RECOVERY MANAGEMENT SOLUTIONS, ETC. VS. CORESTINE ANDERSON (L-0688-18, MONMOUTH COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5372-18
RECOVERY MANAGEMENT
SOLUTIONS, LLC, Assignee
of AA Bail Bonds, Inc.,
and Ace Bail Bonds, Inc.,
Plaintiff-Respondent,
v.
CORESTINE ANDERSON
and CODOZER ANDERSON,
Defendants-Appellants.
____________________________
Submitted November 16, 2020 – Decided February 10, 2021
Before Judges Messano and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-0688-18.
Edward F. Christopher, attorney for appellants.
Saldutti Law Group, attorneys for respondents (Andrew
P. Chigounis, on the brief).
PER CURIAM
Defendants Codozer and Corestine Anderson appeal from a June 28, 2019
Law Division order denying their motion for reconsideration of a March 29,
2019 order suppressing their answer with prejudice for failure to make
discovery, under Rule 4:23-5. After denying reconsideration, the motion judge
entered a judgment against defendants in the amount $13,040. Because we
conclude the procedural history in this case failed to satisfy the intent of the
procedural safeguards set forth in Rule 4:23-5, we reverse the order under
review and vacate the suppression order and judgment, reinstate defendants'
answers and affirmative defenses, and remand for further proceedings.
I
In April 2015, defendants' son, Duane Anderson, was arrested on a
weapons charge in Long Branch. On Sunday, April 19, 2015, each defendant,
without an attorney, executed a separate Promissory Note [-] Premium Plan
Agreement (Note) in favor of Ace Bail Bonds of New Jersey, Inc.1 (Ace) to
secure a $200,000 bond to post for Duane's bail. Each Note listed the premium
amount as $20,000, acknowledged a $6000 payment, and listed a premium
balance of $14,000. Each Note further provided for monthly payments of $300
1
It appears undisputed that Ace assigned the Note to plaintiff, Recovery
Management Solutions, LLC, before plaintiff filed suit.
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and obligated defendants, upon default, to pay the balance and all costs of
collection and attorney fees.
In answers to interrogatories, defendants alleged that a representative of
Ace orally assured them, when they signed the Notes, that they would only be
responsible for further payments 2 if Duane failed to make his court dates.
Thereafter, Duane appeared in court as required and made payments 3 to Ace
until he was incarcerated in February 2017. Defendants did not make any further
payments.
According to plaintiff, from the outset of this matter through final
judgment, defendants,
willfully and repeatedly ignored the trial court's
discovery orders and the Rules of Court, refusing to
comply with discovery requests. As a result of their
refusals to submit discovery responses, the Court struck
defendants' answer without prejudice. Thereafter, in an
act of leniency, the court issued a Case Management
Order extending defendants time to respond to
discovery. Defendants failed to provide written
discovery and produce the parties for deposition
pursuant to the terms of the Case Management Order.
In fact, defendants failed to meet every deadline in the
Case Management Order. Furthermore, after having
2
Defendants made the initial payment of $6000.
3
According to defendants, Duane made a total of twenty-three payments before
he went to prison (twenty $400 payments, two $70 payments, and one $70
payment, for a total of $8690).
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their Answer dismissed without prejudice, defendants
ignored the notice requirements of the [Rule] 4:23-5.
After plaintiff filed a motion to dismiss defendants' pleadings with
prejudice for failure to provide discovery, pursuant to R. 4:23-5(a)(1), the
motion judge sent a letter to defendants' counsel advising that she adjourned the
motion until "March 29, 2019, so that you may comply with R.4:23-5(a)(2)."
The judge further advised,
As the attorney for the delinquent party, you are
required pursuant to R[ule] 4:23-5(a)(2) to file and
serve an affidavit, not later than seven (7) days prior to
the return date of the motion, reciting that your client
was previously served as required by R[ule] 4:23-
5(a)(1) after the entry of the above Order dismissing or
suppressing the pleading without prejudice in the form
prescribed by Appendix II-A, and has been served with
an additional notification of the filing of the within
motion in the form prescribed by Appendix II-B of the
Rules of Court. . . . Please be advised that if the
appropriate affidavit is not filed consistent with the
rule, you will be subject to sanctions consistent with
A&M Farm & Garden Ctr. v. American Sprinkler
Mech., L.L.C., 423 N.J. Super. 528 (App. Div. 2012).
Defendants' counsel did not submit the required affidavit; in addition, he
admitted to the court he did not "comply with the letter of the law" by sending
his clients the required notices, referring to Appendix II-A and Appendix II-B.
Notwithstanding this lack of compliance, the motion judge proceeded to dismiss
defendants' pleadings with prejudice.
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On April 18, 2019, defendants filed a motion for reconsideration. On June
28, 2019, the motion judge denied reconsideration. This appeal followed.
II
Rule 4:49-2 governs motions for reconsideration. The Rule serves a
limited purpose aimed at permitting courts to correct their own mistakes:
Reconsideration should be utilized only for those cases
which fall into that narrow corridor in which either l)
the Court has expressed its decision based upon a
palpably incorrect or irrational basis, or 2) it is obvious
that the Court either did not consider, or failed to
appreciate the significance of probative, competent
evidence.
[D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990); accord Cummings v. Bahr, 295 N.J. Super. 374,
384 (App. Div. 1996).]
"The decision to deny a motion for reconsideration falls 'within the sound
discretion of the [trial court], to be exercised in the interest of justice.'" In re
Belleville Educ. Ass'n, 455 N.J. Super. 387, 405 (App. Div. 2018) (alteration in
original) (quoting Cummings, 295 N.J. Super. at 384). "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."'"
Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382
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(App. Div. 2015) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
(2002)).
In this instance, the motion judge denied plaintiffs' motion for
reconsideration without addressing the court's obligations under Rule 4:23-
5(a)(3); as a result, the judge's reconsideration decision, like her initial decision,
rested on an impermissible basis.
Rule 4:23-5 establishes a two-step process that a party must follow to
obtain an order dismissing or suppressing with prejudice the pleading of an
adversary who has failed to make discovery. The moving party must first
"move, on notice, for an order dismissing or suppressing the pleading of the
delinquent party" without prejudice. R. 4:23-5(a)(1). If the court has not vacated
an order of dismissal or suppression without prejudice, "the party entitled to the
discovery may, after the expiration of [sixty] days from the date of the order,
move on notice for an order of dismissal or suppression with prejudice." R.
4:23-5(a)(2).
Rule 4:23-5 contains procedural safeguards to bolster its main objective,
which "is to compel discovery responses rather than to dismiss the case." A &
M Farm, 423 N.J. Super. at 534. First, Rule 4:23-5(a)(1) provides:
Upon being served with the order of dismissal or
suppression without prejudice, counsel for the
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delinquent party shall forthwith serve a copy of the
order on the client by regular and certified mail, return
receipt requested, accompanied by a notice in the form
prescribed by Appendix II-A of these rules, specifically
explaining the consequences of failure to comply with
the discovery obligation and to file and serve a timely
motion to restore.
Thereafter, the filing and service of the subsequent motion to dismiss or
suppress with prejudice triggers additional safeguards. Rule 4:23-5(a)(2)
provides:
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. In
lieu thereof, the attorney for the delinquent party may
certify that despite diligent inquiry, which shall be
detailed in the affidavit, the client's whereabouts have
not been able to be determined and such service on the
client was therefore not made. If the delinquent party
is appearing pro se, the moving party shall attach to the
motion a similar affidavit of service of the order and
notices or, in lieu thereof, a certification as to why
service was not made. Appearance on the return date
of the motion shall be mandatory for the attorney for
the delinquent party or the delinquent pro se party.
In addition to the obligations of the attorney for the delinquent party, Rule
4:23-5(a)(3) imposes obligations on the court:
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If the attorney for the delinquent party fails to timely
serve the client with the original order of dismissal or
suppression without prejudice, fails to file and serve the
affidavit and the notifications required by this rule, or
fails to appear on the return date of the motion to
dismiss or suppress with prejudice, the court shall,
unless exceptional circumstances are demonstrated,
proceed by order to show cause or take such other
appropriate action as may be necessary to obtain
compliance with the requirements of this rule.
This judicial obligation "was designed as a fail-safe measure to ensure that
the ultimate sanction is not needlessly imposed." A & M Farm, 423 N.J. Super.
at 537. "The requirement that the court take 'appropriate action as may be
necessary to obtain compliance' calls upon the court to exercise its inherent
authority to make certain its decision to terminate the litigation is an informed
one." Id. at 537-38 (quoting R. 4:23-5(b)(3)). Thus, in cases where "there is
nothing before the court showing that [] litigant[s] ha[ve] received notice of
[their] 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." Id. at 539. In addition, "the court
must set forth what effort was made to secure compliance on the record or on
the order." Ibid.Here, defendants' attorney did not send his clients the required notice after
their answer was suppressed without prejudice, nor did he send his clients the
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required notice of plaintiff's motion to dismiss their pleadings with prejudice.
Rule 4:23-5(a)(3) requires that the court to take action if the attorney for the
delinquent party has not served that party with the order of dismissal or
suppression without prejudice or fails to file and serve the notifications and
affidavit required by the Rule.
Here, it is undisputed defendants' attorney did not comply with the
requirements of Rule 4:23-5(a). As a result, Rule 4:23-5(a)(3) required the
motion judge to take some action to obtain compliance with the requirements of
the rule before entering the order of suppression. The judge was also required
to set forth on the record or in the suppression order what effort was made to
secure compliance. The judge did neither. The oversight is particularly
troublesome in this case where defendant's attorney advised the judge that his
clients "are two elderly people" who "signed documents . . . not knowing what
they meant."
We conclude the motion judge misapplied her discretion when she failed
to recognize and rectify her original error in imposing the ultimate sanction
without first satisfying the judicial obligations imposed by Rule 4:23-5(a)(3).
We vacate the suppression orders and the judgment and remand for further
proceedings. We do so because defendant's counsel did not comply with the
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requirements of Rule 4:23-5 and the motion judge failed to comply with her
obligation under the Rule.
On remand, the trial court shall conduct a management conference within
thirty-five days and then enter a discovery order specifying the remaining
discovery needed and the deadlines for completion. Defendants will thus have
explicit notice of their discovery obligations and the consequences of failing to
discharge them in a timely manner. The merits of the cause of action pleaded
in the complaint shall be decided following completion of discovery, by motion
or at a trial.
Our opinion should not be read as precluding plaintiff from seeking fees
or appropriate sanctions stemming from the motion practice necessitated by
defendants' failure to provide discovery and the non-compliance of defendants'
counsel with Rule 4:23-5. See R. 4:23-5(a)(3). The suppression orders and
judgment are vacated. Defendants' answer is reinstated. This matter is
remanded to the trial court for further proceedings consistent with this opinion.
Vacated and remanded. We do not retain jurisdiction.
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