Opinion
DOCKET NO. A-0340-15T3
04-28-2017
ELLEN E. NEVINS, Plaintiff-Appellant, v. GEOFFREY JOHNSON, WILLIAM J. CONWAY, JOHNSON & CONWAY, L.L.C., JACK L. SEELIG and SEELIG & RENDOR, L.L.P. Defendants-Respondents.
Piekarsky & Associates, attorneys for appellant (Scott B. Piekarsky and Mark J. Heftler, on the brief). Margolis Edelstein, attorneys for respondents Geoffrey Johnson, William J. Conway, and Johnson & Conway, L.L.C. (Paul A. Carbon, of counsel; Mr. Carbon and Jonathan P. Holtz, on the brief). Rottkamp & Flacks, attorneys for respondents Jack L. Seelig, and Seelig & Rednor, L.L.P. (Franklin L. Flacks, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Reisner and Sumners. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1668-13. Piekarsky & Associates, attorneys for appellant (Scott B. Piekarsky and Mark J. Heftler, on the brief). Margolis Edelstein, attorneys for respondents Geoffrey Johnson, William J. Conway, and Johnson & Conway, L.L.C. (Paul A. Carbon, of counsel; Mr. Carbon and Jonathan P. Holtz, on the brief). Rottkamp & Flacks, attorneys for respondents Jack L. Seelig, and Seelig & Rednor, L.L.P. (Franklin L. Flacks, on the brief). PER CURIAM
In this legal malpractice matter, plaintiff Ellen E. Nevins appeals from August 11, 2015 orders dismissing her complaint with prejudice. For the reasons that follow, we affirm.
We briefly set out the procedural history and facts to the extent necessary to provide context to our decision. In 2004, plaintiff reached a settlement agreement in a lawsuit against Toll Brothers, Inc., the builder of her custom built home. However, when a dispute arose over the settlement terms in 2007, she sought to enforce the agreement. During the continued litigation, her attorneys, Geoffrey Johnson, William J. Conway, and Johnson & Conway, L.L.C. (collectively Johnson) resigned, after which she retained Jack L. Seelig, and Seelig and Rednor, L.L.P. (collectively Seelig).
On April 29, 2009, the trial court vacated the settlement agreement, and reinstated the lawsuit. After the court subsequently dismissed plaintiff's claims based on its determination that her expert supplied a "net opinion," plaintiff appealed, and we reversed and remanded the matter for trial. Nevins v. Toll Bros., Inc., No. A-0946-10 (App. Div. July 5, 2011), certif. denied, 208 N.J. 371 (2011). Following remand, the court conducted a N.J.R.E. 104 hearing, and upon barring plaintiff's expert from testifying outside the scope of his report, entered an order dismissing the complaint for a second time on November 30, 2011. Plaintiff appealed pro se, and we affirmed that order. Nevins v. Toll Bros. Inc., No. A-2344-11 (App. Div. July 11, 2014).
While the second appeal was pending, plaintiff brought this malpractice action pro se against defendants Seelig and Johnson alleging breach of contract, breach of fiduciary duty, and negligence. Plaintiff later retained an attorney, who was eventually relieved through motion, and she subsequently retained Edward Ruane to represent her.
During a contentious discovery period, several motions were filed. On March 6, and April 24, 2015, the motion judge granted defendants' respective motions to dismiss without prejudice for failure to provide discovery. Plaintiff did not oppose either motion. On June 1, after plaintiff represented that defendants were provided outstanding discovery, the judge granted plaintiff's request to extend discovery for sixty days, until July 7, and denied Johnson's motion to dismiss with prejudice, but granted Johnson attorney fees associated with the motion.
On June 25, Seelig moved pursuant to Rule 4:23-5(a)(2) to dismiss plaintiff's complaint with prejudice for failure to provide discovery. Ruane subsequently filed a motion on behalf of plaintiff for a further extension of discovery in order to provide an expert's report. Two days later, plaintiff filed a pro se motion to extend discovery ninety days so that she could retain new counsel to replace Ruane. Johnson then moved to dismiss the complaint with prejudice for failure to provide discovery pursuant to Rule 4:23-5(a)(2), for failure to produce an expert's report pursuant to Rule 4:6-2(e), and also sought to enforce litigant's rights, seeking costs and fees. Seelig also made an application to dismiss plaintiff's complaint for failure to provide an expert's report pursuant to Rule 4:6-2(e), by adopting the arguments raised by Johnson. In turn, plaintiff moved to vacate the dismissal without prejudice orders issued on March 6, and April 24. At argument on all of the pending motions, plaintiff contended that her untimely responses to discovery were due to her issues with Ruane, and medical issues affecting her health.
On August 11, the motion judge issued separate orders and a joint written decision granting defendants' motions to dismiss plaintiff's complaint with prejudice and denying plaintiff's motions to: reinstate her compliant, vacate the attorney fees award to Johnson, and extend discovery.
In his decision, the judge characterized his ruling as involving dismissal of the complaint on procedural grounds under Rule 4:23-5, due to failure to provide discovery issues, and on substantive grounds under Rule 4:6-2(e), due to failure to produce an expert's report. The judge upheld the attorney fees award because plaintiff was not "sufficiently diligent in pursuing her claims, forcing [Johnson] to accumulate fees[.]"
In denying plaintiff's motion to extend discovery, the judge noted that his earlier discovery extension to July 7 was due to plaintiff's misrepresentations that she had provided fully responsive discovery to defendants. The judge rejected plaintiff's claim that Ruane was the cause of her discovery delinquency. He explained,
In this case, (1) [p]laintiff has indicated that [] Ruane's alleged negligence prejudiced her cause of action, but [p]laintiff's consistent failure to engage in discovery predates [] Ruane's involvement in this matter; (2) [p]laintiff has not been diligent in pursuing discovery and [p]laintiff did not use the last extension of discovery to obtain and provide outstanding discovery, despite clear language from this [c]ourt to do so; (3) [t]his is a double attorney malpractice claim . . . and during its 14 year pendency, one of the attorneys at issue passed away . . . (4) [p]laintiff would be seriously prejudiced if the request for an extension of discovery were denied because [p]laintiff is asserting attorney malpractice claims which require an expert opinion, and [p]laintiff has yet to prepare a report to substantiate her prima facie case; (5) . . . [p]laintiff's motion violates Best Practices . . . (6) [t]his matter . . . has been assigned a trial date of September 28, 2015; (7) [e]ssentially all
discovery remains to be completed; (8) [s]evere prejudice would inure to [d]efendants if this matter were extended further; and (9) [p]laintiff's [c]omplaint is currently dismissed, yet [p]laintiff has failed to pay the requisite fees, as of the time of [d]efendant's responsive filings, and [p]laintiff has still not provided fully-responsive discovery.In sum, the judge found that plaintiff did not demonstrate good cause or exceptional circumstances to warrant an extension of discovery.
Finally, the motion judge stated that he granted defendants' motions to dismiss with prejudice because plaintiff failed to retain an expert as evidenced by e-mails that she did not pay the proposed expert fees and did not provide an expert's report. The judge also reasoned that, without an expert's report setting forth the standard of care violated by defendants, pursuant to Rule 4:6-2(e) plaintiff failed to allege facts to support her legal malpractice claims against defendants.
Before us, plaintiff contends that her due process rights were violated because her complaint was dismissed with prejudice pursuant to Rule 4:6-2(e), although defendants moved for dismissal pursuant to Rule 4:23-5. She further contends that she should not be punished by dismissal of her case, for failures attributable to Ruane. She argues that Ruane failed to obtain an expert's report, failed to respond to the discovery requests, and failed to notify her that the trial court granted defendants' motions to dismiss without prejudice. We are unpersuaded.
We review the motion judge's orders regarding sanctions for discovery violations under an abuse of discretion standard. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). From our review of the record, we are convinced there was no abuse of discretion, and therefore affirm substantially for the reasons expressed by the motion judge in his written decision. We conclude that plaintiff's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). We add only the following comments.
Initially, the motion judge dismissed plaintiff's complaint without prejudice under Rule 4:23-5(a)(1) for failure to provide discovery. When defendants later filed motions to dismiss with prejudice, the judge properly dismissed the complaint on the merits under Rule 4:23-5(a)(2) for her continued failure to provide discovery, including an expert's report, and her failure to move to reinstate her complaint. Consequently, it was unnecessary for the judge to dismiss the complaint under Rule 4:6-2(e) because plaintiff did not have an expert's report.
Furthermore, in deciding the Rule 4:6-2(e) motion to dismiss, the judge considered matters outside the pleadings — plaintiff's history of failing to provide discovery responses and lack of an expert's report - that automatically converted the application to a summary judgment motion. R. 4:6-2(e). Nevertheless, dismissal of the complaint through summary judgment was proper as plaintiff failed to establish the standard of care violated by defendants. In Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 362 (2004), our Supreme Court recognized that a plaintiff needs to produce an expert to testify to a lawyer's deviation from the appropriate standard "in nearly all malpractice cases." We do not view this case as one of the rare exceptions.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION