NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4761-17T2
MR. Y. PARK AND LYDIA
PARK, d/b/a PARK CLEAN
MACHINE INC. and Z-ZONE
OUTLET INC.,
Plaintiffs-Appellants,
v.
LINDENWOLD CENTER, LLC,
Defendant-Respondent.
______________________________
Argued April 1, 2019 – Decided July 8, 2019
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-0156-16.
Jo-Leo W. Carney-Waterton argued the cause for
appellants.
Adam Nachman, argued the cause for respondent
(Sirlin Lesser & Benson, PC, attorneys; Adam
Nachmani, of counsel and on the brief).
PER CURIAM
This breach of contract action returns to us following our dismissal
without prejudice allowing plaintiffs Yong and Lydia Park to review Judge
Francisco Dominguez's oral decision pertaining to its April 28, 2017 order
denying reconsideration of its March 17, 2017 order granting defendant
Lindenwold Center, LLC's Rule 4:23-5(a)(2) motion to dismiss plaintiffs'
complaint with prejudice for failure to provide responsive discovery. Having
reviewed the judge's decision, plaintiffs renewed their appeal of the April 28
order. We affirm substantially for the reasons set forth in Judge Dominguez's
thorough oral opinion.
I
We glean the following facts from the record. In 1999, plaintiffs entered
into two leases with defendant for commercial storefronts located on
Blackwood-Clementon Road in Lindenwold. Almost six years later, defendant
granted a temporary easement on the outer edge of its premises to Camden
County ("County") for storage of construction equipment to be used during road
re-construction along Blackwood-Clementon Road. The three-year project
started outside defendant's premises on March 10, 2008.
In 2016, five years after the project was completed, plaintiffs sued
defendant alleging breach of contract, fraud, and tortious interference of
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2
business expectations. During the ensuing discovery period, plaintiffs failed to
respond to defendant's interrogatories and document request. Consequently, on
October 19, Judge Thomas J. Shusted, Jr., granted defendant's opposed Rule
4:23-5(a)(1) motion to dismiss without prejudice for failure to provide
discovery.
Thirty-two days later, plaintiffs had not provided sufficient responses to
defendant's discovery requests, resulting in defendant's motion to dismiss the
complaint with prejudice under Rule 4:23-5(a)(2), returnable January 20, 2017.
On January 1, plaintiffs filed a motion to vacate the October 19, 2016 order, in
accordance with Rule 4:23-5(a)(1) and -5(a)(2). At the February 3 motion
argument, plaintiffs' counsel explained that the delays in discovery were due to
Yong's1 illness in July 2016, and they were working on their discovery
responses.
Having considered the parties' arguments, Judge Dominguez 2 rejected
plaintiffs' explanation because seven months had passed since Yong's illness and
plaintiffs' counsel admitted that the requested outstanding documents were still
1
We use his first name because plaintiffs share the same last name; we intend
no disrespect.
2
Due to Judge Shusted's assignment to the Criminal Part, the matter was
assigned to Judge Dominguez.
A-4761-17T2
3
in plaintiffs' possession. Nonetheless, recognizing the remedial purpose of Rule
4:23-5, the judge gave plaintiffs a forty-two day extension to provide responsive
discovery.
On March 15, 2017, plaintiffs served purported responsive discovery
responses on defendant. After reviewing them, however, the judge recited in his
oral decision that the responses: (1) were not certified; (2) failed to disclose
information related to damages and included irrelevant tax returns from
individuals who were not parties to the action; and, (3) regarding photographs
or documents related to the alleged taking, stated "defendants received these
items in a prior lawsuit . . . multiple years ago." Accordingly, the judge
dismissed plaintiffs' complaint with prejudice in a March 17 order.
On April 10, plaintiffs filed a motion for reconsideration, seeking
reinstatement under Rule 4:50-1, supported by their counsel's certification.
Counsel asserted that: on March 5, 2017, he delivered "fully responsive answers
to the discovery" requested by defendant; he "supplemented and updated those
answers as required by the [c]ourt [r]ules"; and "plaintiff[s are] not delinquent
with any requested discovery."
On April 27, 2017, Judge Dominguez denied plaintiffs' motion. In his oral
decision that day, the judge reviewed the basis for the March 17 order, noting
A-4761-17T2
4
that plaintiffs never provided any discovery until March 15,3 and that plaintiffs'
remaining deficiencies were still unresolved. The judge further stated, "five
months after the dismissal without prejudice, 42 days after the initial return date
of the dismissal with prejudice, and nearly three weeks after the discovery period
expired, the only discovery in defendant's possession were uncertified answers
and a few pages of tax returns."
On May 25, plaintiffs filed their first notice of appeal. Almost a year later
at oral argument before us on April 23, 2018, plaintiffs contended the judge
failed to follow Rule 1:7-4(a), because he did not provide a statement of reasons
for denying their motion for reconsideration. We indicated that the trial court's
CourtSmart system revealed that Judge Dominguez did, in fact, render an oral
decision. However, because neither party was aware of the decision, we
dismissed the appeal without prejudice to allow plaintiffs to obtain a copy of the
3
Judge Dominguez's oral decision states plaintiffs did not provide reviewable
discovery until March 17. It appears that he misspoke as plaintiffs' appendix
indicates they provided their responses on March 15 and he was referencing his
March 17 order.
A-4761-17T2
5
judge's oral decision and to determine whether they wanted to refile their appeal
to challenge the March 17, 2017 order. 4
After reviewing the judge's oral decision, plaintiffs filed this appeal.
II
Initially, we must point out that plaintiffs' brief is non-compliant with
various court rules. First, plaintiffs raise several issues without the support of
facts or evidence provided in the appendix. R. 2:6-2(a)(5); See Cherry Hill
Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282, 283 (App. Div. 1984).
Second, they fail, in certain sections, to include in parenthesis the part of the
record that supports their arguments. R. 2:6-2(a)(6). They also fail to provide
a full copy of the March 17, 2017 order they are appealing. R. 2:6-1(a)(1)(A).
Normally, these deficiencies would not allow us to conduct a meaningful
appellate review of the order denying reconsideration. See R. 2:6-9; R. 2:8-2;
R. 2:9-9. However, because many of the deficiencies are remedied by
defendant's appendix, and for the sake of completeness, we will consider
plaintiffs' arguments.
4
There was no notation on the order that the reasons for denying reconsideration
of the dismissal with prejudice was set forth on the record. Plaintiff's counsel
represented that he was told by someone in the judge's chambers that there was
no written or oral decision setting forth the reasons for the judge's decision.
A-4761-17T2
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We turn to the principles that guide our analysis. Under Rule 4:23-5, a
dismissal of a complaint for failure to produce follows a two-step process. St.
James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App.
Div. 2008). First, the aggrieved party may move for dismissal without prejudice
for non-compliance with discovery obligations. R. 4:23-5(a)(1). If the motion
is granted, specific procedures for serving the order of dismissal must be
followed. Ibid. Upon providing full and responsive discovery, the delinquent
party may move to vacate the dismissal without prejudice "at any time before
the entry of an order of dismissal . . . with prejudice." Ibid. Second, if a
delinquent party fails to cure its discovery delinquency, then "the party entitled
to 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).
The court shall grant the motion "unless a motion to vacate the previously
entered order of dismissal . . . 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." Ibid.
The main objective of Rule 4:23-5(a), after all, is to compel discovery, not
to dismiss the case with prejudice. Adedoyin v. Arc of Morris County Chapter
Inc., 325 N.J. Super. 173, 180 (App. Div. 1999). "[I]ncomplete answers [to
A-4761-17T2
7
interrogatories cannot] be automatically considered as a failure to answer under
[Rule] 4:23-5." Ibid. "Thus, in cases where interrogatory answers are received
before the return date of the motion to dismiss without prejudice, the party
entitled to the answers cannot control the future course of the proceeding simply
by asserting that the answers are not fully responsive." Ibid. That said, "Rule
4:23-2(b) authorizes the imposition of sanctions for failing to comply with a
court order." Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995).
Our standard of review of a trial judge's application of our discovery rules
is limited. "A trial [judge] has inherent discretionary power to impose sanctions
for failure to make discovery, subject only to the requirement that [the decision]
be just and reasonable in the circumstances." Calabrese v. Trenton State
College, 162 N.J. Super. 145, 151-52 (App. Div. 1978). It is well-established
that suppressing pleadings for failure to comply with discovery orders is the
"last and least favorable option" available to a trial judge, Il Grande v.
DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004), but "a party invites
this extreme sanction by deliberately pursuing a course that thwarts persistent
efforts to obtain the necessary facts." Abtrax Pharm., 139 N.J. at 517. Thus,
Rule 4:23-2(b) authorizes the imposition of sanctions for failing to comply with
a court order. Id. at 514-15.
A-4761-17T2
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Hence, "[t]he decision to deny a motion to reinstate a complaint dismissed
for failure to provide discovery lies within the discretion of the motion judge."
A&M Farm & Garden Ctr. v. Am. Sprinkler Mech., L.L.C., 423 N.J. Super. 528,
534 (App. Div. 2012) (citations omitted). We should "decline[ ] to interfere
with [such] matters of discretion unless it appears that an injustice has been
done." Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (2008)
(alterations in original). An abuse of discretion "arises when a decision is 'made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J.
561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization
Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Based upon our review of the record, Judge Dominguez complied with the
two-step process under Rule 4:23-5 and did not abuse his discretion in
dismissing plaintiffs' complaint with prejudice or refusing to reconsider the
decision. See Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996)
(stating when reconsideration is appropriate). We find no support in the record
for plaintiffs' contention that the judge erred in dismissing its complaint with
prejudice because they provided fully responsive answers to discovery on
A-4761-17T2
9
September 26, 2016 – prior to the motion to dismiss with prejudice – and the
trial court relied on materially erroneous facts.
We likewise see no basis in the record that confirms plaintiffs' assertion
that they actively participated in the discovery process and that their responses
viewed as a whole, rather than question by question, were complete. Instead,
we agree with defendants that the record shows that plaintiffs did not provide
discovery responses dated September 26, 2016, when they opposed defendant's
motion to dismiss without prejudice. The October 19, 2016 order by Judge
Shusted granting defendant's motion specifically stated it was entered for
"failing to serve responses to [d]efendant's [f]irst [r]equest for [d]ocuments . . .
." The record fails to show any certification, proof of mailing, or other evidence
from plaintiffs indicating the discovery responses were provided to defendant or
the judge by the motion's return date of October 19.
Furthermore, plaintiffs did not argue in their reconsideration motion that
the judge failed to consider the September 26, 2016 discovery responses, and
did not include them in the motion. Because the judge did not have the
opportunity to review those documents, we should not consider them. See State
v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973) ("[A]ppellate courts will decline to consider questions or
A-4761-17T2
10
issues not properly presented to the trial court when an opportunity for such a
presentation is available unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public interest .").
Nevertheless, our review of those discovery responses leads us to
conclude they were insufficient. Accepting that plaintiffs had served the
September 26, 2016 discovery responses prior to the entry of the order granting
defendant's motion to dismiss without prejudice, their response to interrogatory
question eleven – requesting the monthly profit of their business ventures from
January 2000 to present – was answered: "[p]laintiffs' discovery is ongoing[,]
but this information will likely be provided before the end of the discovery
period." And in plaintiffs' March 15, 2017 discovery responses – made before
the motion to dismiss with prejudice was decided,5 after the discovery period
ended and six years after the cause of action arose – they still claimed "discovery
is ongoing and will be updated as more information becomes available ." Their
responses also claimed to include tax documents showing that their gross
monthly business income was "approximately twelve to fifteen thousand dollars
per month" and that their approximate monthly expenses before the alleged
5
Plaintiffs provided a set of discovery responses that are uncertified and dated
April 7, 2017, and updated "from March 15, 2017." There is no indication as to
what was updated since the March 15, 2017 responses.
A-4761-17T2
11
taking were "$3,500 to $5,000 per month." Yet, plaintiffs' appendix did not
include any of their tax records to substantiate their damages, and oddly included
a few pages of tax returns for persons who are not parties to the suit.
Considering this action is for a taking of property, the unsupplied discovery went
to the "very foundation" of plaintiffs' lawsuit. Abtrax Pharm., 139 N.J. at 517
(citation omitted). Thus, it was clear, as the judge pointed out, that the
interrogatory responses were insufficient.
In sum, Judge Dominguez did not abuse his discretion in dismissing
plaintiffs' complaint with prejudice, as he fully explained in his oral decision
that they did not substantially comply with discovery despite being given every
reasonable opportunity to do so in accordance with our discovery rules.
To the extent that we have not specifically addressed any of plaintiff's
arguments, we find them without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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MR. Y. PARK AND LYDIA PARK VS. LINDENWOLD CENTER, LLC (L-0156-16, CAMDEN COUNTY AND STATEWIDE)
Combined Opinion