T.M.A VS. W.A. (L-2484-18, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

T
                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2575-19

T.M.A.,

          Plaintiff-Respondent,

v.

W.A.,

     Defendant-Appellant.
_______________________

                   Submitted March 2, 2021 – Decided May 20, 2021

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Docket No. L-2484-18.

                   W.A., appellant pro se.

                   T.M.A., respondent pro se.

PER CURIAM
      Defendant W.A.1 appeals from the trial court's order granting plaintiff

T.M.A.'s motion for final judgment by default and entering judgment against

defendant. Because the trial judge failed to adhere to the procedural safeguards

set forth in Rule 4:23-5 and comply with Rule 1:7-4(a) when entering judgment,

we are constrained to reverse and remand.

      Our decision, based on procedural grounds, requires a brief review of the

pertinent history. Plaintiff filed a pro se civil complaint on October 11, 2018,

alleging that years earlier defendant committed heinous sexual assaults of the

then-seven-year-old plaintiff. After defendant—who was, and has been for the

duration of this litigation, imprisoned on an unrelated federal child-pornography

conviction—filed a timely answer, plaintiff served two sets of interrogatories. 2

Defendant failed to directly respond to the interrogatories, and on June 19, 2019,

plaintiff filed a motion for entry of default under Rule 4:43-1. The trial court



1
  We use the parties' initials to protect plaintiff's privacy interests . See R. 1:38-
3(c)(9).
2
  In his merits brief, plaintiff claims he sent the first set on March 6, 201 9, and
the second set on May 7, 2019. Both sets contained a certification of service,
albeit not in full compliance with Rule 1:4-4(b), averring both sets were sent to
defendant by certified mail: return receipt requested. We note the certification
set forth in the first set denotes the mailing date as March 5, 2019. We also note
plaintiff, in his motion for entry of default, claimed the first set was served on
February 7, 2019. The discrepancies have no impact on our review.
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                                          2
entered an order on July 12, 2019, striking and suppressing defendant's answer

and, although the parties both appeared pro se, ordered "that a copy of [the order

be] served upon all attorneys or parties of record within seven . . . days."

      On August 6, 2019, plaintiff's request to enter default—dated September

6, 2019—was received by the clerk's office. Plaintiff moved for final judgment

on September 5, 2019, appending a victim impact statement he delivered in

connection with defendant's federal-court sentencing and contending defendant

admitted during that case to "sexually abusing [plaintiff] as an infant . . . through

age [eleven]"; plaintiff requested "$95,000 for pain and suffering." The trial

court considered the victim impact statement and, as set forth in the order, found

plaintiff had "made a prima facie case of liability and damages for pain and

suffering against [d]efendant"; it entered an order for judgment for the requested

$95,000 on October 11, 2019.

      Defendant contends he received the court's July 12, 2019 order striking

his answer, together with the October 11, 2019 final judgment order, on October

31, 2019, and the August 6, 2019 entry of default on January 28, 2020, and

received no other notices prior to the entry of the default judgment. As evidence

that he was unaware of plaintiff's motion practice and the court's concomitant




                                                                               A-2575-19
                                         3
orders, he points to motions he filed on June 26, 2019,3 for: the appointment of

a guardian ad litem; entry of a protective order to preclude plaintiff from

continuing with the discovery process; a stay until defendant was either released

from prison or a guardian ad litem was appointed on his behalf; as well as his

follow-up correspondence to the clerk of the court on July 22, 2019 and October

7, 2019 requesting assistance in researching the law pertaining to those motions.

The trial court denied defendant's tripartite application on July 12, 2019—the

same day it entered its order suppressing defendant's answer.

        In November 2019, defendant filed three motions with the court. In one,

captioned as a motion for rehearing or reconsideration pursuant to Rule 4:49-2,

defendant averred the court's July 12, 2019 orders were "entered without prior

notice of hearing to [d]efendant," and that "[t]he first notice [d]efendant received

of [those orders] was on October 31, 2019." In another motion, captioned as a

motion for a new trial pursuant to Rule 4:49-1, defendant averred the trial court's

October 11, 2019 order of final judgment was entered "without prior notice of

trial to [d]efendant, [the court] having struck [d]efendant's answer on July 12,

2019, without prior notice of hearing to [d]efendant"; defendant received , "for

the first time," the court's July 12 and October 11 orders on October 31, 2019;


3
    The motion papers and cover letter to the clerk are dated May 15, 2019.
                                                                              A-2575-19
                                         4
and the court did not consider any "medical records []or expert testimony" prior

to awarding judgment to plaintiff. And, in a third motion captioned as a motion

for rehearing, defendant averred the order for final judgment "was served on

[d]efendant, by mail (USPS) through the [Bureau of Prisons] inmate mail system

at [the federal prison in which defendant was housed], on October 31, 2019, at

the afternoon regular mail call[,]" and that the order "contain[ed] no factual

findings related to compensatory damages, neither medical records nor mental

health records nor expert witness testimony nor any other mention of evidence

of any damages supporting a $95,000 judgment."

      The trial court issued a single order on January 28, 2020, denying

defendant's "motions for a new trial pursuant to [Rule] 4:49-1 and motion for

reconsideration of orders entered July 12, 2019[,]" supported by a written

decision. By the time the order was issued, however, defendant had filed a

notice of appeal from the October 11, 2019 order for judgment. That is the only

order before us. 4


4
  On February 24, 2020, defendant moved to file a notice of appeal as within
time. We granted that motion on May 14, 2020, and instructed defendant to file
an amended notice of appeal and case information statement to include the trial
court's January 28, 2020 order; otherwise, defendant's appeal would only include
the October 11, 2019 order. Defendant did not do so. Thus, the trial court's
opinion included in defendant's appendix—as the only oral or written decision


                                                                          A-2575-19
                                       5
      Turning first to the entry of orders leading up to the final judgment order,

we consider the two-step process required by Rule 4:23-5 when a party fails to

make discovery. The two-step process contains specific, technical requirements

that must be met before the moving party may ask the trial court to suppress the

delinquent party's pleading. See Thabo v. Z Transportation, 

452 N.J. Super.

359

, 369 (App. Div. 2017).

      A party who receives an adverse party's interrogatories generally has sixty

days to serve his or her answers. R. 4:17-4(b). If timely service of interrogatory

answers does not occur—thereby rendering "delinquent" the party who owes the

answers—the party entitled to the delinquent party's answers may move under

Rule 4:23-5 to dismiss or suppress the delinquent party's pleading—that is,

dismiss the complaint of a delinquent plaintiff or suppress the answer of a

delinquent defendant. See R. 4:23-5(a).

      Under the process's first step, plaintiff was required to first "move, on

notice, for an order dismissing or suppressing the pleading of the delinquent

party" without prejudice. R. 4:23-5(a)(1); see Aujero v. Cirelli, 

110 N.J. 566

,




rendered by the trial court in this case—while helpful in laying out this case's
procedural history and factual background, pertains to an order that was not
properly appealed.


                                                                            A-2575-19
                                        6
573-74 (1988) (applying this rule when delinquent party failed to answer moving

party's interrogatories). Among the required submissions is the inclusion of "a

representation of prior consultation with or notice to opposing counsel or pro se

party as required by R[ule] 1:6-2(c)." R. 4:23-5(a)(3). If the motion is granted,

the rule provides:

            Upon being served with the order of dismissal or
            suppression without prejudice, counsel for the
            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.

            [R. 4:23-5(a)(1).]

If the delinquent party is pro se, "service of the order and notice . . . required

shall be made by counsel for the moving party." 

Ibid.

 The movant may proceed

to step two only after sixty days following the entry of the suppression order has

elapsed. R. 4:23-5(a)(2).

      After the sixty-day period, if the suppression order entered under step one

has not been vacated, the movant may move, again on notice, to suppress the

delinquent party's pleading with prejudice. 

Ibid.

 The rule requires the movant

to submit an affidavit setting forth full compliance with step one, including


                                                                            A-2575-19
                                        7
service of the order and required notice. 

Ibid.

 "Appearance on the return date

of the motion shall be mandatory for the attorney for the delinquent party or the

delinquent pro se party." 

Ibid.

      The rule's safeguards "perform[] the valuable function of establishing a

record for the benefit of court and counsel that a party had had requisite notice."

A & M Farm & Garden Ctr. v. Am. Sprinkler Mech., L.L.C., 

423 N.J. Super.

528

, 535 (App. Div. 2012). The procedural requirements of Rule 4:23-5 "must

be scrupulously followed and technically complied with." Thabo, 

452 N.J.

Super. at 369

. A trial court must ensure that "meticulous attention" is paid to

these requirements before striking a party's pleadings with prejudice.         See

Zimmerman v. United Servs. Auto. Ass'n, 

260 N.J. Super. 368

, 376-77 (App.

Div. 1992).

      The principle underlying that duty favors resolution of cases on their

merits rather than on procedural technicalities. St. James AME Dev. Corp. v.

City of Jersey City, 

403 N.J. Super. 480

, 484 (App. Div. 2008). It is thus

preferable to compel interrogatory responses from a delinquent party than it is

to suppress the delinquent party's pleading and effectively end the case

altogether. A & M Farm & Garden Ctr., 

423 N.J. Super. at 534

. Suppression of

a pleading is the "ultimate sanction," and "should be imposed only sparingly" in


                                                                             A-2575-19
                                        8
instances "where no lesser sanction will suffice to erase the prejudice suffered

by the [moving] party," or where "the actions of the [delinquent] party show a

deliberate and contumacious disregard of the court's authority." Georgis v.

Scarpa, 

226 N.J. Super. 244

, 250-51 (App. Div. 1988).

      Although we typically accord a reasonable amount of discretion to a trial

court, particularly when the trial court addresses issues related to discovery,

Wilson v. Amerada Hess Corp., 

168 N.J. 236

, 253 (2001), we will reverse when

the "court's findings went so wide of the mark that a mistake must have been

made," N.J. Div. of Youth & Fam. Servs. v. M.M., 

189 N.J. 261

, 279 (2007)

(citations and internal quotation marks omitted). We, however, owe no special

deference to a trial court's conclusions of law, which we review de novo. See

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 

140 N.J. 366

, 378 (1995).

      The trial court did not adhere to Rule 4:23-5's two-step process. Foremost,

it entered the July 12, 2019 order suppressing defendant's answer based on

plaintiff's motion for entry of default pursuant to Rule 4:43-1, not under Rule

4:23-5, and it did so without any indication if it was with or without prejudice.

And, as it did with all motions except the last, the trial court did not set forth its

reasoning. See Klajman v. Fair Lawn Ests., 

292 N.J. Super. 54

, 61 (App. Div.

1996) (holding that trial court must provide reasons when dismissing with


                                                                               A-2575-19
                                          9
prejudice); see also R. 1:7-4(a). We are, therefore, unaware if and how the court

found plaintiff had fully complied with the rule, why the order was entered

without compliance to the two-step process and why the court imposed the

ultimate sanction of dismissal. That the dismissal led to entry of default and a

default judgment signals the dismissal was with prejudice, bypassing the entire

first step.

       We further note plaintiff's motion was filed on June 19, 2019 and the order

suppressing the answer was entered July 12, 2019. Even if the motion was

deemed filed under Rule 4:23-5(a)(1) instead of Rule 4:43-1, defendant was

never given sixty days to cure as required by Rule 4:23-5(a)(2).

       We recognize defendant was incarcerated in a federal prison and his

physical appearance in court, as required by Rule 4:23-5(a)(2), was problematic.

But we do not see that any effort was made by the court to establish a video or

telephonic conference to, at the very least, ensure defendant was noticed and to

determine why he had not complied with discovery requests. We previously

held

              when a court considers a motion to dismiss or suppress
              a pleading with prejudice, and there is nothing before
              the court showing that a litigant has received notice of
              its 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

                                                                            A-2575-19
                                        10
            dismissal or suppression with prejudice. Further, the
            court must set forth what effort was made to secure
            compliance on the record or on the order.

            [A&M Farm, 

423 N.J. Super. at 539

.]

      We do not know if every required notice was sent to or received by

defendant. It was incumbent upon the court to ensure strict adherence to the

rule's requirements before suppressing the answer. Whether defendant can

afford counsel, as claimed by plaintiff, is not the issue. We realize following

the strict procedures required by the rule is more difficult where an attorney is

not involved on either side. See Thabo, 

452 N.J. Super. at 370

 ("When a party

is appearing pro se, it is the responsibility of the attorney representing the

moving party to ensure that the pro se litigant has been provided with service of

the order [without prejudice] and proper notice [under step one of the two-step

process]."); see also R. 4:23-5(a)(1) ("If the delinquent party is appearing pro

se, service of the order and notice hereby required shall be made by counsel for

the moving party."); R. 4:23-5(a)(2) ("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."). But the trial court abused its discretion in suppressing defendant's




                                                                              A-2575-19
                                        11
answer without ensuring the procedural requirements were met. As such, default

and default judgment were improvidently granted.

      We were not provided with a transcript of a proof hearing that led to the

entry of the final judgment. As such, we are unaware if such a proceeding took

place. As stated, the trial court did not set forth its findings supporting the award

of $95,000 to plaintiff as required by Rule 1:7-4(a). The court's order simply

recites that it considered the victim impact statement, which provided:

             [Defendant] is a predator, a hunter of small vulnerable
             children, and while you have and I have zeroed down
             on this, have saved additional children from harm's
             way, there would have been additional victims. My
             story is one that if it took place today would make
             national headlines. Thank you, Agent Cobb, to you and
             all your colleagues that protect us not only from
             criminals such as this, but for all the important work
             that you do each and every day protecting America and
             her citizens[.] With both my parents working, they
             sentenced me to go to your home after school each and
             every day, a home right next door to my own, and be
             molested and raped on almost a daily basis while your
             mother, my own grandmother, would conveniently not
             find out or by leaving me alone with you. I know now
             she was your enabling accomplice[.] On a daily basis I
             was having to look at your sick collection in print form
             and on your [eight]-millimeter projector and all along I
             was being told that I was loved, and that you performed
             sex acts upon me and taught me how to perform sex acts
             on you because I was loved. Again, this was almost on
             a daily basis for years. For years I would have to each
             day find new routes to walk home from school because
             I would be subjected to daily beatings from all the

                                                                               A-2575-19
                                        12
             neighborhood boys. I was paying the price because you
             were molesting them all in the neighborhood. I would
             like to remind the Court that in the convicted felon's
             own statement [defendant] admitted to raping two boys
             in New York, there were dozens, and I got the beatings
             for that. I would endure punches and kicks when they
             would tell me this is for big boner [defendant]. I was
             beaten at my home and beaten at the Catholic school
             because of my dysfunction and beaten at home after
             school at your apartment, and then I was raped by you.
             When I finally did tell my mother, your lover, she said,
             yeah, I know about that.

      We are cognizant the allegations involve depraved acts inflicted upon a

child, and we do not determine that those acts, if proven, did not result in pain

and suffering. But it is the trial judge's obligation to set forth its findings as to

the evidence of both liability and damages. That did not occur here.

      We are compelled to reverse and vacate all three orders—suppressing

defendant's answer, entering default, and order for judgment—and remand this

case for further proceedings. We note the sole certified mail, return receipt card

provided by plaintiff, ostensibly when he served his motion for default

judgment, appears to be signed by someone at the prison other than defendant.

We do not expect that mail is delivered directly to defendant. Thus, the trial

court should implement a procedure to confirm that defendant is receiving all

required notices and is able to participate in court proceedings.          Video or

telephonic links were used to allow defendant participation even before the

                                                                               A-2575-19
                                        13
employment of links required during the COVID-19 pandemic. We leave the

exact mechanism for open communication to the trial court.

     Reversed and remanded. We do not retain jurisdiction.




                                                                  A-2575-19
                                    14

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