KATHERINE KLIEVER v. STERLINGTON PROPERTIES, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1523-06T21523-06T2

KATHERINE KLIEVER and JOHN

KLIEVER,

Plaintiffs-Appellants,

v.

STERLINGTON PROPERTIES, INC.,

JUDITH I. BASLAW, JEFFREY ROSCOE,

and EAST HILL BUILDERS,

Defendants,

and

BOROUGH OF SADDLE RIVER, STEVEN

M. HONIG, HONIG & HONIG, and

THE RIDGE AT SADDLE RIVER, LLC,

Defendants-Respondents.

________________________________________________________________

 

Argued February 23, 2009 - Decided

Before Judges Carchman, R. B. Coleman

and Sabatino.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Docket No. L-7636-04.

Daniel E. Somers argued the cause for appellants

(Somers & Malay, attorneys; Mr. Somers, of

counsel and on the brief).

John R. Edwards, Jr., argued the cause for

respondent The Ridge at Saddle River, LLC

(Price, Meese, Shulman & D'Arminio, attorneys;

Mr. Edwards, on the brief).

Brian J. McGovern argued the cause for

respondents Steven M. Honig and Honig & Honig

(Law Offices of Brian J. McGovern, attorneys;

Mr. McGovern and Alison M. K. Lee, on the

brief).

Respondent, Borough of Saddle River,

has not filed a brief.

PER CURIAM

Plaintiffs Katherine and John Kliever appeal from a final judgment dismissing their legal malpractice and declaratory judgment action against (1) their former attorney, Steven M. Honig, who represented them in their purchase of a home situated on property burdened with a drainage easement; (2) the Borough of Saddle River (the Borough), which authorized this easement; and (3) The Ridge at Saddle River, LLC (The Ridge), plaintiffs' neighboring property owner who benefits from this easement. After a bench trial and an extensive oral opinion, Judge Lawrence D. Smith concluded that plaintiffs' claims regarding the easement as well as their malpractice cause of action were without merit. We agree and affirm.

I.

Because the issues raised on this appeal from this multi-week bench trial address procedural, factual and legal claims of error, we provide an expansive review of the factual underpinnings of this dispute.

On December 21, 2001, plaintiffs became the owners of a sixteen-room manor home with a pond, bridges, and a five-car garage situated on a two-acre property located in the Borough. Plaintiffs' property is abutted to the north by the Tice property, a 23.2-acre parcel, consisting of three lots situated in both the Borough and Borough of Woodcliff Lake. The closest lot (lot 5) of the Tice property on the Borough tax map, comprising 19.35 acres, is immediately adjacent to plaintiffs' property. The remaining lots (lots 6 and 1) are collectively approximately four acres. The Tice family cultivated an orchard on these three lots. The property immediately to the west of plaintiffs' property is owned by the Tsoukas family.

Plaintiffs' property is burdened with two streams, the St. Gabriel's Brook and the Tsoukas ditch. St. Gabriel's Brook runs along the western border of lot 5 from north to south, enters the northwest corner of plaintiffs' property, makes an abrupt ninety-degree turn due east and then, after a short distance, makes another ninety-degree turn due south. Historically, 13.2 acres of lot 5 drained into St. Gabriel's Brook and onto plaintiffs' property. The Tsoukas ditch traverses the northern portion of plaintiffs' property from west to east and merges with St. Gabriel's Brook at the point where the brook turns east. These two streams are situated within a lengthy, thirty-foot-wide drainage easement dating back to at least 1965 which follows the path of the water. Plaintiffs' property has always been subject to erosion and flooding as a result of the merging waterways and ninety-degree turns.

In 1997, plaintiffs' property was owned by Dr. and Mrs. Salerno. They decided to develop the property with a 4000-square-foot single family home. However, because of the extensive wetlands on the property, the Salernos had to apply to the New Jersey Department of Environmental Protection (DEP) for several wetlands permits. These permits were granted with various conditions, including the requirement that a mitigation pond be constructed on site to collect the water from St. Gabriel's Brook and control the drainage of the property.

The Salernos subsequently submitted an application to the Saddle River Planning Board (the Board) for soil movement on the property for septic excavation, foundation excavation, and the creation of the pond. The Board granted the Salernos' application in a resolution dated May 13, 1997 but imposed the following condition in accordance with the advice of its engineer: "The applicant shall provide an easement by deed 30 feet in width to connect the Tice property to the north/south stream component, leading to the proposed pond. This will remove the Tice drainage from any future detention pond, eliminating the existing 90-degree turn." However, notwithstanding the Board's directive, no deed of easement was filed at that time. The following year, the Salernos conveyed the property to defendant Sterlington Properties, Inc. and construction of the home eventually began under the supervision of Sterlington's general contractor, defendant Jeffrey Roscoe.

In March 1999, The Ridge purchased the Tice property and began preparing plans to develop the property as a sixty-eight-unit luxury townhouse community. A site plan submitted to the Borough in 2000 depicted the bulk of the units situated on lot 5.

According to drainage plans submitted to the Borough in 2000, The Ridge proposed to construct a large detention basin in the lower southwest corner of lot 5 to control the drainage from its property. The Ridge originally planned to pipe the water from the basin west directly across its property at a right angle and into St. Gabriel's Brook where it would eventually make its way south onto plaintiffs' property and into their pond.

The Borough, however, directed The Ridge to utilize the north/south easement to which it was entitled (but had not yet been deeded) over plaintiffs' land so as to straighten the path of the water and avoid the two ninety-degree turns on plaintiffs' property. As a result, plans submitted to the Borough in January 2001 explicitly depicted a thirty-six-inch underground pipe, running approximately sixty feet south from the basin to a concrete headwall situated on plaintiffs' property from which water would be discharged to travel the remaining fourteen to twenty feet through the 1965 easement to St. Gabriel's Brook. Roughly fifty-five feet of underground pipe would be on plaintiffs' property, including forty-two feet within the as-yet undeeded easement. The Ridge's project engineer, Arthur Hanson, acknowledged that approximately thirteen feet of pipe and the actual headwall structure itself would be within the 1965 easement.

As described by Hanson, the headwall would have a five-foot-by-five-foot middle section housing the opening of the thirty-six-inch pipe, and two eleven-foot-long wing walls, each of which would gradually taper in height from five feet to one foot. One wing wall would be merely a continuation of the middle section, heading straight off to the east, while the other would be at a forty-five-degree angle heading down towards St. Gabriel's Brook, thereby forming a "v." Rip rap (six-inch graphic stones stacked eighteen inches high) would be placed between the headwall and St. Gabriel's Brook to slow the water after it exited the pipe. Yet, according to Hanson, most of the time the water exiting the pipe would just be a trickle. Hanson indicated that The Ridge intended to camouflage the headwall to some extent with vegetation. As to why the headwall was not included on the Tice property, Hanson noted that it would be ten to fifteen feet high and much more intrusive.

According to Hanson's post-development drainage area map dated November 14, 2000, 17.1 acres of The Ridge's property, comprised of the bulk of lot 5 and a small portion of lot 6 (also part of the Tice property), would drain into the proposed detention basin. Three largely undeveloped acres of lot 5 would drain as before into St. Gabriel's Brook and onto plaintiffs' property. The remaining 3.1 acres would drain away from plaintiffs' property. Hanson acknowledged that the volume of water making its way to plaintiffs' property post-development would be greater than the pre-development volume, but he maintained that the rate at which it would be discharged would be less and in full compliance with DEP regulations.

Hanson stated that, because of the slow discharge rate, forty to sixty percent of any heavy polluting sediments contained in the water would not exit the basin, but would settle on the bottom of the basin for later manual removal. He noted that this percentage complied with DEP regulations. While fine particles and a significant percentage of nutrients, such as fertilizers, would exit the basin. Hanson represented that the resulting water quality would still meet DEP standards. As of trial, The Ridge had obtained approval of a revised preliminary site plan from the Borough, Woodcliff Lakes and Bergen County and received the necessary stream encroachment permit from the DEP and permits to build the detention basin.

Plaintiff, Katherine Kliever, now retired, has an MBA and worked during her prior twenty years of employment as manager of the office for the chairman of ITT, where she was responsible for gathering all relevant information so that the chairman could make knowledgeable decisions. She stated that it was her practice to examine transactions to see where any "pitfalls would be." Katherine further stated that she had previously been involved in the purchase of eight homes.

On August 3, 2001, Katherine, as a potential buyer, toured the home that had been built on Sterlington's property. Roscoe, who escorted Katherine during the visit, pointed out the two streams on the property that were clearly visible from the second floor of the home. Katherine confirmed that she was not bothered by these streams because they were to feed the pond, a property feature she and her husband specifically wanted. Roscoe also told Katherine about the townhouses that were to be built on the Tice property. Katherine informed him that she was aware of the project. However, Katherine claimed that, while she knew about the project, she was unaware that The Ridge was not going to utilize sewers to get rid of storm water.

At the end of the visit, Katherine picked up a sales brochure and requested a site plan. According to Roscoe, Katherine stated that she wanted the plan because she and her husband were very thorough and wanted to know all the details. Roscoe then provided Katherine with a copy of the site plan the next day.

Roscoe claimed that the site plan he gave to Katherine was prepared in early 2001 by Conklin Associates and entitled "Plot Plan & Partial Asbuilt Lot 22 - Block 1202." This plan depicted two drainage easements--the 1965 ditch and a "proposed 30' drainage easement" adjacent to lot 5. It also depicted the landscaping on the site. Roscoe claimed that he advised Katherine to contact either the engineer who had prepared the plan or the Borough Engineer if she had any questions, and she informed him that she already had.

Katherine, however, insisted that Roscoe merely gave her a planting schedule that contained a reference to the 1965 easement but not the proposed new easement. She further indicated that, while the "planting schedule" actually identified the Tsoukas ditch as a "drainage easement 30' wide," she never thought of it as other than a stream. She did not realize before signing the eventual purchase contract with Sterlington that it was a drainage easement.

On August 6, 2001, after consulting with her husband and visiting the property several more times, Katherine negotiated a sales price for the property of $2,325,000. On Roscoe's recommendation, she subsequently retained Honig to represent her and her husband in connection with the purchase of the home. She further claimed that Honig confirmed to her that he was familiar with the property due to his involvement with a prior contract. However, Roscoe denied that Honig had been involved in the earlier transaction.

Katherine met with Honig for the first time on August 10, 2001. She brought with her to the meeting a proposed contract of sale, which contained only a general reference to easements and the landscaping plan. According to Katherine, during the meeting, Honig asked her if she knew about the townhouse development that was going to be built next door, and she said yes. Katherine claimed that she had gleaned this knowledge from newspaper reports and from a real estate broker with whom she had been working. She denied that she went to Borough Hall and looked at any plans. Honig cautioned her about buying next to open land suggesting that "anything can happen."

However, Katherine insisted that she and Honig never discussed the proposed drainage easement, the streams on the property or storm water either at that time or during their subsequent five or six phone conversations. Although Katherine initially conceded that Honig did at some point generally define to her what an easement was, she later insisted that she had no recollection of such a conversation. She maintained that she had "no recollection of [Mr. Honig] ever mentioned the word easement."

According to Honig, however, Katherine brought only the 2001 Conklin Associates plot plan, identified by Roscoe, to their initial meeting. He recalled that he and Katherine specifically discussed this plan, including the pond, the easements and the proposed development on the Tice property, and that he cautioned her about buying next to a vacant lot. He insisted that he told her that a certificate of occupancy would not be granted until the proposed easement was filed. He maintained that Katherine was adamant that she and her husband wanted the property. Katherine's unusually extensive knowledge of the property prompted Honig to think that she had done her own investigation and seen the site plans for The Ridge development. As such, he did not specifically advise her to go to Borough Hall to review the plans on file pertaining to that development. He also knew the plans would still be subject to change.

After this meeting, Honig contacted Sterlington's attorney to inquire about the status of the proposed easement. He subsequently advised Katherine that the easement would be filed before closing. According to Honig, he and Katherine spoke many times about this easement prior to the closing. Honig acknowledged that he did not look at the plans on file for The Ridge development, and he maintained that he had no idea that a detention basin was going to be built on the Tice property. He was aware, however, that the pond was subject to DEP approval and that, as such, safeguards were in place.

Plaintiffs signed a contract to purchase the property from Sterlington on August 28, 2001, for $2,325,000. On November 28, 2001, Sterlington's counsel prepared the deed of easement required by the Board's 1997 resolution from Sterlington, as grantor, in favor of the Borough, as grantee. This deed of easement, which was filed on November 30, 2001, provided that "[t]he purpose of this deed is to create a drainage easement to the Borough of Saddle River to convey the drainage from Lot 5, Block 1202 to the north/south stream component leading to the pond on Lot 22, Block 1202 [plaintiffs' property]." Honig received a copy of the title commitment reflecting this deed of easement on December 4, 2001, and he advised Katherine of his receipt of this document. He also procured a December 5, 2001, survey of plaintiffs' property for mortgage purposes, which depicted this easement.

Plaintiffs closed on the property on December 18 and December 21, 2001. According to Katherine, the word "easement" was not uttered during the closing. Katherine denied that Honig gave her a copy of the survey at the closing or showed her the title commitment dated December 3, 2001. She maintained that she only received the closing statement and the mortgage documents.

Honig, however, recalled that he went over both the survey and the earlier plot plan at closing and that he pointed out to Katherine that the easements were in the same location on both documents. He claimed that he gave multiple copies of the survey to her. They discussed the new easement, and he specifically told her that the easement would accept drainage from the Tice development, although he made no mention of the detention basin of which he was unaware. Roscoe, who was present at the closing, also insisted that the easement was discussed.

Honig claimed that Katherine expressed no concerns. He recalled that, at the request of Sterlington's counsel, Katherine acknowledged the existence of the new easement and the presence of a bypass pipe on the property previously installed by Roscoe, by signing off on a copy of a portion of the plot plan that depicted both features. Although Katherine admitted that she signed off on a copy of a portion of this plot plan, she maintained that she thought that she was simply confirming that a bypass pipe had been removed. However, she insisted that when Sterlington's counsel asked her to sign "just for the record" and Honig offered no comment, she signed the paper that was thrust at her as she was walking out the door. She admitted that she was given a copy of this document to take home, but stated that she never looked at it again.

The precipitating event that prompted further action occurred in June 2002, when plaintiffs discovered that the water in their pond had turned brown. Katherine met with the Borough Engineer who advised her that soil remediation was taking place on the Tice property. Katherine requested that the Borough stop the silt from polluting her pond but received no relief. She consulted an attorney who asked to see the survey of and any other documents pertaining to her property. She subsequently wrote to Honig in early July, asking for the original purchase contract, the closing statement, the title commitment and any DEP surveys or permits in his possession.

By fax dated July 10, 2002, Honig advised her that he did not have the "original DEP documents or surveys" but that Conklin Associates could provide them. He did forward to her a copy of the 2001 deed of easement and a 2001 letter from the title company advising that the easement was being added to the title commitment. She did not receive a copy of the final title policy from Honig until September 2002. She also secured from Conklin a copy of the "As-Built Survey Plan" dated December 6, 2001, which depicted the 2001 easement.

At trial, Katherine denied that she ever saw, until trial, the December 5, 2001 survey prepared for her and her husband in connection with their mortgage. She believed that she was intentionally deceived from the beginning by Sterlington and Honig and that Honig had in no way protected her interests. Both she and John indicated that they would not have bought the home had they known of the easement and the effect it would have on their property.

Following Katherine, the judge heard from a series of experts. Attorney Dennis Gonski, an expert in title matters, opined on behalf of plaintiffs that easements are read literally and are restrictively construed. He claimed that if the at-issue easement was to receive drainage from lot 6, it should have said so. He further asserted that the language of the easement did not authorize the proposed construction within its bounds. He conceded, however, that the 1997 resolution requiring the easement did mention the future detention basin. Yet, Gonski found this to be more proof that the easement language should have been more specific or complete.

Attorney Juan Ryan, The Ridge's title expert, challenged Gonski's opinion and concluded that it was irrelevant that drainage from lot 6 was not specifically mentioned in the easement. He stated that it was clear from all of the plans on file that there was one drainage plan encompassing both of the Tice lots. Ryan found it incomprehensible that the Board would have approved an integrated drainage plan and then acquired an easement that benefited only lot 5. Ryan further maintained that, even if the easement were construed as limited to lot 5, drainage from lot 6 could still be included as long as there was no substantial, unreasonable impact on plaintiffs' property.

Barry Krauser, a real estate appraiser, opined on behalf of plaintiffs that the purchase price of the home in December 2001 accurately reflected its fair market value at that time without the 2001 easement. Krauser did not believe that the 1965 easement in any way affected the value of the property but claimed that the existence of the 2001 easement with the proposed large concrete structure would have an unspecified negative effect on the value of the property.

In his report dated October 16, 2005, Krauser also valued plaintiffs' property as of December 21, 2001, with the 2001 easement. However, because Krauser relied upon an excluded report dated October 14, 2005, prepared by plaintiffs' engineering expert John Thonet, in preparing this valuation, he was not permitted to testify regarding this lower valuation. The reduction urged by Krauser was not for a general loss in value due to the easement, but for the cost to remediate ("cure") the property as per Thonet. In his report, Krauser noted that he was assuming that The Ridge would gain all necessary approvals to move ahead with its development at some point in the future. He also made the "extraordinary assumption" that the costly and complex "cure" proposed by Thonet would be approved and permitted by all necessary governing bodies. Krauser conceded, in his report, that a re-evaluation would be necessary if these events did not come to pass.

Real estate appraiser Joseph Perna opined on behalf of defendants that he agreed with Krauser that plaintiffs' property was worth $2,325,000 in December 2001. He likewise agreed with Krauser's conclusion (to which Krauser did not testify) that plaintiffs' property had increased in value to $3,500,000 as of October 2005. However, Perna maintained that the 2001 easement did not reduce the value of the property. He conceded that the headwall could be unsightly, but insisted that if it were visible only from the more northerly of the two bridges on plaintiffs' property and obscured to some extent with vegetation, it would not be problematic in the way energy or phone towers would be.

Plaintiffs proffered attorney William Voorhees as an expert in legal malpractice. He concluded that Honig had a duty to perform a diligent investigation into the nature and extent of the drainage easement and the neighboring development both prior to the time the contract was signed and when he received the amended title binder in early December 2001. He violated his duty of care when he failed to do so. According to Voorhees, Honig further violated his duty to plaintiffs when he failed to thoroughly explain the easement and its potential disadvantages to them. In Voorhees' view, the easement was a "red flag," i.e., trouble waiting to happen. Voorhees believed that these deviations by Honig denied plaintiffs the opportunity to walk away from the property. He conceded, though, that he was not aware that the property had recently been appraised for fifty percent more than the purchase price.

Attorney Harold Ritvo served as Honig's expert. Ritvo noted that the 2001 easement appeared on the survey commissioned by Honig and presented to plaintiffs at the closing. The easement and its implications were very clearly depicted on this survey. The easement itself was attached to the amendment to the title report, which was also presented at closing.

According to Ritvo, Honig was obligated to advise plaintiffs of the existence of the easement and explain its significance, i.e., that water would be drained through it and that there could be no construction within it other than by the holder. In Ritvo's view, assuming Honig so advised plaintiffs prior to the closing, he satisfied his duty to them. Ritvo acknowledged that if no survey had been presented to plaintiffs at the time of closing, this would have constituted a violation of the duty of care.

II.

A.

On appeal, plaintiffs assert that the judge erred and abused his discretion in refusing to permit expert witness, John Thonet, to testify as their engineering and damages expert in accordance with any of his various reports. This argument implicates issues of "best practices," and our analysis requires a review of the facts and procedural history relevant to the exclusion of Thonet's testimony.

Prior to the filing of the complaint on April 26, 2004, plaintiffs retained Thonet to assist them in opposing The Ridge's stream encroachment permit application. On October 19, 2004, Thonet wrote a letter to plaintiffs' counsel in connection with plaintiffs' appeal of the stream encroachment permit granted by the DEP to The Ridge. In this letter, Thonet stated that his review of The Ridge's Stormwater Management Report, which had been prepared by Hanson and submitted to the DEP, indicated that "the proposed project [did] not meet the applicable stormwater runoff rate reduction requirements" for ten-year and 100-year storms. Thonet also emphasized that Hanson's plan "would significantly increase the area of the project site" draining to plaintiffs' property. He noted that this increased water would contain pollutants and would adversely affect the water quality of plaintiffs' pond. Thonet did not identify the cost to cure any potential problems experienced by plaintiffs. This letter was subsequently converted into a certification signed by Thonet on October 26, 2004, which was submitted to the court in opposition to The Ridge's unsuccessful motion for partial summary judgment.

By order dated December 17, 2004, the pretrial judge extended discovery from the original deadline from November 7, 2004 to March 6, 2005. In this order he expressly noted that, in view of the established June 7, 2005 trial date, all further discovery extensions would be subject to the exceptional circumstances standard.

On February 25, 2005, The Ridge deposed Thonet. In April 2005, plaintiffs provided their answers to the interrogatories served by Honig and several other defendants. Plaintiffs attached Thonet's October 19, 2004 letter as an exhibit to the answers provided to Honig, but noted that the report of Amy S. Greene Environmental Consultants, Inc. (Greene) would be supplied. The Thonet letter was not provided to The Ridge since The Ridge had not served any interrogatories.

By order dated May 13, 2005, the judge extended discovery to September 10, 2005, and adjourned the June 7, 2005 trial date. Following a case management conference on June 7, 2005, he extended discovery for the third time to January 8, 2006, with the proviso that plaintiffs provide all their expert reports by August 15, 2005, and that the depositions of all experts be completed by October 31, 2005. Although plaintiffs had secured a new letter report from Thonet dated June 7, 2005, they failed to serve it or any other expert reports on any of the parties during the requisite time period. In this June 7, 2005 letter, Thonet reiterated that the potential negative impacts of The Ridge's proposed use of the easement included increased volumes of stormwater runoff, degraded pond water quality, increased pond maintenance and decreased aesthetics. Thonet did not address the issue of runoff rates, noting that both the Borough and the DEP had approved the project's stormwater management system. Thonet also did not identify the cost to cure any potential problems experienced by plaintiffs.

In August 2005, plaintiffs moved to amend the case management order in order to allow the service of certain expert reports by October 15, 2005. Specifically, in a supporting certification, plaintiffs' counsel represented as follows:

2. Under the current case management order, plaintiffs are to have served all expert reports by August 15, 2005. For the reasons set forth below, plaintiffs request an extension of that deadline until October 15, 2005 due to unanticipated circumstances.

3. As noted in previous submissions to this court, this complex matter involves several different causes of action against the various defendants, including legal malpractice, breach of contract, negligence and fraud. To date, plaintiffs have served lengthy expert reports by SESI Engineering and by the EIC Group regarding the claims of construction deficiencies, and Thonet Associates regarding stormwater management issues.

4. Plaintiffs have retained an expert with regard to the legal malpractice claim, which is based on their closing attorney defendant Honig's failure to advise the plaintiffs of the drainage easement on their property. In order to serve such a report, plaintiffs must have the benefit of defendant Honig's and his paralegal's deposition testimony, which is crucial to the malpractice issues here.

5. Said defendant's deposition was noticed in June and again for this past week, but was adjourned with no date certain. The cause has been by and large the parties' and counsel's summer vacation schedules, but compliance with the Court's discovery schedule is becoming increasingly unlikely. Second notices for the other defendants' depositions over the next two weeks remain pending.

6. Secondly, the nature of plaintiffs' damages for nondisclosure of the drainage easement requires the services of an expert real estate appraiser. Although plaintiffs' counsel previously obtained the services of such an expert in a timely manner, plaintiffs have been unable to produce a report due to that expert's sudden and inexplicable refusal to cooperate with plaintiffs['] counsel or to respond to multiple phone calls, faxes and letters. Thus, a new appraisal expert has been obtained who advises he cannot complete his report until October. Moreover, defendant Ridge is not making its documents available for inspection until next week. These are highly germane to the questions the appraisal expert is to answer since they pertain to the drainage easement and its excess stormwater burden.

7. Although plaintiffs' counsel is acutely aware that the discovery period has been previously extended in this matter, the present unforeseen circumstances necessitate the within application.

Plaintiffs' motion was heard and granted on September 12, 2005, by the civil presiding judge, who directed that a proposed form of order be submitted to the court. However, the parties were unable to reach a consensus regarding the provision pertaining to the submission of plaintiffs' expert reports. Plaintiffs' proposed order simply stated that it was "FURTHER ORDERED that plaintiffs' experts' reports are to be served by October ___, 2005," while The Ridge insisted that the extension had been granted only with respect to plaintiffs' legal malpractice expert's report and the report of their appraiser.

Prior to a case management conference scheduled to resolve this issue, plaintiffs served, under cover letter dated October 14, 2005, four expert reports that were received by defendants on October 17, 2005, two days past the October 15, 2005 deadline. These included: (1) an "updated" report from Thonet dated October 14, 2005, which was essentially Thonet's June 7, 2005 letter, which had never been served on any party, together with extra pages setting forth a proposed engineering solution for the perceived drainage problem on plaintiffs' property and identifying an $850,000 cost to implement this solution; (2) a report from Greene dated July 1, 2004; (3) a report dated September 9, 2005, from Peter Engel, P.E., regarding alleged structural defects in plaintiffs' home; and (4) a report dated October 12, 2005, from Clag Haglet, P.E., also pertaining to alleged structural defects in plaintiffs' home. Shortly thereafter, plaintiffs apparently served the expert reports of their legal malpractice expert, Voorhees, and their appraiser, Krauser, who relied upon "cost to cure" set forth in Thonet's October 14, 2005, report in valuing plaintiffs' property.

At the conference on November 1, 2005, plaintiffs' counsel not only insisted that his proposed form of order was appropriate, but claimed that the four expert reports received by defendants on October 17, 2005, while untimely, were otherwise not violative of even The Ridge's proposed form of order. He represented that, in order to assist his appraiser in assessing the current value of the subject property, he had asked Thonet to come up with a hypothetical engineering solution for the alleged drainage problem. He maintained that the remainder of Thonet's report was nothing more than "a reiteration of a report that he previously submitted." Plaintiffs' counsel further represented that the reports from Engel and Haglet were merely rebuttal reports. He made no specific comment regarding the Greene report.

The judge determined that the proposed Ridge order "most closely tracks what we spoke about, what the court was prepared to sign if we had an order that day." The judge stated that it appeared that, based upon his receipt of a defense expert report, plaintiffs' counsel had discovered certain problems in his case and was now trying to rectify the situation by going forward with other theories. The judge was not inclined to facilitate this change in the course of the litigation.

The judge subsequently issued an order dated November 1, 2005, which specifically provided that

[p]laintiffs' expert reports relating to legal malpractice issues and to valuation issues shall be supplied by no later than October 15, 2005 (as plaintiff [sic] has already supplied its reports as to other theories of recovery against Sterlington Properties, Inc., The Ridge at Saddle River, L.L.C., Jeffrey Roscoe and East Hill Properties, Ltd.) and has agreed not to seek to file further reports except as set forth for the above.

On March 10, 2006, plaintiffs moved before the civil presiding judge to amend the November 1, 2005 case management order to provide for the submission of additional expert reports. At this hearing, plaintiffs' counsel argued that the Greene report should not be excluded because it was commissioned in connection with the DEP proceeding and was largely factual in nature rather than an "expert report in the classic sense" suitable to "lay a foundation for . . . a breach of standards." He stated that he intended to rely upon it in connection with the count of the complaint alleging faulty soil remediation on the Tice property. With respect to the Thonet report, plaintiffs' counsel conceded that it should have been submitted earlier. He further conceded that he advised the court in September 2005 that he had previously served a stormwater management report from Thonet. He explained, however, that at the time of the September 2005 hearing, he had been under the mistaken belief that Thonet's June 7, 2005 letter report had been supplied to defense counsel. Counsel insisted, though, that regardless of his error, there was no prejudice to defendants in permitting him to rely upon Thonet's October 2005 report. "[D]efendants" had definitively received Thonet's earlier certification of October 2004, which contained most of the findings set forth in the June 2005 and October 2005 reports. Notably, counsel did not, in either his oral presentation or his certification in support of his motion, address the fact that Honig was never served with Thonet's 2004 certification.

The judge denied plaintiffs' application, stating:

The way I see this case is as follows. It comes down to the fact that there was a case management conference held on September 12th. And at that CMC, counsel for the plaintiffs made specifically clear representations that all they needed to serve late . . . was [sic] the expert reports relating to legal malpractice and appraisal, and I remember that distinctly. And counsel for the plaintiffs argues that he was unprepared [at] the case management conference and supposedly did not know the state of his expert's reports.

Notwithstanding, counsel submitted a certification a few weeks later reiterating his standpoint on expert reports.

After September 12th after that conference plaintiffs' counsel and all the defendants' counsel could not agree on a form of order memorializing that case management conference. Thus, the settlement conference that was scheduled for November 1st, I . . . set down the proper form of order for the September 12th case management conference. And at that case management conference, counsel for the plaintiffs attempted to argue the basis for the submission of the four new reports. Plaintiffs' counsel made essentially the same arguments then as he has made today, that the two reports are essentially rebuttal reports. One report is basically a reiteration of an already-served report.

. . . .

In his December 17th order, Judge Miller stated that any subsequent extensions of discovery would require a showing of exceptional circumstances. Here, well over a year later[,] . . . plaintiff is attempting to [extend] discovery for a fifth time. A reading of the November 1st, 2005 transcript makes it clear to me that these issues were already before the Court and counsel for the plaintiff cannot now argue that the submission of the late expert repo[r]ts is critical to his case.

Counsel fails to make a showing, in my opinion, of exceptional circumstances. Counsel's moving papers suggest he was unaware of the state of his plaintiff's expert reports at the time of the September 12th, 2005 case management conference. The Court does not consider this to be sufficiently exceptional under Rule 4:24-1(c) to warrant yet another extension of discovery which would further prolong this already protracted litigation. Although there is no pending trial date, the Court is mindful of the fact that this case [was] . . . listed for trial once over nine months ago. . . .

But nonetheless, I make that a part of the record and part of the reasons why we are deciding what we are doing here. And it seems to me the plaintiffs' proper recourse for relief from the case management order of November 1st would have been to file a motion for reconsideration under Rule 4:49-2 not more than 20 days after the service of the order.

Plaintiffs' counsel then inquired whether the court was barring Thonet as an expert in all respects, noting that he had provided The Ridge with Thonet's October 2004 certification. The court ruled that a certification was not a report and that Thonet could not testify to this certification.

Upon inquiry as to whether the barred expert could testify as a fact witness, the judge responded that the trial judge would have to conduct a preliminary hearing to determine what facts could be presented by these witnesses. The judge ultimately entered an order that provided, in pertinent part, that plaintiffs' application was denied and that the report of Thonet dated October 14, 2005, and that of Greene were barred. On plaintiffs' motion for reconsideration, counsel pointed out that Honig's expert had been provided with Thonet's May and October reports but clearly not the June 2005 report at issue. The judge denied the motion for reconsideration.

Midway through the trial, on June 20, 2006, plaintiffs' counsel announced his intention to call Thonet as a witness and requested that Thonet be permitted to testify in accordance with his May 2005 reports and his October 2004 letter and certification. He represented that the May 2005 reports had been provided to Honig, and that the October 2004 letter had been supplied to both parties prior to August 15, 2005. Judge Smith ruled that plaintiffs' counsel had not demonstrated exceptional circumstances or due diligence and that he was not going to disturb the earlier rulings barring Thonet's testimony.

Rule 4:24-1(c) provides that "[a]bsent exceptional circumstances no extension of the discovery period may be permitted after an arbitration or trial date is fixed."

In order to extend discovery based upon "exceptional circumstances," the moving party must satisfy four inquiries:

(1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

[Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.) (citing Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)), certif. denied, 185 N.J. 296 (2005).]

In making a request for additional time for discovery, an attorney must demonstrate that he or she made "effective use" of the previously allotted time. Ibid. "A failure to pursue discovery promptly, within the time permitted, would normally be fatal to such a request." Ibid. We will defer to a trial court's disposition of discovery matters unless the court has abused its discretion or made its determination "based on a mistaken understanding of the applicable law." Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 559 (1997).

"[T]he Best Practices rules were intended to counteract an unfortunate and increasingly dilatory, casual and desultory approach by some members of the bar to their litigation responsibilities . . . [.]" Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003). However, the Best Practices rules were "not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to 'secure a just determination.'" Ibid. (quoting R. 1:1-2). See Tynes v. St. Peters Univ. Med. Ctr., ___ N.J. Super. ___ (App. Div. 2009) slip. op. at 14.

Plaintiffs contend that, because expert engineering and damages testimony was essential to their case, "the trial judge's bar of [Thonet's] testimony resulted in a manifest injustice" to them. Specifically, plaintiffs contend that the lower court erred in refusing to permit Thonet to testify in accordance with the "reports" supplied to defendants prior to August 15, 2005. Alternatively, plaintiffs insist that the lower court should not have taken the "draconian" measure of excluding Thonet's October 14, 2005 report because the discovery end date had not yet been reached nor the trial date set. There was time for defendants to have re-deposed Thonet, and The Ridge's "dilatory conduct with respect to producing discovery contributed to the delay in serving an expert report." Lastly, plaintiffs contend that, "[e]ven if arguendo counsel had erred in some fashion" with respect to discovery, they should not be penalized for any such mistakes. We disagree.

In making their argument, plaintiffs disregard the fact that there was an original trial date of June 7, 2005, and that the pretrial judge had specifically decreed that all discovery extensions after March 6, 2005, be reviewed under the exceptional circumstances standard. Notwithstanding this exacting standard, plaintiffs were granted numerous extensions of the deadline for the submission of their expert reports. And yet, despite this leniency, plaintiffs only managed to serve Thonet's October 19, 2004 letter on Honig and Thonet's October 26, 2004 certification on The Ridge. While plaintiffs did also serve Thonet's May 2005 reports on Honig, these were not expert reports with respect to this case. They were prepared in connection with the DEP litigation. Plaintiffs failed entirely to serve Thonet's June 7, 2005 report, which evidently was intended to be the report upon which his trial testimony would be based. They then attempted to serve this report, augmented with an entirely new, complicated and costly ($850,000) engineering solution to plaintiffs' alleged drainage problems, as Thonet's "updated" October 14, 2005 report. Contrary to plaintiffs' representations, the October 14, 2005 report was clearly submitted in response to perceived deficiencies in plaintiffs' case, i.e., the failure to serve Thonet's June 7, 2005 report and Krauser's inability to calculate damages since plaintiffs' property had actually appreciated substantially since its purchase in 2001. This was an entirely new theory of damages first introduced at a point beyond the discovery period.

Plaintiffs are also incorrect in their assertion that The Ridge was dilatory in producing discovery and that this contributed to the delay in serving their expert reports. At the November 1, 2005 hearing, counsel for The Ridge established that he had, in fact, previously provided all requested documents to plaintiffs' counsel in a timely manner.

We do recognize that Thonet's identity as an expert was established well-before the report issue arose, and while we might disagree with the judge's barring his testimony in its entirety, any error was harmless.

All of this was not fatal to plaintiffs' case. The alleged error of barring Thonet goes only to plaintiffs' case against Honig since Honig was the only defendant from whom plaintiffs were seeking monetary damages. Since we affirm Judge Smith's finding that Honig did not breach his duty to plaintiffs, as well as his finding that there was no proximate cause, the issue of damages - Thonet's the "cost to cure" - is irrelevant. Honig is the focus of the damage claim, and the judge never reached that issue in determining the malpractice cause of action. Plaintiffs failed to meet their burden as to liability; exclusion of an element of damages is of no moment.

In sum, we reject plaintiffs' argument that reversible error occurred when the lower court refused to permit Thonet to testify as their engineering/damages expert in accordance with any of his various reports.

B.

Plaintiffs next contend that The Ridge failed to meet its burden of proof as to the valid creation of the 2001 easement. Noting that the transfer of a real property interest by deed requires acceptance of the deed by the grantee, H.K. v. State, 184 N.J. 367, 382 (2005), plaintiffs argue that it was unlikely that the Borough accepted the easement since its location was misidentified in the deed, and the Borough might not have wanted to be responsible for any required maintenance.

As we previously noted, the Board conditioned the Salernos' approval to perform the excavation needed to develop the subject property upon the granting of an easement in favor of the Borough. The Board then directed The Ridge to utilize this easement for its drainage purposes.

In the first count of their complaint, plaintiffs sought a declaratory judgment against the Borough stating that the easement was null and void because the Borough had been without the legal right to require its conveyance and because plaintiffs had no notice of its existence prior to the closing.

In March 2005, the Borough moved for summary judgment, arguing that plaintiffs had failed to make out a cause of action. The judge granted the Borough's motion, finding that the resolution requiring the easement had been lawfully filed before plaintiffs purchased the property and that plaintiffs were estopped from arguing lack of notice since they admitted that the recorded easement was reflected in their pre-closing title binder.

On May 19, 2006, five days before trial began, plaintiffs sought to admit a report dated May 9, 2006, from their title expert, Gonski, wherein Gonski concluded, among other things, that according to the metes and bounds description contained in the deed of easement, the 2001 easement was not situated on plaintiffs' property and that, as such, The Ridge was not entitled to construct its pipe and headwall on plaintiffs' property, and there was no need for a ruling on plaintiffs' declaratory judgment action against The Ridge. Gonski also opined that there had not been acceptance of the easement by the Borough.

The judge ruled that, in view of the discovery orders entered in this case with respect to the submission of expert reports and plaintiffs' failure to raise these issues before, they would not be permitted to rely on Gonski's belated opinions as to the actual location of the easement and whether the Borough had accepted the easement. In the judge's view, plaintiffs' attempt "[t]o raise such . . . issue[s] on the eve of trial in an impermissible report does not justify a termination of this proceeding." The judge further observed that, in his view, the alleged erroneous metes and bounds description was nothing more than a scrivener's error, since it was clear from the history connected with the development of these properties, the maps depicting the various waterways on the properties, the numerous filed plans and the language of the resolution and the deed of easement that the easement was always intended to be situated on plaintiffs' property. In his final decision at the conclusion of trial, Judge Smith did not comment upon these issues other than to note that "[a]lthough that deed sets forth an inaccurate [metes] and bounds description, that description is not the source of the problem in this case."

Plaintiffs contend that the proofs submitted by The Ridge failed to establish the validity of the at-issue easement since the Borough would not likely have accepted a misidentified easement or one with potential maintenance issues and pollution problems. However, as we have noted, plaintiffs were barred from raising these contentions below and they have not appealed from Judge Miller's order of May 19, 2006. As presented by plaintiffs, this argument has no merit and does not warrant further discussion.

Plaintiffs also contend that the lower court erred in entering a declaratory judgment permitting The Ridge to drain, not just lot 5, but lots 6 and 1 through the 2001 easement and also to build a large concrete headwall fifty-five feet inside of plaintiffs' property line. We disagree.

In his decision, Judge Smith initially observed that it was highly unlikely that the Board, when it adopted condition eight in its resolution approving the construction of plaintiffs' home, differentiated between lots 5 and 6 because, if it had, it would have referred to lot 5 rather than the Tice property. The judge was of the view that the Board knew that the Tice property would be developed. Thereafter, Judge Smith went on:

In this case it seems clear that the intent of both the Planning Board in 1997, [and Sterlington] . . . in 2001, was clearly to permit drainage from both lots, five and six. Any other conclusion would be illogical. And despite the ostensible clari[t]y of the language contained in the deed, I do find that there is an ambiguity. Reference to drainage from lot five does not foreclose drainage from lot six onto lot five.

[Sterlington's counsel] had to know that the plans called for, because they were already prepared, diversion of water from lot six to the detention basin on lot five. He clearly did not intend to draft an instrument which, by its literal terms, could be construed to defeat the plans which had already been prepared.

The deed of easement, if limited to water draining from lot five, would be inconsistent with the intent of the Planning Board's 1997 resolution and all parties were on notice of that. And that resolution mandated an easement for drainage from the Tice property, not limited to lot five. He intended to encompass the drainage from lot six that would be diverted to or would naturally flow onto lot five.

Reference to lot five in the deed of easement does not tell us, at least definitively, whether drainage emanating from lot six was intended to be included and, hence, raises an ambiguity.

I might add that one could not limit the easement to water emanating solely from lot five. That would be an impossibility since water would naturally flow from lot six onto lot five.

I can only conclude that the intention of the parties so far as the easement is concerned clearly and without any question was to permit drainage from lots five and six. Reference to lot five was intended to refer to the direct source of water which was to be diverted . . . across plaintiff's property into the pond . . . .

That conclusion necessarily comes from a consideration of the objectives of the parties, the surrounding circumstances, the physical conditions and the character of the property. Any other interpretation would not make sense.

Furthermore, I should note that there is absolutely no evidence in this case that any drainage from lot six into the detention basin . . . would be of any significance. The quantum of water would not appear to be particularly significant.

I refer back to what I said before, and that is that this is a 68 townhouse development. Parcel six is significantly smaller. . . . Six to eight of the 68 units are positioned on lot six.

Furthermore, were there a reason for excluding water from lot six or precluding water from lot six to be diverted into the drainage basin, the same pipe and same head wall in the same location would be constructed. In fact there was no evidence in this case that the easement or the drainage pipe or the head wall would negatively affect the value of the servient estate to any significant degree. There was no testimony that the volume of water traversing plaintiff's property would be increased as a result of including water emanating from lot six. Including lot six will have a minimal impact on plaintiff's property insofar as drainage is concerned, particularly in light of the fact that the flow or rate of water will be controlled by the Ridge.

. . . .

I might also note, as I think [counsel for the Ridge] pointed out in his closing arguments, if water from lot six . . . were not diverted to the detention basin a quantity of the water would still migrate or flow to plaintiff's property via the San Gabriel's Brook or otherwise, and would do so without filtering for foreign material.

Judge Smith further found that maintenance of the basin would minimize any problems with the quality of the discharged water, that there was no evidence that a smaller pipe or headwall would serve The Ridge's purposes, that there was no testimony indicating that plaintiffs' property would suffer severe erosion as a result of the proposed plan and that there was no testimony regarding the amount by which the property would be devalued because of the presence of the headwall. Regarding aesthetics, the judge noted that he had visited the site and was able to reach the following additional conclusions:

Much of the property to the rear of the head wall is heavily wooded. Any trees removed during construction would be replaced. The drainage area and the area of the proposed head wall is sharply sloped, sloped in the order of 45 degrees . . . . I did find it difficult and did tend to slip . . . trying to climb up out of the stream area . . . . And that portion of the property is not usable property.

Large trees situated on the side of the house seemingly . . . will block any view of the head wall once it's constructed, and any view of the pipe. While the head wall will be visible from the bridge and areas to the right of the bridge, it is not visible from the area in front of the house, and will not significantly detract from the beauty associated with the house and property

. . . .

Due to the beauty of the property, due to the sheer impressiveness of the exterior of what I'll refer to as [plaintiffs'] mansion, as well as the impressiveness and beauty of the large pond, and it is quite a large pond which possesses a foun[tain], in my opinion a visitor to the property would focus on the house and pond. . . . And I do not envision that the head wall or pipe will

detract from the beauty of the property or significantly affect value.

Judge Smith rejected the notion that there was a reasonable likelihood of damage to plaintiffs' property or that plaintiffs' property would be burdened to a extent greater than that intended at the time of the creation of the easement and entered a declaratory judgment in accordance with The Ridge's interpretation of the easement as encompassing the drainage from both lots 5 and 6.

The findings on which a judgment is entered in a non-jury case are not to be disturbed unless a manifest denial of justice would result from their preservation. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff'd o.b., 78 N.J. 320 (1978). We will disturb these findings only where there is no doubt they are inconsistent with the relevant, credible evidence presented below. Rova Farms Resort, supra, 65 N.J. at 484. In other words, "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Ibid. It is of no consequence that the reviewing court suspects that it might have reached a different result, or that all testimonial or evidentiary issues were resolved in favor of one side. State v. Johnson, 42 N.J. 146, 162 (1964).

When determining the rights of an easement holder vis- -vis the landowner, it is not necessary to go any further than to the language of the easement itself, if that language is plain and unambiguous. Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957). Where, however, the language of an easement is ambiguous, all "surrounding circumstances, including the physical conditions and character of the [property] and the requirements of the grantee" must be considered in determining the rights of the parties. Boss v. Rockland Elec. Co., 95 N.J. 33, 39 (1983) (citations omitted). Generally, however, an ambiguous easement should be construed against the grantor. Hyland, supra, 44 N.J. Super. at 187.

There is, arising out of every easement, an implied right to do what is reasonably necessary for its complete enjoyment. Boss, supra, 95 N.J. at 38. That right however, may only be exercised in a "reasonable manner as to avoid unnecessary increases in the burden upon the landowner." Ibid. (quoting Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964)); accord American Rieter Co. v. Dinallo, 53 N.J. Super. 388, 393 (App. Div. 1959) ("the servient tenement is not to be subjected to a greater burden than the parties contemplated at the time the easement was created").

Plaintiffs argue first that the trial judge erred in concluding that the 2001 easement was intended to accept the flow from a detention basin servicing not only lot 5, but lots 6 and 1 of the Tice property. According to plaintiffs, all that was actually envisioned by the Board when it required the easement was "simple drainage, as originally defined similar to that of the [1965] drainage easement traversing their property . . . [.]"

Plaintiffs ignore the fact that the condition to the Board resolution approving the construction of their home specifically provided that the required easement would "remove the Tice drainage from any future detention pond." (Emphasis added). The Board anticipated that engineered, rather than simple or natural, drainage would take place on the easement and that piping and a headwall structure would be needed. Indeed, plaintiffs' own expert, Gonski, conceded that the 2001 easement was for "development" purposes.

Additionally, contrary to plaintiffs' representation, there was no testimony indicating that lot 1 drainage would reach the detention basin. Moreover, as set forth by Judge Smith in his decision, there is ample evidence that lots 5 and 6 were viewed as a whole by the Board and that it would be illogical to limit the scope of the easement to the drainage emanating from lot 5; moreover, the additional drainage from lot 6 is minimal.

Plaintiffs also argue that the lower court's decision improperly authorizes The Ridge to build its headwall fifty-five, but rather than thirty feet within their property. However, as we have noted, the 2001 easement is roughly forty-two feet long and connects with the 1965 easement. In any event, plaintiffs failed to raise the issue of whether The Ridge was permitted to construct its headwall thirteen feet within the 1965 easement until the second to last day of trial. At that time, Judge Smith ruled that, because this issue had been so untimely raised, plaintiffs would be precluded from injecting it into the case.

We conclude that the judge appropriately addressed the issues focusing on the easement and we find no merit to plaintiffs' arguments in that regard. The judge properly entered a declaratory judgment permitting the Ridge to drain, not just lot 5, but lots 6 and 1 through the 2001 easement and also to build a large concrete headwall fifty-five feet inside of plaintiffs' property line.

C.

Plaintiffs next contend that the lower court improperly limited Voorhees' testimony regarding Honig's duty of care. Plaintiffs also argue that the lower court erred by failing to hold Honig to the applicable standard of care and instead concluded that Katherine had the burden of acting as her own attorney.

Legal malpractice is a variation on the tort of negligence. McGrogan v. Till, 167 N.J. 414, 425 (2001). A plaintiff must prove "(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff." Jerista v. Murray, 185 N.J. 175, 190-91 (2005); McGrogan v. Till, supra, 167 N.J. at 425). "[T]he measure of damages is ordinarily the amount that the client would have received but for his attorney's negligence." Gautam v. De Luca, 215 N.J. Super. 388, 397 (App. Div.), certif. denied, 109 N.J. 39 (1987).

The focal issue as to Honig's liability rested in good measure on the credibility of the parties. In defendant Honig's May 2005 answers to plaintiffs' interrogatories, he stated generally that he discussed the drainage easement with plaintiffs in the months leading up to the closing and at the closing itself. However, he also indicated in response to Interrogatory #48 that he "received notification of the drainage easement immediately prior to the closing." Although these answers were later suggested to be inconsistent, Honig explained at trial that he "received final notification that [the easement] was filed" immediately before the closing, but that the easement had been addressed in his prior discussions with plaintiffs.

Plaintiffs' malpractice expert, Voorhees, subsequently relied upon this latter response in formulating the opinions expressed in his October 17, 2005 report. Specifically, Voorhees opined that, upon his receipt of the title report with the November 30, 2001 deed, Honig should have immediately called plaintiffs into his office for a meeting and should have gone over both the document and its implications in "excruciating" detail. According to Honig, "[t]his failure to fully inform [plaintiffs] after receipt of the title binder is a deviation from accepted standards of attorney practice."

Voorhees was also of the opinion that Honig should have explained the significance of the easement deed at the closing. He insisted that Honig deviated by simply handing Katherine a copy of a survey and asking her to acknowledge it. He maintained that Honig was obligated to "thoroughly inform[]" plaintiffs of the "potential draconian consequences to them" which the easement deed created. Lastly, Voorhees opined that, if Honig "knew about the impending filing of these two deeds of easement at or about the time of the contract and did not disclose it to [plaintiffs], he failed miserably in his duty of candor, disclosure, and the duty to keep his clients informed."

Plaintiffs subsequently deposed Honig on January 10, 2006. At this deposition, Honig addressed what became a critical credibility issue at trial and stated that he noted the then-proposed 2001 drainage easement on the site plan supplied by Katherine during their initial meeting in August 2001. He represented that he subsequently spoke with Sterlington's attorney, who advised him that he was in the process of filing the final deed of easement. Honig further confirmed that in early December 2001, he received the amended title commitment which reflected the "the deed of easement concerning the pond."

Voorhees was deposed on February 13, 2006, and offered an additional theory of liability based upon Honig's deposition testimony that he knew of the easement prior to the signing of the August 28, 2001 contract. Specifically, Voorhees opined that Honig deviated by failing to perform a "painstaking" pre-contract investigation into the facts surrounding the easement and The Ridge's construction plans and then failing to thoroughly advise plaintiffs about the potential impact of what he had learned.

At the March 10, 2006 motion, plaintiffs' counsel requested permission to supplement Voorhees' expert report with this new theory of liability. Honig's counsel urged the court to reject plaintiffs' request, pointing out that plaintiffs' counsel was responsible for any perceived deficiency in Voorhees' report since he had failed to depose Honig in a timely manner. After observing that a trial date had been set for May 22, 2006, the judge ruled, "whatever report he submitted, that's the report. Your request to further supplement his report is denied."

During Voorhees' trial testimony, Honig's attorney requested that his testimony be limited to the opinions set forth in his October 17, 2005 report. Judge Smith, however, decided to permit Voorhees to testify in accordance with both his initial report and his later deposition testimony, although he stated that he would revisit the matter after reviewing the prior order.

Voorhees subsequently opined that Honig had a duty to perform a diligent investigation into the nature and extent of the drainage easement and the neighboring development both prior to the time the contract was signed and when he received the amended title binder in early December 2001. He violated this duty of care when he failed to do so. According to Voorhees, Honig further violated his duty to plaintiffs when he likewise failed to thoroughly explain the easement and its potential disadvantages to them.

On August 16, 2006, one of the last days of trial, Honig's counsel moved to strike that portion of Voorhees' testimony that pertained to his updated opinion. Judge Smith observed that the only new theory expressed by Voorhees was that "Honig had a duty to obtain any available information from The Ridge detailing its plans for construction of the subject easement" upon learning of the easement during his meeting with Katherine in August 2001.

Thereafter, Judge Smith noted that Honig's answer to Interrogatory #48 and his subsequent deposition testimony did "seem to be inconsistent and it certainly is readily understandable why Mr. Voorhees would think . . . [Honig's] knowledge of the easement arose shortly after November 30, 2001." However, the judge was troubled by plaintiffs' failure to depose Honig until January 2006 since his deposition had been initially noticed in early 2005. The judge noted that plaintiffs' counsel had offered no explanation as to why he had not taken the steps necessary to compel Honig's deposition before the October 17, 2005 deadline for his malpractice report. The judge concluded that plaintiffs' counsel had not been diligent in pursuing discovery.

Judge Smith further observed that all of the pertinent facts pertaining to the instant application had been presented to the motion judge in March and that it had been within his discretion to deny plaintiffs' application to supplement Voorhees' report. He also pointed out that, at the time of that ruling, a trial date had been set. In view of the foregoing, and because defendant Honig had been denied the opportunity to have his expert consider Voorhees' new theory of liability, Judge Smith granted Honig's motion.

Ultimately, in his decision on the merits, Judge Smith expressly found that the testimonies of Voorhees and Ritvo regarding Honig's duty of care were not "significantly different" and that the determination of whether Honig was negligent turned instead on a resolution of factual issues.

Thereafter, consistent with the testimony of Honig and Roscoe, Judge Smith made a series of critical credibility determinations that impacted directly on Honig's liability. The judge concluded that, contrary to her testimony, Katherine was furnished with a site plan clearly depicting the easement. She subsequently brought the site plan to her first meeting with Honig, and she and Honig discussed the nature of the easement and the proposed development on the Tice property many times thereafter. He further found that, as related by Honig, Katherine was very knowledgeable about the Tice property and, given her background, would have inquired about matters of concern, including common sense matters such as drainage. He noted that Katherine ultimately conceded that Honig warned her of the risks associated with buying next to a large development.

Judge Smith further found that, even if the easement was not discussed until the closing, it was "inconceivable" that it did not come up at that time, noting that Katherine almost admitted to such a discussion during her testimony. The judge was also satisfied that, contrary to Katherine's testimony that she did not see a survey of her property until the trial, the survey was "in front of them at the closing." In sum, Judge Smith was persuaded that Honig had a duty both prior to the closing and then at the closing to discuss the easement with plaintiff, that this duty was discharged and that even if Honig had not discussed the easement with Katherine in August, it would not have mattered since plaintiffs still would have entered into the contract with Sterlington.

Plaintiffs now argue that the rulings of the trial court limiting Voorhees' testimony did not comport with fundamental fairness. According to plaintiffs, they could not have foreseen that Honig would change his story at his deposition and, as such, they presented exceptional circumstances warranting relaxation of the discovery rules. Plaintiffs also fault the motion judge for declining to order Honig's deposition before setting the October 15, 2005 deadline for Voorhees' report. These arguments are without merit.

Once a trial date is set, a request to submit a supplemental expert report will only be entertained by the court where there is good cause and/or exceptional circumstances. Ponden v. Ponden, 374 N.J. Super. 1, 10-11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005); Tucci v. Tropicana Casino & Resort, supra, 364 N.J. Super. 48, 53-54. "A failure to pursue discovery promptly, within the time permitted, would normally be fatal to such a request." Rivers, supra, 378 N.J. Super. at 79 (quoting Vitto, supra, 359 N.J. Super. at 51), certif. denied, 185 N.J. 296 (2005). Absent abuse of discretion, a trial court's disposition of discovery matters is entitled to deference on appeal. Payton, supra, 148 N.J. at 559.

Plaintiffs entirely ignore their dilatoriness in securing Honig's deposition. As noted by Judge Smith, although this litigation was filed in April 2004, Honig was not noticed for deposition until early 2005. At that point, all of plaintiffs' expert reports were due by the previously extended deadline of August 15, 2005. Even if Honig thereafter "evaded" his deposition, a wholly unsubstantiated allegation, plaintiffs had every opportunity to bring a motion to compel his deposition before this deadline. Not only did they fail to do so, but they also did not ask the motion judge to order Honig's deposition prior to the subsequent deadline of October 15, 2005. Plaintiffs' conduct or lack thereof caused the failure to obtain Honig's "unforeseen" deposition testimony at a point in time when Voorhees could have issued a timely amendment to his report or at least before a trial date had been set. In this factual context, the claim of fundamental unfairness is unavailing, and we find no error in limiting the testimony of their legal malpractice expert, Voorhees.

We reject plaintiffs' argument that Judge Smith erred by failing to hold Honig to the applicable standard of care, and by concluding that Katherine had the burden of acting as her own attorney. Judge Smith did, in fact, assess the substance and propriety of Honig's conduct. Plaintiffs disregard the judge's findings that Honig's version of the relevant events was more credible than Katherine's.

The suggestion that the judge imposed a burden of inquiry regarding the specifics of the easement, pre-closing, on Katherine must be considered contextually. "Malpractice in furnishing legal advice is a function of the specific situation and the known predilections of the client." Conklin v. Hannoch Weisman, 145 N.J. 395, 413 (1996). "The care must be commensurate with the risks of the undertaking and tailored to the needs and sophistication of the client." Ibid. Here, in light of Katherine's intelligence, experience and detail-oriented nature, the judge made a legitimate and factually supported finding by accepting Honig's representation that he believed that Katherine had familiarized herself with the particulars of The Ridge's proposed development.

Ultimately, the judge's refusal to consider Krauser's market value testimony or Thonet's cost to cure analysis is rendered moot by the judge's analysis that Honig did not breach his duty to plaintiffs. The judge's findings were supported by the evidence presented, and we perceive of no need to intervene.

Finally, we reject plaintiffs' argument that the judge "imputed" knowledge to plaintiffs regarding the import of the easement and 1997 resolution. Such an argument disregards the substantial factual findings adopted by the judge and specifically his finding that Katherine could have (and would have, had she been concerned) inquired about the origin and parameters of the 2001 easement. These findings were properly predicated upon her admitted familiarity with the proposed development on the adjacent Tice property and his finding that she had been in possession of a site plan depicting the location of the drainage easement. It was also predicated upon his findings that Katherine was an intelligent, detail-oriented person who prided herself on being thorough and that Honig had expressly warned Katherine that there were risks when buying property next to an as-yet undeveloped tract. In sum, although plaintiffs would have it otherwise, it is clear that, as found by the judge, the credible testimony indicated that Katherine was in possession of a significant amount of information regarding the easement, other than the deed itself, which could have been utilized to uncover the particulars of The Ridge's proposed plan for its use.

 
Affirmed.

To distinguish plaintiffs, where relevant, we refer to them by their first names.

Although the length of the easement was not specified in either the resolution or the later deed, defense expert Arthur Hanson, an engineer, estimated that it was forty-two feet in length, and plaintiffs' counsel conceded at trial that "it extends and meets the preexisting [1965] easement."

Sterlington settled with plaintiffs and is not involved in this appeal.

Roscoe is also not a party to this appeal.

A number of different judges addressed pretrial issues, and Judge Smith sat as the trial judge.

Plaintiffs also argue that the Greene report and Greene's expert testimony should not have been precluded. However, not only was the Greene report first supplied to defendants after both the August 15, 2005, and the October 15, 2005, deadlines, but plaintiffs' counsel conceded that this report pertained to the 2002 soil remediation, rather than drainage.

(continued)

(continued)

57

A-1523-06T2

August 4, 2009