ANTHONY J. GIRARD v. EDWARD G. FOSTER, ESQ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANTHONY J. GIRARD,

Plaintiff-Appellant,

v.

EDWARD G. FOSTER, ESQ.,

Defendant-Respondent.

________________________________

May 12, 2015

Argued April 14, 2015 Decided

Before Judges Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-56-11.

Patrick J. Jordan argued the cause for the appellant (Ofeck & Heinze, L.L.P., attorneys; Mark F. Heinze, of counsel; Mr. Jordan, on the briefs).

Danielle M. Hughes argued the cause for the respondent (Callan, Koster, Brady & Nagler, L.L.P., attorneys; Ms. Hughes and William L. Brennan, on the brief).

PER CURIAM

In this legal malpractice matter, plaintiff appeals from a September 16, 2013 order that granted summary judgment to defendant and denied plaintiff's motion to extend discovery. We reverse and remand.

We discern the following facts from the record. Plaintiff filed a pro se complaint in the Law Division in January 2011, asserting a claim of legal malpractice against defendant. Defendant filed an answer and the discovery process started in July 2011, when defendant's attorney served interrogatories, a request for admissions, and a notice to produce documents on plaintiff. Plaintiff's responses were neither timely nor complete and defendant filed a motion to dismiss plaintiff's complaint without prejudice. Plaintiff did not respond to the motion, and on November 28, 2011, the Law Division entered an order granting the motion.

In February 2012, defendant moved to dismiss plaintiff's complaint with prejudice. Plaintiff appeared and represented to the court that he had been involved in a disabling accident which he offered as the reason why he had not been able to address the discovery issues. After considering the parties' positions, the motion judge adjourned the matter for two weeks, providing plaintiff the opportunity to move to vacate the prior order of dismissal without prejudice and to provide fully responsive answers to interrogatories and requests to produce. Plaintiff was also directed to pay a restoration fee and serve copies of all his papers on counsel.

On March 16, 2012, defendant informed the court that plaintiff had not followed the judge's instructions because he had not served a copy of a motion to vacate the prior order and his discovery answers were non-responsive. In particular, plaintiff had not identified an expert or provided an expert's report. The motion judge gave plaintiff another week's extension.

At the subsequent hearing, the motion judge addressed the parties again. Plaintiff had delivered responses that defendant argued were not fully responsive, and which directed defendant to "a file in the Office of Mark Heinze in Hackensack." The motion judge reviewed plaintiff's submissions, found plaintiff had abused the discovery process, refused to reinstate plaintiff's case, and granted defendant's motion to dismiss plaintiff's complaint with prejudice.

Plaintiff appealed and we reversed and remanded with instructions to the motion judge to

make discrete findings as to whether the materials [provided by plaintiff] represent a full and complete response to defendant's discovery demands. . . .

If the Law Division determines that the marked and indexed documents are "fully responsive" to the notice to produce, the court can order reinstatement of the complaint, require payment of the reinstatement fee, and impose "sanctions or attorneys fees and costs, or both" pursuant to Rule 4:23-5(a)(3) for the additional time and expense incurred by defendant in this motion practice. If the Law Division determines that the . . . documents do not satisfy plaintiff's discovery obligation, and exceptional circumstances are not demonstrated, the court can enter a new order dismissing the complaint with prejudice. In either event, the court shall thoroughly explain its rationale.

[Girard v. Foster, No. A-4245-11 (App. Div. Feb. 19, 2013) (slip op. at 17-18).]

On April 4, 2013, the motion judge issued an order requiring plaintiff to resubmit only previously submitted documents to defendant, physically mark or stamp each page of each document, and provide defendant with detailed written responses to notices to produce by June 4, 2013. On July 30, 2013, the motion judge conducted a case management conference. After hearing the positions of both parties, the motion judge stated that he was "satisfied that . . . with the exception of the expert's reports, . . . the documents that [plaintiff] provided were responsive to the notice to produce."

Thereafter, the court considered the motions. The judge entered the order permitting defendant to file a motion for summary judgment and permitting plaintiff to file a motion to extend discovery. However, no order was ever entered reinstating the dismissed complaint.

The motions were considered by the court and the judge entered the order under review and issued a written decision. The judge found that plaintiff had not satisfied the good cause standard of Rule 4:24-1(c) and denied plaintiff's motion to extend discovery. The judge then granted defendant's motion for summary judgment because plaintiff had not provided an expert report.

On appeal, plaintiff argues that the discovery period should have been extended after the entry of an order of restoration pursuant to Rule 4:24-1(c), and that it was premature for the court to enter summary judgment. We agree.

A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The evidence "together with all legitimate inferences therefrom" is to be viewed in the light most favorable to the non-moving party. Ibid. In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governed the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012).

A trial court's decision regarding an extension of discovery under Rule 4:24-1 is disturbed only if there is an abuse of discretion. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471-72 (App. Div.), rev'd on other grounds, 185 N.J. 290 (2005). Rule 4:24-1(c) provides, in relevant part

On restoration of a pleading dismissed pursuant to Rule 1:13-7 or Rule 4:23-5(a)(1) or if good cause is 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 may include such other terms and conditions as appropriate. No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.

By vacating the order dismissing the complaint with prejudice, we placed the parties in the same position they would have been in when the complaint was dismissed without prejudice. We instructed the court to determine on remand whether plaintiff provided sufficient discovery to vacate the order dismissing the complaint without prejudice. Having done that, the court should have then vacated the order dismissing the complaint. However, the court granted summary judgment to defendant while the complaint was still dismissed without prejudice.

The discovery end date of August 18, 2013 expired while the complaint was dismissed. During that time, the requirement of discovery compliance was tolled. Had the court vacated the dismissal-without-prejudice order, plaintiff would still have had the chance to amend his answers to interrogatories and identify an expert prior to the expiration of the discovery end date. Even if plaintiff failed to do so, because there was no fixed arbitration date or trial date, he would have been entitled to one sixty-day extension of the discovery end date or he could have shown good cause for an extension. R. 4:24-1(c). While plaintiff prevailed on his appeal, he received no benefit on remand. Therefore, the entry of summary judgment was premature because plaintiff should have had the opportunity to undertake discovery that may have raised a "genuine issue . . . [of] material fact[.]" R. 4:46-2(c).

We reverse the entry of summary judgment and remand the matter for further proceedings consistent with this opinion. We do not retain jurisdiction.