On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1474-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Kennedy.
Plaintiffs Marie Templier and Daphney Templier-Barnes appeal from an order entered by the Law Division on July 8, 2011, denying their motion to reconsider an order entered on December 17, 2010, that dismissed their complaint with prejudice for failure to provide discovery. We reverse and remand for further proceedings.
On April 8, 2009, plaintiffs filed a complaint in the Law Division against defendants Petro Oil Company (Petro)*fn1 , A. Francisco Trucking Co. (FTC), Antonio Francisco (Francisco), and certain fictitious defendants.*fn2 They alleged that on February 26, 2007, Francisco was delivering oil for Petro and mistakenly pumped heating oil into their home, causing severe environmental damage. Plaintiffs further alleged that, Petro, Francisco and FTC retained a remediation company to repair the damage but the company failed to do so and caused more damage to the property. The remediation company was identified by a fictitious name.
In October 2009, FTC filed an answer denying liability and a third-party complaint against Insurance Restoration Specialists, Inc. (IRS), the remediation company retained to repair the damage. FTC alleged that IRS was liable for a proportionate share of the damages that plaintiffs may recover. FTC and Francisco further claimed that they were entitled to be indemnified by IRS for any damages and costs assessed against them, including those attributable to their own negligence or fault. Petro filed an answer, dated December 23, 2009, denying liability and asserting cross-claims against FTC and Francisco for contribution and indemnification.
On April 19, 2010, FTC served discovery requests upon plaintiffs including interrogatories, special interrogatories, and a notice to produce documents, including expert reports.
Plaintiffs then filed an amended complaint, dated June 11, 2010, in which they named IRS as a defendant, in lieu of the fictitious restoration company named in the complaint.
In July 2010, after twice writing to plaintiffs' counsel to request the overdue discovery, FTC filed a motion to dismiss plaintiffs' complaint without prejudice for failure to provide discovery. In its motion, FTC argued that although plaintiffs had provided answers to Uniform Form "A" Interrogatories, they had not responded to the special interrogatories or the notice to produce. Plaintiffs did not oppose the motion and on August 6, 2010, the court entered an order dismissing the complaint without prejudice.
In September or October 2010, plaintiffs moved to reinstate the complaint and vacate the order dismissing the complaint without prejudice. In support of their motion, plaintiffs submitted a certification from their attorney, Ben Payton (Mr. Payton), who said that he "ha[d] been seriously ill for approximately [nine] months, was hospitalized for two weeks in May 2010, suffered a cardiac arrest on June 20, 2010, . . . remained critically ill . . . and [wa]s still recuperating." Plaintiffs' answers to the special interrogatories were attached to Mr. Payton's certification.
On October 12, 2010, FTC filed a motion to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2). FTC noted that sixty days had passed since the court had dismissed plaintiffs' complaint without prejudice. FTC noted that plaintiffs had moved to reinstate the complaint and provided answers to the special interrogatories but had not responded to the notice to produce.
FTC filed a letter memorandum with the trial court opposing plaintiffs' motion to reinstate. FTC again noted that plaintiffs had not fully complied with all discovery demands and therefore the complaint should not be reinstated.
The trial court filed a letter opinion dated November 4, 2010, addressing both motions. The court said that it had spoken with Mr. Payton and suggested that, if he had a continuing medical problem, his clients should obtain another attorney. The court also said that Mr. Payton had not explained why some of the discovery remained outstanding. The court concluded plaintiffs' motion to reinstate the complaint would be denied because they had not fully responded to the notice to produce.
The court also denied FTC's motion to dismiss the complaint with prejudice. The court said that FTC's motion could be re-listed for December 17, 2010 if plaintiffs "remain unresponsive." The court entered two orders dated November 4, 2010. One order erroneously stated that the complaint was reinstated. The other order stated that FTC's motion was denied without prejudice.
On November 29, 2010, FTC filed another motion to dismiss plaintiffs' complaint with prejudice pursuant to Rule 4:23-5(a)(2), which was returnable on December 17, 2010. In his supporting certification, FTC's attorney stated that the motion should be granted because plaintiffs still had not responded to their notice to produce.
The trial court considered the motion on December 17, 2010. Mr. Payton was not present for the argument. The court observed that Mr. Paytons' absence was "not unusual." The court acknowledged that plaintiffs had argued their failure to provide discovery was due to exceptional circumstances, specifically Mr. Payton's serious medical problems.
The court again noted that he had spoken to Mr. Payton and suggested that if he had a continuing medical condition, he should advise his clients to retain another attorney. The court said that Mr. Payton had not confirmed his medical condition by a medical certification, medical report, affidavit or otherwise. The court commented that plaintiffs' counsel "has just failed to do anything in this case. . . ."
The court stated that it had "strived" to impose sanctions other than dismissal of the complaint with prejudice. The court said it had given plaintiffs' attorney an opportunity to participate, to comply with its orders, and to verify his excuses for noncompliance, but all of this had "fallen on deaf ears." The court determined that the complaint would be dismissed with prejudice because no lesser remedy was available. The court entered an order dated December 17, 2010, dismissing the complaint with prejudice.
In January 2011, plaintiffs filed a motion for reconsideration of the December 17, 2010 order and reinstatement of their complaint. Mr. Payton filed a certification in support of the motion. He said the delays in responding to the discovery requests were a direct result of his illnesses, which amounted to exceptional circumstances. Mr. Payton asserted ...