Plaintiff’s decedent was incapacitated prior to death and a guardian was appointed.  The estate argued with the guardian over fees, and hired attorneys.  Settlement was reached, but the estate now argued with the attorneys over fees, and whether the settlement was appropriated. 

The attorneys withdrew and sued for fees.  For the balance of the procedural thunderstorm read the case.  One interesting element in the NJ case is the continuing failure by litigants to recognize the necessity of an affidavit of merits in a legal malpractice case.

"We assume the motion judge was attempting to provide defendants, appearing pro se, with clear guidance as to their discovery obligations and believed his March 31, 2006, order accomplished that goal. However, as we noted in Colonial Specialty Foods, Inc. v. County of Cape May, 317 N.J. Super. 207, 210 (App. Div. 1999), a subsequent dismissal with prejudice pursuant to R. 4:23-5(a)(2) can only be predicated upon a proper dismissal without prejudice under R. 4:23-5(a)(1).

More importantly in terms of what transpired, the March 31, 2006, order clearly allowed defendants the reasonable belief that if they complied with the order’s conditions, their pleadings would be restored, and, of equal importance, SSSG could not move to convert the dismissal to one "with prejudice" until ninety days elapsed.

Unfortunately, within thirty-eight days, the case was listed for trial. When defendants failed to appear, default was entered and two-days later, after a proof hearing, judgment was entered.

The entry of default and judgment were both improper under our Court Rules. First, pursuant to R. 4:43-1, default may be entered against a party who has "failed to appear," or whose "answer has been stricken with prejudice." Since defendants’ pleading was specifically stricken and dismissed without prejudice by the terms of the March 31, 2006, order, default was not appropriate. See also Kolczycki v. City of East Orange, 317 N.J. Super. 505, 520 (App. Div. 1999) (holding that proof hearing should not have occurred while suppression of defendant’s pleading was "without prejudice"). We assume that defendants’ confusion was well-founded given the conflict between the March 31, 2006, order, that implied an available ninety-day period for defendants to restore their pleadings, and SSSG’s April 19, 2006, letter that conveyed the court’s requirement that defendants appear, not for trial, but for a proof-hearing, which, for the reasons already discussed, was improper."