On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-249-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...