SAMY GUIRGUIS v. TD BANK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-22031-12T1

SAMY GUIRGUIS,

Plaintiff-Appellant,

v.

TD BANK (formerly COMMERCE

BANK),

Defendant,

and

SOCKLER MIGNOGNA DILELLO,

KENDERIAN ZILINSKI, AND

ROBERT F. YURO,

Defendants-Respondents.

___________________________________

February 25, 2014

 

Submitted February 3, 2014 Decided

 

Before Judges Parrillo and Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2743-10.

 

Allegra Law Firm, LLC, attorneys for appellant (Joseph Elmo Cauda, Jr., on the brief).

 

Thomas A. Harley, attorney for respondent Sockler, Mignogna & Dilello.

 

Suarez & Suarez, attorneys for respondents KZA Engineering, PA., (improperly named as Kenderian Zilinski) and Robert F. Yuro (Joseph M. Suarez, of counsel; David C. Rosciszewski, on the brief).

PER CURIAM

Plaintiff Samy Guirguis appeals from the following two orders: Judge Lawrence M. Lawson's July 2, 2012 order denying Guirguis's motion to extend discovery, and Judge Linda Grasso Jones's September 7, 2012 order denying reconsideration of a June 26, 2012 order for summary judgment.1 We affirm.

I.

Briefly, the parties' underlying dispute revolves around the development potential of real property in South Brunswick, which was acquired by Guirguis with financing provided by defendant TD Bank's2 predecessor, Commerce Bank. As part of the loan application, an appraisal was conducted by the lender utilizing the services of defendant Sockler Mignogna & Dilello (Sockler). Guirguis claims that in reliance upon a negligently performed appraisal, he was induced to complete the loan transaction and acquisition. Additionally, Guirguis contracted with the professional engineering firm, defendant Kenderian Zilinski (KZ), to develop a concept plan for the property. In the present lawsuit, Guirguis claims, among other things, that KZ and a principal professional engineer, defendant Robert F. Yuro, "negligently failed to account for the State mandated buffers from wetlands located to the northwest side of the lots nor did [it] account for the State and municipal setback requirements from US Route 1 to the southeast side of the aforereferenced lots." These deficiencies allegedly affected the scope of the development envisioned by Guirguis.

The lawsuit was filed on June 1, 2010. The matter was designated as a Track III matter, and assigned a 450-day discovery period. R. 4:5A-1; R. 4:24-1(a). Because the first answer was filed in November 2010, the discovery period was to end on February 3, 2012.

On January 30, 2012, the parties consented to a sixty-day discovery extension, which reset the discovery expiry to April 3, 2012. Thereafter, on a contested motion returnable on April 5, 2012, Judge Jones extended the discovery period another sixty days until June 2, 2012, noting in a rider to the order that "[c]ounsel must submit by way of a supplemental consent order a schedule for the completion of discovery within this [sixty] day period. Failure to comply with the terms of this [r]ider shall not constitute a basis for the further extension of discovery."

Later in the month, on April 27, 2012, Judge Jones granted an (unopposed) motion relieving Guirguis's counsel as attorney of record in the case.3 By May 30, 2012, new counsel was about to arrive on the scene on behalf of Guirguis, but he had not, as of that date, filed a substitution of attorney.

On May 17, 2012, KZ and Yuro filed a motion for summary judgment, which was returnable on June 15, 2012. On May 30, 2012 three days before the discovery expiry set by Judge Jones Guirguis's just-retained attorney sent a letter to KZ's counsel "[s]upplementing [Guirguis's] answers to [i]nterrogatories in this matter," which enclosed a three-page expert report4 authored by professional engineer Paul D. Fox, opining that "there exists a reasonable probability that the care, skill, or knowledge exercised by the Defendants KZA Engineering, PA and Robert F. Yuro, . . . fell outside acceptable professional or occupational standards or treatment practices." On June 1, 2012, KZ and Yuro's attorney responded, "Please be advised that our firm will not accept Mr. Fox's report as it is untimely and was not served in accordance with the Court Rules. In fact, we are expressly rejecting Plaintiff's report."

On that same date, Guirguis's new counsel wrote to Judge Jones requesting, "without the necessity of filing a formal motion," another discovery extension. New counsel also promised that the three-page expert report just forwarded to KZ's attorney, "will form the basis of opposition to the Summary Judgment Motion which is presently pending." As far as the record reveals, Judge Jones did not respond to counsel's informal advice.

On June 1, 2012, Guirguis's new attorney filed a motion to further extend discovery. In support of the motion, the attorney averred that the only discovery completed was "the exchange of interrogatories and the deposition of [p]laintiff." The attorney "anticipate[d] that at least [two] to [three] additional depositions are necessary. Supplemental interrogatories should also be served together with Production Requests and Requests to Admit."

On June 26, 2012, Judge Jones granted KZ and Yuro's motion for summary judgment. In her statement of reasons, Judge Jones commented upon the lack of opposition to the motion:

As of May 17[], 2012, the date of the filing of the motion papers, plaintiff had not amended his interrogatory responses, and I have not received an opposition. This is a June 15[] return date motion. It's now June 26[]. This is only being put on the record today because of the courthouse being closed for the last week or so. But no opposition has been received, which I have to conclude that in fact interrogatory amendments have not been an amendment to the interrogatory answers was not provided.

 

Because "the claims against defendants in this case would require an expert report," and "there's no report in this case, and discovery has concluded, the motion for summary judgment filed by [KZ and Yuro] is granted."

The discovery motion was assigned to Judge Lawson. On July 2, 2012, he denied it, appending in handwriting the following on the order:

This matter is denied as the movant has failed to attach prior orders extending discovery as required by R[ule] 4:24-1(c). The movant has also failed [to] present a proper order with bench marks. Present counsel is the fourth attorney for plaintiff. This case has 570 days of discovery in a matter where 360 dates [sic] are provided by Rule. There must come a time when plaintiff must comply with the Rules.

 

On July 23, 2012, Guirguis filed a motion for reconsideration of the June 26 grant of summary judgment and the July 2 denial of a discovery extension in the case.

On September 7, 2012, Judge Jones denied the summary judgment reconsideration motion.5 The rationale underpinning the denial was that

First, [Guirguis] has not demonstrated that the Court incorrectly decided the previous decision or that it failed to appreciate any significant, probative evidence. . . . Simply, [Guirguis] failed to get in the report before the discovery end date. [Guirguis] has plainly not proven that the Court in its previous denial was arbitrary, capricious, or unreasonable.

 

. . . .

 

Second, even if this Court determines that reconsideration is warranted, the extension of the discovery end date would remain improper. [Guirguis] has not proven that good cause existed to prevent timely discovery and warrants an extension. He has not shown why discovery could not have been completed in the previous discovery period.

 

. . . .

 

[Guirguis] has failed to establish good cause to explain the delay in serving the April 27, 2012 report until May 30, 2012; [Guirguis] did not explain the delay in support of his prior motion to extend and does not explain the delay in support of this motion for reconsideration.

 

On October 26, 2012, Sockler filed its motion for summary judgment. On December 7, 2012, treating the motion as unopposed, Judge Jones granted summary judgment to Sockler dismissing the complaint. This appeal followed.

II.

In general, appellate courts

apply an abuse of discretion standard to decisions made by our trial courts relating to matters of discovery. That is, "[w]e generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." As it relates to extensions of time for discovery, appellate courts, including this Court, have likewise generally applied a deferential standard in reviewing the decisions of trial courts.

 

[Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 371 (2011) (citations omitted) (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005)).]

Similarly, "[t]he right of a trial court to manage the orderly progression of cases before it has been recognized as inherent in its function." Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488 (App. Div.), certif. denied, 165 N.J. 607 (2000).

Rule 4:24 governs the time for completion of discovery in civil cases. R. 4:24-1(c) states:

The parties may consent to extend the time for discovery for an additional 60 days by stipulation filed with the court or by submission of a writing signed by one party and copied to all parties, representing that all parties have consented to the extension. A consensual extension of discovery must be sought prior to the expiration of the discovery period. If the parties do not agree or a longer extension is sought, a motion for relief shall be filed with the Civil Presiding Judge or designee in Track I, II, and III cases and with the designated managing judge in Track IV cases, and made returnable prior to the conclusion of the applicable discovery period. The movant shall append to such motion copies of all previous orders granting or denying an extension of discovery or a certification stating that there are none. On restoration of a pleading dismissed pursuant to R. 1:13-7 or R. 4:23-5(a)(1) or if good cause otherwise shown, the court shall enter an order extending discovery. Any proposed form of extension order shall describe the discovery to be completed, set forth proposed dates for completion, and state whether the adverse parties consent. Any order of extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.

 

[R. 4:24-1(c)]

In the present matter, Guirguis asserts that Judge Lawson applied R. 4:24-1(c) too rigidly. However, even in light of the vast reservoir of discretion that resides in our trial courts, the Rule's provisions are intended to impose a strict extension policy. Pressler & Verniero, Rules Governing the Courts of the State of N.J., comment 3 on R. 4:23-1(c) (2014). Although we expect judges to fairly administer the Rules, we have a reciprocal expectation that litigants will not squander the generous time allotments provided to them by those same Rules to complete appropriate discovery. Here, without even a peep of explanation, Guirguis failed to conduct anything more than perfunctory discovery, served a tardy expert report on the eve of the discovery expiry, and sought to reopen and expand the machinery of discovery after expending most of his previous time exhausting four attorneys. On this record, we cannot agree that Rule 4:24-1(c) was applied too rigidly.

In Leitner v. Toms River Regional Schools, 392 N.J. Super. 80, 87-88 (App. Div. 2007), we listed non-exclusive factors that a trial court should take into consideration in determining whether to extend discovery deadlines:

(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.

 

"After reviewing each of these factors, a determination can be made as to whether the trial court's discretion was properly exercised with respect to an individual application to extend discovery." Id. at 88.

Appeals from discovery rulings have regularly depended on weighing these or similar factors, and appellate courts have repeatedly stated that each case must be decided on its own facts, subject to the abuse of discretion standard of review. See Bender v. Adelson, 187 N.J. 411, 428 (2006) (finding no abuse of discretion in trial court's ruling barring expert testimony because of late discovery); Leitner, supra, 392 N.J. Super. at 93 (reversing as a mistaken exercise of discretion the trial court's denial of an initial, routine discovery extension, despite plaintiffs' lack of diligence in pursuing discovery, where no trial or arbitration date had been set and where defendants could not show prejudice); Rivers, supra, 378 N.J. Super. at 80-81 (finding no abuse of discretion in denial of discovery extension "where the 'delay rests squarely on plaintiff's counsel's failure to retain an expert and pursue discovery in a timely manner,'") (quoting Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 473-74 (App. Div.), rev'd on other grounds, 185 N.J. 290 (2005)); Huszar, supra, 375 N.J. Super. at 471-74 (affirming trial court's ruling denying an extension of discovery where plaintiffs' attorney had not pursued discovery diligently and where the discovery period had already ended); Ponden v. Ponden, 374 N.J. Super. 1, 10-12 (App. Div. 2004) (reversing denial of discovery extension to permit supplemental expert report, and emphasizing the importance of whether a trial or arbitration date had been set at the time that an extension was sought), certif. denied, 183 N.J. 212 (2005); Casino Reinvestment Dev. Auth., supra, 332 N.J. Super. at 488-90 (in a condemnation case, finding no abuse of discretion in the trial court's denial of a motion to extend time for supplemental appraisal reports).

In this case, always mindful that we defer to the trial court's discovery rulings in the absence of an abuse of discretion, we conclude that the Leitner factors, although not expressly articulated by Judge Lawson, powerfully counsel against a discovery extension.6 The only factor militating in Guirguis's favor is that at the time Guirguis applied for the discovery extension, no arbitration or trial date had been established. On the other hand, virtually all of the remaining factors favor the disposition made by Judge Lawson.

First, a litigant's playing musical chairs with his attorneys is almost never grounds for a discovery extension.7 Second, the extended discovery that was requested was the type that ordinarily would have been conducted months earlier and was not the result of any particularized aspect of the litigation, which was a garden variety professional negligence action.8 Third, a timely motion for summary judgment had been filed against Guirguis, which if denied because discovery was reopened, would have unfairly prejudiced KZ and Yuro. Allied with this consideration is Guirguis's failure to submit an admissible expert report prior to the end of the discovery period, which was due to Guirguis's adamancy in refusing to pay for expert services beyond an affidavit of merit. Also, the expert report was dated, and presumably delivered, in sufficient time to permit Guirguis to serve it upon his adversaries in conformity with Rule 4:17-7 (providing for service of amended interrogatories within 20 days of the end of the discovery period).9 Thus, the failure to obtain an appropriate expert report rested squarely on Guirguis.

We held many years ago that "[n]o eagerness to expedite

business, or to utilize fully the court's time, should be

permitted to interfere with our high duty of administering

justice in the individual case." Pepe v. Urban, 11 N.J. Super.

385, 389 (App. Div.), certif. denied, 7 N.J. 80 (1951). Nothing

has occurred in the half-century since to suggest that we should

now favor expedience over the interests of justice. Here, however, the circumstances that impeded the effective disposition of the litigation were primarily caused by Guirguis, and we cannot say that Judge Lawson's effort to control his

schedule and to enforce court rules impeded his ability to properly exercise discretion. The denial of Guirguis's motion to extend discovery was properly decided.10

Affirmed.

 

1 Without explanation, and perhaps as an unfounded assumption, Guirguis's notice of appeal proclaims, "This appeal, if successful, should vacate the December 7, 2012 Order granting summary judgment in favor of Sockler, Mignogna & DiLello, as Plaintiff's claim against them depended on the extension of Discovery." Other than this oblique reference, Guirguis clearly did not appeal from the December 7, 2012 order. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008) (considering only the order denying reconsideration because it was the only order designated in the notice of appeal).

2 Guirguis's claims against TD Bank were dismissed by order dated March 4, 2011, and no appeal from that order was ever filed.

3 The application to be relieved as counsel represented the loss of Guirguis's third attorney in the case. One of the stated reasons for the rift between Guirguis and this attorney was explained by the attorney as follows:

Despite our numerous attempts at explaining to Mr. Guirguis the difference between an Affidavit of Merit and a narrative report, the latter of which requires an additional payment to [the expert] for his services, Mr. Guirguis repeatedly insisted that he was not required to pay any additional monies to [the expert] for a narrative report because he had already paid for the Affidavit of Merit. However, our direct communication with [the expert] confirmed that an additional payment of $3,500 was required of Mr. Guirguis in order to obtain a narrative expert report.

 

[The expert] advised us that he will not issue a report until he receives a signed proposal and retainer from Mr. Guirguis, but Mr. Guirguis refuses to comply.

4 The report, a letter addressed to Guirguis, was dated April 27, 2012.

5 Judge Jones's decision only addressed the reconsideration of her summary judgment grant. It neither granted nor denied reconsideration of the discovery-extension motion. Although Judge Jones's order expressly referred reconsideration of this issue to Judge Lawson, there was never a formal disposition by Judge Lawson of this aspect of Guirguis's reconsideration motion.

6 It is well established that it is the propriety of the result reached by the trial court that controls the result on appeal, and not the rationale given for that result. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (holding that we are free to affirm the trial court's decision on grounds different from those relied upon by the trial court).

7 We reject, as entirely meritless, Guirguis's claim that, because he was acting pro se and between attorneys at times, he is entitled to our solicitude and indulgence. "Procedural rules are not abrogated or abridged by [a] [p]laintiff's pro-se status." Rosenbaum v. Borough of Closter, 285 N.J. Super. 239, 241 (App. Div. 1995), certif. denied, 146 N.J. 70 (1996). We have emphasized that pro-se litigants "must understand they are required to follow acceptable rules of procedure" and "are presumed to know, and are required to follow, the statutory law of this State." Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989). Guirguis is no different than any other pro se party.

8 Professional negligence actions ordinarily require that the relevant professional duty be established by expert testimony. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985) (citing Klimko v. Rose, 84 N.J. 496 (1980)). Therefore, the submission of an expert report was critical to Guirguis's ability to demonstrate the applicable duty in this case, a breach thereof, and a causal connection between any such breach and the putative harm suffered.

9 We further observe that when Guirguis's new attorney served his adversary with the expert report, claiming that it was an amendment to Guirguis's answers to interrogatories, he did not certify that "the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence." R. 4:17-7. On its face, the expert report was dated at a time when it could have been served within the contours of the Rule, and we have no explanation for the untimely service.

10 Because we have affirmed the denial of the discovery extension, it is unnecessary to address Guirguis's meritless challenge to Judge Jones's denial of the summary judgment reconsideration motion. Additionally, there is no basis to disturb the grant of summary judgment in favor of Sockler.