IRENE SETCAVAGE WEINER v. ROBERT F. DATO

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6234-08T1

IRENE SETCAVAGE WEINER,

Plaintiff-Appellant,

v.

ROBERT F. DATO and DATO, SICO,

and SICA, Attorneys at Law,

Defendants-Respondents,

and

POOR BILLY'S FUNDING, LLC,

Defendant.

___________________________________

September 29, 2010

 

Argued August 31, 2010 - Decided

 

Before Judges Grall and Alvarez.

 

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Docket No. L-2244-07.

 

Peter S. Cuddihy argued the cause for appellant (Margolis Edelstein, attorneys; Mr. Cuddihy, on the brief).

 

Jason S. Feinstein argued the cause for respondents (Sterns & Weinroth, attorneys; Mr. Feinstein, of counsel and on the brief;

Robert D. Bailey, on the brief).

PER CURIAM

Plaintiff Irene Setcavage Weiner appeals from an order granting defendants Robert F. Dato and Dato, Sico and Sica, Attorneys at Law (collectively defendants) summary judgment on her complaint alleging legal malpractice and fraud. Plaintiff and defendant Poor Billy's Funding, LLC, settled their claims against one another. On appeal, plaintiff contends that the trial judge erred by denying her request to extend discovery and granting the attorney defendants summary judgment based on her failure to produce an expert report on liability and damages.

Plaintiff filed her complaint on February 20, 2007 and an amended complaint on May 1. She alleged that defendant Dato, in violation of the Rules of Professional Conduct, simultaneously represented her and the persons to whom she transferred her interest in several businesses.1 She further alleged that Dato, knowing she was addicted to and abusing drugs at the time, acted in concert with the other parties to the transactions to defraud her of her interest in the businesses and derive a benefit.

On June 25, the case was referred to mediation pursuant to Rule 1:40. The discovery end date was August 22, 2009, and the order provided that discovery was not stayed.

Mediation commenced in September 2007. According to plaintiff's counsel, the mediator, without regard to the terms of the court's order, orally directed the parties to postpone depositions until the mediation was concluded. Defendants' attorney denies that the claim, and there is nothing in the record to support it.

In any event, discovery continued during mediation. Interrogatories propounded by defendants on June 1, 2007 were answered by plaintiff on October 31. Plaintiff served her interrogatories on defendants July 31. On November 29, the parties advised the mediator that defendants would respond by December 21. Defendants did not respond by that date.

On February 15, 2008, the parties notified the mediator that defendants would provide their answers by February 21, and that plaintiff would produce her damages analysis within five weeks, on or before March 28. Although defendants served their answers on March 12, plaintiff did not seek relief from the court and did not retain an expert to analyze her damages until May 15, about eight weeks after receiving defendants answers.

In April 2008, the parties attempted but were unable to schedule a date for defendants and Poor Billy's to depose plaintiff. At that point, defendants moved for a court order dismissing plaintiff's complaint or compelling her to execute medical authorizations, appear for deposition and produce all expert reports by June 6, 2008.

While defendants' motion to compel was pending, the parties' attorneys exchanged e-mails in an effort to schedule the plaintiff's deposition. The attorney for Poor Billy's was unavailable on May 28, 2008. Although plaintiff was available on June 2 or 9, Poor Billy's attorney advised that he "needed" a date after June 25. Defendants' attorney cautioned the others about the impending discovery end date, mentioned defendants' pending motion to dismiss or compel discovery, and stressed the need for plaintiff to execute the medical releases. He proposed scheduling plaintiff's deposition for July 2, 7 or 9. Defendants' attorney also asked the others to consent to an automatic sixty-day extension of discovery pursuant to Rule 4:24-1(c). Poor Billy's attorney indicated that he would not consent by noting that he was reserving his client's "rights with respect to the discovery extension." The parties agreed to schedule plaintiff's deposition for July 7, and a consent order acknowledging the date was prepared. The consent order does not mention the pending motion or the other relief requested therein.

On May 28, 2008, the trial judge entered an order compelling plaintiff to execute medical releases within twenty days, appear for deposition within forty-five days and submit her expert reports by June 6. Plaintiff had not opposed the motion.

Despite the May 28 order, plaintiff's deposition was not completed and her expert reports were not provided within the time permitted. Plaintiff's attorney did not notice depositions for defendants until July 31, 2008. The depositions he noticed were to be held on August 26 and 28, days after the discovery end date. On August 1, plaintiff's attorney first subpoenaed information required by his client's expert on damages.

On August 1, the lawyers again exchanged e-mails. Plaintiff's attorney advised his adversaries that his client's deposition could not be completed on August 8, as previously agreed, or on an alternative date, August 19. He said plaintiff would be available on September 8 or 15. He also announced his intention to file a motion for a ninety-day extension of the August 22 discovery deadline. Defendants' attorney, referencing the May 28 order, warned that he would seek relief from the court if plaintiff's deposition was not completed before the discovery end date.

On August 6, 2008, defendants' attorney filed a motion for summary judgment returnable on September 12. Plaintiff filed a motion to extend discovery on August 11, which was returnable on August 29, seven days after the August 22 discovery deadline. On August 27, the court set a trial date for November 17.

On August 29, 2008, the trial judge heard and denied plaintiff's motion for an extension of the discovery period. Prior to ruling, the judge asked plaintiff's attorney what he had done with respect to obtaining an expert report on liability. Plaintiff's attorney candidly admitted that he had not done anything. Although the defendants' motion for summary judgment was not returnable until September 12 and plaintiff's response was not due until September 2, R. 4:46-1, the judge granted that motion as well.

Plaintiff filed a motion for reconsideration dated September 16, 2008. The notice of motion indicates reliance on nothing other than the certification of counsel, and the only certification included in the appendix provided on appeal addresses the course of discovery. The certification does not refer to any evidential materials submitted relevant to reconsideration of the order granting defendants summary judgment.

On November 9, 2008, the judge heard argument on the motion for reconsideration. On that date, the judge supplemented his factual findings and legal conclusions and denied the relief sought.

Trial judges' rulings on motions to extend discovery are reviewed for abuse of discretion. Bender v. Adelson, 187 N.J. 411, 428 (2006). Rule 4:24-1(c) guides the exercise of that discretion. A motion to extend discovery for a period greater than sixty days must be "made returnable prior to the conclusion of the applicable discovery period." Ibid. A judge ordinarily must grant the motion on a showing of good cause. Ibid. After a trial date has been fixed, however, a judge may not grant an extension "unless exceptional circumstances are shown." Ibid. On that basis and in light of the well-settled purpose of the Rule, this court has previously observed "that the absence of an arbitration or trial date at the time of the trial judge's ruling is of critical significance in a court's exercise of its discretion to extend discovery." Ponden v. Ponden, 374 N.J. Super. 1, 9 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005) (emphasis added).

Plaintiff's motion to extend discovery was made returnable on August 29, 2008, a date seven days after the August 22 discovery end date. Moreover, at the time of the judge's ruling, a trial date had been set. Despite those circumstances, Judge Stroumstos applied the more liberal of the Rule's standards good cause. Thus, the judge took an indulgent view of the application that is favorable, not detrimental, to plaintiff.

In Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 87 (App. Div. 2007), this court identified factors a court should consider in determining "whether good cause has been shown for an extension of discovery." The list, not intended to be exhaustive, includes:

(1) the movant's reasons for the requested extension of discovery;

 

(2) the movant's diligence in earlier pursuing discovery;

 

(3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems;

 

(4) any prejudice which would inure to the individual movant if an extension is denied;

 

(5) whether granting the application would be consistent with the goals and aims of Best Practices ;

 

(6) the age of the case and whether an arbitration date or trial date has been established;

 

(7) the type and extent of discovery that remains to be completed;

 

(8) any prejudice which may inure to the non-moving party if an extension is granted; and

 

(9) what motions have been heard and decided by the court to date.

[Id. at 87-88.]

In ruling on plaintiff's motion for reconsideration, the trial judge addressed each of these factors. While we do not fully endorse the judge's finding with respect to prejudice, which was based solely on prolonging the stress and burdens of litigation, that is only one of the many factors identified in Leitner as relevant to the evaluation of "good cause." The difficulty that confronted the trial judge is that despite the importance of a continuation to her case, plaintiff did not demonstrate any reasonable explanation for her delay. Cf. Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53-54 (2003) (noting that where an attorney has a "good and sufficient reason" for his delay, discovery deadlines should not be rigidly enforced).

After careful review of the record provided to us on appeal, we have found nothing that would permit us to conclude that the judge abused his discretion.

There simply was nothing that would permit the judge to find that plaintiff pursued her claims with any diligence. True, defendants' responses to plaintiff's interrogatories were provided later than promised, but prior to receipt of defendants' responses, plaintiff's attorney had agreed that he would obtain his report on damages within five weeks of receiving defendants' answers. In the end, plaintiff did not even retain an expert on damages until eight weeks after receipt of defendants' responses and had not done anything to obtain an expert report on liability while awaiting completion of depositions. Moreover, despite the May 28 order requiring her to submit all expert reports by June 6, plaintiff did not seek relief from that order or an extension of discovery until August 11.

Furthermore, there is no evidence to support a finding that plaintiff's attorney was misled by his adversaries. The e-mails exchanged on May 15 and August 1, 2008, demonstrate otherwise. On May 15, counsel for Poor Billy's made it clear that he would not consent to an automatic sixty-day extension of discovery under Rule 4:24-1(c). Thus, by that date, the need for an extension of the discovery period and the necessity of filing a timely motion to obtain that relief should have been clear to plaintiff's attorney. After all, plaintiff had retained his damages expert on May 15 and on the same day one of his adversaries made it clear that his client would not consent to an automatic extension. If the need to seek relief from the court was not clear on May 15, it must have been clear after the judge entered the May 28, 2008 order requiring plaintiff to produce her experts' reports by June 6. See Bender, supra, 187 N.J. 411 at 430 (taking account of defendant's failure to move for relief in concluding that the judge did not abuse his discretion in denying an extension).

The record provides additional support for the trial judge's determination that plaintiff had done little to prosecute her claims. Indeed, the client's conduct appears to have contributed to the delay. Given her assertions about her impaired condition and its relationship to her claims of malpractice and fraud, her failure to promptly execute medical authorizations contributed to the difficulty of completing her deposition. Defendants had made that clear when their attorney, on May 15, advised he would insist upon deposing plaintiff twice if she did not execute the authorizations before her deposition.

On this record, we cannot conclude the trial judge erred. Accordingly, we affirm the denial of plaintiff's motion to extend discovery.

The record provided on appeal does not permit review of plaintiff's objection to the grant of summary judgment. Plaintiff did not comply with Rule 2:6-1(a)(1), which requires the appendix to include "a statement of all items submitted to the court on the summary judgment motion and all such items." We have neither the requisite statement nor the items submitted in support of and opposition to that determination on the initial motion or the motion for reconsideration. Without those materials we cannot review the propriety of the judge's determination. See Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-446 (2007) (discussing the inquiry that must be undertaken by a court reviewing a grant of summary judgment); Soc. Hill Condo. Ass'n, Inc. v. Soc. Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002) (refusing to consider an issue where appellant did not include necessary documents in appendix).

We recognize that summary judgment was initially entered prior to the date on which defendants' papers in opposition were due, but that objection was not raised at the time, on motion for reconsideration or on this appeal. It is important to note that the materials provided on appeal give us no reason to suspect that plaintiff presented any evidential material that would permit a court to conclude that she could establish liability for malpractice or the damages she suffered as a consequence of fraud or malpractice committed in connection with these complex business transactions.

Affirmed.

 

 

1 The allegations are similar to those addressed in In re Dato, 130 N.J. 400 (1992).