On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1419-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Sapp-Peterson and Alvarez.
This is an appeal from an April 27, 2007 order suppressing defendant Salvatore Imbriano's*fn1 answer for failure to comply with discovery, a June 22, 2007 order denying him summary judgment, and a July 20, 2007 order awarding plaintiff Maximum Quality Foods, Inc., $843.75 in counsel fees. For the reasons that follow, we affirm.
The procedural history in this case compels the outcome. After the complaint was filed on March 29, 2005, defendant moved, pursuant to Rule 4:6-2(e), to dismiss for failure to state a claim. He asserted that as a matter of law he could not be found personally liable because he was protected by the corporate form of his business, Pisa Foods, Inc., a/k/a, t/a, d/b/a Pisa Foods (Pisa Foods), also a named defendant in the suit. The motion judge found that "sufficient factual issues existed regarding [defendant's] compliance with the corporate forum," and denied the motion on July 13, 2005. No answer was filed on behalf of defendant individually or on behalf of the corporation. A default judgment was entered against both defendants on August 18, 2005.
On September 26, 2005, the default judgment as to the individual defendant was vacated, and he filed an answer on October 3, 2005. The default judgment against Pisa Foods was never vacated and remains in effect.
Defendant's answer was subsequently dismissed without prejudice on January 20, 2006, as a result of defendant's failure to answer interrogatories. On February 3, 2006, defendant was ordered to produce documents, including personal and corporate tax returns.*fn2 He did not oppose the application or seek to modify the order after its entry. On July 7, 2006, pursuant to Rule 4:23-5(a)(1), plaintiff suppressed defendant's answer without prejudice for failure to appear at a deposition.
Defendant's answer was reinstated on January 11, 2007, conditioned upon his appearance at a deposition and payment of costs. The matter was unsuccessfully arbitrated on February 28, 2007, and was listed for trial on July 9, 2007.
On April 27, 2007, plaintiff obtained, again unopposed, a third order suppressing defendant's answer. On this occasion, the relief was granted because defendant had never complied with the February 3, 2006 order requiring him to produce personal and corporate tax returns and other corporate documents.
The court thereafter learned that on April 24, 2007, defendant filed a motion for summary judgment that was, as the judge put it, "styled" as a cross-motion, and which was intended to act as opposition to plaintiff's motion to suppress. The judge was unaware of the belated filing when she granted the motion to suppress defendant's answer. The summary judgment notice of motion indicated the same return date as the motion to suppress the answer, April 27, 2007, only three days after the date of filing. Because the motion was untimely, it was relisted for June 22, 2007.
On May 11, 2007, defendant sought reconsideration, pursuant to Rule 4:49-2, of the April 27, 2007 order suppressing his answer. On May 17, 2007, plaintiff filed a cross-motion for counsel fees. The motion for reconsideration was denied, and counsel fees were awarded at oral argument on June 22, 2007.
Defendant's motion for summary judgment was problematic, as the judge explained on June 22, 2007:
The summary judgment motion . . . violated Rule 1:6-3(b) in that the subject matter of the cross-motion did not relate to the original notice of motion which was with regard to a discovery issue. The motion was filed with the Civil Division on April 24, 2007, purporting to have a return date of April 27, 2007. Rule 4:46-1 provides that a motion for summary judgment shall be filed and served not ...