GREENBAUM, ROWE, SMITH, RAVIN, DAVIS & HIMMEL v. RENAISSANCE STATION CONDOMINIUM ASSOCIATION, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1242-05T11242-05T1

GREENBAUM, ROWE, SMITH, RAVIN,

DAVIS & HIMMEL,

Plaintiff-Respondent,

v.

RENAISSANCE STATION CONDOMINIUM

ASSOCIATION, INC.,

Defendant-Appellant.

__________________________________________________________

 

Submitted September 12, 2006 - Decided September 29, 2006

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Mercer County, L-2076-03.

Peter A. Ouda, attorney for appellant

(Mr. Ouda, on the brief).

Greenbaum, Rowe, Smith & Davis, attorneys

for respondent (Dennis A. Estis, of counsel;

Mr. Estis and Marjorie E. Klein, on the brief).

PER CURIAM

Plaintiff, a law firm, sued to recover legal fees and disbursements incurred during its representation of its client, the defendant. Legal malpractice was alleged, first as a defense and then as part of a counterclaim. Plaintiff obtained an order barring defendant from offering expert testimony on legal malpractice and was later granted summary judgment on its complaint in the amount of $47,656.57 plus interest. After its motion for reconsideration was denied, defendant appealed. Upon carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion,

R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by the trial court judges in their oral and written opinions denying defendant relief and granting judgment to plaintiff. Nonetheless, we add the following comments as to defendant's claim that it was wrongly denied an opportunity to submit an expert report in support of its legal malpractice claim.

Defendant is challenging the orders entered on March 5, 2004, denying defendant's motion to extend discovery; April 2, 2004, denying defendant's motion for reconsideration; April 1, 2005, denying defendant's second request for reconsideration of the March 5, 2004 order; April 21, 2005, granting plaintiff partial summary judgment dismissing the counterclaim; and October 27, 2005, entering summary judgment on the complaint.

To put the above orders in context, we note the following. On October 26, 2001, an order was entered at defendant's request extending discovery to December 29, 2001. Defendant did not answer plaintiff's interrogatories until January 2002, after the time for discovery had passed. On February 22, 2002, an order was entered directing defendant to supply an expert's report no later than March 15, 2002, and providing that if defendant failed to meet that date, it would be "precluded from presenting expert testimony . . . at trial." Defendant did not supply its expert report by the date ordered. Nevertheless, the parties thereafter participated in court ordered mediation, which was not successful.

After a case management conference, an order was entered on October 29, 2002, requiring, among other things, that defendant supply its expert report by December 15, 2002, and scheduling the trial for February 24, 2003. On December 5, 2002, defendant filed a motion asking permission to assert a malpractice counterclaim against plaintiff. Before that motion was heard, and after defendant had failed to meet this second deadline for the filing of its expert report, plaintiff cross-moved to bar defendant from providing an expert report. In January 2003, defendant moved for permission to filed an expert report by March 15, 2003. By order of February 5, 2003, defendant was permitted to file its counterclaim for malpractice, discovery was extended to April 30, 2003, and defendant was ordered to provide its expert report by March 7, 2003.

Since no expert report was forthcoming, in mid-March 2003, plaintiff again moved to preclude defendant from producing expert testimony. The upshot was an order of March 27, 2003, extending discovery and giving defendant its fifth opportunity to file an expert report, which was to be done by May 15, 2003. The order stated that "no further extensions will be granted absent extraordinary circumstances beyond the control of counsel and the parties." Despite that language, on July 17, 2003, the court entered yet another extension, requiring defendant to supply its expert report by October 31, 2003. It did not meet that date, and that led to the motion practice giving rise to this appeal from the order of March 5, 2004, and the subsequent orders leading up to entry of judgment for plaintiff.

On appeal, defendant, relying on Tucci v. Tropicana Casino, 364 N.J. Super. 48 (App. Div. 2003), and Pondon v. Pondon, 374 N.J. Super. 1 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005), argues that the court abused its discretion and committed legal error in barring its expert's report. We disagree. Neither case supports defendant's position. In the first cited case, this court reversed a dismissal with prejudice because plaintiff had served its expert report a little over a month after its due date, the trial date was two months off, and plaintiff's attorney's mother was suffering from a terminal illness that caused her death. Tucci, supra, 364 N.J. Super. at 53-54. In the second cited case, a trial date had not been set, and we reversed because the judge's application of the "Best Practices" rule amendments was unduly rigid. Pondon, supra, 374 N.J. Super. at 10-11. We also noted that plaintiff had shown "good and sufficient reasons for a brief extension of discovery." Id. at 11. By contrast, here defendant utterly failed to show any good reason for its repeated failure to abide by court orders. Moreover, as the Supreme Court observed in Szalontai v. Yazbo's Sports Caf , 183 N.J. 386 (2005), which was decided after Tucci and Pondon, "[t]he mandate of Rule 4:24-1(c) could not be clearer: '[a]bsent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed.'" Id. at 396 (citation omitted). Since there were no exceptional circumstances here, application of that principle requires rejection of this aspect of defendant's appeal. Moreover, the trial court's action cannot be reversed even apart from that principle because we review discovery rulings for abuse of discretion, Kolcyzycki v. City of East Orange, 317 N.J. Super. 505, 512 (App. Div. 1999), and there is simply no basis for saying that such abuse occurred here in light of defendant's repeated failure to abide by reasonable and just court orders.

Affirmed.

 

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6

A-1242-05T1

 

September 29, 2006