Agostino & Associates, P.C. v. J. Rapaport Wood Flooring LLC

• Court: New Jersey Superior Court Appellate Division
• Decided: January 8, 2025
• Docket: A-2459-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2459-23

AGOSTINO & ASSOCIATES, P.C.,

Plaintiff-Appellant, v.

J. RAPAPORT WOOD FLOORING LLC,

Defendant-Respondent. _______________________________

Submitted December 18, 2024 – Decided January 8, 2025

Before Judges Mayer and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-007626-23.

Agostino & Associates, PC, appellant pro se (Frank Agostino, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Agostino & Associates, P.C. appeals from a January 5, 2024

order compelling it to provide discovery to defendant J. Rapaport Wood Flooring, LLC by a date certain and a March 1, 2024 order dismissing its

complaint with prejudice. For the following reasons, we affirm in part and

reverse and remand in part.

Defendant retained plaintiff, a law firm, to render legal services and

advice regarding tax matters. Claiming it was owed money for legal work on

behalf of defendant, plaintiff filed a lawsuit in the Special Civil Part. In its

complaint, plaintiff alleged defendant owed $7,748.30 for legal services.

Defendant filed an answer on August 28, 2023, and requested "true and correct

copies of any and all documents or papers referred to in . . . [p]laintiff's

[c]omplaint within five . . . days." About one month after defendant filed its

answer and discovery demand, plaintiff agreed to produce documents, but failed

to do so. Consequently, defendant served an October 18, 2023 formal written

discovery demand. Plaintiff failed to comply with that request.

Because plaintiff failed to provide discovery, defendant filed a motion to

dismiss the complaint without prejudice. On November 17, 2023, the judge

denied defendant's motion to dismiss, in part, because defendant failed to

include the mandatory notices required under Rule 6:3-3(c)(2) and (3).

Defendant filed a second motion to dismiss plaintiff's complaint without

prejudice for failure to provide discovery. On January 5, 2024, the judge heard

A-2459-23 2 argument on defendant's second motion. The judge noted defendant's demand

for discovery under Rule 6:4-3A was untimely.

However, the judge found defendant's discovery requests related to the

disputed legal bills were "proportional to the substance of the complaint that

[plaintiff] brought against [defendant]." The judge concluded defendant sought

to obtain its legal file from plaintiff to compare the information in that file to

plaintiff's invoices for legal services. Because plaintiff filed suit against

defendant, the judge required plaintiff to produce all relevant documents in

support of its demand for payment and rejected plaintiff's argument that the

discovery requests were burdensome.

Although the judge denied defendant's motion to dismiss the complaint,

his January 5, 2024 order included the following its notation:

Plaintiff to provide [defendant] complete answers to interrogatories[,] including files, memos, letters, calls, logs, and every complete file that is the subject of plaintiff's billing within two weeks; and

Plaintiff to provide [curriculum vitae of] Frank Agostino within two weeks; and

No further discovery.

On the March 1, 2024 oral argument record, the judge recalled he directed

plaintiff in his January 5 order to provide to defendant "every single thing inside

A-2459-23 3 every single file that is the subject of the lawsuit for the [unpaid bill]." During

the January 5, 2024 argument, the judge indicated he would consider dismissing

the complaint "with prejudice" if plaintiff failed to comply with the January 5

order.

Because plaintiff failed to comply with the January 5 order, defendant

filed a third motion, this time seeking dismissal of plaintiff's complaint with

prejudice. During the March 1, 2024 argument, plaintiff admitted it did not

provide copies of pleadings, memos, and letters prepared on defendant's behalf.

Additionally, plaintiff did not deny its failure to produce email communications

with defendant reflecting ongoing legal work. While plaintiff produced emails

demanding payment of its invoices, the emails lacked backup documentation

identifying the legal work for the invoiced amounts.

In a March 1, 2024 order, the judge dismissed plaintiff's complaint with

prejudice. The judge found plaintiff failed to produce "[a]nything and

everything that forms the basis of any of the bills that were sent to [defendant],

not just logs or ledgers or e-mails about the bill but everything in every file that

forms the basis for any and all work done." The judge reminded plaintiff he

twice stated during argument on January 5, 2024 that he would consider

dismissal of the complaint with prejudice "if . . . complete discovery was not, in

A-2459-23 4 fact, served upon [defendant]." After concluding defendant received "nothing

about the underlying work that formed the basis for the bill," the judge dismissed

plaintiff's complaint with prejudice.

I.

Plaintiff first challenges the January 5, 2024 order, contending the judge

abused his discretion because defendant's discovery requests were untimely and

burdensome. We disagree.

We "defer to a trial judge's discovery rulings absent an abuse of

discretion." Cap. Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J.

73, 79 (2017). "Likewise, the standard of review for dismissal of a complaint

with prejudice for discovery misconduct is whether the trial court abused its

discretion, a standard that cautions appellate courts not to interfere unless an

injustice appears to have been done." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc.,

139 N.J. 499, 517 (1995). Abuse of discretion "arises when a decision is 'made

without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J.

561, 571 (2002) (citation omitted).

A-2459-23 5 A.

Here, certain of defendant's discovery demands were timely. Under Rule

6:4-3(a), parties filing suit in the Special Civil Part have thirty days from the

date of the answer to serve and answer interrogatories. Defendant filed its

answer to plaintiff's complaint on August 28, 2023. In its answer, defendant

demanded discovery from plaintiff but did not serve interrogatories.

Applying the time period in Rule 6:4-3(a), the parties had until September

27, 2023 to serve and answer interrogatories. Neither party served

interrogatories by that date. Two days after the thirty-day deadline, plaintiff

voluntarily agreed to produce documents to defendant. However, plaintiff failed

to do so.

Defendant then tendered a written demand for discovery on October 18,

2023, beyond the thirty-day time period under the Special Civil Part's discovery

rules. Thus, plaintiff argues the judge's January 5, 2024 order "improperly

forced [p]laintiff to respond to [d]efendant's time-barred requests."

Plaintiff mischaracterizes the judge's January 5 order. The judge did not

grant a motion to compel answers to defendant's late interrogatories. Rather, in

the proper exercise of his discretion, the judge denied defendant's motion to

dismiss the complaint conditioned upon plaintiff's producing the documents it

A-2459-23 6 originally agreed to provide to defendant. As the judge explained, plaintiff had

the burden of proving defendant owed money for legal services. The judge

compelled plaintiff to produce to defendant the documents necessary to support

the claims alleged in the complaint.

The Special Civil Part provides "a streamlined structure and practice for

the inexpensive and expeditious disposition of the many relatively minor . . .

cases which make up the vast bulk of litigation in this state." Lettenmaier v.

Lube Connection, Inc., 162 N.J. 134, 143-44 (1999) (quoting Andriola v.

Galloping Hill Shopping Ctr., 93 N.J. Super. 196, 200 (App. Div. 1966)). To

streamline cases filed in the Special Civil Part, the court rules "expressly

authorize a small variety of discovery methods and provide a short period of

time for their accomplishment." Kellam v. Feliciano, 376 N.J. Super. 580, 583

(App. Div. 2005). As a result of the abbreviated discovery allowed in the

Special Civil Part, "the exchange of pretrial information may, on occasion, be

significantly skewed in favor of plaintiffs." Id. at 587. In appropriate

circumstances, a Special Civil Part judge "may permit the use of other discovery

devices, or the more expansive use of the expressly permitted modes of

discovery, in order to provide an adequate flow of information to defendant."

Id. at 588. A Special Civil Part judge "must consider not only the sufficiency

A-2459-23 7 of the information already provided but also its impact upon the speed,

efficiency and cost of the litigation." Id. at 590.

Having reviewed the record, we are satisfied the judge appropriately

balanced defendant's need to obtain discovery regarding alleged unpaid legal

fees and plaintiff's need to quickly and efficiently resolve its claim against

defendant. While plaintiff provided the invoices demanding payment from

defendant, plaintiff failed to produce documentation evidencing its legal work

on defendant's behalf.

At trial, plaintiff would have the burden of proving the legal services it

provided to defendant were reasonable and customary and defendant's failure to

pay for that legal work. As the judge explained, defendant required "every

phone message, piece of paper, memo, note" in plaintiff's legal file to enable

defendant to "compare [plaintiff's work] to the bill [plaintiff] submitted to

[defendant] in the first place."

Because defendant's legal file was essential to determine whether any

unpaid invoices were reasonable, the judge found plaintiff's failure to disclose

the relevant documents precluded a speedy and efficient resolution of the dispute

on the merits. Thus, in the proper exercise of his discretion, and in the interest

of resolving the matter efficiently and expeditiously consistent with the Special

A-2459-23 8 Civil Part court rules, the judge ordered plaintiff to produce all documents

relevant to the alleged unpaid bill for legal services. We discern nothing

improper in the judge's handling of plaintiff's case and compelling the

production of discovery in support of plaintiff's allegations.

B.

We also reject plaintiff's argument the judge's January 5, 2024 order was

impermissibly burdensome.

"New Jersey's discovery rules are to be construed liberally in favor of

broad pretrial discovery of all relevant evidence." Horizon Blue Cross Blue

Shield of N.J. v. State, 425 N.J. Super. 1, 29 (App. Div. 2012) (citing Payton v.

N.J. Turnpike Auth., 148 N.J. 524, 535 (1997)). "Parties may obtain discovery

regarding any matter, not privileged, which is relevant to the subject matter

involved in the pending action, whether it relates to the claim or defense of the

party seeking discovery or to the claim or defense of any other party." Rule

4:10-2(a).

However, a party's "discovery rights are not unlimited." Piniero v. N.J.

Div. of State Police, 404 N.J. Super. 194, 204 (App. Div. 2008). Under Rule

4:10-3, a party may seek a court order limiting discovery to protect against

"annoyance, embarrassment, oppression, or undue burden or expense." A court

A-2459-23 9 may also limit "the frequency or extent of use of the discovery methods . . . if it

determines that the discovery sought is unreasonably cumulative or duplicative,

or the burden or expense of the proposed discovery outweighs its likely benefit ."

Horizon Blue Cross Blue Shield of N.J., 425 N.J. Super. at 29 (citing R. 4:10-

2(g)).

Here, the judge expressly considered whether compelling plaintiff to

produce defendant's legal file would be unduly burdensome. While the judge

acknowledged the January 5 order would burden plaintiff to some extent, he

determined the burden imposed was not excessive because a "client is . . .

entitled to everything related to the work upon which the lawyer is suing the

client in the first place." Additionally, the judge found plaintiff's producing

certain documents, such as Frank Agostino's curriculum vitae, did not

significantly burden plaintiff.

We recognize discovery demands impose a burden to some extent on

parties from whom the information is sought. However, in this case, plaintiff

should have anticipated it would be compelled to produce documents at trial in

support of its claim that defendant failed to pay for legal services. It is axiomatic

that defendant's legal file is central to the dispute for recovery of unpaid legal

invoices. Thus, the judge's January 5, 2024 order was not an abuse of discretion.

A-2459-23 10 Defendant was entitled to receive its legal file in discovery, and compelling the

production of that legal file was not unduly burdensome.

II.

Defendant next contends the judge's March 1, 2024 order dismissing the

complaint with prejudice constituted an abuse of discretion. Plaintiff admitted

during oral argument on March 1 that it did not produce all of the documents

identified in the January 5, 2024 order. Rather, plaintiff contends the January 5

order was "vague and unclear" and it substantially complied with the terms of

that order. We discern nothing unclear about the documents the judge directed

plaintiff to produce in the January 5 order. Moreover, by its own admission

during oral argument on March 1, plaintiff failed to comply with the January 5

However, we agree with plaintiff that the judge's dismissal of its

complaint with prejudice was too harsh a remedy for plaintiff's failure to comply

with the January 5 order.

Rule 4:23-2 permits a court to impose sanctions for failure to comply with

a court order. Courts have the "inherent discretionary power to impose sanctions

for failure to make discovery, subject only to the requirement that they be just

and reasonable in the circumstances." Il Grande v. DiBenedetto, 366 N.J. Super.

A-2459-23 11 597, 621 (App. Div. 2004) (quoting Calabrese v. Trenton State Coll., 162 N.J.

Super. 145, 151-52 (App. Div. 1978)). However, "[t]he defendant's right to have

the plaintiff comply with procedural [discovery] rules conflicts with the

plaintiff's right to an adjudication of the controversy on the merits." Abtrax

Pharms., Inc., 139 N.J. at 513 (quoting Zaccardi v. Becker, 88 N.J. 245, 252

(1982)). "Because of these competing policies, and because of the varying

levels of culpability of delinquent parties, a range of sanctions is available to

the trial court when a party violates a court [order]." Ibid. (quoting Zaccardi,

88 N.J. at 252-53).

When a party fails to obey a court order to provide discovery, Rule 4:23-

2 authorizes the court to issue:

(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;

(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof with or without prejudice, or rendering a judgment by default against the disobedient party; [and]

A-2459-23 12 (4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders.

[Rule 4:23-2(b)(1) to -(4).]

While dismissal with prejudice is an available sanction, it should be

imposed "only sparingly." Zaccardi, 88 N.J. at 253. In determining whether a

dismissal with prejudice is appropriate, "the court should assess the facts,

including the willfulness of the violation, the ability of plaintiff to produce the

[evidence], the proximity of trial, and prejudice to the adversary." Casinelli v.

Manglapus, 181 N.J. 354, 365 (2004). Because a "dismissal with prejudice is

the ultimate sanction," it may be employed "only when no lesser sanction will

suffice to erase the prejudice suffered by the non-delinquent party." Zaccardi,

88 N.J. at 253.

Having reviewed the record, we note the judge made no findings regarding

plaintiff's willfulness in failing to provide the discovery, plaintiff's ability to

produce the discovery expeditiously and efficiently, the trial date relative to

plaintiff's failure to produce the documents identified in the January 5 order, or

whether defendant would suffer prejudice if a lesser sanction was imposed.

Based on the age of the case, we understand the judge's frustration with

plaintiff's dilatory conduct in prosecuting its claim against defendant. However,

A-2459-23 13 because the judge failed to explain why plaintiff's conduct warranted the

ultimate sanction of dismissal of the complaint with prejudice or consider

whether some lesser sanction available under Rule 4:23-2 would have been

appropriate, we are constrained to reverse and remand the March 1, 2024 order

dismissing plaintiff's complaint with prejudice. On remand, the judge should

consider scheduling a case management conference to identify the discovery to

be produced by plaintiff to defendant and to establish deadlines for providing

that discovery so the matter may proceed to trial.

Affirmed as to the January 5, 2024 order. Reversed and remanded as to

the March 1, 2024 order for proceedings consistent with this opinion. We do

not retain jurisdiction.

A-2459-23 14