                        NOT FOR PUBLICATION WITHOUT THE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-2585-16T4

DONNA CHINN and THOMAS MCGEE,

        Plaintiffs-Appellants,

v.

STEPHEN SNYDER, ESQ., SNYDER &
SNYDER, MADELINE HOUSTON, ESQ.,
and HOUSTON & TOTARO,

        Defendants-Respondents.

________________________________________

              Argued May 15, 2018 – Decided July 11, 2018

              Before Judges Carroll and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-6629-
              15.

              Kenneth S. Thyne argued the cause for
              appellant (Roper & Thyne, LLC, attorneys;
              Kenneth S. Thyne, on the brief).

              Marshall D. Bilder argued the cause for
              respondents Stephen Snyder, Esq. and Snyder
              and Snyder (Eckert Seamans Cherin & Mellott,
              LLC, attorneys; Marshall D. Bilder, of counsel
              and on the brief).

              Madeline Houston, respondent, argued the cause
              pro se and for respondent Houston & Totaro.
PER CURIAM

     Plaintiffs      Donna     Chinn     and    Thomas       McGee    appeal    orders

dismissing their purported class action legal malpractice claims

with and without prejudice pursuant to Rule 4:23-5(a)(1) and (2)

for failure to produce discovery, denying reconsideration of those

orders,    and    denying     their    motion    to    reinstate       their   amended

complaint.       We affirm.

                                         I.

     Plaintiffs' arguments must be considered in light of the

complex procedural history in the trial court.

     On September 21, 2015, Chinn and McGee filed a putative class

action complaint in the Law Division alleging legal malpractice

and related claims against attorneys who represented them in a

multi-county         consolidated         matter         alleging          employment

discrimination       against      Prudential          Life        Insurance    Company

(Prudential).       Plaintiffs claimed that they, and certain other

Prudential       employees     and     agents,    settled          their   employment

discrimination claims on a compromised basis because of, among

other     things,    the     alleged     negligence          of    their   attorneys,

defendants Stephen Snyder, Esq., and his firm, Snyder & Snyder

(collectively Snyder), and Madeline Houston, Esq., and her firm,

Houston & Totaro (collectively Houston).



                                          2                                    A-2585-16T4
     On November 2, 2015, plaintiffs filed an amended complaint

refining their claims, but naming no new parties.           Both the

complaint and the amended complaint were filed by Edward R. Grossi,

Esq., as counsel for plaintiffs.

     On December 10, 2015, Houston served discovery requests on

plaintiffs by way of service on Grossi.        On February 5, 2016,

Snyder served discovery requests on plaintiffs by way of service

on Grossi.

     On February 11, 2016, Houston notified Grossi in writing that

plaintiffs'   responses   to   Houston's   discovery   requests   were

overdue, and, if responses were not received promptly, a motion

to dismiss the amended complaint would be forthcoming.

     On March 21, 2016, Roper & Thyne, LLC (Roper) filed a notice

of appearance as co-counsel for plaintiffs.

     On April 5, 2016, Houston moved to disqualify Roper as

plaintiffs' counsel based on conflicts of interest arising from

its involvement in the Prudential matter.

     On April 7, 2016, Snyder advised Grossi and Roper that

plaintiffs' responses to Snyder's discovery requests were overdue,

and, if responses were not received in seven days, Snyder would

move for relief.

     On April 12, 2016, Snyder moved to disqualify Grossi and

Roper as plaintiffs' counsel based on conflicts of interest arising

                                  3                           A-2585-16T4
from their involvement in the Prudential matter, and in a separate

fee dispute arising from the Prudential matter.

     On April 14, 2016, Grossi informed Snyder's counsel to expect

plaintiffs' discovery responses in a week.         Plaintiffs, however,

failed to respond to Snyder's discovery requests.

     On May 13, 2016, the trial court granted defendants' motions

to disqualify Grossi and Roper as plaintiffs' counsel.

     On July 8, 2016, the trial court denied Roper's motion for

reconsideration of the disqualification order.

     On July 13, 2016, plaintiffs retained Scott Piekarsky, Esq.,

to represent them.   However, Piekarsky did not file a substitution

of counsel until October 6, 2016, almost three months later.

Piekarsky's   representation    of    plaintiffs      was    unknown    to

defendants' counsel until October 6, 2016.

     On July 27, 2016, Houston's counsel, unaware of Piekarsky's

representation of plaintiffs, sent letters to plaintiffs at the

addresses in the amended complaint via first-class, regular mail

and certified mail, return receipt requested.       The letters advised

plaintiffs that their responses to Houston's discovery requests

were overdue, and that if responses were not received by August

19, 2016, Houston would move to dismiss the amended complaint.

     Houston's   counsel   received   a   signed   return   receipt    card

establishing Chinn's receipt of the July 27, 2016 letter.               The

                                  4                              A-2585-16T4
letter sent to Chinn by regular mail on July 27, 2016, was not

returned.   The letter sent to McGee on July 27, 2016, by certified

mail was returned unclaimed.     The letter sent to McGee on July 27,

2016, by regular mail was not returned.

     On July 29, 2016, Snyder's counsel, similarly unaware of

Piekarsky's     representation   of       plaintiffs,     sent    letters     to

plaintiffs at the addresses in the amended complaint via first-

class, regular mail, and certified mail, return receipt requested.

The letters advised plaintiffs that their responses to Snyder's

discovery requests were overdue, and that if responses were not

received by August 15, 2016, Snyder would move to dismiss the

amended complaint. Copies of the discovery requests were enclosed.

     Snyder's    counsel   received       a   signed   return    receipt    card

establishing Chinn's receipt of the July 29, 2016 letter.                    The

letter sent to Chinn by regular mail on July 29, 2016, was not

returned.   The letter sent to McGee on July 29, 2016, by certified

mail was returned unclaimed.     The letter sent to McGee on July 29,

2016, by regular mail was not returned.

     On August 29, 2016, Houston moved to dismiss the amended

complaint without prejudice pursuant to Rule 4:23-5(a)(1) for

plaintiffs' failure to respond to Houston's discovery requests.

Because Piekarsky had not yet filed a substitution of counsel,

Houston's counsel served the motion on plaintiffs at the addresses

                                      5                                A-2585-16T4
in   the   amended    complaint   by   first-class,    regular   mail,   and

certified mail, return receipt requested.        The certified mail sent

to both plaintiffs was returned unclaimed.         The regular mail sent

to both plaintiffs was not returned.

      On September 6, 2016, Snyder moved to dismiss the amended

complaint without prejudice pursuant to Rule 4:23-5(a)(1) for

plaintiffs' failure to respond to Snyder's discovery requests.

Because Piekarsky had not yet filed a substitution of counsel,

Snyder's counsel served the motion on plaintiffs at the addresses

in   the   amended    complaint   by   first-class,    regular   mail,   and

certified mail, return receipt requested.        The certified mail sent

to both plaintiffs was returned unclaimed.         The regular mail sent

to both plaintiffs was not returned.         It is undisputed that when

they filed their motions to dismiss the amended complaint without

prejudice defendants were not delinquent with respect to the

discovery requests served on them.

      On September 16, 2016, the trial court granted Houston's

unopposed    motion    to   dismiss    the   amended   complaint   without

prejudice pursuant to Rule 4:23-5(a)(1) for failure to respond to

Houston's discovery requests.

      On September 22, 2016, Houston's counsel served a copy of the

trial court's September 16, 2016 order, along with the notice to

pro se parties required by Rule 4:23-5(a)(1), on plaintiffs at the

                                       6                            A-2585-16T4
addresses in the amended complaint by first-class, regular mail,

and certified mail, return receipt requested.    The certified mail

sent to McGee was returned unclaimed.   The certified mail sent to

Chinn was returned marked "Attempted – Not Known."     The regular

mail sent to both plaintiffs was not returned.

     On September 30, 2016, the trial court granted Snyder's motion

to dismiss the amended complaint without prejudice pursuant to

Rule 4:23-5(a)(1) for failure to respond to Snyder's discovery

requests.   The court also dismissed plaintiffs' purported class

action claims with prejudice because no counsel of record had

appeared on behalf of plaintiffs.

     On October 6, 2016, Snyder's counsel served a copy of the

trial court's September 30, 2016 order, along with the notice to

pro se parties required by Rule 4:23-5(a)(1), on plaintiffs at the

addresses in the amended complaint by first-class, regular mail

and certified mail, return receipt requested.    The certified mail

sent to both plaintiffs was returned unclaimed.   The regular mail

sent to both plaintiffs was not returned.

     Also on October 6, 2016, Piekarsky filed a substitution of

counsel notifying defendants that he represented plaintiffs.    Upon

receipt of a copy of the substitution, Snyder's counsel emailed a

copy of the trial court's September 30, 2016 order to Piekarsky.



                                7                           A-2585-16T4
     On October 10, 2016, Snyder's counsel emailed Piekarsky a

copy of the motion papers that resulted in entry of the September

30, 2016 order.

     On October 11, 2016, Houston moved to disqualify Piekarsky

as plaintiffs' counsel.   The trial court granted the motion on

November 4, 2016.

     On November 16, 2016, Houston moved to dismiss the amended

complaint with prejudice pursuant to Rule 4:23-5(a)(2).   Houston's

counsel served the motion papers, along with the notice to pro se

parties required by the Rule, on plaintiffs at the addresses in

the amended complaint by first-class, regular mail, and certified

mail, return receipt requested.

     On November 29, 2016, Snyder moved to dismiss the amended

complaint with prejudice pursuant to Rule 4:23-5(a)(2).   Snyder's

counsel served the motion papers, along with the notice to pro se

parties required by the Rule, on plaintiffs at the addresses in

the amended complaint by first-class, regular mail, and certified

mail, return receipt requested.

     The certified mail sent to McGee was returned unclaimed, and

to Chinn was returned undelivered.    The regular mail sent to both

plaintiffs was not returned.

     On December 9, 2016, the court sent a notice to each plaintiff

notifying them that they were required to appear on December 16,

                                  8                         A-2585-16T4
2016, the return date of the motions.          The notices were sent by

first-class, regular mail to the same addresses to which defendants

had sent all prior mail to plaintiffs.        McGee admits receiving the

court's notice.

     On   December   15,   2016,   after   business   hours,   Michael    J.

Epstein, Esq., sent defendants' counsel an email stating that he

had been retained by plaintiffs.         Epstein stated that he intended

to appear on plaintiffs' behalf the next day to seek an adjournment

of defendants' motions to permit him to complete plaintiffs'

discovery responses and move to reinstate the amended complaint.1




1
    Plaintiffs included in their appendix a letter dated November
28, 2016, from Piekarsky to Epstein enclosing Piekarsky's files
on this matter and stating that "[m]ost time sensitive at this
point is to get discovery to the defense and seek to restore the
claim (sic) action status. The related orders are attached." This
letter contradicts plaintiffs' argument that Epstein was "unaware
that the case had been dismissed without prejudice" when he
received the files, and that the "[o]rder dismissing the Complaint
(sic) was not served upon prior counsel and was not received by
either substitute counsel." Moreover, the letter contradicts the
January 31, 2017 certification Epstein submitted to the trial
court in which he certified that Piekarsky "did not inform me that
the case had been dismissed," and that he "only learned about the
Motion shortly before the return date." The November 28, 2016
letter is not part of the trial court record and plaintiffs did
not move to supplement the record prior to including the letter
in their appendix. R. 2:5-5. Given the relevance of the letter,
we sua sponte grant leave to supplement the record with the letter.
Because plaintiffs did not move to supplement the record, we will
not consider the other documents that are not part of the trial
court record, but were included in the plaintiffs' appendix.
Hisenaj v. Keuhner, 194 N.J. 6, 25 (2008).

                                     9                             A-2585-16T4
       On December 16, 2016, Epstein appeared on the return date of

the motions.    Although the court had directed plaintiffs to appear

in person, they did not do so.          Epstein requested an adjournment

of the motions. He stated that he possessed responses to Houston's

discovery requests, but was still compiling responses to Snyder's

requests.      Epstein     did   not   produce   any   discovery     responses.

Notably, Epstein did not argue that plaintiffs had not received

notice of defendants' motions, or that they were unware that the

amended complaint had been dismissed without prejudice.                 This is

significant because plaintiffs made those claims a few weeks later

in a motion for reconsideration.

       On December 16, 2016, the trial court granted defendants'

motions to dismiss the amended complaint with prejudice.                      The

court concluded that all of the prerequisites for dismissal with

prejudice under Rule 4:23-5(a)(2) had been met, that Epstein was

"not   denying"     that   those   prerequisites       had    been    met,   that

plaintiffs had not moved to reinstate the amended complaint, or

produced    fully    responsive    discovery,    and   that     no   exceptional

circumstances       warranted    adjournment     of    defendants'      motions.

Importantly, the court found that plaintiffs received notice of

the dismissal of the amended complaint without prejudice, and of

defendants' motions to dismiss with prejudice.               Finally, the court

concluded that there was "no adequate sanction to alleviate the

                                       10                                A-2585-16T4
prejudice suffered by the long period of time and the failure of

the plaintiffs to comply with discovery obligations."

     On January 10, 2017, plaintiffs moved for reconsideration of

the trial court's December 16, 2016 orders dismissing the amended

complaint with prejudice, and for reinstatement of the amended

complaint.     In     support   of   the   motions,   plaintiffs     submitted

certifications denying that they had received any of the mail sent

to them by defendants' counsel.             In his certification, McGee

admitted receiving notices from the postal service that "certain

documents" had been sent to him by certified mail.               He certified

that when he went to retrieve the certified mail, it had been

returned because he "had not picked up the mail quickly enough."

McGee certified that the first notice he had of the dismissal of

his amended complaint was the court's December 9, 2016 letter.

     In     Chinn's     certification,      she   denied     receiving         any

correspondence      from   defendants'     counsel    or   the   court.        She

certified that she moved to 6115 Tidewater Drive in Norfolk,

Virginia,    the   address   to   which    defendants'     counsel   sent      all

correspondence, in July 2016.              Yet, the complaint, filed in

September 2015, states that Chinn resides at 6115 Tidewater Drive,

Norfolk, Virginia.      Chinn certified that she "continued to receive

mail forwarded from [her] prior attorneys," but "never received

any mail forwarded from the Defendants indicating my case was

                                      11                                  A-2585-16T4
going to be dismissed."              It is not clear why Chinn refers to

forwarded mail when all mail sent to her by defendants' counsel

was to the Tidewater Drive address, thus obviating the need for

forwarding by the postal service.                 The motions were accompanied

by what plaintiffs characterized as fully responsive answers to

defendants' discovery requests.

      On February 3, 2017, the trial court denied plaintiffs'

motions      for    reconsideration         and   to   reinstate    the   amended

complaint.         The trial court placed its findings of fact and

conclusions of law for both motions on the record.                 Plaintiffs did

not   file    a    transcript   of    the    court's   February    3,   2017   oral

decision.     As a result, it is not possible to ascertain from the

record the reason for the trial judge's decisions.2

      This appeal followed.           Plaintiffs appeal the September 16,

and September 30, 2016 orders dismissing the amended complaint

without prejudice, the December 16, 2016 orders dismissing the

amended complaint with prejudice, and the February 3, 2017 order

denying their motion for reconsideration of the December 16, 2016

orders.      They also challenge the February 3, 2017 order denying

their motion to reinstate the amended complaint.



2
   The order denying the motion for reconsideration appears to
have been erroneously dated January 3, 2017. We assume the order
was dated February 3, 2017, the date of the court's decision.

                                        12                                A-2585-16T4
                                II.

     We review the trial court's dismissal of plaintiffs' amended

complaint for failure to provide discovery for abuse of discretion.

A&M Farm & Garden Ctr. v. Am. Sprinkler Mech., LLC, 423 N.J. Super.

528, 534 (App. Div. 2012). Generally, we "defer to a trial judge's

discovery rulings absent an abuse of discretion or a judge's

misunderstanding or misapplication of the law."     Capital Health

Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80

(2017).

     Rule 4:23-5(a) provides a two-step procedure for parties to

request the dismissal of an opposing party's pleading for failure

to provide discovery.   First, "the party entitled to discovery may

. . . move, on notice, for an order dismissing or suppressing the

pleading of the delinquent party."    R. 4:23-5(a)(1).     The judge

may then order the delinquent party's pleading be dismissed without

prejudice.   Ibid.

     Second, if the delinquent party fails to cure the outstanding

discovery deficiencies within sixty days of the order, the moving

party may request the court to dismiss the delinquent party's

pleading with prejudice.   R. 4:23-5(a)(2).   The motion

          shall be granted unless a motion to vacate the
          previously entered order of dismissal or
          suppression without prejudice has been filed
          by the delinquent party and either the
          demanded and fully responsive discovery has

                                13                           A-2585-16T4
          been provided or exceptional circumstances are
          demonstrated.

          [Ibid.]

     Exceptional    circumstances     may      be    shown   when   an    external

factor, such as bad health or an emergency, prevented a party's

discovery obligations from being met.               Rodriguez v. Luciano, 277

N.J. Super. 109, 112 (App. Div. 1994) (citing Suarez v. Sumitomo

Chem. Co., 256 N.J. Super. 683, 688-89 (Law Div. 1991)).                   Parties

must pay "meticulous attention to" the "critical prescriptions"

of the Rule.     Zimmerman v. United Servs. Auto. Ass'n, 260 N.J.

Super. 368, 376-77 (App. Div. 1992).

     Having    carefully   reviewed      the    record       in   light    of   the

procedural requirements of Rule 4:23-5(a)(1) and (2), and the

applicable legal standards, we conclude that the trial court did

not abuse its discretion when entering the orders under appeal.

Those orders are addressed in turn.

A.   September 16, 2016 and September 30, 2016 Orders Dismissing
     the Amended Complaint without Prejudice.

     Defendants' motions to dismiss the amended complaint without

prejudice pursuant to Rule 4:23-5(a)(1) were unopposed. The record

reveals that defendants' motion papers included proof of service

of their motions on plaintiffs, and that their discovery requests,

which had been served on Grossi prior to his disqualification,

more than eight months prior to the filing of defendants' motions,

                                    14                                     A-2585-16T4
had gone unanswered.         There is ample support for the trial court's

conclusion that the requirements of the Rule had been met.

      We are not persuaded by plaintiffs' argument that defendants

improperly took advantage of plaintiffs by moving to dismiss the

amended complaint without prejudice after the disqualification of

Grossi and Roper.        Grossi was aware of the delinquent discovery

prior to his disqualification, having emailed Snyder's counsel on

April 14, 2016, promising that plaintiffs' discovery responses

would be forthcoming in a week.                He had an adequate opportunity

to respond to the discovery requests prior to his disqualification.

      In addition, when defendants moved to dismiss the amended

complaint      without   prejudice       plaintiffs     were   represented       by

counsel.     Piekarsky was retained by plaintiffs on July 13, 2016,

more than a month before the first motion.                     For unexplained

reasons, he did not file a notice of appearance until October 6,

2016, after the amended complaint had been dismissed without

prejudice.     Upon receipt of a copy of the substitution of counsel

on   October    6,   2016,    Snyder's    counsel    emailed   a   copy   of   the

September 30, 2016 order to Piekarsky.                 A few days later, he

emailed him a copy of the motion papers that resulted in entry of

the September 30, 2016 order.                 There is nothing in the record




                                         15                               A-2585-16T4
supporting the proposition that defendants' counsel attempted to

exclude Piekarsky from being notified of the motions to dismiss.3

B.   December 16, 2016 Orders Dismissing the Amended Complaint
     with Prejudice.

     We also conclude that the trial court did not abuse its

discretion when it dismissed the amended complaint with prejudice.

The trial court record established that defendants satisfied all

of the requirements of Rule 4:23-5(a)(2).   Orders dismissing the

amended complaint without prejudice had been entered more than

sixty days prior to the filing of the motions. Defendants produced

proof of service of the motions, as well as proof of service of

the notices to pro se parties required by the Rule.        As noted

above, where the prerequisites have been met

          [t]he motion to dismiss or suppress with
          prejudice shall be granted unless a motion to
          vacate the previously entered order of
          dismissal or suppression without prejudice has
          been filed by the delinquent party and either
          the demanded and fully responsive discovery
          has been provided or exceptional circumstances
          are demonstrated.

          [R. 4:23-5(a)(2).]




3
   In their motion for reconsideration of the September 16, 2016,
and September 30, 2016 orders plaintiffs claim, for the first
time, that they did not receive notice of defendants' motions to
dismiss the amended complaint without prejudice. We address the
February 3, 2017 order denying their motion for reconsideration
below.

                               16                           A-2585-16T4
      On the return date of the motions, plaintiffs had not moved

to vacate the previously entered orders dismissing the amended

complaint. Instead, their attorney, Epstein, who had been retained

by plaintiffs almost three weeks earlier (before Snyder's motion

to dismiss with prejudice had even been filed), but who had not

filed a notice of appearance, appeared on the return date of the

motions seeking an adjournment.                The plain text of the Rule

requires dismissal with prejudice in the absence of a motion by

the   delinquent    party     to    vacate    the   prior     dismissal    orders.

Although    plaintiffs'       counsel      argued      that   his   clients      had

demonstrated extraordinary circumstances for not providing their

discovery responses, such a showing would be relevant only if

plaintiffs had moved to vacate the prior orders.

      Notably,     Epstein    did    not     produce    plaintiffs'       discovery

responses on the return date of the motion, but argued that he

could complete them in as little as one week if necessary.                   He did

not explain why, after having been informed by Piekarsky in writing

nearly three weeks before the return date of the motions that the

amended    complaint    had    been     dismissed,      he    did   not    complete

plaintiffs' discovery responses prior to appearing in court.                       We

cannot say that the trial court abused its discretion in these

circumstances.



                                        17                                  A-2585-16T4
C.    February 7, 2017 Order Denying Reconsideration, and February
      7, 2017 Order Denying Motion to Reinstate Amended Complaint.

      Plaintiffs raised a number of arguments in a motion for

reconsideration of the orders of the trial court resulting in the

dismissal of the amended complaint with and without prejudice.

Those arguments included that plaintiffs were unaware of the

defendants' motions because they received none of the regular mail

sent to them by either defendant's counsel on numerous occasions

at the addresses for plaintiffs in the amended complaint, that

they were either unaware of certified mail sent to them, or failed

to retrieve such mail despite notices from the postal service, and

that they were unduly disadvantaged by the fact that their counsel

had   been    disqualified,      even   though   they   were    represented    by

attorneys for several months during which discovery responses

could have been provided, including a three-month period during

which their attorney did not file a substitution of counsel,

leaving      the   court   and   defendants      with   the    impression   that

plaintiffs were appearing pro se.

      The trial court placed its findings of fact and conclusions

of law with respect to plaintiffs' motion for reconsideration on

the record on February 3, 2017.              Plaintiffs did not file a copy

of the transcript of the February 3, 2017 proceedings, contrary

to Rule 2:5-3(b).      We are, therefore, unable to review the reasons


                                        18                              A-2585-16T4
given by the trial court for denying plaintiffs' motion, and

decline to entertain plaintiffs' arguments.    Cipala v. Lincoln

Tech. Inst., 179 N.J. 45, 49, 55 (2004).4   The same is true for

plaintiffs' motion to reinstate the amended complaint, which was

also decided in an oral opinion delivered on February 3, 2017.

    In light of our decision affirming the dismissal of the

amended complaint with prejudice, we need not reach plaintiffs'

challenge to the orders concerning disqualification of counsel.

    Affirmed.




4
  Plaintiffs' transcript request form, filed with their notice of
appeal, did not request a transcript of the February 3, 2017
proceedings.   Houston's brief pointed out the absence from the
record of the February 3, 2017 transcript.     As far as we can
discern from the record, plaintiffs took no steps to cure this
deficiency. We also note that plaintiffs cite several unpublished
opinions without an indication by counsel of compliance with Rule
1:36-3. We do not rely on those opinions.

                              19                          A-2585-16T4
