 2006, order.*fn1 Plaintiffs' attorney submitted a certification in opposition to the motion to dismiss in which he asserted that Thomas "Mitchell was able to obtain whatever records he could and these were transmitted to defendant[s'] counsel under cover of my March 16, 2006[,] letter." The attorney further asserted, "Plaintiff does not have the original contract and thus cannot provide same." On April 4, 2006, the judge granted defendants' motion to dismiss plaintiffs' complaint without prejudice.

On May 10, 2006, plaintiffs filed a motion to reinstate their complaint. In support of that motion, plaintiffs submitted a joint certification asserting that they had properly responded to defendants' request by giving their own attorney "all documents responding to defendants' production request that [they] had in [their] possession." Cf. R. 1:4-4. They noted that they did not have the original contract or "any other tax papers that [they] did not send." The certification did not offer any explanation for their inability to locate the missing contract or their failure to secure the missing tax returns. Their notice of motion to reinstate further alleged that defendants' were in default of their obligation to appear for depositions.

The trial court denied plaintiffs' motion to reinstate the complaint. The court explained that plaintiffs had not submitted an affidavit or certification stating that they had fully complied with their discovery obligations or submitted a restoration fee. R. 4:23-5(a)(2). The court found that defendants were not, as plaintiffs claimed, in violation of the March 2, 2006, order compelling depositions because that order conditioned defendants' obligation upon plaintiffs' compliance with the request for documents.

On July 11, 2006, defendants filed a motion to dismiss plaintiffs' complaint with prejudice. On July 19, 2006, plaintiffs filed opposition and a cross-motion to reinstate their complaint. The motion and cross-motion were returnable on August 4, 2006. Plaintiffs submitted identical certifications in which they asserted that they had provided all documents in their possession and did not have any other tax documents responsive to defendants' request. Plaintiffs' attroney did not submit an affidavit or certification confirming that he had provided his clients with the notices required by Rule 4:23-5(a)(2). Neither attorney requested argument on the motions, and neither attorney claims to have appeared in court on the return date. The court took no action to secure the appearance of plaintiffs' attorney as required by Rule 4:23-5(a)(3).

On August 18, 2006, the trial court entered an order dismissing plaintiffs' complaint with prejudice for plaintiffs' failure to provide a fully responsive answer to defendants' notice to produce. The trial court did not place its findings and conclusions on the record or provide a written statement of reasons. See R. 1:6-2(f). In response to our inquiry prior to oral argument on this appeal, the trial court explained that the order of August 18, 2006, "was entered when the [c]court found that nothing had been submitted to indicate that discovery in this 2002 case had changed."

Rule 4:23-5, which permits dismissal of a complaint or suppression of an answer upon failure to provide discovery, is designed to result in compliance with discovery obligations. See R. 4:18-1(b) (permitting a party to use the procedures of Rule 4:23-5 to compel production of documents); Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 374-75 (App. Div. 1992). To that end, the Rule provides a two-step process. A litigant unable to obtain discovery from another may obtain an order of dismissal without prejudice, and if the delinquent party fails to correct the deficiency and obtain an order reinstating the pleadings within ninety days, the aggrieved party may move for dismissal with prejudice. R. 4:23-5(a)(1)-(3). Where, as here, the delinquent party is represented by counsel, the attorney must provide his or her client with the notices detailing the requirements for reinstatement and the consequences of failure to meet them. R. 4:23-5(a)(1)-(2); see Pressler, Current N.J. Court Rules, Appendix II, Forms F and G at 2264-65 (2008). Seven days before the return date for a motion to dismiss with prejudice, the delinquent party's attorney must submit an affidavit indicating whether that party has been notified or could not be located. R. 4:23-5(a)(2). The attorney for the delinquent party must appear in court on the return date of a motion to dismiss with prejudice. R. 4:23-5(a)(2). When the attorney for the delinquent party does not file the necessary affidavit or appear on the return date, the trial court, absent "exceptional circumstances, is to take appropriate action to obtain the attorney's compliance.

R. 4:23-5(a)(3).

A delinquent party's motion to reinstate must "be supported by affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided . . . . "

R. 4:23-5(a)(2). A reinstatement fee must accompany the motion. Ibid.

On the return date of a motion to dismiss with prejudice, the court must grant the motion unless the delinquent party has filed a motion to reinstate and provided fully responsive discovery or shown exceptional circumstances. R. 4:23-5(a)(2).

On this appeal plaintiffs argue that the court erred in entering the orders of dismissal without and with prejudice because they complied with the discovery order of March 2, 2006. Plaintiffs, however, had not produced a majority of the tax returns requested. That deficiency was apparent on the face of their response to defendants' request. Absent a protective order entered pursuant to Rule 4:10-3 or a claim of privilege asserted in accordance with Rule 4:10-2(e), plaintiffs had an obligation to provide or permit inspection of their tax documents. Rule 4:18-1(a) permits a party to inspect or obtain documents in the "possession, custody or control" of his adversary. Plaintiffs' attorney acknowledged his clients' ability to provide authorizations that would permit defendants to obtain the returns from the government. Plaintiffs had control over their tax documents. Ultimately, plaintiffs offered no explanation for their failure to produce the missing tax documents other than lack of physical possession. This is not, as plaintiffs contend, comparable to a case in which the adequacy of a response to an interrogatory answer requires a detailed assessment of the discovery sought and provided. Cf. Zimmerman, supra, 260 N.J. Super. at 378.*fn2 Further, plaintiffs made no showing of exceptional circumstances justifying or excusing their non-compliance that would have permitted the court to deny defendants' application for dismissal with prejudice.

Plaintiffs also argue that the court erred in dismissing their complaint because defendants were in default of their obligation to provide depositions. R. 4:23-5(a)(1). That argument lacks merit. The trial court correctly found that under the order of March 2, 2006, defendants had no obligation to participate in depositions until plaintiffs produced the documents defendants sought. Thus, defendants were not barred from seeking dismissal based upon their own default.

There is no question that the trial court did not comply with its obligation to make an effort to obtain plaintiffs' attorney's compliance with the procedural requirements intended to protect his clients. See R. 4:23-5(a)(1)-(3). Trial courts should not ignore that responsibility. The record does not include an affidavit of plaintiffs' attorney confirming that he gave his clients the required notices or any indication that the attorney appeared on the return date. See R. 4:23-5(a)(2). If the court found "exceptional circumstances" warranting entry of an order of dismissal with prejudice despite the attorney's non-compliance, the court did not make a record of those findings.

R. 1:6-2(f); see Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 61 (App. Div.) (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)), certif. denied, 146 N.J. 569 (1996).

Deviations from the procedural provisions of the Rule 4:23-5 that do not have an impact on the outcome, however, do not entitle the delinquent party to an order reinstating their pleadings. R. 2:10-2; see Leon v. Parthiv Realty Co., Inc., 360 N.J. Super. 153, 155-56 (App. Div. 2003) (affirming order of dismissal with prejudice on direct appeal); Feinsod v. Noon, 272 N.J. Super. 248, 251-52 (App. Div.) (affirming denial of motion for relief from judgment pursuant to Rule 4:50-1), certif. denied, 137 N.J. 314 (1994). This court does not grant relief based on error incapable of changing the outcome or on the basis of legal issue obliquely referenced in the statement of facts but not argued. See R. 2:6-2.

We cannot conclude that the error was harmful in this case. Plaintiffs submitted certifications on the motion and cross-motion, which is indicative of their awareness of the dismissal, and they do not claim any prejudice based upon their attorney's conduct. The attorney, who represented plaintiffs below and on this appeal, does not claim that he appeared or attempted to appear on the return date but was not heard. Moreover, plaintiffs, who did not fully comply with the discovery order by the return date of the motion to dismiss with prejudice or allege exceptional circumstances, were not entitled to relief.

R. 4:23-5(a)(2).


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