On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-545-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
Plaintiffs, Patricia and Michelle Baumann, appeal from the June 10, 2008 order of the Law Division denying their motion to vacate a dismissal without prejudice and to restore to the active trial calendar their complaint against defendants, Joseph, Thomas and Delores Wyse. We reverse.
Plaintiffs filed their complaint on September 22, 2005, seeking damages arising from certain failed joint business ventures with defendants. On November 22, 2005, defendants filed their answer.
In an order dated August 3, 2007, plaintiffs' complaint was dismissed without prejudice for failure to provide discovery. The discovery at issue consisted of documents defendants had requested from plaintiffs during depositions. The order noted that defendants were "entitled to [those] documents . . . but must follow R[.] 4:18[.]"
On August 10, 2007, pursuant to that order, defendants' attorney served interrogatories and a written Demand for Production of Documents upon plaintiffs' counsel "in accord with [R.] 4:18 . . . ." Plaintiffs responded to defendants' discovery requests on March 13, 2008, accompanied by a cover letter in which their attorney "apologize[d] for the delay[,]" and inquired whether defendants "will consent to the vacating of the dismissal without prejudice and restoring the case to the active trial calendar." Counsel also advised that he was simultaneously filing a motion to restore the case to the calendar but sought consent to "avoid unnecessary motion practice."
In their motion, filed on March 14, 2008, plaintiffs certified that "[d]efendants' formal discovery demands have been responded to in full[,]" and noted that defendants "have never moved to dismiss the matter with prejudice." Moreover, plaintiffs asserted, defendants would not be prejudiced by restoring the case to the trial calendar because "the statute of limitations . . . on [their] contract[-]based claims . . . does not run until September 1, 2011."
In opposition papers, defendants submitted a September 22, 2006 order dismissing the complaint with prejudice and "vehemently" opposed the motion. Counsel also asserted that discovery was "still not complete."
In a reply certification, however, plaintiffs' attorney pointed out that the September 22 order had been vacated by an order of November 3, 2006, which restored plaintiffs' complaint and scheduled the completion of discovery. Plaintiffs' counsel further certified that the only discovery that was "still incomplete" was providing the deposition transcript of one of the defendants. Counsel stated that defendants were "well aware that [p]laintiffs never have received the transcripts from the [c]court [r]eporter[,]" noting further that the trial judge had "remarked on the record on August 3, 2007[,] that there is no rule, statute or case which requires the party taking the deposition to acquire the transcripts."
On June 10, 2008, another trial judge denied plaintiffs' motion to vacate the dismissal without prejudice and to restore the case to the active trial calendar; the judge decided the motion "on the papers[,]" and provided no statement of reasons for that decision.
We have recently recognized that the decision "[w]hether to grant or deny a motion to reinstate a complaint lies within the sound discretion of the trial court." Sullivan v. Coverings & Installations, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008). We therefore review such a decision for abuse of that discretion. Ibid.
Where, as here, no explanation is given for the judge's decision to deny plaintiff's motion, particularly in the absence of a defense motion to dismiss with prejudice, we conclude that such a decision constitutes an abuse of discretion, because it was "'made without a rational explanation [and] inexplicably departed from established policies . . . .'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. ...