Opinion
DOCKET NO. A-0480-13T3
01-13-2015
LUCCA CONTRACTING, INC., Plaintiff-Appellant, v. JEFFREY L. GOLD, ESQ., Defendant-Respondent, and JEFFREY L. GOLD, ESQ., Third-Party Plaintiff, v. ANTHONY LUCCA, Third-Party Defendant.
Peter A. Ouda argued the cause for appellant. James Passantino argued the cause for respondent (Biancamano & DiStefano, P.C., attorneys; Mr. Passantino, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2405-10. Peter A. Ouda argued the cause for appellant. James Passantino argued the cause for respondent (Biancamano & DiStefano, P.C., attorneys; Mr. Passantino, of counsel and on the brief). PER CURIAM
Plaintiff, Lucca Contracting, Inc., appeals from an order dismissing its complaint with prejudice. We affirm.
The underlying litigation arises out of plaintiff's allegations of legal malpractice against defendant, Jeffery L. Gold, who represented plaintiff in a breach of contract case. In June 2010, plaintiff filed a complaint. Thereafter, defendant filed an answer, counterclaim and third-party complaint. The procedural history thereafter is notable and provides the foundation for our decision.
The counterclaim and third-party complaint were dismissed by the trial court. Defendant did not appeal the dismissals.
In January 2012, the complaint was dismissed without prejudice for plaintiff's failure to comply with discovery. The complaint was reinstated in April 2012, after plaintiff complied with the discovery requests. Thereafter, the depositions of Anthony Lucca and Toni Lucca (husband and wife) were noticed, then adjourned, for January 10, 2012, September 5, 2012, September 7, 2012 and September 17, 2012, as they failed to appear. On September 17, 2012, defendant filed a motion to dismiss plaintiff's complaint with prejudice for failure to produce the Luccas for depositions. Judge James P. Savio denied defendant's request to dismiss the complaint with prejudice. The court ordered both individuals to appear for depositions on the date, time and place selected by defense counsel with the provision that there be at least fifteen days' notice to plaintiff's counsel. The order recited that upon the Luccas' failure to appear on the date fixed for depositions, the court would "entertain an application to dismiss the complaint with prejudice . . . ." The judge noted in the Memorandum of Decision which accompanied the order that a dismissal with prejudice was presently "inappropriate" although permissible under Rule 4:23-4. A copy of the order, along with a notice for the Luccas' depositions, was served upon plaintiff's counsel.
Anthony Lucca appeared for his deposition on November 25, 2012. Toni Lucca, the sole shareholder of Lucca Contracting, Inc., failed to appear. On November 27, 2012, defendant moved to dismiss plaintiff's complaint with prejudice for failure to produce Toni Lucca. The judge issued an order requiring plaintiff to pay defense counsel the sum of $250 for filing the motion. The order compelled Toni Lucca to appear for her deposition by February 15, 2013, upon ten days' notice on a date and time selected by counsel for the defendant. The order recited that if there was non-compliance, plaintiff's complaint may be dismissed with prejudice upon motion by defendant. In the Memorandum of Decision which accompanied this order, the judge held that "if the plaintiff [Toni Lucca] failed to appear on a date fixed for the deposition, the court will at that juncture entertain an application to dismiss the complaint with prejudice." Although, again, noting dismissal with prejudice was permitted under Rule 4:23-2(b)(3), the court found the remedy was "too harsh."
Thereafter, a notice to take the deposition of Toni Lucca was served upon plaintiff's counsel. In compliance with the order, plaintiff was provided with more than ten days' notice of the deposition. Toni Lucca failed to appear. On February 20, 2013, defendant moved to dismiss the complaint with prejudice. On April 25, 2013, the judge entered an order denying defendant's request to dismiss the complaint with prejudice and ordered that Toni Lucca be produced for depositions upon ten days' notice at a time and place of defense counsel's choosing. The order also required plaintiff pay $500 to defendant's counsel no later than forty-eight hours prior to the next scheduled deposition. The order recited that, should the plaintiff fail to make either the required payment or Toni Lucca fail to appear at the scheduled deposition, defendant could move ex parte for an order dismissing plaintiff's complaint with prejudice.
On April 10, 2013, defendant's counsel noticed the deposition of Toni Lucca for May 6, 2013. The notice requested the court ordered payment of $500 no later than forty-eight hours prior to the deposition date. Toni Lucca failed to appear. On May 6, 2013, defendant's counsel corresponded to the court that Toni Lucca failed to appear for the deposition. A proposed form of order dismissing the plaintiff's complaint with prejudice accompanied the correspondence. Notwithstanding the prior order permitting an ex parte application, plaintiff's counsel was copied on the correspondence and was provided with a copy of the proposed form of order. On May 15, 2013, without opposition by plaintiff, the court entered an order dismissing the plaintiff's complaint with prejudice. Plaintiff's counsel was served with the order. Plaintiff did not seek reconsideration of the order. R. 4:49-2.
Neither this payment nor the prior ordered payment of $250 from the November 27, 2012 order was ever paid by plaintiff.
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On June 18, 2013, plaintiff filed a motion to vacate the order citing Rule 4:50-1(a)(f). Defendant filed opposition. On July 30, 2013, the judge issued an order denying plaintiff's motion. In the Memorandum of Decision that accompanied the order, the judge noted that plaintiff was warned of the possible consequence of dismissal in October 2012. The judge also noted plaintiff neither provided a basis for non-appearance nor demonstrated that the failure to attend the court-ordered depositions was due to mistake, inadvertence, surprise or excusable neglect or any other reason justifying relief. As such, the judge held plaintiff failed to establish justification under the Rule.
On September 19, 2013, plaintiff filed a notice of appeal. On appeal, plaintiff contends the judge abused his discretion by dismissing the complaint with prejudice. In dismissing the complaint with prejudice, the judge relied on Rule 4:23-5(a)(2), which provides in part that:
If an order of dismissal . . . without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, . . . move on notice for an order of dismissal . . . with prejudice. . . . The motion to dismiss . . . with prejudice shall be granted 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.
[(Emphasis added).]
Even though plaintiff was warned repeatedly by court orders that Toni Lucca's failure to appear for deposition would result in the dismissal of the case, she failed to appear. As noted, Toni Lucca was the sole shareholder of plaintiff. It was she who signed and certified plaintiff's answers to interrogatories. On appeal, plaintiff argues that Toni Lucca was not knowledgeable about the underlying basis for the cause of action. However, both her corporate role with plaintiff and her prior participation in discovery undermine that argument. Plaintiff also argues that a lesser sanction, i.e., precluding the testimony of Toni Lucca at trial was available and could have been employed. Plaintiff's suggestion of the lesser sanction of preclusion of her testimony at trial is antithetical to the purpose of discovery. Discovery rules are designed "to further the public policies of expeditious handling of cases, avoiding stale evidence and providing uniformity, predictability and security in the conduct of litigation." Zaccardi v. Becker, 88 N.J. 245, 252 (1982). Plaintiff's suggested sanction would reward, not punish, failure to adhere to discovery obligations. If the discovery rules are to be effective, courts must be prepared to impose appropriate sanctions for violation of the Rules. Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512 (1995). "'A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances.'" Id. at 513 (quoting Calabrese v. Trenton State Coll., 162 N.J. Super. 145, 151-52 (App. Div. 1978), aff'd, 82 N.J. 321 (1980)).
Despite plaintiff's protestation, this is not a matter where plaintiff failed to produce discovery on a minor issue in response to court orders. During oral argument, defendant's counsel noted the damage claim of plaintiff was based upon Toni Lucca's knowledge of the books and records of plaintiff, as Anthony Lucca testified at his deposition. Without question, proof of damages was an essential element of plaintiff's claim. It was also an element of plaintiff's claim that defendant was entitled to fully explore through available means of discovery. In Abtrax, the Court held that dismissal with prejudice is appropriate where "the order for discovery goes to the very foundation of the cause of action . . . ." Id. at 514 (internal quotation marks omitted). In reaching our determination we find the "foundation of the cause of action" is synonymous with the essential element of proof of damages. Under the totality of the circumstances presented, the imposed sanction was neither unjust nor unreasonable. Id. at 513-14.
As such, we conclude the denial of the plaintiff's motion to vacate the order of dismissal pursuant to Rule 4:50-1(a),(f), was proper.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION