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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...