                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0034-16T1

AZIZ M. THABO,
                                          APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                             November 17, 2017
v.
                                            APPELLATE DIVISION

Z TRANSPORTATION,

     Defendant-Respondent.
___________________________________


         Submitted September 27, 2017 - Decided November 17, 2017

         Before Judges Fuentes, Manahan and Suter.

         On appeal from the Superior Court of New
         Jersey, Law Division, Passaic County, Docket
         No. L-3296-15.

         Anthony   J.     Van   Zwaren,    attorney      for
         appellant.

         Sammarro & Zalarick, PA, attorneys              for
         respondent (Stephen M. Sammarro, on             the
         brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.

     In this breach of contract case, the Law Division judge

dismissed with prejudice plaintiff's complaint by imposing the

ultimate discovery sanction provided in Rule 4:23-5.             We now

reverse and remand this matter for further proceedings because
the party who filed this motion and the Law Division judge who

imposed this sanction failed to follow the procedural safeguards

codified in Rule 4:23-5.

       The record shows defendant did not provide the motion judge

with    competent         evidence    showing     it    complied       with       the    strict

notice    requirements           of   Rule   4:23-5.           Even       more    egregious,

defendant received the outstanding discovery which formed the

basis    of     the    sanction       a   month       before    the       judge    dismissed

plaintiff's complaint with prejudice.                     This wholesale disregard

for the due process protections embodied in                            Rule 4:23-5 can

occur    only      when    the   trial    court       fails    to   perform        its      basic

gatekeeping function.

       We derive the following facts from the record developed by

the parties at this stage of the litigation.                                We emphasize,

however, that the veracity of the factual claims that form the

basis of this cause of action are not at issue here.                               We do not

express any opinion about the merits of this cause of action.

                                                  I

       On July 10, 2015, plaintiff Aziz M. Thabo contacted Igor

Nikolovski, a representative of defendant Z Transportation, in

response      to      an    advertisement         defendant         had     placed          in   a

publication        called     "Truck      Paper,"      offering       for    sale       a    2006

Freightliner C1124ST – Century 112 truck for $19,600.                              According




                                             2                                          A-0034-16T1
to    plaintiff,     he   made   clear    to    Nikolovski   that    he     was    only

looking to buy a Department of Transportation (DOT) compliant

truck.     Defendant       allegedly     assured     plaintiff     that     the    2006

Freightliner C1124ST – Century 112 truck met this requirement.

In fact, defendant described the truck in its advertisement as

being "DOT Ready," which plaintiff understood to mean the truck

would pass inspection and comply with the regulations of the

Department      of   Transportation       and    the   Federal      Motor    Carrier

Safety Administration.1

       Plaintiff claims that when he took the truck for a test

drive,    he    immediately      noticed        it   was   not    DOT     compliant.

Nikolovski acknowledged the deficiency and agreed to make the

truck    DOT    ready,     provided      that    plaintiff       would    commit    to

purchasing the truck.            Plaintiff agreed and gave defendant a

$1000 deposit as an indication of his good faith commitment to

buy the truck.            Defendant alleges it paid for the replacement

and    repair   of    certain     parts    to    ensure    the     truck    was     DOT

compliant.      Defendant further alleges it told plaintiff that the

necessary repairs had been done and the truck was ready for pick

up on August 15, 2015.           Plaintiff sent defendant a check in the

1
    See 49 C.F.R. 396.1 to -396.25.




                                          3                                  A-0034-16T1
amount   of   $18,600,      representing      the    balance   of    the   purchase

price.

      Before plaintiff took possession of the truck, defendant

informed him that the truck displayed an error code message on

the   dashboard    related     to   the    air    conditioning.            Defendant

nevertheless assured plaintiff that the truck was DOT certified

and provided plaintiff with a document denoted "Vehicle History

Record."      The document contains a checklist of all the items

inspected and certified as "OK."              There is a blank space on the

right corner of the document with the words "Inspector's Name

(Print or Type)," which was left blank.                Immediately below this

blank box is another space that states: "This inspector meets

the Qualification Requirements in Section 396.19."                     A box with

the word "YES" was marked with an "X."

      Based on the error code message in the truck's dashboard,

plaintiff refused to take possession of the vehicle and asked

defendant     to   refund    him    the   $19,600.       Plaintiff      claims      he

contacted     defendant      several      times     thereafter      demanding     the

refund of his money, to no avail.             Defendant claims it contacted

plaintiff several times to determine when he planned to pick up

the truck, but did not get an answer.                Defendant also claims it

has incurred storage charges due to plaintiff's failure to take

possession of the truck.




                                          4                                 A-0034-16T1
                                        II

     On September 23, 2015, plaintiff filed a pro se complaint

against defendant in the Law Division.             At this time, plaintiff

resided in the Township of Darby, Pennsylvania.2                On November 23,

2015, defendant filed its answer alleging several affirmative

defenses and a counterclaim to recover storage charges allegedly

incurred     in    safekeeping    the    truck    after    it    was   sold    to

plaintiff.        Defendant claims the truck was DOT compliant and

seeks to recover the storage charges it had incurred as a result

of plaintiff's alleged breach of the sales contract.

     The initial discovery end date (DED) in this matter was

April 21, 2016.        Plaintiff served defendant with a notice to

produce documents by certified mail on December 4, 2015, and

December     23,     2015.        Defendant       served    plaintiff         with

interrogatories and a notice to produce documents on January 4,

2016.      Plaintiff filed a motion to compel defendant to respond

to the notice to produce on February 3, 2016.              During this time,

plaintiff still resided in the Township of Darby, Pennsylvania.

     On February 10, 2016, defendant's attorney filed a motion

to dismiss plaintiff's complaint for failure to provide answers

to the interrogatories and for failure to provide responses to

2
  To protect his       privacy,    we    have    not   described   plaintiff’s
specific address.




                                        5                              A-0034-16T1
the notice to produce.         The motion documents did not specify

whether the dismissal defendant sought as a sanction against

plaintiff was with or without prejudice.               In the certification

submitted in support of the motion, defendant's attorney also

failed to include a statement indicating that defendant, as the

moving party, was not in default of any discovery obligations

owed to plaintiff, as required by Rule 4:23-5(a)(1).

    Although defendant's attorney included a statement that he

had "orally conferred, or has made a good faith effort to orally

confer    with   the   opposing      party   to   no   avail,"    he   did   not

"specifically describe[]" the type of "good faith" efforts he

made,    as   required   by   Rule    1:6-2(c).        Finally,   defendant’s

counsel's certification of mailing did not include a statement

under oath that plaintiff was served with a copy of the motion.

The only reference to plaintiff being served with this motion is

found in defense counsel's transmittal letter addressed to the

vicinage's "Civil Division Motion's Clerk."                In this letter,

counsel merely states: "By copy of this letter, I am forwarding

a copy of this Notice of Motion to my adversaries."                    We infer

from the incongruous reference to "adversaries" in the plural,

despite plaintiff being the only adversary in the case, that

this was a form letter.




                                        6                              A-0034-16T1
       As this record makes clear, by the time defendant filed

this    motion,   the      Law   Division       had    two   conflicting   discovery

motions pending.        On February 19, 2016, the Law Division judge

granted plaintiff's motion to compel defendant to respond to the

notice to produce documents.                The judge found that "[d]espite

[p]laintiff’s       good    faith    effort       to    resolve    the    outstanding

discovery, responses have not been received by [p]laintiff to

date."    The judge ordered defendant to respond to the notice to

produce    within    fifteen      days   of     the    order.      Pursuant   to    the

method    of   calculation        codified       in    Rule     1:3-1,3   defendant's

documents were due on March 7, 2016.                    The order indicates that

plaintiff's motion was unopposed.                At the time the judge entered

this order, there were seventy-one days left until the April 21,

2016 DED.




3
    Under Rule 1:3-1:

            In computing any period of time fixed by
            rule or court order, the day of the act or
            event from which the designated period
            begins to run is not to be included. The
            last day of the period so computed is to be
            included, unless it is a Saturday, Sunday or
            legal holiday, in which event the period
            runs until the end of the next day which is
            neither   a   Saturday,  Sunday  nor   legal
            holiday. In computing a period of time of
            less than 7 days, Saturday, Sunday and legal
            holidays shall be excluded.



                                            7                                 A-0034-16T1
     On    March    18,   2016,     the    same    judge    granted       defendant's

motion to dismiss plaintiff's complaint for failure to provide

answers to interrogatories.               As was the case when plaintiff

moved for discovery relief, the court's order indicates that

defendant's motion was unopposed.                 In the brief filed in this

appeal,    defendant's      attorney           asserts     that    he     personally

telephoned     plaintiff    after    the       court   dismissed    the    complaint

without prejudice in an effort to secure plaintiff's voluntary

compliance.        However, factual assertions made by an appellate

counsel that are not supported by a specific citation to the

record    developed    before     the     trial    court    and   supported     by    a

specific citation to the appendix violate the rules of appellate

practice and will not be considered.4

      The record before us contains a "Substitution of Counsel"

signed    by   plaintiff     and     his       attorney    on     March    9,   2016.

Inexplicably, this notice was not filed with the Law Division

until April 25, 2016, four days after the expiration of the

April 21, 2016 DED.        On June 2, 2016, defendant moved to dismiss

4
  See Rule 2:6-4(a) describing the contents of a respondent’s
brief and its correlation to Rule 2:6-2(a)(5). See also Spinks
v. Twp. of Clinton, 402 N.J. Super. 465, 474 (App. Div. 2008),
certif. denied, 197 N.J. 476 (2009) (explaining that it is the
responsibility of the parties to refer this court to specific
parts of the record to support their argument.)       "Lack of
familiarity with appellate court procedures is no excuse."
Miraph Enters., Inc. v. Bd. of Alco. Bev., Paterson, 150 N.J.
Super. 504, 508 (App. Div. 1977).



                                           8                                 A-0034-16T1
plaintiff's    complaint    with   prejudice      pursuant   to    Rule     4:23-

5(a)(2) for failure to provide discovery.

       Presumably unaware of plaintiff's counsel's appearance in

the    case,   defendant’s      counsel's   certification          of    mailing

reflects that the notice of motion and supporting documentation

were   sent    directly    to   plaintiff   at    his    address    in    Darby,

Pennsylvania.     Defendant's attorney submitted a certification in

support   of   the   motion     that   included    the   following       factual

representations:

           2. The time for the plaintiff to answer
           interrogatories and provide responses to the
           notice to produce propounded have expired
           and the plaintiff has not provided any of
           the information requested. . .

           3. Accordingly, on February 10, 2016, the
           defendant filed a Motion to dismiss the
           complaint of the plaintiff, Aziz M. Thabo
           for failure to answer interrogatories and
           answer Notice to Produce returnable on March
           18, 2016. Said motion was granted on March
           18, 2016[.]

           4. Pursuant to [Rule] 4:23-5(a)(2), the
           defendant   now   moves   for   dismissal   of
           plaintiff,   Aziz   Thabo’s   complaint   with
           prejudice as the sixty (60) day grace period
           to provide the overdue discovery has passed
           and plaintiff has still failed to supply the
           overdue discovery.

       In a letter dated June 6, 2016, plaintiff's attorney sent

defendant's attorney: (1) a copy of the substitution of counsel

filed with the court; (2) plaintiff's answers to defendant's




                                       9                                 A-0034-16T1
interrogatories      and   notice      to       produce;         and    (3)    plaintiff's

interrogatories      and   a   new    notice         to    produce.           In    an   order

entered on July 8, 2016 marked "unopposed," the motion judge

dismissed     plaintiff's          complaint         with       prejudice          ostensibly

pursuant to Rule 4:23-5(a)(2) "for failure to provide answers to

interrogatories and responses to a notice to produce[.]"

     In a letter dated July 18, 2016, defendant's attorney sent

plaintiff's    attorney        a    copy    of       the        trial    court's         order.

Defendant's attorney stated in the transmittal letter that the

order was "self-explanatory" and advised plaintiff's counsel to

be "guided accordingly."            In the brief submitted in this appeal,

defendant's    counsel     does      not    offer         any    explanation         for   not

withdrawing    the    motion        after       he    received          the    outstanding

discovery from plaintiff's attorney more than a month earlier.

     On July 18, 2016, the same day he received defendant's

counsel's   letter    transmitting          the      court's       order,      plaintiff's

counsel filed a motion to restore the case to the active trial

calendar and permit plaintiff to file an answer to defendant's

counterclaim and "to continue discovery."5                       Plaintiff submitted a

certification in support of the motion in which he averred that

since he filed his complaint pro se, he had moved to Folcroft,

5
   Because the DED was April 21, 2016, we presume plaintiff’s
counsel was also seeking an extension of the initial discovery
period.



                                           10                                        A-0034-16T1
Pennsylvania.      Consequently, he did not receive the notice of

defendant's February 10, 2016 motion to dismiss his complaint

without prejudice.

       Plaintiff emphasized: "If I had known of the defendant's

motion to dismiss while he was in violation of the order of

February 19, 2016, I certainly would have appeared."                 Plaintiff

also   noted   that    defendant's      attorney's    certification      stating

that plaintiff "had failed to respond to outstanding discovery"

was false because his attorney "had sent out all responses" on

June 6, 2016.         Plaintiff pointed out that the court had found

defendant delinquent in its discovery obligation to plaintiff,

before    defendant     moved     to     dismiss     plaintiff's    complaint.

Despite    these   procedural      irregularities,       a   different    judge

denied    plaintiff's    motion    without    affording      his   attorney   an

opportunity to present oral argument.              In an order dated August

8, 2016, the judge wrote: "The applicant[ion] is denied.                    [The

previous] Judge . . . dismissed this matter with prejudice by

order July 8, 2016."

                                        III

       "[T]he standard of review for dismissal of a complaint with

prejudice for discovery misconduct is whether the trial court

abused its discretion[.]"          Abtrax Pharm. v. Elkins-Sinn, Inc.,

139 N.J. 499, 517 (1995).              The trial court is deemed to have




                                        11                             A-0034-16T1
abused its discretion when the "'decision [was] made without a

rational      explanation,        inexplicably            departed       from     established

policies, or rested on an impermissible basis.'"                             United States

v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex

County Prosecutor, 171 N.J. 561, 571 (2002)).                              A trial court's

exercise of discretion is "entitled to respectful review under

an abuse of discretion standard[.]"                          Serenity Contracting v.

Fort Lee, 306 N.J. Super. 151, 157 (App. Div. 1997).

       Here, the flagrant disregard of the procedural requirements

of Rule 4:23-5 satisfies this standard of review.                            The decisions

made by the Law Division judges that resulted in the dismissal

of    plaintiff's       complaint    with       prejudice         were     made    without       a

rational      explanation,        inexplicably            departed       from     the       rule's

procedural     requirements        and    constitute             clear    abuses       of   their

discretionary authority.             Flagg, supra, 171 N.J. at 571.                            The

original      motion      judge     who     dismissed            plaintiff's       complaint

without prejudice abused her discretion because at the time she

entered     this     order,     that      same       judge       had     previously         found

defendant      was      delinquent        in        its    discovery        obligation         to

plaintiff.

       However, the motion judge is not exclusively responsible

for    this     oversight.             Defendant's           counsel        violated          the

requirements       of    Rule   4:23-5(a)(1)              when    he     moved    to    dismiss




                                               12                                       A-0034-16T1
plaintiff's complaint without disclosing to the court that his

client   was    in    default    of    its    discovery    obligations.       This

material       omission     by        defendant's       counsel      indisputably

contributed to the judge's error and may have constituted a

violation of an attorney's "obligation of candor to each other

and to the judicial system, which includes a duty of disclosure

to the court and opposing counsel."                    McKenney v. Jersey City

Med. Ctr., 167 N.J. 359, 371 (2001).                    See also RPC 3.3(a)(5)

(prohibiting an attorney from knowingly failing "to disclose to

the   tribunal    a    material   fact       knowing    that   the   omission    is

reasonably certain to mislead the tribunal[.]").6

      Independent of defense counsel's conduct, the record shows

the motion judge failed to adhere to the procedural safeguards

codified in Rule 4:23-5.          The rule imposes a duty on the motion

judge "to take action to obtain compliance with the requirements

of the rule."         A & M Farm & Garden Ctr. v. Am. Sprinkler Mech.


6
  However, it is beyond our role and authority as an intermediate
appellate court to make any determination concerning whether
defendant’s counsel committed an ethical violation.     Our State
Constitution expressly provides the Supreme Court with the
“exclusive jurisdiction over the admission to the practice of
law and the discipline of persons admitted."     N.J. Const. art.
VI, § 2, ¶ 3. Robertelli v. New Jersey Office of Atty. Ethics,
224 N.J. 470, 476 (2016). The Court "has both the authority and
obligation to oversee the discipline of attorneys."       R.M. v.
Supreme Court of New Jersey, 185 N.J. 208, 213 (2005); see also
State v. Rush, 46 N.J. 399, 411 (1966).




                                         13                               A-0034-16T1
L.L.C., 423 N.J. Super. 528, 532 (App. Div. 2012).           Rule 4:23-5

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.       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.         Sullivan   v.   Coverings      &

Installation, Inc., 403 N.J. Super. 86, 95 (App. Div. 2008).

    Step one requires the party aggrieved by the delinquent

party's failure to fulfill its discovery obligations to move to

dismiss the complaint without prejudice.          R. 4:23-5(a)(1).       To

ensure the delinquent party is aware of its derelictions and has

the opportunity to correct them, the rule further provides that:

         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. 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)(1)(emphasis added).]




                                     14                         A-0034-16T1
    Ordinarily, self-represented litigants are not entitled to

greater rights than litigants who are represented by counsel.

Ridge at Back Brook, L.L.C. v. Klenert, 437 N.J. Super. 90, 99

(App. Div. 2014).       However, Rule 4:23-5 expressly requires the

party   seeking    relief     from   the    court   to   ensure   that   pro    se

litigants receive proper notice and be served with the order

imposing     the   sanction     of   dismissal      or   suppression     without

prejudice available under step one.              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 and proper notice.

    After complying with the procedures set out in step one of

the rule, a party may then move to dismiss the complaint with

prejudice.    Rule 4:23-5(a)(2) provides that:

           the party entitled to the discovery may,
           after the expiration of 60 days from the
           date of the order, move on notice for an
           order of dismissal or suppression with
           prejudice.   The attorney for the delinquent
           party shall, not later than 7 days prior to
           the return date of the motion, file and
           serve an affidavit reciting that the client
           was   previously   served  as   required  by
           subparagraph (a)(1) and has been served with
           an additional notification in the form
           prescribed by Appendix II-B, of the pendency
           of the motion to dismiss or suppress with
           prejudice.    In lieu thereof, the attorney
           for the delinquent party may certify that
           despite diligent inquiry, which shall be
           detailed in the affidavit, the client's
           whereabouts have not been able to be



                                       15                                A-0034-16T1
           determined and such service on the client
           was therefore not made.    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.   Appearance
           on the return date of the motion shall be
           mandatory   for   the   attorney   for   the
           delinquent party or the delinquent pro se
           party. The moving party need not appear but
           may be required to do so by the court. The
           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)(emphasis added).]

    When the aggrieved party files a motion to dismiss with

prejudice, the delinquent party's attorney has two non-waivable

obligations:   (1)    file   an   affidavit    with   the   motion   judge

indicating that the client has been notified of the pending

motion's   legal     consequences   in     accordance   with   the   form

prescribed; and (2) personally appear before the motion judge on

the return date of the motion.           If the delinquent party is pro

se, the rule imposes an additional obligation on the attorney

representing the party seeking relief.            The attorney for the

moving party is required to attach an affidavit of service to

the notice of motion and proposed order, or file an affidavit

explaining why service was not made.



                                    16                           A-0034-16T1
    Finally, Rule 4:23-5(a)(3) provides that:

          If the attorney for the delinquent party
          fails to timely serve the client with the
          original order of dismissal or suppression
          without prejudice, fails to file and serve
          the affidavit and the notifications required
          by this rule, or fails to appear on the
          return date of the motion to dismiss or
          suppress with prejudice, the court shall,
          unless    exceptional    circumstances   are
          demonstrated, proceed by order to show cause
          or take such other appropriate action as may
          be necessary to obtain compliance with the
          requirements of this rule.

          [Emphasis added.]

    These procedural safeguards are intended to "ensure that

the defaulting litigant is aware that the order of dismissal or

suppression    without    prejudice       has   been   entered    and    of    its

consequences."      Pressler & Verniero, Current N.J. Court Rules,

comment 1.2 on R. 4:23-5 (2017).            The best way to foster 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.

    Here, 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.                The order of the

Law Division dated July 8, 2016 dismissing plaintiff's complaint




                                      17                                 A-0034-16T1
with prejudice is vacated.             Plaintiff's complaint is reinstated

and the case is remanded to the Law Division for the judge

assigned to this case to conduct a case management conference

with the attorneys to determine the status of discovery.                       The

judge shall thereafter enter a case management order setting a

new   discovery    end   date,     a    schedule    for    filing    dispositive

motions,   and    address   such       other   matters    as   the   judge   deems

appropriate, including fixing a trial date.

      Reversed and remanded.           We do not retain jurisdiction.




                                         18                              A-0034-16T1
