NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T2 JOSIE SALAZAR and BIJAY SHAH, Plai ntiffs

- Appellants,

v. MKGC + DESIGN, MILTON KISLINGER and HELEN LEU,
Defendants

- Respondents.

_______________ _____________

Argued March 20, 2019

– Decided April 8, 2019 Before Judges Nugent, Reisner , and Mawla. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L

- 3095

- 16. Jessica A. Tracy argued the cause for appellants (Curcio Mirzaian Sirot, LLC, attorneys; Jessica A. Tracy, of counsel and on the briefs). Robert F. Ball argued the cause for respondents ( Weber Gallagher Simpson Stapleton Fires & Newby , LLP, attorneys; Robert F. Ball , of counsel and on the brief; Mark J. Heftler, on the brief). The opinion of the court was delivered by NUGENT, J.A.D. APPROVED FOR PUBLICATION April 8, 2019 APPELLATE DIVISION2 A

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Plaintiffs appeal several orders culminating in the involu ntary dismissal at trial of their action against defendants alleging breach of a home improvement
contract and consumer fraud. The trial judge granted defendants' motion for an involuntary dismissal because plaintiffs could not prove damages. Plaintiffs could not prove damages because another judge had granted defendants' pretrial motion to bar plaintiffs' damage claims as a sanction for failing to respond to defendants' notice to produce documents. The judge who granted defendant s ' pretrial motion for sanctions , including their request to bar expert testimony, did so even though defendants
had filed the motion in violation of multiple court rules

. Defendants filed the motion belatedly , without demonstrating good cause to do so , and despite their

never having demanded an expert report from plaintiffs. They did not ce rtify they were not delinquent in their discovery obligations , which they were, as they had not responded to plaintiffs ' discovery. They also disregarded the rule requirements that are prer equisites to having a motion for discovery sanctions listed for disposition. The grant of defendants' motion despite their multiple missteps resulted in the functional equivalent of a dismissal of plaintiffs' complaint with prejudice for a discovery violation ; a sanction the Supreme Court has characterized as3 A

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"drastic " and has cautioned against imposing if a lesser sanction will suffice. Abtrax Pharm

. , Inc. v. Elkins

- Sinn, Inc. , 139 N.J. 499, 514 (1995). Per haps more significantly , the sanction could be viewed as the uneven - handed administration of court rules, result ing in an unjust determination and the needless expenditure and delay caused by a meaningless trial; all anathema to the purpose for which the r ules exist

. See R. 1:1

- 2. We thus reverse and remand for further proceedings.
I.
T his civil action arose out of a home improvement contract, which plaintiffs alleged defendants failed to complete , leaving them with an uninhabitable house. Plaintiffs filed a six

- count complaint in August 2016, and defendants filed an answer and counterclaim the following month. Defendants served plaintiffs with requests for admission and a notice to produce documents , including documentary evidence of plain tiffs' damage claim. Defendants did not serve interrogatories . Their demand for documents did not demand experts' report s . Plaintiffs served defendant with interrogatories and a notice to produce documents. N one of the parties answered discovery. The discovery end date was July 25, 2017 . I n October the parties proceeded to mandatory arbitration as required by Rule 4:21A

- 1(a )(3). The4 A

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arbitrator r endered an award for plaintiffs. D efendants rejected the award and demanded a trial de novo, as permitted by Rule 4:21A

- 6(b)(1). Two weeks after arbitration and three months after the discovery end date, defendants filed the motion that resulted in the orders from which plaintiffs have appealed

. Plaintiffs filed a cross

- motion seeking an order "Extending Di scovery with Consent of All Parties." Defendants entitled their motion for discovery sanctions "Motion for Plaintiffs' Failure to Serve Discovery and to Bar Plaintiffs' Late Service of Liability or Damage Experts Reports Pursuant to Rule 4:23

- 5(3)(b) [sic] ." They supported the motion with a certification from their attorney. In his certification, the attorney did not explain why he did not file the motion before the discovery end date. He summarized the pleadings, explained plaintiffs had not respo nded to defendants' requests for admission and notice to produce documents, and omitted to disclose defendants had not responded to plaintiff s ' interrogatories and notice to produce documents. Plaintiffs informed the motion judge in their cross

- motion th at defendants had not responded to plaintiff s ' discovery demands. Nevertheless, the judge granted defendants' motion and denied plaintiffs' cross

- motion

. He barred plaintiffs from presenting any evidence of damages not documented during5 A

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discovery, knowin g plaintiffs had produced no such documentary evidence, as attested to by defendants in their motion. He gave this explanation, typed below his signature on the order : "The [discovery end date] expired on July 25, 2017. The documents sought to be introdu ced were only made availa ble on the eve of arb itration. This results in substantial and undue prejudice to the [ d ] efendant [ s ] ." The motion judge denied plaintiff s' motion for reconsideration. In the decision he delivered from the bench at the close of oral argument, the judge noted that "discovery rules are designed to reach the substantive merits of a matter rather than permitting reliance on procedural mechanisms that might result in concealment and su rprise." He did not, however, c ite to any rule concerning the timing of motions seeking sanctions for discovery violations, nor did he cite to the requirements of any rule authorizing such sanctions. Citing Abtrax , 1 39 N.J. at 521 , for the proposition that the "underlying purpose [of t he discovery rules] is to assure full disclosure of all material facts and documents to the parties, to the end the trial will serve t he ends of justice rather than function as a trap for the unwary, " the judge neither noted nor discussed defendants' viola tion of the same discovery rules and consequent undermining of their purpose.6 A

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Accepting the representation of plaintiffs' counsel that his non

- compliance with discovery was not intended to obfuscate the issues in the case, the judge explained:
T he fact s till remains that the prejudice that will result

in this case, both procedurally and also substantively, particularly since the discovery end date has passed , is not persuasive to the [c]ourt to allow for reconsideration of this case or this particular mat ter barring the late service of the liability and the damages expert report. For that reason, the judge denied plaintiffs' motion for reconsideration. For reasons unnecessary to detail in this opinion, the trial proceeded, notwithstanding the pretrial o rder barring plaintiffs from proving damages. Plaintiffs developed the proofs they were permitted to present. Defendants moved for an involuntary dismissal. The court granted the motion, based on the absence of any damage proofs. The court also dismiss ed defendants' counterclaim. This appeal followed.
II. On appeal, plaintiffs argue it was fundamentally unfair for the motion judge to bar them from proving damages when defendants had committed the identical discovery violations. Plaintiffs add that the motion judge compounded his error by overlooking defendants' non

- compli a nce with virtually every7 A

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prerequisite for filing a motion for sanctions based on discovery violations. In doing so, plaintiffs argue, the court imposed a draconian sanction unaut horiz ed by any court rule applicable to a discovery violation . P laintiffs also contend the motion judge erroneously denied their motion for reconsideration , and the trial judge erred by involuntarily dismissing their action. Last, they contend the
motion judge erred by denying their motion to extend discovery. Defendants do not dispute that they did not comply with their discovery obligations, nor do they dispute that they did not comply with the provisions of certain rules concerning discovery sanction s. Rather, they argue a court has inherent discretionary power to impose sanctions for failure to make discovery, a power the motion judge did not abuse. They point out that plaintiffs did not argue to the motion judge several points they now raise on appeal. Defendants assert that because the motion judge did not abuse his inherent power to impose sanctions for failure to make discovery, he properly denied plaintiffs' motion for reconsideration, and the trial judge properly dismisse d plaintiffs' action when they failed to prove damages at trial.8 A

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A. We begin our analysis with some fundamental observations. In our judicial system, "justice is the polestar and our procedures must ever be moulded and applied with that in mind." New Jersey Highway Auth. v. Renner , 18 N.J. 485, 495 (1955) (citing X

- L Liquors v. Taylor , 17 N.J. 444, 454 (1955)). "There is an absolute need to remember that the primary mission of the judiciary is to see justice done in individual cases. Any other g oal, no matter how lofty, is secondary. " Santos v. Estate of Santos , 217 N.J. Super. 411, 416 (App. Div. 1986). In that vein, t he Court Rules "shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." R. 1:1

- 2(a). For that reason,

" [u]nless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." Ibid. Fai rness in administration of the Court R ules requires that they be applied evenhandedly and, to the extent possible, uniformly. The current Court Rules have been amended to achieve these , as well as other objectives:9 A

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- 17T2 The project kn own as Best Practices, resulting in a number of significant rule amendments effective September 2000, was undertaken by the Conference of Civil Presiding Judges for the purpose of attempting to improve the efficiency and expedition of the litigation proces s as well as to restore state

- wide uniformity to the wide range of discretionary and increasing disparate judicial responses to such matters, among others, as the resolution of discovery problems and disputes , the fixing of trial calendars and adjournments of trial dates.

. . . [ Pressler & Verniero, Current N.J. Court Rules , cmt. 4 on R. 1:1

- 2 (2019) (emphasis added) .] With these principles in mind, and applying an abuse

- of

- discretion standard of review, Quail v. Shop

- Rite Supermarkets, Inc ., 455 N.J. Super. 118,
13 3 (App. Div. 2018), we turn to the rules applicable to the motion at issue on this appeal. 1
B. Rule 4:24

- 2 is entitled "Motions Required to Be Made During Discovery Period." The rule provides in pertinent part: "Unless the court otherwise permits for good cause shown, motions to compel discovery and to impose or enforce sanctions for failure to provide discovery must be made returnable prior to the expiration of the discovery period." R. 4:24

- 2(a). When d efendants filed their

1 This appeal does not involve sanctions imposed for violating a discovery order . T he trial court had issued no such order.10 A

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motion for s anctions, they offered no explanation for their failure to file the motion within the discovery period . That they had not done so was obvious from their certification, in which they referred to the arbitration and the arbitrator's award. For that reason alone, the motion judge would have acted well within his discretion by denying the motion. Carbis Sales, Inc. v. Eisenberg , 397 N.J. Super. 64, 81 (App. Div. 2007). On the other hand, the rule expressly permits a judge to consider a belatedly filed moti on for good cause shown. Here, however, defendants did not even attempt to make a showing of good cause, and the trial court did not find defendants had made such a showing. Defendants had ample opportunity during the discovery period to compel plaintif f to provide discovery responses. Their failure to do so, without explanation, suggests they did not have good cause to wait until after the arbitration to file the motion. When the motion judge granted defendants' motion for sanctions, he emphasized the undue prejudice to them

. But the possible prejudice was not "undue." Defendants ' wholesale disregard of the discovery rules refutes that proposition. Moreover, in wei ghing the prejudice to the parties, we fail to discern how the possible prejudice to d efendant s

— who
could still offer a defense , rely on their requests for admission , and offer proofs11 A

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to support their counterclaim

— was somehow greater in magnitude than the prejudice to plaintiffs , who the motion judge effectively barred from proving
their case at trial

. I f a trial court decli nes to enforce a mandatory rule

— particularly a rule designed to provide uniformity and fairness in its application

— the court should explain its reasons for doing so. A brief explanation would demonstrate the court is no t acting in an arbitrary manner and would permit appropriate appellate review.
C.
T he Rules of General Application provide specific, mandatory requirements for Civil and Family Part discovery and calendar motions. Rule
1:6

- 2 r equires, with exceptions not applicable here, the following:

Every motion in a civil case or a case . . . i nvolving any aspect of pretrial discovery or the calendar, shall be listed for disposition only if accompanied by a certification stating that the attorney for the moving party has either (1) personally conferred orally or has made a specifically described good faith attempt to confer orally with the attorney for the opposing party in order to resolve the issues raised by the motion by agreement or c onsent order and that such effort at resolution has been unsuccessful, or (2) advised the attorney for the opposing party by letter, after the default has occurred, that continued non

- compliance with a discovery obligation will result in an appropriate12 A

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. 1:6

- 2(c). 2 ] Here, defense counsel did not claim that during the discovery period he had made a good faith effort to resolve the matter without resorting to the motion. The rule that authorizes motions and sanctions concerning a party's failure to make discovery is Rule 4:23

- 5. This rule "codified a two

- step procedural paradigm that must be strictly

- adhered to before the sanction of dismissal of a complaint with prejudice for failing to answer interrogatories or provide other discovery can be imposed." Thabo v. Z Transp. , 452 N.J. Super. 359, 369 (App. Div. 2017) (citing St. James AME Dev. Corp. v. City of Jersey City , 403 N.J. Super. 480, 484 (App. Div. 2008) ) . "These procedural requirements must be scrupulously followed and technically complied with. " Ibid. (citing Sullivan v. Coveri ngs & Installation, Inc. , 403 N.J. Super. 86, 95 (App. Div. 2008)). We have explained the need for trial courts to follow the procedural safeguards of Rule 4:23

- 5:

2 This subsection of Rule 1:6

- 2 makes an exc ept ion for actions that have "been specially assigned to an individual judge for case management and disposition of all pretrial and trial proceeding s and

. . . all cases pending in the Sup erior Court, Chancery Division. " R

. 1:6

- 2(b) & (c). Nothing in the appellate record identifies this action as such a "specially assigned" case.13 A

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- 17T2 The best way to foster the public confidence in our civil courts is to decide cases on their merits. Discovery rules are intended to create a level playing field for all litigants and promote the resolution of civil dispute on the merits. Judges are entrusted to ensure that these rules are properly and fairly enforced. [ Id. at 371.] Rule 4 :23

- 5(a)(1) requires that a movant support the motion by an affidavit that recites the facts of the delinquent party's default, and states that the moving party is not in default in any discovery obligations owed to the delinquent party. This requirement safeguards against the unilateral imposition
of sanctions upon one party when all parties have disregarded their discovery obligations. In the case before us, defendants could not provide the required certification because they had disregarded their disco very obligations.
Rule 4:23

- 5 also authorizes a court to sanction a party who has failed to furnish an exper t's report. The rule states: "T he court at trial may exclude the testimony of a treating physician or any other expert whose report is not
furni shed pursuant to [ Rule ] 4:17

- 4(a) to the party demanding same. " R. 4:23

- 5(b) (emphasis added). Rule 4:17

- 4(a ) provides in pertinent part: "I f the interrogatory requests the name of an expert or treating physician of the answering party or a copy of the e xpert's or treating physician's report, the party shall comply with the requirements of paragraph (e) of this rule."14 A

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Defendants in this case invoked the authority of Rule 4:23

- 5(b) to bar plaintiffs from prese nting expert testimony at trial even though they had never demanded an expert report pursuant to Rule 4:17

- 4(a), as they had never served interrogatories. D efendants and the motion judge overlooked this deficiency in defendants' motion. The provisions of Rule 4:23

- 5 are intended, am ong other objectives, "[t]o ensure the delinquent party is aware of its derelictions and has the opportunity to correct them." Thabo , 452 N.J. Super. at 36 9. Here, like Thabo , "the system failed because both the motion judge and the attorney representing the moving party failed to follow the strict procedural requirements of Rule 4:23

- 5." I d. at 371.
IV. We conclude by reiterating the Supreme Court's admonition that because dismissal with prejudice is "the ultimate sanction," it should be imposed "only sparingly" and "normally . . . ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non

- delinquent party." Robertet Flavors, Inc. v. Tri

- Form Const. Inc. , 203 N.J. 252, 274 (2010). Here, that admonition was overlooked when the motion judge, in effect , dismissed plaintiffs' complaint by precluding them from presenting proofs of damage at trial.15 A

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Defendants' motion was filed in disregard of the following requirements , deficiencies readily apparent from the motion and sup porting certification : (1) the motion was filed out of time without a showing of good cause ( Rule 4:24

- 2(a)); (2) defendants did not certify they had made a good faith effort to obtain the discovery before filing the motion ( Rule 1 : 6

- 2(c ) ) ; (3) defendant s did not certify they were not in default in discovery obligations owed to plaintiffs ( Rule
4:23

- 5(a)(1)); and, (4) defendants invoked Rule 4:23

- 5(b) to bar plaintiffs from
prese nting expert testimony at trial even though defendants had never demanded

an expert as required by Rule 4:23

- 5(b).
P laintiffs were subjected to the functional equivalent of the "ultimate sanction" even though defendants had not only disregarded their own discovery obligations, but had also disregarded in their entirety the mandatory provisions
of the rules authorizing the imposition of sanctions for failing to make discovery. The trial court misapplied its di scretion by disregarding these mandates without an explanation for doing so and by imposing the equivalent of
the ultimate sanction when the moving parties were delinquent and lesser sanctions would have sufficed to erase the prejudice to all parties. We thus vacate the order precluding plaintiffs from presenting expert or other testimony16 A

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concerning their damages. We also vacate the order denying their motion for reconsideration, as well as the order involuntarily dismissing their case. We remand this matter to the trial court for further proceedings. The trial court shall conduct a conference and issue an order imposing reasonable deadlines for completion of discovery, dispositive motion practice, and if necessary, trial. Because defendants had a ful l opportunity to present their counterclaim and have not cross

- appealed from its dismissal at trial, there is no need to litigate that issue a second time. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.