ROBIN COHEN v. KEITH MILLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1779-04-T21779-04T2

ROBIN COHEN,

Plaintiff-Appellant,

v.

KEITH MILLER,

Defendant-Respondent.

________________________________________

 

Submitted May 10, 2006 - Decided June 27, 2006

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-1333-04.

Franco & Franco, attorneys for appellant (Robert A. Franco, on the brief).

Jeffrey T. Carney, attorney for respondent.

PER CURIAM

Plaintiff Robin Cohen appeals the entry of an order dated August 27, 2004, granting summary judgment in favor of her brother, defendant Keith Miller, dismissing her complaint in which she charged that Miller misappropriated assets from the estate of their late mother, May Gold Miller. Plaintiff failed to file timely opposition to the motion and her attorney failed to appear for oral argument on the return date of the motion. The motion was therefore granted as unopposed. We now reverse.

The record reveals defendant filed his motion for summary judgment on April 2, 2004, returnable May 14, 2004. Plaintiff's counsel sought an adjournment of the return date, but defense counsel would not consent. The motion judge refused to adjourn the motion without defense counsel's consent, but he offered to conduct a telephone conference. As a result of the conference, the motion was adjourned until June 25, 2004. It was re-listed for July 9, 2004, but the motion judge agreed to a further adjournment because of a pending motion related to the matter that was scheduled before another judge. That matter involved a motion to quash a subpoena that plaintiff served upon John Clemen, Esq., returnable August 17, 2004. Plaintiff claimed that Clemen had been retained to represent her interests in the probate of her mother's estate and that his deposition was critical to her ability to oppose the summary judgment motion. The summary judgment motion was rescheduled for August 27, 2004. There is no dispute that plaintiff's counsel was aware of this new date.

The motion to quash the subpoena was heard on August 17, 2004, at which time the judge granted defendant's motion. In the statement of reasons contained in the order the judge found:

[T]he Court finds that a deposition of this attorney is premature. Pending discovery may reveal a 1) legitimate need to reach the evidence despite assertion of attorney-client privilege, 2) show whether the evidence sought from the attorney is relevant and material and 3) show that the information sought could not be secured from a less intrusive source. The Court relies upon In re Kozlov, 79 N.J. 234 (1979). Questions exist as to a waiver of the attorney-client privilege being asserted by movant and in light of the early age of the case in terms of discovery, the motion is granted.

On August 27, 2004, the court proceeded to hear the summary judgment motion. No opposition to the motion was filed, and plaintiff's counsel failed to appear at oral argument. The motion was granted as unopposed. In his statement of reasons placed orally on the record, the judge found, "according to the unopposed papers submitted to [him,]" that the last will and testament of plaintiff's mother made no bequests to plaintiff or to plaintiff's daughter. He further found plaintiff was aware the will was submitted to probate and that she failed to file any documents challenging the entry of a judgment in probate.

Plaintiff moved for reconsideration. In that motion, plaintiff's counsel submitted a certification in which he stated that he believed the motion for summary judgment had been adjourned pending the disposition of plaintiff's motion for reconsideration of the order quashing the subpoena. On October 24, 2004, the court denied the motion. In his written decision, the motion judge wrote:

Prior to July 9, I did agree to adjourn the summary judgment motion until [the other judge] could address defendant's motion. After plaintiff's motion was heard . . ., defendant's summary judgment motion was listed for August 27. Although plaintiff apparently moved for reconsideration . . ., I was unaware of that application until after August 27 and probably would not have adjourned the summary judgment in any event. It is clear that Mr. Franco was well aware that defendant's summary judgment motion was returnable on August 27 (as he so indicated in a letter dated June 28 to Mr. Carney) and that the motion was never adjourned. Several days prior to August 27, he contacted my chambers to request an adjournment of the summary judgment motion. In that regard, he spoke with my law secretary . . . who unequivocally advised him in accordance with my standard procedure, that I would not adjourn a motion without the adversary's consent. At no time was Mr. Franco led to believe that the summary judgment motion had been adjourned. He was told to contact Mr. Carney. At no time did my office ever indicate to him that I was disposed to adjourn the summary judgment motion. My law secretary . . . communicated with Mr. Carney prior to August 27 and was informed that Mr. Franco had not contacted him to request an adjournment.

On appeal, plaintiff contends the trial court erred in granting summary judgment on the following grounds: (1) the motion was filed too early for an adequate factual record to be developed; (2) defendant has not filed an answer or provided any discovery as to the administration of the estate; and (3) the motion judge's law clerk advised plaintiff's counsel that the August 27, 2004, motion would be adjourned pending the outcome of the motion to quash the subpoena.

In light of the court's initial decision to adjourn the summary judgment motion until the outcome of the motion to quash the subpoena, we are satisfied the summary judgment motion should have been adjourned again to await resolution of plaintiff's motion for reconsideration of the other judge's order quashing the subpoena, irrespective of whether defense counsel consented to the adjournment.

It is apparent the court did not accept plaintiff's counsel's explanation for his non-appearance. Based upon the judge's adjournment policy and the judge's inquiries to his staff, it was not unreasonable for the court to conclude that plaintiff's counsel's non-appearance was inexcusable. Nonetheless, considering plaintiff's counsel's proffer (which the court apparently accepted previously as a reason to adjourn the motion) that the motion to quash was critical to her ability to oppose the summary judgment motion, and the fact that no answer had been filed nor any discovery exchanged, we believe the court should have adjourned the summary judgment motion and considered the imposition of sanctions pursuant to R. 1:2-4 for plaintiff's counsel's non-appearance. See Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 574-75 (2003); Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 194 (App. Div. 1985).

Additionally, in denying plaintiff's motion for reconsideration, the judge also acknowledged that he was unaware that plaintiff's counsel had filed the reconsideration motion prior to his hearing the unopposed summary judgment motion, but he indicated, without explanation, that he would probably "not have adjourned the summary judgment motion in any event." We can only assume that this position was guided by the court's conclusion that:

Plaintiff was aware of the fact that Ms. Miller's will was submitted to probate as she was so advised in May of 1999 and was provided with a copy of Ms. Miller's will. Any action she wished to take should have been taken in the Probate Division. Plaintiff never filed a caveat, an order to show cause or any other document challenging the entry of a judgment in probate. Judgment was entered in 1999.

Thus, it is apparent the motion judge concluded, based upon the documents presented, that plaintiff's claim lacked merit and, even if meritorious, had not been filed within a reasonable time. R. 4:85-1. While ultimately that may be the disposition of this matter, plaintiff should have been given an opportunity to resolve her motion for reconsideration of the order quashing the subpoena and then to file opposition to the summary judgment motion. If the trial judge believed plaintiff's complaint was time barred, then there was no reason to have granted the initial adjournment, ostensibly granted to permit plaintiff the opportunity to oppose the motion to quash. Having done so, it was certainly reasonable for plaintiff's counsel to have concluded that in light of the fact that he immediately moved for reconsideration of that order, the judge would grant a further adjournment of the summary judgment motion.

Part of the procedural breakdown in this case must be attributed to the fact that two different judges handled two related but separate motions. In granting the motion to quash the subpoena, one judge concluded that the case was in its early stages of discovery and therefore the deposition of Clemen was premature, while the other judge, in granting summary judgment without the benefit of any discovery, apparently concluded otherwise.

On remand, we believe the better case management of this matter is to have one judge assigned to dispose of both motions. R. 4:5B-1. This will facilitate the determination of whether, on the face of the complaint, plaintiff has failed to state a claim upon which relief may be granted or whether the summary judgment motion was prematurely filed. See R. 4:6-2; Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003); Apfel v. Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, 324 N.J. Super. 133, 144 (App. Div.), certif. denied, 162 N.J. 485 (1999).

Reversed and remanded for proceedings consistent with this opinion.

 

The motion for reconsideration of the order quashing the subpoena was denied as "moot" in light of the disposition of the summary judgment motion.

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A-1779-04-T2

June 27, 2006