DONNA CHINN VS. STEPHEN SNYDER, ESQ. (L-6629-15, ESSEX COUNTY AND STATEWIDE) ( 2018 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-2585-16T4
    DONNA CHINN and THOMAS MCGEE,
    Plaintiffs-Appellants,
    v.
    STEPHEN SNYDER, ESQ., SNYDER &
    SNYDER, MADELINE HOUSTON, ESQ.,
    and HOUSTON & TOTARO,
    Defendants-Respondents.
    ________________________________________
    Argued May 15, 2018 – Decided July 11, 2018
    Before Judges Carroll and DeAlmeida.
    On appeal from Superior Court of New Jersey,
    Law Division, Essex County, Docket No. L-6629-
    15.
    Kenneth S. Thyne argued the cause for
    appellant (Roper & Thyne, LLC, attorneys;
    Kenneth S. Thyne, on the brief).
    Marshall D. Bilder argued the cause for
    respondents Stephen Snyder, Esq. and Snyder
    and Snyder (Eckert Seamans Cherin & Mellott,
    LLC, attorneys; Marshall D. Bilder, of counsel
    and on the brief).
    Madeline Houston, respondent, argued the cause
    pro se and for respondent Houston & Totaro.
    PER CURIAM
    Plaintiffs      Donna     Chinn     and    Thomas       McGee    appeal    orders
    dismissing their purported class action legal malpractice claims
    with and without prejudice pursuant to Rule 4:23-5(a)(1) and (2)
    for failure to produce discovery, denying reconsideration of those
    orders,    and    denying     their    motion    to    reinstate       their   amended
    complaint.       We affirm.
    I.
    Plaintiffs' arguments must be considered in light of the
    complex procedural history in the trial court.
    On September 21, 2015, Chinn and McGee filed a putative class
    action complaint in the Law Division alleging legal malpractice
    and related claims against attorneys who represented them in a
    multi-county         consolidated         matter         alleging          employment
    discrimination       against      Prudential          Life        Insurance    Company
    (Prudential).       Plaintiffs claimed that they, and certain other
    Prudential       employees     and     agents,    settled          their   employment
    discrimination claims on a compromised basis because of, among
    other     things,    the     alleged     negligence          of    their   attorneys,
    defendants Stephen Snyder, Esq., and his firm, Snyder & Snyder
    (collectively Snyder), and Madeline Houston, Esq., and her firm,
    Houston & Totaro (collectively Houston).
    2                                    A-2585-16T4
    On November 2, 2015, plaintiffs filed an amended complaint
    refining their claims, but naming no new parties.           Both the
    complaint and the amended complaint were filed by Edward R. Grossi,
    Esq., as counsel for plaintiffs.
    On December 10, 2015, Houston served discovery requests on
    plaintiffs by way of service on Grossi.        On February 5, 2016,
    Snyder served discovery requests on plaintiffs by way of service
    on Grossi.
    On February 11, 2016, Houston notified Grossi in writing that
    plaintiffs'   responses   to   Houston's   discovery   requests   were
    overdue, and, if responses were not received promptly, a motion
    to dismiss the amended complaint would be forthcoming.
    On March 21, 2016, Roper & Thyne, LLC (Roper) filed a notice
    of appearance as co-counsel for plaintiffs.
    On April 5, 2016, Houston moved to disqualify Roper as
    plaintiffs' counsel based on conflicts of interest arising from
    its involvement in the Prudential matter.
    On April 7, 2016, Snyder advised Grossi and Roper that
    plaintiffs' responses to Snyder's discovery requests were overdue,
    and, if responses were not received in seven days, Snyder would
    move for relief.
    On April 12, 2016, Snyder moved to disqualify Grossi and
    Roper as plaintiffs' counsel based on conflicts of interest arising
    3                           A-2585-16T4
    from their involvement in the Prudential matter, and in a separate
    fee dispute arising from the Prudential matter.
    On April 14, 2016, Grossi informed Snyder's counsel to expect
    plaintiffs' discovery responses in a week.         Plaintiffs, however,
    failed to respond to Snyder's discovery requests.
    On May 13, 2016, the trial court granted defendants' motions
    to disqualify Grossi and Roper as plaintiffs' counsel.
    On July 8, 2016, the trial court denied Roper's motion for
    reconsideration of the disqualification order.
    On July 13, 2016, plaintiffs retained Scott Piekarsky, Esq.,
    to represent them.   However, Piekarsky did not file a substitution
    of counsel until October 6, 2016, almost three months later.
    Piekarsky's   representation    of    plaintiffs      was    unknown    to
    defendants' counsel until October 6, 2016.
    On July 27, 2016, Houston's counsel, unaware of Piekarsky's
    representation of plaintiffs, sent letters to plaintiffs at the
    addresses in the amended complaint via first-class, regular mail
    and certified mail, return receipt requested.       The letters advised
    plaintiffs that their responses to Houston's discovery requests
    were overdue, and that if responses were not received by August
    19, 2016, Houston would move to dismiss the amended complaint.
    Houston's   counsel   received   a   signed   return   receipt    card
    establishing Chinn's receipt of the July 27, 2016 letter.               The
    4                              A-2585-16T4
    letter sent to Chinn by regular mail on July 27, 2016, was not
    returned.   The letter sent to McGee on July 27, 2016, by certified
    mail was returned unclaimed.     The letter sent to McGee on July 27,
    2016, by regular mail was not returned.
    On July 29, 2016, Snyder's counsel, similarly unaware of
    Piekarsky's     representation   of       plaintiffs,     sent    letters     to
    plaintiffs at the addresses in the amended complaint via first-
    class, regular mail, and certified mail, return receipt requested.
    The letters advised plaintiffs that their responses to Snyder's
    discovery requests were overdue, and that if responses were not
    received by August 15, 2016, Snyder would move to dismiss the
    amended complaint. Copies of the discovery requests were enclosed.
    Snyder's    counsel   received       a   signed   return    receipt    card
    establishing Chinn's receipt of the July 29, 2016 letter.                    The
    letter sent to Chinn by regular mail on July 29, 2016, was not
    returned.   The letter sent to McGee on July 29, 2016, by certified
    mail was returned unclaimed.     The letter sent to McGee on July 29,
    2016, by regular mail was not returned.
    On August 29, 2016, Houston moved to dismiss the amended
    complaint without prejudice pursuant to Rule 4:23-5(a)(1) for
    plaintiffs' failure to respond to Houston's discovery requests.
    Because Piekarsky had not yet filed a substitution of counsel,
    Houston's counsel served the motion on plaintiffs at the addresses
    5                                A-2585-16T4
    in   the   amended    complaint   by   first-class,    regular   mail,   and
    certified mail, return receipt requested.        The certified mail sent
    to both plaintiffs was returned unclaimed.         The regular mail sent
    to both plaintiffs was not returned.
    On September 6, 2016, Snyder moved to dismiss the amended
    complaint without prejudice pursuant to Rule 4:23-5(a)(1) for
    plaintiffs' failure to respond to Snyder's discovery requests.
    Because Piekarsky had not yet filed a substitution of counsel,
    Snyder's counsel served the motion on plaintiffs at the addresses
    in   the   amended    complaint   by   first-class,    regular   mail,   and
    certified mail, return receipt requested.        The certified mail sent
    to both plaintiffs was returned unclaimed.         The regular mail sent
    to both plaintiffs was not returned.         It is undisputed that when
    they filed their motions to dismiss the amended complaint without
    prejudice defendants were not delinquent with respect to the
    discovery requests served on them.
    On September 16, 2016, the trial court granted Houston's
    unopposed    motion    to   dismiss    the   amended   complaint   without
    prejudice pursuant to Rule 4:23-5(a)(1) for failure to respond to
    Houston's discovery requests.
    On September 22, 2016, Houston's counsel served a copy of the
    trial court's September 16, 2016 order, along with the notice to
    pro se parties required by Rule 4:23-5(a)(1), on plaintiffs at the
    6                            A-2585-16T4
    addresses in the amended complaint by first-class, regular mail,
    and certified mail, return receipt requested.    The certified mail
    sent to McGee was returned unclaimed.   The certified mail sent to
    Chinn was returned marked "Attempted – Not Known."     The regular
    mail sent to both plaintiffs was not returned.
    On September 30, 2016, the trial court granted Snyder's motion
    to dismiss the amended complaint without prejudice pursuant to
    Rule 4:23-5(a)(1) for failure to respond to Snyder's discovery
    requests.   The court also dismissed plaintiffs' purported class
    action claims with prejudice because no counsel of record had
    appeared on behalf of plaintiffs.
    On October 6, 2016, Snyder's counsel served a copy of the
    trial court's September 30, 2016 order, along with the notice to
    pro se parties required by Rule 4:23-5(a)(1), on plaintiffs at the
    addresses in the amended complaint by first-class, regular mail
    and certified mail, return receipt requested.    The certified mail
    sent to both plaintiffs was returned unclaimed.   The regular mail
    sent to both plaintiffs was not returned.
    Also on October 6, 2016, Piekarsky filed a substitution of
    counsel notifying defendants that he represented plaintiffs.    Upon
    receipt of a copy of the substitution, Snyder's counsel emailed a
    copy of the trial court's September 30, 2016 order to Piekarsky.
    7                           A-2585-16T4
    On October 10, 2016, Snyder's counsel emailed Piekarsky a
    copy of the motion papers that resulted in entry of the September
    30, 2016 order.
    On October 11, 2016, Houston moved to disqualify Piekarsky
    as plaintiffs' counsel.   The trial court granted the motion on
    November 4, 2016.
    On November 16, 2016, Houston moved to dismiss the amended
    complaint with prejudice pursuant to Rule 4:23-5(a)(2).   Houston's
    counsel served the motion papers, along with the notice to pro se
    parties required by the Rule, on plaintiffs at the addresses in
    the amended complaint by first-class, regular mail, and certified
    mail, return receipt requested.
    On November 29, 2016, Snyder moved to dismiss the amended
    complaint with prejudice pursuant to Rule 4:23-5(a)(2).   Snyder's
    counsel served the motion papers, along with the notice to pro se
    parties required by the Rule, on plaintiffs at the addresses in
    the amended complaint by first-class, regular mail, and certified
    mail, return receipt requested.
    The certified mail sent to McGee was returned unclaimed, and
    to Chinn was returned undelivered.    The regular mail sent to both
    plaintiffs was not returned.
    On December 9, 2016, the court sent a notice to each plaintiff
    notifying them that they were required to appear on December 16,
    8                         A-2585-16T4
    2016, the return date of the motions.          The notices were sent by
    first-class, regular mail to the same addresses to which defendants
    had sent all prior mail to plaintiffs.        McGee admits receiving the
    court's notice.
    On   December   15,   2016,   after   business   hours,   Michael    J.
    Epstein, Esq., sent defendants' counsel an email stating that he
    had been retained by plaintiffs.         Epstein stated that he intended
    to appear on plaintiffs' behalf the next day to seek an adjournment
    of defendants' motions to permit him to complete plaintiffs'
    discovery responses and move to reinstate the amended complaint.1
    1
    Plaintiffs included in their appendix a letter dated November
    28, 2016, from Piekarsky to Epstein enclosing Piekarsky's files
    on this matter and stating that "[m]ost time sensitive at this
    point is to get discovery to the defense and seek to restore the
    claim (sic) action status. The related orders are attached." This
    letter contradicts plaintiffs' argument that Epstein was "unaware
    that the case had been dismissed without prejudice" when he
    received the files, and that the "[o]rder dismissing the Complaint
    (sic) was not served upon prior counsel and was not received by
    either substitute counsel." Moreover, the letter contradicts the
    January 31, 2017 certification Epstein submitted to the trial
    court in which he certified that Piekarsky "did not inform me that
    the case had been dismissed," and that he "only learned about the
    Motion shortly before the return date." The November 28, 2016
    letter is not part of the trial court record and plaintiffs did
    not move to supplement the record prior to including the letter
    in their appendix. R. 2:5-5. Given the relevance of the letter,
    we sua sponte grant leave to supplement the record with the letter.
    Because plaintiffs did not move to supplement the record, we will
    not consider the other documents that are not part of the trial
    court record, but were included in the plaintiffs' appendix.
    Hisenaj v. Keuhner, 
    194 N.J. 6
    , 25 (2008).
    9                             A-2585-16T4
    On December 16, 2016, Epstein appeared on the return date of
    the motions.    Although the court had directed plaintiffs to appear
    in person, they did not do so.          Epstein requested an adjournment
    of the motions. He stated that he possessed responses to Houston's
    discovery requests, but was still compiling responses to Snyder's
    requests.      Epstein     did   not   produce   any   discovery     responses.
    Notably, Epstein did not argue that plaintiffs had not received
    notice of defendants' motions, or that they were unware that the
    amended complaint had been dismissed without prejudice.                 This is
    significant because plaintiffs made those claims a few weeks later
    in a motion for reconsideration.
    On December 16, 2016, the trial court granted defendants'
    motions to dismiss the amended complaint with prejudice.                      The
    court concluded that all of the prerequisites for dismissal with
    prejudice under Rule 4:23-5(a)(2) had been met, that Epstein was
    "not   denying"     that   those   prerequisites       had    been    met,   that
    plaintiffs had not moved to reinstate the amended complaint, or
    produced    fully    responsive    discovery,    and   that     no   exceptional
    circumstances       warranted    adjournment     of    defendants'      motions.
    Importantly, the court found that plaintiffs received notice of
    the dismissal of the amended complaint without prejudice, and of
    defendants' motions to dismiss with prejudice.               Finally, the court
    concluded that there was "no adequate sanction to alleviate the
    10                                A-2585-16T4
    prejudice suffered by the long period of time and the failure of
    the plaintiffs to comply with discovery obligations."
    On January 10, 2017, plaintiffs moved for reconsideration of
    the trial court's December 16, 2016 orders dismissing the amended
    complaint with prejudice, and for reinstatement of the amended
    complaint.     In     support   of   the   motions,   plaintiffs     submitted
    certifications denying that they had received any of the mail sent
    to them by defendants' counsel.             In his certification, McGee
    admitted receiving notices from the postal service that "certain
    documents" had been sent to him by certified mail.               He certified
    that when he went to retrieve the certified mail, it had been
    returned because he "had not picked up the mail quickly enough."
    McGee certified that the first notice he had of the dismissal of
    his amended complaint was the court's December 9, 2016 letter.
    In     Chinn's     certification,      she   denied     receiving         any
    correspondence      from   defendants'     counsel    or   the   court.        She
    certified that she moved to 6115 Tidewater Drive in Norfolk,
    Virginia,    the   address   to   which    defendants'     counsel   sent      all
    correspondence, in July 2016.              Yet, the complaint, filed in
    September 2015, states that Chinn resides at 6115 Tidewater Drive,
    Norfolk, Virginia.      Chinn certified that she "continued to receive
    mail forwarded from [her] prior attorneys," but "never received
    any mail forwarded from the Defendants indicating my case was
    11                                  A-2585-16T4
    going to be dismissed."              It is not clear why Chinn refers to
    forwarded mail when all mail sent to her by defendants' counsel
    was to the Tidewater Drive address, thus obviating the need for
    forwarding by the postal service.                 The motions were accompanied
    by what plaintiffs characterized as fully responsive answers to
    defendants' discovery requests.
    On February 3, 2017, the trial court denied plaintiffs'
    motions      for    reconsideration         and   to   reinstate    the   amended
    complaint.         The trial court placed its findings of fact and
    conclusions of law for both motions on the record.                 Plaintiffs did
    not   file    a    transcript   of    the    court's   February    3,   2017   oral
    decision.     As a result, it is not possible to ascertain from the
    record the reason for the trial judge's decisions.2
    This appeal followed.           Plaintiffs appeal the September 16,
    and September 30, 2016 orders dismissing the amended complaint
    without prejudice, the December 16, 2016 orders dismissing the
    amended complaint with prejudice, and the February 3, 2017 order
    denying their motion for reconsideration of the December 16, 2016
    orders.      They also challenge the February 3, 2017 order denying
    their motion to reinstate the amended complaint.
    2
    The order denying the motion for reconsideration appears to
    have been erroneously dated January 3, 2017. We assume the order
    was dated February 3, 2017, the date of the court's decision.
    12                                A-2585-16T4
    II.
    We review the trial court's dismissal of plaintiffs' amended
    complaint for failure to provide discovery for abuse of discretion.
    A&M Farm & Garden Ctr. v. Am. Sprinkler Mech., LLC, 
    423 N.J. Super. 528
    , 534 (App. Div. 2012). Generally, we "defer to a trial judge's
    discovery rulings absent an abuse of discretion or a judge's
    misunderstanding or misapplication of the law."     Capital Health
    Sys., Inc. v. Horizon Healthcare Servs., Inc., 
    230 N.J. 73
    , 79-80
    (2017).
    Rule 4:23-5(a) provides a two-step procedure for parties to
    request the dismissal of an opposing party's pleading for failure
    to provide discovery.   First, "the party entitled to discovery may
    . . . move, on notice, for an order dismissing or suppressing the
    pleading of the delinquent party."    R. 4:23-5(a)(1).     The judge
    may then order the delinquent party's pleading be dismissed without
    prejudice.   
    Ibid.
    Second, if the delinquent party fails to cure the outstanding
    discovery deficiencies within sixty days of the order, the moving
    party may request the court to dismiss the delinquent party's
    pleading with prejudice.   R. 4:23-5(a)(2).   The motion
    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
    13                           A-2585-16T4
    been provided or exceptional circumstances are
    demonstrated.
    [Ibid.]
    Exceptional    circumstances     may      be    shown   when   an    external
    factor, such as bad health or an emergency, prevented a party's
    discovery obligations from being met.               Rodriguez v. Luciano, 
    277 N.J. Super. 109
    , 112 (App. Div. 1994) (citing Suarez v. Sumitomo
    Chem. Co., 
    256 N.J. Super. 683
    , 688-89 (Law Div. 1991)).                   Parties
    must pay "meticulous attention to" the "critical prescriptions"
    of the Rule.     Zimmerman v. United Servs. Auto. Ass'n, 
    260 N.J. Super. 368
    , 376-77 (App. Div. 1992).
    Having    carefully   reviewed      the    record       in   light    of   the
    procedural requirements of Rule 4:23-5(a)(1) and (2), and the
    applicable legal standards, we conclude that the trial court did
    not abuse its discretion when entering the orders under appeal.
    Those orders are addressed in turn.
    A.   September 16, 2016 and September 30, 2016 Orders Dismissing
    the Amended Complaint without Prejudice.
    Defendants' motions to dismiss the amended complaint without
    prejudice pursuant to Rule 4:23-5(a)(1) were unopposed. The record
    reveals that defendants' motion papers included proof of service
    of their motions on plaintiffs, and that their discovery requests,
    which had been served on Grossi prior to his disqualification,
    more than eight months prior to the filing of defendants' motions,
    14                                     A-2585-16T4
    had gone unanswered.         There is ample support for the trial court's
    conclusion that the requirements of the Rule had been met.
    We are not persuaded by plaintiffs' argument that defendants
    improperly took advantage of plaintiffs by moving to dismiss the
    amended complaint without prejudice after the disqualification of
    Grossi and Roper.        Grossi was aware of the delinquent discovery
    prior to his disqualification, having emailed Snyder's counsel on
    April 14, 2016, promising that plaintiffs' discovery responses
    would be forthcoming in a week.                He had an adequate opportunity
    to respond to the discovery requests prior to his disqualification.
    In addition, when defendants moved to dismiss the amended
    complaint      without   prejudice       plaintiffs     were   represented       by
    counsel.     Piekarsky was retained by plaintiffs on July 13, 2016,
    more than a month before the first motion.                     For unexplained
    reasons, he did not file a notice of appearance until October 6,
    2016, after the amended complaint had been dismissed without
    prejudice.     Upon receipt of a copy of the substitution of counsel
    on   October    6,   2016,    Snyder's    counsel    emailed   a   copy   of   the
    September 30, 2016 order to Piekarsky.                 A few days later, he
    emailed him a copy of the motion papers that resulted in entry of
    the September 30, 2016 order.                 There is nothing in the record
    15                               A-2585-16T4
    supporting the proposition that defendants' counsel attempted to
    exclude Piekarsky from being notified of the motions to dismiss.3
    B.   December 16, 2016 Orders Dismissing the Amended Complaint
    with Prejudice.
    We also conclude that the trial court did not abuse its
    discretion when it dismissed the amended complaint with prejudice.
    The trial court record established that defendants satisfied all
    of the requirements of Rule 4:23-5(a)(2).   Orders dismissing the
    amended complaint without prejudice had been entered more than
    sixty days prior to the filing of the motions. Defendants produced
    proof of service of the motions, as well as proof of service of
    the notices to pro se parties required by the Rule.        As noted
    above, where the prerequisites have been met
    [t]he 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.
    [R. 4:23-5(a)(2).]
    3
    In their motion for reconsideration of the September 16, 2016,
    and September 30, 2016 orders plaintiffs claim, for the first
    time, that they did not receive notice of defendants' motions to
    dismiss the amended complaint without prejudice. We address the
    February 3, 2017 order denying their motion for reconsideration
    below.
    16                           A-2585-16T4
    On the return date of the motions, plaintiffs had not moved
    to vacate the previously entered orders dismissing the amended
    complaint. Instead, their attorney, Epstein, who had been retained
    by plaintiffs almost three weeks earlier (before Snyder's motion
    to dismiss with prejudice had even been filed), but who had not
    filed a notice of appearance, appeared on the return date of the
    motions seeking an adjournment.                The plain text of the Rule
    requires dismissal with prejudice in the absence of a motion by
    the   delinquent    party     to    vacate    the   prior     dismissal    orders.
    Although    plaintiffs'       counsel      argued      that   his   clients      had
    demonstrated extraordinary circumstances for not providing their
    discovery responses, such a showing would be relevant only if
    plaintiffs had moved to vacate the prior orders.
    Notably,     Epstein    did    not     produce    plaintiffs'       discovery
    responses on the return date of the motion, but argued that he
    could complete them in as little as one week if necessary.                   He did
    not explain why, after having been informed by Piekarsky in writing
    nearly three weeks before the return date of the motions that the
    amended    complaint    had    been     dismissed,      he    did   not    complete
    plaintiffs' discovery responses prior to appearing in court.                       We
    cannot say that the trial court abused its discretion in these
    circumstances.
    17                                  A-2585-16T4
    C.    February 7, 2017 Order Denying Reconsideration, and February
    7, 2017 Order Denying Motion to Reinstate Amended Complaint.
    Plaintiffs raised a number of arguments in a motion for
    reconsideration of the orders of the trial court resulting in the
    dismissal of the amended complaint with and without prejudice.
    Those arguments included that plaintiffs were unaware of the
    defendants' motions because they received none of the regular mail
    sent to them by either defendant's counsel on numerous occasions
    at the addresses for plaintiffs in the amended complaint, that
    they were either unaware of certified mail sent to them, or failed
    to retrieve such mail despite notices from the postal service, and
    that they were unduly disadvantaged by the fact that their counsel
    had   been    disqualified,      even   though   they   were    represented    by
    attorneys for several months during which discovery responses
    could have been provided, including a three-month period during
    which their attorney did not file a substitution of counsel,
    leaving      the   court   and   defendants      with   the    impression   that
    plaintiffs were appearing pro se.
    The trial court placed its findings of fact and conclusions
    of law with respect to plaintiffs' motion for reconsideration on
    the record on February 3, 2017.              Plaintiffs did not file a copy
    of the transcript of the February 3, 2017 proceedings, contrary
    to Rule 2:5-3(b).      We are, therefore, unable to review the reasons
    18                              A-2585-16T4
    given by the trial court for denying plaintiffs' motion, and
    decline to entertain plaintiffs' arguments.    Cipala v. Lincoln
    Tech. Inst., 
    179 N.J. 45
    , 49, 55 (2004).4   The same is true for
    plaintiffs' motion to reinstate the amended complaint, which was
    also decided in an oral opinion delivered on February 3, 2017.
    In light of our decision affirming the dismissal of the
    amended complaint with prejudice, we need not reach plaintiffs'
    challenge to the orders concerning disqualification of counsel.
    Affirmed.
    4
    Plaintiffs' transcript request form, filed with their notice of
    appeal, did not request a transcript of the February 3, 2017
    proceedings.   Houston's brief pointed out the absence from the
    record of the February 3, 2017 transcript.     As far as we can
    discern from the record, plaintiffs took no steps to cure this
    deficiency. We also note that plaintiffs cite several unpublished
    opinions without an indication by counsel of compliance with Rule
    1:36-3. We do not rely on those opinions.
    19                          A-2585-16T4