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Carole Ott v. Guardian Protection Services


May 24, 2011


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2623-09.

Per curiam.


Argued May 16, 2011

Before Judges Sabatino and Alvarez.

Plaintiff Carole Ott appeals from a series of orders issued by the Law Division dismissing her complaint against defendant Guardian Protection Services, Inc., pursuant to Rule 4:23-5(a) for failure to provide fully responsive discovery. Plaintiff argues that the orders in question were procedurally flawed and otherwise erroneous. Among other things, plaintiff points out that the trial court entered an order compelling discovery on July 9, 2010 that was inconsistent with the court's previous oral ruling from the bench on July 7, 2010 denying the application. Plaintiff further asserts that the July 9, 2010 order unfairly truncated the time provided for under Rule 4:23-5(a)(1) to cure any deficient discovery responses. Plaintiff also raises additional concerns about the fairness of the trial court's case management in this matter.

We decline to address the merits of plaintiff's contentions because no final appealable order has been entered by the trial court. That is manifest for several reasons.

The last order entered by the trial court, dated September 17, 2010, is clearly a non-final order. The trial court struck from the proposed form of order submitted by defendant the phrase "with prejudice" that had appeared after the words "dismissed." As so revised, the September 17, 2010 order therefore states that "plaintiff's complaint is hereby dismissed for failure to provide discovery, answer interrogatories and respond to a Notice to Produce." The change renders it an order of dismissal without prejudice, not with prejudice.

Any doubts about the non-final character of the September 17, 2010 order are dispelled by the fact that the special procedural requirements under Rule 4:23-5(a)(2) for the entry of a dismissal with prejudice have not been satisfied. Plaintiff's counsel frankly acknowledged to us at oral argument, that he did not serve his client with written notices*fn1 in the forms prescribed by Appendix II-A and Appendix II-B of the Rules, alerting his client that her lawsuit could be dismissed with prejudice if the outstanding discovery was not provided. See R. 4:23-5(a)(1) (regarding the required notice pursuant to Appendix II-A); R. 4:23-5(a)(2) (regarding the required notice pursuant to Appendix II-B). Nor is there any indication that the mandatory appearance of counsel on the motion return date in September 2010 took place. See R. 4:23-5(a)(2).

The non-final nature of the September 17, 2010 order is further illustrated by the fact that plaintiff contends that she has tendered fully responsive discovery to defendant, and by defendant's competing assertion that the tendered discovery responses were insufficient. Simply stated, this case is not over at the trial level.

Case law has established that an order dismissing a complaint without prejudice under Rule 4:23-5(a) for failure to supply discovery is an interlocutory order. Absent an unsuccessful motion to vacate such an order, it is not appealable as of right. Kwiatkowski v. Gruber, 390 N.J. Super. 235, 236-37 (App. Div. 2007); see also R. 2:2-3(a)(1) (authorizing appeals as of right from "final judgments" of the trial divisions). Although plaintiff did move to vacate an earlier order of dismissal dated July 9, 2010, plaintiff did not move to vacate the last order issued by the trial court on September 17, 2010, which is presently the operative order. Moreover, the trial court has not provided an item-by-item analysis of the persisting disagreements of counsel as to whether or not fully responsive discovery has, or has not, been supplied.

It is therefore evident, as counsel mutually acknowledged to us at oral argument, that no final order has been issued from the trial court and that the appeal is interlocutory.*fn2 Under the circumstances, we decline to grant leave to appeal, nunc pro tunc, on a plenary basis. Instead, we grant leave to appeal for the very limited purpose of remanding the matter with directions, in light of the parties' procedural misunderstandings and to ensure that there are no similar misunderstandings on remand.

In particular, we remand this case for further proceedings in the trial court so that either a final order of dismissal can be attained -- with appropriate formal client notification and an appearance on the return date as prescribed by Rule 4:23-5(a)(2) -- or, alternatively, the underlying discovery dispute can be resolved on fair and reasonable terms and the case may proceed on its merits. Toward that end, and to expedite the process, we direct counsel for defendant to furnish plaintiff's counsel with a letter within fourteen days of this opinion, detailing what aspects of plaintiff's discovery responses that it considers insufficient. If the discovery dispute is not amicably resolved by counsel within thirty days of such correspondence, either party may move for appropriate relief in the trial court.*fn3

The appeal is dismissed as interlocutory and the matter is remanded for further proceedings consistent with this opinion.

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