Jacqueline Wynn v. Germaine N. Johnson ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0827-21
JACQUELINE WYNN,
Plaintiff-Respondent,
v.
GERMAINE N. JOHNSON,
Defendant-Appellant,
and
MATTIE B. JOHNSON-
MCADAMS,
Defendant.
_______________________
Argued February 12, 2024 – Decided July 12, 2024
Before Judges Berdote Byrne and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No: L-7058-18.
Germaine N. Johnson, appellant, argued the cause pro
se.
Joseph M. Szesko argued the cause for respondent
(Zavodnick, Perlmutter & Boccia, LLC, attorneys;
Joseph M. Szesko, on the brief).
PER CURIAM
In this personal injury action, a discovery dispute resulted in the trial court
dismissing with prejudice the answer and affirmative defenses of defendant
Germaine N. Johnson for his failure to comply with discovery obligations.
Having reviewed the parties' submissions, the record, and law, we affirm.
Johnson is the property manager and landlord for the property owned by
co-defendant Mattie B. Johnson McAdams 1 in Newark. Plaintiff entered a
residential lease agreement with defendants to rent an apartment. After moving
into the apartment, she made several complaints to defendants regarding the
bathroom. Three months later, plaintiff lost her balance when she stepped on
the unscrewed drain in the shower. She struck her head on the tiled wall and
sustained injuries that required surgery.
On October 4, 2018, plaintiff filed a complaint. In response, Johnson,
self-represented, filed an answer and asserted affirmative defenses. He claimed
to have sent responses to Form C, C(2) interrogatories, supplemental
1
Default was entered against co-defendant McAdams on June 14, 2019.
McAdams is not a party to this appeal.
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interrogatories, and notice to produce propounded by plaintiff on November 13.
However, the discovery was not served on Johnson until November 23.
In a "good faith" letter dated January 8, 2019, plaintiff's counsel gave
Johnson ten days to respond to the outstanding discovery to avoid a motion.
Johnson did not respond and a second ten-day good faith letter was sent in
February. Johnson again did not respond. Plaintiff moved to strike Johnson's
pleading, which was not opposed. On May 30, 2019, the court suppressed and
dismissed Johnson's pleadings without prejudice pursuant to Rule 4:23-1(a)(1).
Johnson's discovery remained outstanding. So, on August 5, 2019,
plaintiff moved to suppress Johnson's pleading with prejudice. Johnson opposed
the motion; however, discovery was not provided. Instead, he claimed that the
discovery responses were resent on August 21. Following oral argument, on
August 30, Johnson's pleading was dismissed with prejudice for failure to
provide responses to interrogatories and the notice to produce.
In September 2019, Johnson filed a motion for reconsideration of the
August 30 order dismissal of his pleading with prejudice followed by a motion
to vacate default judgment, although it had not entered. Johnson failed to
appear for oral argument for both motions scheduled in January 2020.
Accordingly, the court rescheduled the hearing date to February 4. In
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compliance with the court's directive, plaintiff's counsel notified Johnson of the
February hearing date by regular and certified mail. On February 4, 2020, the
court granted Johnson's motion for reconsideration and the dismissal of his
pleading was restored without prejudice and denied his motion to vacate the
entry of default.
Between February 4, 2020 and December 22, 2021, Johnson filed motions
for recusal, summary judgment, sanctions, and reconsideration. The court
denied all the motions, finding Johnson lacked standing because he had not
moved to restore his pleading.
On January 29, 2021, plaintiff's complaint was administratively dismissed
for lack of prosecution pursuant to Rule 1:13-7. Two weeks later, plaintiff
moved to reinstate her complaint to the active trial list and to dismiss Johnson's
pleading with prejudice, or alternatively, enter a default judgment against
defendants. Johnson opposed the motion but did not cross-move to restore his
pleading even though 531 days had elapsed since his pleading was suppressed.
On March 23, 2021, the trial court partially granted plaintiff's motion only on
the reinstatement of her complaint. The order noted that the court "did not
[opine] on the issue of reinstatement of the answer and entry of default at [that]
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time. Instead, the court reserve[d] judgment on [those] issues until after the
court has had an opportunity to hear oral argument from the parties."
On May 18, 2021, the court heard oral argument on plaintiff's motion to
dismiss Johnson's answer with prejudice pursuant to Rule 4:23-5(a)(2). After
oral argument, the court granted plaintiff's motion and entered a memorializing
order.
Johnson participated in the proof hearing held on October 25, 2021.
Following the hearing, the trial judge entered an Order for Judgment against
defendants, jointly and severally, in the amount of $89,149.66.
On appeal, Johnson argues the trial court committed reversible error by
failing to apply the "proper" principles of law, misrepresenting the facts
regarding the scheduling of oral argument, failing to comply with Rule 4:23-
5(a)(2) concerning his appearance, and failing to perform its duties reasonably,
impartially, and objectively. He also argues the trial court abused its discretion
by violating due process, failing to impose sanctions, and injecting testimony
during oral argument on the motion to suppress his answer. We reject Johnson's
arguments.
"[T]he standard of review for dismissal of a complaint with prejudice for
discovery misconduct is whether the trial court abused its discretion." Abtrax
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Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). Furthermore, a
trial court's decision on a discovery matter is "'entitled to substantial deference
and will not be overturned absent an abuse of discretion.'" DiFiore v. Pezic, 254
N.J. 212, 228 (2023) (quoting State v. Stein, 225 N.J. 582, 593 (2016)).
Compliance with the two-step process set forth in Rule 4:23-5 is a
prerequisite for dismissal of an answer. First, the non-delinquent party may
move for dismissal without prejudice for noncompliance 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 the discovery may, after the expiration of [sixty] days from
the date of the order, move on notice for an order of dismissal . . . with
prejudice." R. 4:23-5(a)(2). The motion to dismiss with prejudice "shall be
granted unless" the delinquent party satisfies two requirements: (1) "a motion
to vacate the previously entered order of dismissal . . . without prejudice has
been filed by the delinquent party" and (2) "either the demanded and fully
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responsive discovery has been provided or exceptional circumstances are
demonstrated." Ibid. Rule 4:23-5(a) advances two objectives: (1) to compel
discovery, thereby promoting resolution of disputes on the merits, and (2) to
afford the aggrieved party the right to seek final resolution through dismissal.
St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484
(App. Div. 2008).
Applying those principles, we are satisfied the trial court did not err in
dismissing Johnson's answer with prejudice. We reject Johnson's argument that
he produced the discovery responses. The record demonstrates otherwise. The
court correctly found discovery was not propounded on Johnson until November
23, 2018, so he could not have logically responded to discovery before that date.
Moreover, Johnson failed to produce the outstanding discovery responses after
he received two ten-day good faith letters and never moved to reinstate his
answer. Thus, we conclude the court adhered to the procedural requirements of
Rule 4:23-5(a)(2) because defendant was made aware of the motion and its
consequences, and therefore, the trial court did not abuse its discretion in
dismissing his answer.
We have often stated in the context of sanctions for discovery violations,
dismissal of a claim for failure to comply with discovery is the "last and least
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favorable option." Il Grande v. DiBenedetto, 366 N.J. Super. 597, 624 (App.
Div. 2004). Here, a lesser sanction would not have been appropriate. Based on
the record, we conclude Johnson continued to ignore plaintiff's discovery
request and never attempted to cure the discovery deficiency; therefore, the
"ultimate" sanctions imposed were neither unjust nor unreasonable. Abtrax, 139
N.J. at 514.
We have determined that Johnson's remaining arguments lack sufficient
merit to warrant discussion in this written decision. R. 2:11-3(e)(1)(E).
Affirmed.
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