Opinion
DOCKET NO. A-3799-12T1
05-29-2014
MARCELINA RIVERA, Plaintiff, v. ANGEL T. PEREZ, Defendant-Respondent, and ARMAND LOPEZ, Defendant.
Emolo & Collini, attorneys for appellant Joseph E. Collini (John C. Emolo, on the brief). Hardin, Kundla, McKeon & Poletto, P.A., attorneys for respondent (Eric Plantier, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1111-11.
Emolo & Collini, attorneys for appellant Joseph E. Collini (John C. Emolo, on the brief).
Hardin, Kundla, McKeon & Poletto, P.A., attorneys for respondent (Eric Plantier, on the brief). PER CURIAM
The attorney for plaintiff Marcelina Rivera appeals from an order imposing monetary sanctions on him for repeated failure to provide discovery in this motor vehicle personal injury case. We affirm.
Plaintiff was a passenger in her own car on June 1, 2009, when it was struck by a car defendant Armand Lopez allegedly drove through a stop sign. In March 2011, plaintiff filed a personal injury complaint against Lopez and also against the driver of her car, Angel Perez. She served a summons and complaint upon Lopez the same month, but did not locate and serve Perez until December 2011, nine months later. See R. 4:4-1 (summons to be issued within fifteen days); James v. Bessemer Processing Co., 155 N.J. 279, 313-16 (1998) (complaint may be dismissed pursuant to R. 4:37-2(a) if summons is not timely issued and served).
By the time plaintiff's attorney filed proof of service of the summons and complaint upon Perez on January 12, 2012, several events in the case had occurred: (1) Lopez had filed an answer in September 2011; (2) the court had dismissed the complaint against Perez on September 16, 2011, pursuant to Rule 1:13-7(a) for plaintiff's failure to prosecute her claim against that defendant; (3) the court had entered an order dated December 2, 2011, that consolidated this case with a separate personal injury case filed by Perez against Lopez; (4) the same order of consolidation had set an initial discovery end date of July 17, 2012; and (5) plaintiff had settled her case against Lopez in December 2011.
In February 2012, Perez also settled his affirmative personal injury case against Lopez. On March 19, 2012, the court filed a stipulation of dismissal submitted by the attorney for Lopez. Although the stipulation stated that the dismissal of plaintiff's case was only against Lopez and that the "case against Perez is still active," the clerk of the court closed the case. It appears that the case was properly closed because Lopez was the only defendant at that time, since plaintiff's case against Perez had been dismissed under Rule 1:13-7(a) and had not been reinstated.
Although the court had marked the case closed, defense counsel for Perez served an answer and discovery demands on plaintiff's attorney in early April 2012. Plaintiff's attorney did not provide timely responses to the discovery demands. As of July 2012, he had not yet responded to Perez's demands for answers to interrogatories and for production of documents. He adjourned the scheduled deposition of plaintiff to October 24, 2012.
Also in July 2012, plaintiff's attorney filed a motion pursuant to Rule 1:13-7(a) to reinstate her complaint. After an initial denial, the court granted plaintiff's motion and reinstated the complaint against Perez by order dated September 29, 2012. The same order set a new discovery end date of November 28, 2012.
Plaintiff's attorney did not act diligently in providing discovery within the sixty-day discovery schedule the court set. On October 3, 2012, he finally sent to defense counsel a copy of the form interrogatory answers he had earlier prepared for defendant Lopez, but he did not respond to Perez's supplemental interrogatories, and he also did not provide authorizations for defense counsel to obtain plaintiff's medical records. Defense counsel obtained some signed authorizations at the time of plaintiff's deposition on October 24, 2012, but plaintiff identified other medical providers at the deposition and did not follow up with authorizations for those providers.
Defense counsel had arranged for three Rule 4:19 medical examinations (IME's) of plaintiff (orthopedic, neurological, and dental). Hurricane Sandy intervened on October 29, 2012, and the IME's had to be rescheduled. Defense counsel acted promptly in rescheduling them and providing notice to plaintiff's attorney of the new dates. Plaintiff missed the next IME dates set in November and December. She did not attend any IME until January 9, 2013. At least one doctor charged defense counsel a "no-show" fee.
Because of the looming discovery end date, defense counsel appropriately filed motions to compel discovery, and also to extend the discovery deadline. Defense counsel notified the court and withdrew some of the motions as plaintiff's attorney provided late responses to delinquent discovery. But additional discovery remained outstanding, and the motion practice continued.
On November 16, 2012, the court extended the discovery end date to January 28, 2013, and wrote on the order that any additional discovery noncompliance by plaintiff would result in dismissal of her complaint. On December 7, 2012, the court entered an order dismissing plaintiff's complaint without prejudice for failing to appear for an IME (which had been rescheduled for December 3, 2012). The court noted on the order that 585 days of discovery had already passed and that substantial discovery from plaintiff was still outstanding.
Plaintiff then moved to reinstate her complaint, and defendant cross-moved to dismiss the complaint with prejudice, both motions filed under to Rule 4:23-5(a). The court heard oral argument by telephone on February 22, 2013. It denied defendant's motion to dismiss with prejudice and granted plaintiff's motion to reinstate her complaint. However, the court imposed a sanction of $500 on plaintiff for the discovery delinquencies and also indicated it would grant attorney's fees to defense counsel for the discovery motions.
In the telephone oral argument, plaintiff's trial counsel continually interrupted the judge, repeated the same arguments many times, and at the end revealed his disdain for the judge's ruling as to sanctions. The judge remained patient throughout the argument and gave no indication that the sanctions were the result of counsel's inappropriate manner of arguing his case. We note counsel's disrespect for the court but also reach our conclusions on appeal without regard to counsel's manner.
On March 5, 2013, the court entered an order reinstating plaintiff's complaint; setting a new discovery end date of April 22, 2013; scheduling non-binding arbitration pursuant to Rule 4:21A; sanctioning plaintiff's attorney $500 to be paid to the court; and also sanctioning plaintiff's attorney $700 pursuant to Rule 4:23-5(a)(3) as reimbursement of attorney's fees payable to defense counsel. Plaintiff's attorney filed a notice of appeal from the March 5, 2013 order, and argues before us that the monetary sanctions should be vacated.
We affirm essentially for the reasons stated in Judge Brogan's written supplemental decision issued pursuant to Rule 2:5-1(b). We add a few brief comments.
While plaintiff's counsel argues that the order of December 7, 2012, dismissing her complaint without prejudice was improperly entered, neither the notice of appeal nor plaintiff's case information statement indicated an appeal of that order. In any event, that order was not improper on the ground that IME's had been scheduled in less than the forty-five days required by Rule 4:19. The shortened time period was necessitated by plaintiff's delay in reinstating her complaint and in providing other timely discovery, thus allowing defendant only sixty days to complete discovery. Nor was the order improper because defendant allegedly did not comply with Rule 1:6-2(c)'s requirement of consultation between counsel to attempt to resolve the discovery dispute. Defense counsel had issued a Rule 1:6-2(c) "good faith" letter to plaintiff's attorney on October 8, 2012, when other discovery was delinquent. There was no need to issue a separate letter as to each discovery delinquency in the short time span permitted to complete discovery.
Plaintiff argues that Hurricane Sandy and subsequently her travel outside the country excused her failure to attend IME's. While the storm excused the initial cancellations, plaintiff and her attorney did not act diligently in rescheduling the IME's after that date, although counsel received written notifications of the rescheduled dates. By the time of the telephone oral argument on the cross-motions in February 2013, some three-and-a-half months after the storm delays, plaintiff had attended only one of the three IME's. Furthermore, the storm was no excuse for the repeated delays in providing to defense counsel interrogatory answers and signed medical authorizations.
The record indicates that defense counsel actively pursued discovery and that plaintiff and her attorney were continually dilatory in providing it. In light of the fact that plaintiff and her attorney did not diligently pursue their claims against defendant Perez from the time they filed the complaint, thus resulting in a sixty-day active discovery period, the subsequent delays were inexcusable.
The court was authorized to impose the $700 sanction in reimbursement of attorney's fees in accordance with Rule 4:23-5(a)(3). The court also had authority to impose monetary sanctions payable to the court. See Summit Trust Co. v. Baxt, 333 N.J. Super. 439, 450 (App. Div.) ("Quite apart from any specific provisions of the discovery rules, an inherent authority empowers our courts to impose sanctions for so blatant a violation of the spirit of those rules."), certif. denied, 165 N.J. 678 (2000); accord Pontidis v. Shavelli, 296 N.J. Super. 420, 424-25 (App. Div. 1997); In re Timofai Sanitation Co., 252 N.J. Super. 495, 505-06 (App. Div. 1991); Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 384-88 (App. Div. 1990).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION