DAVISON, EASTMAN MUNOZ, P.A v. DONNA H. CLANCY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1114-19
DAVISON, EASTMAN &
MUNOZ, P.A.,
Plaintiff-Respondent/
Cross-Appellant,
v.
DONNA H. CLANCY and
DERMOTT CLANCY,
Defendants-Appellants/
Cross-Respondents.
__________________________
Argued December 16, 2021 – Decided December 28, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-0834-16.
Vincent P. Manning argued the cause for
appellants/cross-respondents (Manning, Caliendo &
Thomson, PA, attorneys; Vincent P. Manning, on the
briefs).
Meredith Kaplan Stoma argued the cause for
respondent/cross-appellant (Lewis Brisbois Bisgaard &
Smith, LLP, attorneys; Meredith Kaplan Stoma, of
counsel; Jeffrey S. Leonard, on the briefs).
PER CURIAM
Defendants Donna and Dermott Clancy appeal from: a January 25, 2019
order denying their motion to transfer venue; a September 13, 2019 order
denying their motion to reopen discovery; and an October 2, 2019 order and
consent judgment granting plaintiff Davison, Eastman & Munoz, P.A.'s motion
in limine dismissing defendants' legal malpractice counterclaim and entering
judgment in plaintiff's favor. Plaintiff cross-appeals from a May 24, 2019 order
denying its motion for partial summary judgment. We affirm in part and reverse
and remand in part for further proceedings consistent with this opinion.
Defendants retained plaintiff to defend a foreclosure action and reinstate
and modify their mortgage with the bank holding the note on their home.
Defendants entered a repayment plan with the bank, plaintiff's representation
concluded, and thereafter defendants defaulted on the note.
In March 2016, plaintiff filed a complaint against defendants for
nonpayment of legal fees incurred in the foreclosure representation. Defendants
counterclaimed for legal malpractice, alleging plaintiff failed to pursue
counterclaims for fraud and breach of contract against their bank.
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In August 2018, plaintiff filed a motion for partial summary judgment on
grounds defendants' legal malpractice expert report was a net opinion. Two
months later defendants moved to transfer venue, alleging they could not receive
a fair trial in Monmouth Vicinage. They claimed that one of the attorneys
representing plaintiff boasted he could influence the outcome of the case, as he
was married to a judge in the vicinage. Defendants also asserted a judge who
conducted a settlement conference revealed their "bottom line" settlement
number to plaintiff.
The Assignment Judge issued a detailed written decision denying the
venue transfer motion. She found "defendants failed to establish 'substantial
doubt' or any doubt that they will not receive a fair and impartial trial or
hearing." She noted defendants knew about the attorney's relationship to a
vicinage judge and his alleged influence but did not seek a new venue "because
decisions of various judges went in their favor[.]"
The judge found no merit to support defendants' claim that their settlement
position was communicated to plaintiff. She also stated, "based on this
allegation alone, no harm would result in transferring the pending motion to
another judge, and if a trial is necessary, it will not be assigned to [the settlement
conference judge]." The judge concluded "there is absolutely no reason why the
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entire Monmouth County judiciary should be recused from this case [,]" and
entered the January 25, 2019 order.
On May 24, 2019, a different judge denied plaintiff's motion for summary
judgment without prejudice, finding defendants' expert "supplied sufficient
detail and specific reference to authority" and was not a net opinion. The trial
date was set for September 23, 2019.
On August 7, 2019, defendants' expert withdrew from the case, citing his
age and "the stress of court work" on his health. Plaintiff consented to
defendants' request to reopen discovery to allow defendants to obtain another
expert. On August 28, defendants filed a motion to reopen discovery, setting
forth the reasons for the expert's withdrawal, and requesting sixty days to obtain
a new expert report. On September 23, 2019, the same judge who heard the
summary judgment motion denied the motion and wrote on the order there were
"no grounds stated to extend on this 2016 [d]ocket [n]umber."
Plaintiff filed a motion in limine to dismiss defendants' counterclaim for
lack of an expert report. The motion was heard on September 23, 2019, by the
trial judge. The trial judge cited our decision in Cho v. Trinitas Regional
Medical Center., 443 N.J. Super. 461, 470 (App. Div. 2015), which held motions
in limine should not be utilized to extinguish an adversary's case.
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Notwithstanding the holding in Cho, the judge concluded he was bound by the
order denying the request to reopen discovery and found defendants could not
support their legal malpractice claim without an expert. The judge cited the age
of the case and concluded he had no choice but to grant the motion "based on
the failure to have an expert."
The parties subsequently entered a consent judgment on October 2, 2019,
awarding plaintiff $35,000, and dismissing the remainder of the action,
including defendants' legal malpractice counterclaim, with prejudice . The
parties agreed to stay the judgment pending appeal and agreed if the matter were
remanded, the judgment would be void ab initio.
Defendants raise the following points on appeal:
I. THE COURT ERRED IN DENYING
DEFENDANT[S'] MOTION TO ADJOURN THE
TRIAL DATE AND RE-OPEN DISCOVERY TO
ALLOW FOR A SUBSTITUTE EXPERT WITNESS
WHICH WAS NECESSARY TO SUSTAIN THE
DEFENDANT[S'] BURDEN OF COUNTERCLAIM
PROOF.
II. THE COURT ERRED IN DENYING THE
MOTION TO CHANGE VENUE.
III. THE COURT ERRED IN GRANTING
PLAINTIFF'S MOTION IN LIMINE TO BAR
EVIDENCE OF FRAUD BY WELLS FARGO.
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IV. THE COURT ERRED IN DISMISSING
DEFENDANT[S'] COUNTERCLAIM WITH
PREJUDICE.
On the cross-appeal, plaintiff argues as follows:
V. THE TRIAL COURT ERRED IN NOT
GRANTING PLAINTIFF'S MOTION FOR PARTIAL
SUMMARY JUDGMENT.
I.
We review a trial court's decision determining whether to extend a period
of discovery for abuse of discretion. Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 87 (App. Div. 2007). Rule 4:24-1(c) permits an extension of
discovery after the discovery period has closed upon a showing of exceptional
circumstances. Exceptional circumstances are satisfied when the movant can
show:
(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. 2005).]
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We have stated:
In our judicial system, "justice is the polestar and our
procedures must ever be moulded and applied with that
in mind." N.J. Highway Auth. v. Renner, 18 N.J. 485,
495 (1955) . . . . "There is an absolute need to
remember that the primary mission of the judiciary is
to see justice done in individual cases. Any other goal,
no matter how lofty, is secondary." Santos v. Est. of
Santos, 217 N.J. Super. 411, 416 (App. Div. 1986).
. . . For that reason, "[u]nless otherwise stated, any rule
may be relaxed or dispensed with by the court in which
the action is pending if adherence to it would result in
an injustice." [R. 1:1-2(a).]
[Salazar v. MKGC Design, 458 N.J. Super. 551, 557-
58 (App. Div. 2019) (first alteration in original).]
Having thoroughly reviewed the record, we are convinced the refusal to
grant defendants' motion to reopen discovery caused an unjust result.
Exceptional circumstances clearly warranted extending the discovery period.
Defendants were diligent in retaining an expert who produced a report within
the original discovery timelines. Their expert unilaterally abandoned them at
the eleventh hour, through no fault of their own. Defendants acted promptly,
obtained plaintiff's consent to an extension, and filed the appropriate motion.
As the trial judge noted, an expert was essential to defendants' case. Therefore,
all four criterion for exceptional circumstances were met. The judge, in denying
the request to reopen discovery, failed to address the exceptional circumstances
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criterion. His exclusive reliance on the age of the case, in the face of clear
evidence warranting a relaxation of the Court Rules in the interests of justice,
was error.
For these reasons, we reverse the September 13, 2019 discovery order and
remand the matter to the trial judge to set reasonable and firm deadlines for the
completion of discovery so defendants can secure a new expert opinion.
Accordingly, we also reverse the October 2, 2019 judgment dismissing
defendants' counterclaim with prejudice.
We do not address in depth defendants' claims regarding the motion in
limine, except to note that absent the erroneous September 13, 2019 order, the
motion in limine should have been denied because it sought dispositive relief to
extinguish defendants' case. "[W]e have repeatedly condemned the filing or
consideration of in limine motions that seek an action's termination." L.C. v.
M.A.J., 451 N.J. Super. 408, 411 (App. Div. 2017) (citing Cho, 443 N.J. Super.
at 470-71). New Court Rules were recently promulgated to underscore this
point. See R. 4:25-8(a)(1) (defining a motion in limine "as an application
returnable at trial for a ruling regarding the conduct of the trial, including
admissibility of evidence, which motion, if granted, would not have a dispositive
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impact on a litigant's case."). For these reasons, the October 2, 2019 order
granting the motion in limine is reversed.
II.
Defendants' arguments regarding the motion to change venue lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
A change of venue may be ordered by the Assignment Judge "if there is a
substantial doubt that a fair and impartial trial can be had in the county where
venue is laid . . . ." R. 4:3-3(a)(2). The movant bears the burden of
demonstrating good cause for the change. Pressler & Verniero, Current N.J.
Court Rules, cmt. on R. 4:3-3 (2022); see Barlyn v. Dow, 436 N.J. Super. 161,
185 (App. Div. 2014). A change of venue is warranted when there is clear and
convincing evidence that a fair and impartial trial cannot be had in a venue.
State v. Koedatich, 112 N.J. 225, 267 (1988). Decisions relating to a change of
venue will not be disturbed on appeal except upon a showing of abuse of
discretion. State v. Harris, 156 N.J. 122, 144-45 (1998). We reject defendants'
challenges to the January 25, 2019 order denying a change venue and affirm for
the reasons expressed in the Assignment Judge's opinion.
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III.
Finally, plaintiff argues in its cross-appeal that the court erred in not
granting its motion for summary judgment dismissing defendants' counterclaim
on grounds defendants' expert offered a net opinion. Given our reversal of the
order dismissing the counterclaim and conclusion defendants should have the
opportunity to retain a new expert, we do not reach the merits of the May 24,
2019 order denying summary judgment. Plaintiff can decide whether to seek
summary judgment again following the close of discovery.
Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
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