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Gourvitz v. Colfax

Superior Court of New Jersey, Appellate Division

May 24, 2013

ELLIOT H. GOURVITZ, Plaintiff-Respondent,
v.
DONNA DAY COLFAX, Defendant/Third-Party Plaintiff-Appellant,
v.
ELLIOT H. GOURVITZ, an Attorney at Law of the State of New Jersey; ELLIOT H. GOURVITZ, P.A.; ARI GOURVITZ, an Attorney at Law of the State of New Jersey; RICHARD A. OUTHWAITE, ESQ., an Attorney at Law of the State of New Jersey, Third-Party Defendants-Respondents, and JAMES P. YUDES, an Attorney at Law of the State of New Jersey; JAMES YUDES, P.C., KAREN TICHENOR WILLITTS, an Attorney at Law of the State of New Jersey; SEYMOUR CHASE, an Attorney at Law of the State of New Jersey; CHASE & CHASE; ROTENBERG, MERIL, SOLOMON, BERTIGER & GUTTILLA, P.C.; LESLIE M. SOLOMON, CPA, Third-Party Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 4, 2012.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9544-06.

Giovanni De Pierro argued the cause for appellant (Ambrosio, De Pierro & Wernick, LLC, attorneys; Mr. De Pierro and Alberico De Pierro, on the brief).

John L. Slimm argued the cause for respondents (Marshall, Dennehey, Warner, Coleman & Goggin, and Gourvitz & Gourvitz, LLC, attorneys; Mr. Slimm and Ari H. Gourvitz, on the brief).

Before Judges Alvarez, Waugh and St. John.

PER CURIAM.

Defendant/third-party plaintiff Donna Day Colfax appeals from the March 5, 2010 Law Division order dismissing her malpractice claims against defendants Elliot H. Gourvitz (Gourvitz), Elliot H. Gourvitz, P.A., Ari Gourvitz, and Richard A. Outhwaite (collectively referred to as the Gourvitz defendants) with prejudice, in violation of the technical requirements of Rule 4:23-5(a)(2). Thereafter, Colfax sought an order vacating the dismissal; her motion was denied on August 3, 2010. We now reverse.

Gourvitz represented Colfax in divorce litigation and afterwards sued for unpaid counsel fees. Colfax then filed a third-party complaint asserting malpractice causes of action against Gourvitz and others, alleging not only professional negligence but fraud. The complaint included causes of action asserting professional negligence claims related to the divorce litigation against an accountant and his firm, Leslie Solomon, C.P.A., and Rotenberg, Meril, Solomon, Bertiger & Guttilla, P.C. (the Solomon defendants). The Solomon defendants had filed suit against Colfax for unpaid accounting fees, which action was consolidated with the Colfax/Gourvitz litigation. This appeal only involves the Gourvitz defendants, all others having settled their disputes with Colfax.

In fact, Colfax and the Gourvitz defendants on August 25, 2011, entered into a consent judgment, incorporating mutual releases, with regard to the collection aspect of the matter. Under the terms of that consent judgment and mutual releases, Colfax retained her right to appeal from the dismissal of her malpractice claims against the Gourvitz defendants, as well as her right to pursue her remedies against a third attorney who represented her in these and related proceedings.[1] On appeal, Colfax also attempts to have us reconsider our prior denial of her application for leave to take an interlocutory appeal from a judgment entered in the collection action. In our view, because that matter is settled, she is barred from raising this issue just as we are barred from reviewing it. See DeAngelis v. Rose, 320 N.J.Super. 263, 280-81 (App. Div. 1999) ("A judgment or order entered with the consent of the parties is ordinarily not appealable for the purpose of challenging its substantive provisions." (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 2:2-3 (1999)) (internal quotations omitted)).

The judgment in Colfax's divorce was rendered June 29, 2006. Because of her unhappiness with Gourvitz's representation, Colfax appealed from the divorce judgment utilizing another attorney. Eventually, the dispute between Colfax and her former husband was resolved by way of an additional payment to her of $750, 000.

On July 24, 2007, the Gourvitz defendants sought discovery from Colfax in the malpractice action, including answers to interrogatories and the production of documents. At that juncture, Colfax was represented by Christina M. Thomas. On January 8, 2008, the trial court stayed the matter until the underlying appeal from the divorce judgment was resolved.

On May 1, 2009, Colfax retained a third attorney, discharging Thomas. Because the divorce appeal had been settled, the trial judge dissolved the stay, conducted a case management conference, and filed an order on September 30, 2009, directing the parties to serve all written discovery requests by October 15, 2009, and to respond to such requests by December 15, 2009. The order further required depositions to be completed by May 3, 2010, and Colfax to provide any expert reports by May 31, 2010. On Colfax's behalf, the third attorney obtained an extension of time in which to answer interrogatories to December 21, 2009. Despite the extension, however, Colfax did not answer the interrogatories.

The third attorney subsequently explained Colfax's failure to comply with discovery deadlines, because she, the third attorney, had been "experiencing exhaustion and extreme fatigue" since December 2009, brought on by the Epstein-Barr virus and Lyme disease. Additionally, the third attorney asserted that her time had been further consumed during this period in addressing a child's medical problems, also involving chronic fatigue.

On January 6, 2010, the Gourvitz defendants filed a notice of motion to dismiss the malpractice claims against them without prejudice. The Rule 4:23-5(a)(1) application was based on Colfax's failure to answer the interrogatories propounded two and one-half years prior.

Accordingly, on January 22, 2010, the trial judge entered an order dismissing the malpractice claims against the Gourvitz defendants, without prejudice, pursuant to Rule 4:23-5(a)(1). That same day, Gourvitz filed a notice of motion seeking summary judgment against Colfax on the collection claims, based largely on facts deemed admitted by Colfax's failure to respond to Gourvitz's request for admissions. Gourvitz's summary judgment motion was scheduled to be heard on March 5, 2010.

In February 2010, the trial judge conducted a case management conference by telephone, at which time he advised the third attorney to file a motion to vacate the order dismissing Colfax's malpractice claims against the Gourvitz defendants and to restore the matter pursuant to Rule 4:23-5(a)(1). Also, the judge advised her to provide the discovery requested by the Gourvitz defendants by the scheduled March 5, 2010 argument.

The third attorney did not take any steps to restore Colfax's malpractice claims against the Gourvitz defendants, nor did she provide any discovery as to either the collection or malpractice claims. Instead, on March 2, 2010, she sent a letter to the trial judge, asking for a two-week adjournment of the March 5, 2010 hearing because she was overworked and therefore unable to oppose the Gourvitz defendants' and the Solomon defendants' motions in a timely manner.

The trial judge denied the third attorney's request for adjournment, informing her that the Gourvitz defendants' and the Solomon defendants' motions would be treated as unopposed if she did not appear. On March 4, 2010, she sent a second letter stating that she would appear at the hearing and that Gourvitz's motion should be denied because his collection claims were inextricably intertwined with Colfax's malpractice claims. The letter was accompanied by the third attorney's certification, in which she explained that she had been unable to respond adequately to the Gourvitz defendants' and the Solomon defendants' motions because she had been exhausted and extremely fatigued over the prior weeks.

At the March 5, 2010 hearing, the trial judge rejected the third attorney's explanation concerning her exhaustion and fatigue, stating that the information should have been brought to his attention much earlier. The trial judge also granted Gourvitz's motion for summary judgment on the collection claims, based chiefly on the lack of any opposition.[2]

The Gourvitz defendants also reminded the judge that, contrary to the directive issued to the third attorney at the February case management conference, Colfax had not filed a motion to restore the malpractice claims and had not provided any of the discovery. In light of those deficiencies, the Gourvitz defendants asked the judge to dismiss the malpractice claims with prejudice.

The trial judge dismissed with prejudice Colfax's malpractice complaint against the Gourvitz parties. However, the executed order was in error because, while the judge had crossed out the "out" portion of the phrase "without prejudice" on the first page of the submitted order, he failed to do so on the second page, which incorrectly stated that the malpractice action was dismissed "without prejudice, pursuant to R. 4:23-5(a)(1)."

The Gourvitz defendants later provided the trial judge with a corrected order, entered on March 17, 2010. The revised order indicated throughout that the dismissal was with prejudice, but it eliminated any reference to Rule 4:23-5(a). The third attorney objected to the entry of the amended order because it contravened the notice and timing requirements of Rule 4:23-5(a)(2).

On April 15, 2010, the third attorney filed another certification with the court, including doctor's notes dated March 16 and 25, 2010. The certification reiterated her position that she had been incapacitated by fatigue and was thus unable to meet Colfax's discovery obligations in a timely manner.

On May 26, 2010, the third attorney filed a notice of motion, pursuant to Rule 4:50-1(a), (d), and (f), to vacate the dismissal with prejudice of the malpractice claims. The submission included a request for "[l]eave to [s]erve [r]esponses to [d]emand for [a]dmissions." That request contained a misstatement, because she actually sought permission to serve answers to interrogatories; answers were submitted with the notice of motion. The third attorney filed a certification with the notice, explaining that Colfax bore no responsibility for the delay in responding to the discovery requests; instead, the delay reflected her own health problems involving Lyme disease, the Epstein-Barr virus, and her son's illness.

On June 11, 2010, the third attorney also argued under Rule 4:50-1, that the Gourvitz defendants failed to adhere to the requirements of Rule 4:23-5(a)(2) in seeking dismissal with prejudice for Colfax's failure to provide discovery. When reminded that Colfax had yet to name legal or accounting experts, the third attorney responded that, if the malpractice claims were to be reinstated, she would obtain experts, but that it made no sense to do so until that time. She also stated that, upon reinstatement of the malpractice claims, Colfax was ready to provide any and all discovery requested by the malpractice defendants.

The trial judge denied the motion to vacate, basing his decision on the failure to provide the discovery required under "case management orders, other orders, [and] the position of the Court." The judge did not, however, enter a conforming order on June 11, 2010. The third attorney was compelled to write several letters to the court in June and July 2010, before receiving a conforming order that was dated and entered on August 3, 2010.

The caption and case number on the order relate to the Solomon defendants, while the text plainly states that the "Motion for Reconsideration pursuant to Rule 4:50-1 to Vacate the Amended Order Dismissing the Answer, Counterclaim and Third Party Complaint With Prejudice as against the Gourvitz parties be and hereby is denied." We subsequently denied Colfax's petition for leave to appeal from that order.

The trial judge also granted the Solomon defendants' motion to dismiss the remaining three counts of the malpractice action against them, with prejudice, pursuant to Rule 4:23-5(a)(2). In doing so, the judge appears to have relied upon the Solomon defendants' characterization of Colfax's discovery responses as a "nonresponsive" "hodge-podge" of material.

The third attorney objected that the trial judge had an obligation to examine the submitted discovery responses himself, rather than merely accepting the adverse parties' characterization. Notwithstanding the objection, the judge entered an order on June 11, 2010, dismissing the malpractice claims against the Solomon defendants.

On July 22, 2010, Colfax petitioned for leave to appeal from the order that dismissed the three remaining counts of the malpractice complaint against the Solomon defendants with prejudice. Colfax also sought summary disposition of that appeal and the recusal of the trial judge.

On August 16, 2010, Colfax was granted both leave to appeal and summary disposition:

Leave to appeal is granted. The order of June 11, 2010 dismissing with prejudice counts 2, 7 and 10 of the third-party complaint for failure to provide discovery are [sic] summarily vacated. The matter is remanded for the trial court to evaluate the substantive responses of the discovery answers supplied by the third-party plaintiff and, if they are found insufficient, to consider less drastic sanctions than a dismissal with prejudice. Reassignment to a different trial judge is denied. We do not retain jurisdiction.

At some point, Gourvitz filed an application to have Colfax arrested for violation of the order enforcing his litigation rights in the collection matter. On August 17, 2010, Colfax filed a notice of motion, again seeking the recusal of the trial judge from further involvement in this litigation.

Oral argument was heard on these motions on August 27, 2010. Concerning Gourvitz's motion, the trial judge ordered Colfax to appear for a deposition or be arrested for failing to do so. Concerning Colfax's motion, the trial judge denied her request that he recuse himself, stating that it would not be in the interest of justice to do so. After August 27, 2010, Colfax substituted present counsel for the third attorney. On April 14, 2011, Colfax and the Solomon defendants entered into a stipulation of dismissal of their dispute in the malpractice action, thus ending their involvement in this litigation.

On June 9, 2011, Colfax filed a notice of appeal from the orders entered on March 5 and 17, and on August 3, 2010, granting summary judgment to Gourvitz on his collection claims and dismissing her malpractice claims with prejudice against the Gourvitz defendants. On August 25, 2011, Gourvitz and Colfax entered into a mutual release, resolving all aspects of the collection dispute. On September 9, 2011, the trial judge entered a consent judgment, incorporating the mutual release. The consent judgment and mutual release permitted Colfax to retain her right to appeal from the dismissal of her malpractice claims against the Gourvitz defendants as well as against the third attorney.

It bears mention that Colfax's appeal from the dismissal of her malpractice claims is not at odds with the holding of Janicky v. Point Bay Fuel, Inc., 410 N.J.Super. 203 (App. Div. 2009). "[O]ur courts will not issue an advisory opinion if there is no genuine controversy between the parties, and for a question to be justiciable, there must be 'an actual dispute between parties who have a sufficient stake in the outcome.'" Id. at 208 (quoting N.J. Ass'n for Retarded Citizens, Inc. v. N.J. Dep't of Human Servs., 89 N.J. 234, 241 (1982)). Janicky held that "when the parties consent to entry of a final judgment memorializing a settlement of all claims in an action, there no longer exists a justiciable controversy from which a party may appeal." Price v. Hudson Heights Dev., LLC, 417 N.J.Super. 462, 466 (App. Div. 2011) (summarizing Janicky's holding).

Here, the collection dispute and the malpractice dispute involved separate and distinct sets of claims filed at different times. The collection dispute alone was settled by the consent judgment; the malpractice dispute ended more than a year earlier, when Colfax's claims were dismissed with prejudice. There is a "genuine controversy between the parties" concerning the dismissal of the malpractice claims. See Janicky, supra, 410 N.J.Super. at 208. Colfax neither agreed with nor consented to that dismissal. Colfax appeals only from the dismissal of her malpractice claims, not from the consent judgment. In light of these circumstances, Janicky's rationale does not bar consideration of the issues raised in this appeal.

I

We first address whether the trial court erred by dismissing Colfax's malpractice action in violation of Rule 4:23-5(a)(2). Decisions regarding reinstatement or dismissal of a complaint with prejudice under Rule 4:23-5(a)(2) lie within the sound discretion of the trial court. Sullivan v. Coverings & Installation, Inc., 403 N.J.Super. 86, 93 (App. Div. 2008). Such decisions will not be disturbed unless the court has abused its discretion and an injustice has been done. Ibid. In our view, reversal is necessary here because the trial court abused its discretion and rendered a decision prejudicial to Colfax by failing to adhere to the requirements of Rule 4:23-5(a)(2).

It is undisputed that the Gourvitz defendants sent interrogatories to Colfax in July 2007. After vacating the multi-month stay of the litigation triggered by the appeal of the underlying divorce action, the trial judge entered a case management order on September 30, 2009, requiring a response to discovery requests by December 15, 2009. As no response was received, the Gourvitz defendants moved on January 6, 2010, to dismiss the malpractice action against them, without prejudice, pursuant to Rule 4:23-5(a)(1).

"A complaint dismissed under Rule 4:23-5 involves a two-step process. First, the aggrieved party may move for dismissal for non-compliance with discovery obligations and, if the motion is granted, the complaint is dismissed without prejudice. R. 4:23-5(a)(1)." Sullivan, supra, 403 N.J.Super. at 93.

"Rule 4:23-5(a)(1) applies to demands for interrogatories (R. 4:17), demands for documents (R. 4:18-1), and demands for medical examinations (R. 4:19). Under Rule 4:23-5(c), a party is permitted to move for an order compelling discovery demanded 'pursuant to R. 4:18 or R. 4:19' but not pursuant to Rule 4:17." Kwiatkowski v. Gruber, 390 N.J.Super. 235, 236 (App. Div. 2007). Thus, Rule 4:23-5(a)(1) provides the designated pathway for obtaining relief under the court rules for a party's failure to answer interrogatories.

If a delinquent party fails to cure its discovery defalcations and thereby restore a complaint that was dismissed without prejudice under Rule 4:23-5(a)(1), then the aggrieved party may move on to the second step of the two-step process. That is, "if the delinquent party does not cure the discovery delinquency, 'the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal . . . with prejudice.' R. 4:23-5(a)(2)." Sullivan, supra, 403 N.J.Super. at 93.

Describing the underlying rationale for this two-step process, in Adedoyin v. Arc of Morris County Chapter, Inc., 325 N.J.Super. 173, 179 (App. Div. 1999), we stated:

R. 4:23-5 was developed in response to the Supreme Court's consternation in Aujero v. Cirelli, 110 N.J. 566, 542 A.2d 465 (1988), about late answers to interrogatories. Pressler, Current N.J. Court Rules, comment 3 on R. 4:23-5 (2000). The rule provides a two step procedure to ensure that lawyers provide more timely answers to interrogatories. For failure to answer interrogatories, an aggrieved defendant may move initially for dismissal of plaintiff's complaint without prejudice and then, if the failure continues for more than ninety [now, sixty] days, for a dismissal with prejudice. R. 4:23-5(a)(1); R. 4:23-5(a)(2). Thus, the rule's scheme "is to attract the delinquent party's attention by the dismissal without prejudice accompanied by the threat of a final disposition of the cause of action through a dismissal with prejudice if responsive answers to interrogatories are not served within the allotted ninety [now, sixty] day period." Feinsod v. Noon, 261 N.J.Super. 82, 84, 617 A.2d 1234 (App. Div. 1992).

The main objective of Rule 4:23-5(a), after all, is to compel answers to interrogatories, not to dismiss the case with prejudice. Adedoyin, supra, 325 N.J.Super. at 180. That objective is in line with a basic "tenet of our jurisdiction that resolution of disputes on the merits [is] to be encouraged rather than resolution by default for failure to comply with procedural requirements." Saint James AME Dev. Corp. v. City of Jersey City, 403 N.J.Super. 480, 484 (App. Div. 2008). "Rule 4:23-5 advances this goal, while affording an aggrieved party a remedy to compel production of the outstanding discovery and the right to seek final resolution through a dismissal process." Ibid.

Because Rule 4:23-5(a) provides for the dismissal of a party's action with prejudice, courts recognize that the "achievement of the salutary scheme of the . . . rule requires meticulous attention to its critical prescriptions, and particularly to those provisions which are intended to afford a measure of protection to the party who is faced with the ultimate litigation disaster of termination of his cause." Zimmerman v. United Servs. Auto. Ass'n, 260 N.J.Super. 368, 376-77 (App. Div. 1992); accord A & M Farm & Garden Ctr. v. Am. Sprinkler Mech., LLC, 423 N.J.Super. 528, 535 (App. Div. 2012); Adedoyin, supra, 325 N.J.Super. at 180 ("[A]chievement of the rule's goals requires meticulous attention to its prescriptions.").

Such "meticulous attention" necessarily means that parties seeking to compel answers to interrogatories under Rule 4:23-5(a) must comply with the "technical" requirements of that rule. Sullivan, supra, 403 N.J.Super. at 94-96. "That Rule 4:23-5 contemplates technical compliance with its two-step process, at least by the moving party, is confirmed in the very language of the rule." Id. at 95.

The Gourvitz defendants did not comply with the technical requirements of Rule 4:23-5(a)(2) when they moved for dismissal with prejudice of Colfax's malpractice action against them.

Rule 4:23-5(a)(2) pertinently provides that:

If an order of dismissal or suppression without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. . . . The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

Additionally, under the "General Requirements" provision set out at Rule 4:23-5(a)(3), "[a]ll motions made pursuant to this rule shall be accompanied by an appropriate form of order."

Thus, when the Gourvitz defendants moved for dismissal with prejudice, the pertinent "technical" provisions of Rule 4:23-5(a)(2) and (3) required that: (1) the motion be made no sooner than sixty days following the entry of the prior order that dismissed Colfax's malpractice action without prejudice, (2) the motion be filed with a return date that allowed Colfax's counsel at least seven days to file an affidavit informing the trial court that Colfax had been provided notice of the motion and its consequences, and (3) the motion be accompanied by an appropriate form of order.

The Gourvitz defendants' dismissal-with-prejudice motion did not adhere to the first technical requirement. The trial judge correctly entered the order of dismissal without prejudice on January 22, 2010. But, only forty-two days later, on March 5, 2010, the judge incorrectly granted the Gourvitz defendants' oral motion to dismiss with prejudice.

The judge granted this dismissal-with-prejudice motion even though eighteen days remained under the sixty-day period set out in Rule 4:23-5(a)(2) for Colfax to act. Thus, the dismissal-with-prejudice motion was brought, and the resulting order was entered, in contravention of the explicit requirements of Rule 4:23-5(a)(2).

One consequence of this premature dismissal with prejudice is that the third attorney was unable to meet the second technical requirement of Rule 4:23-5(a)(2). Hence she had no opportunity before the motion was granted to inform Colfax of the pending motion or about its consequences. Nor could the third attorney provide the trial court with an affidavit seven days before the return date of the dismissal-with-prejudice motion, informing the court that Colfax had been notified about the pending motion.

"In Zimmerman, [supra, 260 N.J.Super. at 375], we made it clear that 'client notification . . . is at the heart of the dismissal with prejudice practice'" set out in Rule 4:23-5(a)(2). Klajman v. Fair Lawn Estates, 292 N.J.Super. 54, 59 (App. Div.), certif. denied, 146 N.J. 569 (1996).

In A & M Farm & Garden Center, supra, 423 N.J.Super. at 540, the court reversed an order issued pursuant to Rule 4:23-5(a)(2), that dismissed the plaintiff's action with prejudice. Basing its reversal on a failure to adhere to the notice requirements of that rule, the court held that

when a court considers a motion to dismiss or suppress a pleading with prejudice, and there is nothing before the court showing that a litigant has received notice of its exposure to the ultimate sanction, the court must take some action to obtain compliance with the requirements of the rule before entering an order of dismissal or suppression with prejudice. Further, the court must set forth what effort was made to secure compliance on the record or on the order.

[Id. at 539.]

In the present case, nothing suggests that Colfax received prior notice either that the Gourvitz defendants would make their dismissal-with-prejudice motion on March 5, 2010, or that her malpractice action against them could or would be dismissed with prejudice on that date. Moreover, the trial court did nothing to ensure that the notice requirements of Rule 4:23-5(a)(2) were met before dismissing the malpractice action with prejudice. Consequently the dismissal-with-prejudice order was entered despite the technical notice requirements of Rule 4:23-5(a)(2) and the holding in A & M Farm & Garden Center.

Moreover, all motions for relief under Rule 4:23-5(a)(2) must be accompanied by an appropriate form of order. That did not occur here. Instead, after granting the motion, the judge "marked up" the dismissal-without-prejudice order provided by the Gourvitz defendants by crossing out the word "out" in one place on the order. Even after that change, the signed order still contained an error because it stated that the malpractice action was dismissed "without prejudice, pursuant to R. 4:23- 5(a)(1)." The judge later entered a corrected order. But this technical requirement, not satisfied in this case, has the additional substantive effect of ensuring the adverse party has notice of the relief being sought.

We do not find the Gourvitz defendants' arguments on this point convincing. They assert, relying upon Kwiatkowski, that the dismissal of the malpractice action can be sustained under Rule 4:23-2 ("failure to comply with order"), because Colfax did not comply with the case management order by providing timely answers to interrogatories. That case, however, simply reiterates that a party's failure to answer interrogatories should be addressed under Rule 4:23-5(a)(1). Kwiatkowski, supra, 390 N.J.Super. at 236.

The Gourvitz defendants also assert that the trial judge relied on Rule 4:23-2 as the basis for his dismissal-with-prejudice order. They are mistaken; the judge did not explicitly ground the dismissal on that court rule. Instead, the judge first signed an order erroneously basing the dismissal on Rule 4:23-5(a)(1), and later entered an amended order that did not identify the relevant court rule.

The Gourvitz defendants stress that Colfax had not provided expert reports by March 5, 2010, required by the case management order. Under the case management order, however, Colfax did not have to provide expert reports until May 31, 2010.

Colfax also argues that, pursuant to the "exceptional circumstances" provision of Rule 4:23-5(a)(2), the trial court erred "by the failure to give consideration to the exceptional circumstances of the illness of both counsel [the third attorney] and a family member [the third attorney's son]" before dismissing the malpractice action with prejudice. That argument fails because the only notice of her physical problems provided prior to the hearing on March 5, 2010, was the third attorney's claim in a certification, dated March 4, 2010, that she had been exhausted and extremely fatigued. The third attorney did not indicate the medical cause of her condition, nor attach any medical documentation, and did not mention her son's medical condition. The information before the trial court on March 5, 2010, with regard to her reasons for failing to timely respond were therefore too insubstantial to have constituted "exceptional circumstances" under Rule 4:23-5(a)(2).

To summarize, the requirements of Rule 4:23-5(a)(2) were not adhered to prior to the dismissal of the malpractice action with prejudice. The trial court abused its discretion in entering the order, resulting in injustice to Colfax. See Sullivan, supra, 403 N.J.Super. at 93. Here, just as in Sullivan, defendants "never formally moved to dismiss the complaint with prejudice." See id. at 96.

Therefore, we reinstate Colfax's complaint. A case management conference is to be conducted within the next sixty days, by which time Colfax shall fully respond to outstanding discovery requests and provide expert reports.[3]

II

Secondly, Colfax contends the trial court erred when it denied her motion, filed by her third attorney, under Rule 4:50-1 to vacate the dismissal order. Under the appropriate standard of appellate review, a trial court's "resolution of such a motion is left to the sound discretion of the trial judge, whose decision will not be disturbed absent a clear abuse of that discretion." Orner v. Liu, 419 N.J.Super. 431, 435 (App. Div.), certif. denied, 208 N.J. 369 (2011). In our view, the trial court abused its discretion when it refused to vacate the dismissal order.

At the hearing addressing Colfax's motion under Rule 4:50-1, the third attorney argued that the order had been entered in contravention of the technical timing and notice requirements of Rule 4:23-5(a)(2). She also argued that her illness and the illness of her son hampered Colfax's efforts to provide timely discovery. The trial court summarily found the arguments lacked merit and denied the motion to vacate.

The third attorney argued that the order should have been vacated pursuant to Rule 4:50-1(a), (d), or (f). Rule 4:50-1 states in pertinent part:

On motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment or order for the following reasons:
(a) mistake, inadvertence, surprise, or excusable neglect;
(d) the judgment or order is void;
or (f) any other reason justifying relief from the operation of the judgment or order.

Rule 4:50-1(f) is the "catch-all" provision of the rule; it provides relief where the party seeking to vacate an order can demonstrate "exceptional circumstances" that call for such relief. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009).

Colfax contends that, because the disputed dismissal order was entered contrary to the timing and notice requirements of Rule 4:23-5(a)(2), the order was void. We agree. Accordingly, the trial court abused its discretion when it refused to vacate the order pursuant to Rule 4:50-1(d). See Orner, supra, 419 N.J.Super. at 435.

Colfax also contends that "exceptional circumstances" should have impelled the trial court to vacate the dismissal order pursuant to Rule 4:50-1(f). The exceptional circumstances "catch-all" provision embodied in Rule 4:50-1(f) provides a means "to achieve equity and justice" when determining whether a judgment or order should be vacated. DEG, LLC, supra, 198 N.J. at 270 (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)) (internal quotation mark omitted).

Because the dismissal order entered prematurely and without the required notice to Colfax, equity and justice would have been promoted if the trial court had vacated it pursuant to this provision. Hence the trial court abused its discretion by refusing to do so. See Orner, supra, 419 N.J.Super. at 435.

Finally, Colfax contends that the trial court should have vacated the dismissal order pursuant to the "excusable neglect" provision of Rule 4:50-1(a), because the third attorney submitted proofs that she and her son were suffering from illnesses that hampered her ability to respond to the Gourvitz parties' discovery requests. On April 15, 2010, the third attorney filed a certification, supported by notes from a physician, asserting that she had been incapacitated by fatigue caused by Lyme disease and the Epstein-Barr virus. The certification did not mention any medical problems concerning her son. Although the March certification indicates that the third attorney scheduled the first available appointment for blood work for March 9, 2010, the physician's notes, dated March 16 and 25, 2010, did not state that treatment was sought prior to the hearing on March 5, 2010. Nor did the physician's notes provide any information about the medical problems of her son.

It was not until May 26, 2010, that the third attorney filed a certification detailing her medical problems involving Lyme disease and the Epstein-Barr virus, as well as her son's medical problems. The certification was not supported by any medical documentation.

At the hearing on June 11, 2010, addressing the dismissal order, the trial judge disagreed that the third attorney's failure to provide discovery was excusable because of the illnesses suffered by her and her son. Instead, the judge determined that she had failed to provide proper notice and documentation of her illness and that of her son prior to the hearing on March 5, 2010. According to the judge, such matters could have been addressed by a letter from the third attorney and a "doctor's letter, " if they had been presented before the hearing. Because she failed to provide notice of the medical problems in a timely manner, however, the trial court refused to attach any significance to them.

As a result, Colfax's contention premised on the "excusable neglect" provision of Rule 4:50-1(a) must fail. Under that provision, neglect or carelessness "may be excusable when attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS, 132 N.J. 330, 335 (1993).

The third attorney's failure to provide documentation of her relevant medical issues prior to the March 5, 2010 hearing was not compatible with due diligence or reasonable prudence. She knew about the overdue discovery, but did not provide information about her medical problems until more than a month after the hearing. Any mention of her son's illness was not forthcoming for more than a month after that. Additionally, the medical proofs concerning the third attorney's illness were scant and those concerning her son's illness nonexistent. At first glance, the judge had a basis for exercising his discretion and not vacating the disputed dismissal order under Rule 4:50-1(a).

That said, where the dismissal of a client's action because of his or her counsel's error is concerned, "in the absence of demonstrable prejudice to the other party it is neither necessary nor proper to visit the sins of the attorney upon his blameless client" by dismissing the action Jansson v Fairleigh Dickinson Univ 198 N.J. Super 190 196 (App Div 1985); accord Familia v Univ Hosp of the Univ of Med & Dentistry of N.J. 350 N.J. Super 563 568 (App Div 2002) ("[C]ourts should be reluctant to penalize a blameless client for the mistakes of the attorney")

In the present case the Gourvitz defendants have not demonstrated any prejudice that would have resulted if the dismissal order which should not have been entered in any event had been vacated Nor does the record indicate that Colfax was responsible for the failure to answer the Gourvitz defendants' interrogatories Rather the third attorney took full responsibility for the failure to provide discovery

Hence the trial court should have shielded the blameless client from the ultimate sanction of the dismissal of her malpractice claim That is the third attorney's patent neglect while not excusable under Rule 4:50-1(a) in light of Jansson should have resulted in the order being vacated We agree that the trial court abused its discretion when it denied Colfax's motion to vacate the dismissal order for this reason as well See Orner supra 419 N.J. Super at 435

Reversed and remanded.


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