A-1 PROPERTY MANAGEMENT, LLC v. BERGENWOOD COMMONS CONDOMINIUM ASSOCIATION, INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0970-07T20970-07T2

A-1 PROPERTY MANAGEMENT, LLC

and KNOB HILL VICTORIAN ESTATES, INC.,

Plaintiff,

v.

BERGENWOOD COMMONS CONDOMINIUM

ASSOCIATION, INC.

Defendant-Appellant,

and

DELEV CORPORATION PROPERTY

MANAGEMENT,

Defendant-Respondent.

________________________________________

 

Submitted May 28, 2008 - Decided

Before Judges Coburn and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

L-1276-04.

Stark & Stark, attorneys for appellant

(David J. Byrne, of counsel and on the brief;

Jonathan H. Katz, on the brief.)

Mandelbaum, Salsburg, Gold, Lazris & Discenza,

attorneys for respondent (Lance N. Olitt, on

the brief).

PER CURIAM

Defendant Bergenwood Commons Condominium Association appeals from the order of the Law Division denying its motion for an extension of time to serve expert reports. Pursuant to our holding in Mack Auto Imports, Inc. v. Jaguar Cars, Inc., 244 N.J. Super. 254 (App. Div. 1990), we dismiss the appeal as moot.

This is defendant's second appeal concerning this issue. In the first appeal, A-1 Property Management, L.L.C. v. Bergenwood Commons Ass'n, Inc., No. A-5603-05T2, (App. Div. May 4, 2007) (slip op. at 2), we reversed the trial court's summary judgment order dismissing defendant's claims against plaintiff due to a lack of an expert report. We concluded that the trial court erred when it failed to extend defendant's time to submit the expert report, because the delay was caused by plaintiff's "late response to the Association's timely-served discovery demands." Ibid. We thus remanded the matter for further proceedings.

On remand, the trial court held a case management conference to address all outstanding discovery issues, including defendant's expert report. That conference generated a case management order dated July 2, 2007, which was agreed to and signed by all counsel. That order provided, in pertinent part, as follows:

1. The Association shall serve an expert report as to all issues (liability and damages) on or before July 27, 2007. Should the Association fail to serve an expert report by this date, the Association will be barred from introducing any such expert report and/or testimony at trial.

2. Delev shall serve a rebuttal expert report as to all issues (liability and damages) on or before August 31, 2007. Should Delev fail to serve an expert report by this date, Delev will be barred from introducing any such expert report and/or testimony at trial.

3. Nothing in this Order shall preclude the parties from conducting additional discovery in accordance with the Rules of Court.

4. The discovery end date is hereby extended to September 14, 2007.

5. The trial in this matter shall begin on September 24, 2007.

On July 27, 2007, the deadline established by the court, the Association's counsel wrote a letter to the trial judge requesting an extension of time to serve the expert reports. Defendant followed this informal request by filing a formal motion on August 1, 2007, (five days after the court-ordered deadline) requesting an extension of time. The motion was returnable on August 17, 2007. In a certification in support of the motion, defense counsel listed the reasons for the request: (1) the Association's accounting expert retained at the time of the case management order could not complete the report within the court-ordered, agreed upon deadline; and (2) the Association was therefore forced to retain a new expert. Plaintiff opposed the motion.

The trial court denied the motion without oral argument, stating: "[n]o exceptional circumstances set forth in moving papers." On September 24, 2007, the parties entered into a formal stipulation. In this document, the Association agreed to dismiss with prejudice all of its claims against plaintiff Delev. The document also stated "[t]he Association's right to appeal is preserved."

Against these facts, we are satisfied that this appeal must be dismissed as moot. The facts here are remarkably similar to those we encountered in Mack Auto Imports, supra, 244 N.J. Super. 254. The plaintiff in Mack deemed its discovery "inadequate to properly prepare and present." Id. at 257. Thus, "in an attempt to establish the required finality to appeal adverse discovery orders, plaintiff advised the court that it voluntarily accepted dismissal of the action with prejudice." Ibid. In this context, we held that plaintiff was precluded from appealing the adverse discovery orders because "[d]iscovery is provided to prepare for trial. In light of plaintiff's dismissal of its complaint, there will be no trial. Thus, the discovery issues are moot." Ibid.

The scenario created by the Association is procedurally identical to the facts in Mack Auto Imports. The Association's dismissal of its claims against Delev renders this appeal moot, because discovery is no longer an issue in a case that has been dismissed. The Association's attempts at preserving its right to appeal by inserting language to that effect in the stipulation of dismissal is merely a transparent attempt to circumvent our rules governing interlocutory review. R. 2:2-3; see also Ruscki v. City of Bayonne, 356 N.J. Super. 166, 168 (App. Div. 2002) (citing R. 2:2-4; Mack Auto Imports, supra, 244 N.J. Super. at 257).

Appeal is dismissed as moot.

(continued)

(continued)

5

A-0970-07T2

July 31, 2008