February 11, 2008
DANIEL SGARLATO, IN HIS OWN CAPACITY; DARLENE SGARLATO IN HER OWN CAPACITY AND O/B/O A.S., A MINOR, AS INDIVIDUALS, AND ON BEHALF OF THOSE SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, AND DEANNA PEARSON AND GREG PEARSON, PLAINTIFFS,
BOARD OF EDUCATION OF CALDWELL-WEST CALDWELL, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9627-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2008
Before Judges S. L. Reisner and Gilroy.
Plaintiffs Daniel Sgarlato and Darlene Sgarlato, individually, and as parents of their daughter, A.S., a minor, appeal from the May 18, 2006, and August 4, 2006, orders of the Law Division, which dismissed their complaint against defendant, Board of Education of Caldwell-West Caldwell (Board), for failure to comply with discovery requests, pursuant to Rule 4:23-5(a)(2).*fn1 We reverse.
A.S. was a student at a school maintained and controlled by defendant Board. On November 30, 2004, plaintiffs filed a complaint against the Board, alleging that the Board "negligently and/or intentionally created, concealed, tolerated, and/or failed to eliminate a dangerous and/or defective condition [on the school property]," causing injury to A.S. The complaint sought damages against the Board on behalf of A.S., and her parents, per quod. On September 26, 2005, the Board filed a motion seeking to dismiss plaintiffs' complaint for failure to answer interrogatories, pursuant to Rule 4:23-5(a)(1). On October 21, 2005, an order was entered granting the motion.
After the order of dismissal, plaintiffs' counsel served answers to interrogatories on the Board. On February 13, 2006, the Board filed a motion to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2), because not only had plaintiffs not filed a motion to restore their complaint, but also their answers to interrogatories were either incomplete or unresponsive. The trial judge carried the motion and scheduled a case management conference for March 27, 2006. Following the conference, the judge continued the motion to April 20, 2006, directing that plaintiffs' counsel supply more responsive answers to interrogatories by April 17, 2006. The motion was again carried until May 4, 2006.
On April 17, 2006, plaintiffs' counsel served defense counsel with a letter purportedly providing more responsive answers to interrogatories. By letter of May 1, 2006, the Board's counsel advised plaintiffs' counsel that the supplemental answers to interrogatories were unclear or unresponsive, setting forth the noted deficiencies. On May 4, 2006, the judge conducted a hearing on the record, and determined that plaintiffs' responses to interrogatories remained deficient. In making his determination, the judge placed the deficiencies at the feet of plaintiffs' counsel:
[T]he problem I have and I'll say it [on] the record, . . . it appears to me that you were being a little bit too cute in your answers, that instead of just providing a specific answer to a specific question, . . . you want to provide the defendant with a narrative and let him figure out which question is being answered and what applies to what.
The rules don't say that. He is entitled to specific answers . . . .
The judge provided plaintiffs' counsel two additional weeks to provide fully responsive answers to interrogatories, and indicated that if the answers remained deficient, that he would dismiss the case with prejudice.
In the interim, settlement discussions were conducted during the next two weeks. The Board offered $7,500 to settle the Sgarlatos' claims, with the Board not taking a position as to how the settlement funds were to be allocated among the plaintiffs. Plaintiffs' counsel informed the Board's attorney that the case was settled. Contrary to plaintiffs' counsel's advice, Darlene Sgarlato objected, denying that she ever consented to the settlement on behalf of plaintiffs. On May 18, 2006, the continued hearing date on the motion to dismiss, plaintiffs' counsel informed the Board's attorney that plaintiffs had retracted their consent to settle. Meanwhile, plaintiffs' counsel had never provided more fully responsive answers to interrogatories as directed by the trial court.
At the continued hearing on May 18, 2006, the judge entered an order, dismissing the complaint of Daniel and Darlene Sgarlato with prejudice for failure to comply with discovery.
R. 4:23-5(a)(2). The court instructed the Board's counsel to file a motion to enforce settlement as to A.S. After the motion was filed, the court conducted a hearing on July 21, 2006, during which Darlene Sgarlato testified that she had never authorized her counsel to settle plaintiffs' claim for $7,500. She also testified that she had previously provided counsel with all the information necessary to fully answer the interrogatories. Following the hearing, the court denied the motion to enforce settlement as to A.S., and dismissed A.S.'s complaint with prejudice for failure to comply with discovery. Ibid.
We determine from our review of the transcript of the proceedings concerning defendant's motion to enforce settlement, that a conflict then existed between plaintiffs and their counsel. In reaching our conclusion, we acknowledge that it is generally difficult on appellate review to discern any tension that may exist when a witness is being examined during a trial proceeding. "[I]t has been said that even the best and most accurate written trial transcript is 'like a dehydrated peach,' in that it has 'neither the substance nor the flavor of the peach before it was dried.'" Fiorino v. Sears Roebuck & Co., 309 N.J. Super. 556, 571 (App. Div. 1998) (quoting Trusky v. Ford Motor Co., 19 N.J. Super. 100 (App. Div. 1952). Here, however, the opposite holds true.
Darlene Sgarlato's testimony was presented to the court via examination by her counsel. The antagonistic manner in which the examination of Darlene Sgarlato was conducted comes through quite clearly when reading the transcript of the motion proceedings. One would characterize the examination as if an attorney was examining a hostile witness. The transcript discloses that a conflict existed between plaintiffs and their counsel, concerning whether Darlene Sgarlato had authorized counsel to settle plaintiffs' claim for $7,500. In addition, the transcript discloses that Darlene Sgarlato questioned why plaintiffs' complaint had been dismissed because she believed that she had provided counsel with all the necessary information and documentation to fully answer the interrogatories as directed by the court. "I was under the impression that I answered the interrogatories, and Mrs. Pearson did not."
The conflict was recognized by the trial judge: "You know, unfortunately, it's very clear to me that there's a dispute between the attorney and the client which is not going to get resolved here." "Look, it's clear to me there's a very clear conflict at this point." Because of the conflict of interest, the judge should not have dismissed the minor's complaint for counsel's failure to have served more fully responsive answers to interrogatories. Rather, the motion to dismiss with prejudice should have been adjourned, and plaintiffs granted leave to retain new counsel. Accordingly, we reverse the order of August 4, 2006. We are also satisfied that under the facts, the dismissal of the parents' complaint with prejudice must be reversed.
"[C]courts should be reluctant to penalize a blameless client for the mistakes of the attorney." Familia v. Univ. Hosp. of Univ. of Med. & Dentistry of N.J., 350 N.J. Super. 563, 568 (App. Div. 2002). "[I]n the absence of demonstrable prejudice to the other party[,] it is neither necessary nor proper to visit the sins of the attorney upon his blameless client." Jansson v. Fairleigh Dickenson Univ., 198 N.J. Super. 190, 196 (App. Div. 1985).
Here, plaintiffs' complaint was dismissed with prejudice for failure of counsel to have served more fully responsive answers to interrogatories as directed by the court. However, it is clear that the primary concern the court had with plaintiffs' supplemental answers to interrogatories was the narrative form by which their counsel presented the responses, rather than the substantive nature of the answers. This conforms with Darlene Sgarlato's statement, "I was under the impression that I answered the interrogatories, and Mrs. Pearson did not."
We are satisfied that the fault in failing to comply with the court's directive, that plaintiffs serve more fully responsive answers to interrogatories, rests with the attorney, not plaintiffs. Therefore, we reverse the order of August 4, 2006, which had dismissed the child's complaint with prejudice; and that part of the order of May 18, 2006, which had dismissed the parents' complaint with prejudice. We remand the matter to the trial court for the purpose of granting plaintiffs leave to obtain new counsel; to comply with the court's prior order to provide the Board with more fully responsive answers to interrogatories; and to file a motion pursuant to Rule 4:23-5(a)(2) to restore their case to the active trial list.
We recognize that the literal reading of the last sentence of Rule 4:23-5(a)(2), which provides in part that "[t]he motion to dismiss . . . with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal . . . without prejudice has been filed . . . and . . . fully responsive discovery has been provided[,]" conflicts with our decision because plaintiffs had not moved in the Law Division to restore their complaint prior to the Board filing its motion to dismiss the plaintiffs' complaint with prejudice. However, we conclude, based on the facts presented, that the constraints of the rule governing motions to restore complaints should be relaxed pursuant to Rule 1:1-2, which provides, with certain exceptions not applicable here, that "any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice."
The order of August 4, 2006, dismissing the complaint of A.S. with prejudice, is reversed; that part of the order of May 18, 2006, dismissing the complaint of Daniel and Darlene Sgarlato with prejudice is reversed; and the matter is remanded to the trial court for further proceedings consistent with this opinion.