SOCIETY HILL AT JERSEY CITY CONDOMINIUM ASSOCIATION I, INC. VS. JOHN ESAINKO (L-0537-17, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4999-17T1
SOCIETY HILL AT JERSEY CITY
CONDOMINIUM ASSOCIATION
I, INC., a not-for-profit corporation
of the State of New Jersey,
Plaintiff-Respondent,
v.
JOHN ESAINKO and EILEEN
TOBIN, a/k/a EILEEN ESAINKO,
Defendants-Appellants.
________________________________
Submitted February 27, 2019 – Decided June 26, 2019
Before Judges Vernoia and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0537-17.
The Cintron Firm, LLC, attorneys for appellants (Mark
J. Cintron, on the brief).
Buckalew Frizzell & Crevina LLP and Law Office of
Steven J. Tegrar, attorneys for respondent (David B.
Joyandeh and Suzanne D'Amico Brodock, on the brief).
PER CURIAM
Defendants, John Esainko and Eileen Tobin, also known as Eileen
Esainko, who were sued by plaintiff, Society Hill at Jersey City Condominium
Association I, Inc. for unpaid assessments for their share of common expenses,
together with late fees, interest on arrears, attorneys' fees and costs of collection,
appeal from the trial court's orders of: February 16, 2018, denying their motion
to extend discovery; March 29, 2018, denying their motion for reconsideration
of the court's February 16 denial; March 29, 2018, dismissing their answer
without prejudice for failure to appear at court-ordered depositions; and May
25, 2018, granting plaintiff summary judgment and entering judgment against
defendants in the amount of $28,043.87. We affirm the trial court's orders
denying both the motion to extend discovery and the motion for reconsideration
of same; but reverse and remand the trial court's order granting summary
judgment and entering judgment in favor of plaintiff.
Defendants argue good cause existed to extend the discovery period. We
note that defendants first filed, on November 29, 2017, a motion to extend
discovery from the original discovery end date (DED) of December 22, 2017.
That unopposed motion was granted on December 22, 2017; the court's order
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extended discovery for ninety days and provided the parties, "may furnish
additional written discovery requests through January 22, 2018[.]"
Defendants claim discovery requests were provided to a paralegal in their
attorney's firm on November 6, 2017 but their counsel first learned from
plaintiff's counsel on January 23, 2018 that those requests were never served.
Plaintiff's counsel was served with requests via fax at 6:03 p.m. on January 24.
After plaintiff's counsel refused to answer the discovery requests because they
were served beyond the January 22 DED, defendants filed a second motion to
extend discovery. On February 16, Judge Mary K. Costello entered an order
denying the motion "for lack of exceptional circumstances shown. Stated reason
for extension is the admitted failure of moving party to send written discovery
requests. Moving party halted all discovery to their own detriment. DED
remains [March 22, 2018]."
"We generally defer to a trial court's disposition of discovery matters
unless the court has abused its discretion or its determination is based on a
mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J.
Super. 68, 80 (App. Div. 2005) (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524,
559 (1997)). The "abuse of discretion" standard "arises when a decision is 'made
without a rational explanation, inexplicably departed from established policies,
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or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J.
561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization
Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
In the order denying the motion for reconsideration of the order we now
review, Judge Costello indicated that an "arbitration date of April 5, 2018 was
scheduled to occur after the DED expired on March 22, 2018." Inasmuch as
Rule 4:24-1(c) provides, "[n]o extension of the discovery period may be
permitted after an arbitration or trial date is fixed, unless exceptional
circumstances are shown," defendants were required, contrary to their
contention, to show more than good cause.
In Rivers, 378 N.J. Super at 79, we recognized the four "Vitti1 factors" in
holding:
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.
1
The factors were announced in Vitti v. Brown, 359 N.J. Super. 40, 51 (Law
Div. 2003).
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We agree with Judge Costello that defendants failed to show exceptional
circumstances. Defendants never served written discovery requests on
plaintiff's counsel before the extended DED. Despite not receiving responses to
the requests he thought were sent, defendants' counsel did not follow-up with
plaintiff's counsel prior to the DED. Had he done so, he would have learned
plaintiff's counsel never received them. Thus, defendants' counsel did not
"establish that he . . . ma[d]e effective use of the time permitted under the
[R]ules," as is required for an attorney requesting a discovery extension. Ibid.(quoting Vitti, 359 Super. at 51). If "the 'delay rests squarely on [defendants']
counsel's failure to . . . pursue discovery in a timely manner,' and the Vitti factors
are not present, there are no exceptional circumstances to warrant an extension."
Ibid. (quoting Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463,
473-74 (App. Div. 2005)).
Here, none of the Vitti factors are present. We perceive no compelling
reason proffered by defendants to support their contention that the sought
discovery was essential. Additionally, as Judge Costello noted, the "reason for
[the] extension [was defendants'] admitted failure . . . to send written discovery
requests." And the circumstances were entirely in the control of defendants'
counsel; discovery could have been obtained if timely requests had been served.
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Judge Costello did not abuse her discretion in denying the discovery-extension
request. Applying more of the Vitti principles, we recognized that, under Best
Practices, see R. 4:5A, "applications to extend the time for discovery should be
the exception and not the rule." Rivers, 378 N.J. Super. at 78 (quoting Vitti, 359
N.J. Super. at 45).
We also reject defendants' argument that Judge Costello erred in denying
their motion for reconsideration. In addition to the aforementioned reference to
the scheduled April 5, 2018 arbitration date following the DED, and resulting
application of the "exceptional circumstances" standard, the judge's order
provided: "The moving party willingly stopped discovery and has now allowed
300 days of allotted discovery time lapse without even conducting written
discovery"; "the moving party has failed to satisfy the requirements of R[ule]
4:49-2 for reconsideration."
We review a denial of a motion for reconsideration for abuse of discretion,
Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996), which "'arises
when a decision is "made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis,"'" Pitney Bowes
Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div.
2015) (quoting Flagg, 171 N.J. at 571). We accord the trial court's findings of
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fact substantial deference provided they are "supported by adequate, substantial
and credible evidence." Cosme v. Borough of E. Newark Twp. Comm., 304 N.J.
Super. 191, 202 (App. Div. 1997) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins.
Co., 65 N.J. 474, 484 (1974)). We also defer to a trial court's discretionary
determinations and concomitant conclusions. Pitney Bowes Bank, 440 N.J.
Super. at 382-83. We do not, however, give deference to a trial court's legal
interpretations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995).
Judge Costello correctly applied our prescription in Cummings that
[r]econsideration should be utilized only for those cases
which fall into that narrow corridor in which either 1)
the [c]ourt has expressed its decision based upon a
palpably incorrect or irrational basis, or 2) it is obvious
that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent
evidence.
[295 N.J. Super. at 384 (quoting D'Atria v. D'Atria, 242
N.J. Super. 392, 401 (Ch. Div. 1990)).]
Defendants contend the judge's "application of an 'exceptional
circumstances' standard was mistaken based on the mandate of the [Conference
of Civil Presiding Judges at a February 26, 2002 meeting] and Rule 4:21A-1"
because the arbitration was scheduled despite the fact that defendants' original
motion to extend discovery "was made well before the [DED] and was returnable
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over a month before the [DED]." This argument ignores that the arbitration date
– April 5, 2018 – was within sixty days of the March 22, 2018 DED, thus
complying with Rule 4:21A-1(d) which mandates that, absent the written
consent of the parties, the arbitration "hearing shall not be scheduled for a date
prior to the end of the applicable discovery period, including any extension
thereof" and that the hearing must take place "no later than [sixty] days
following the expiration of that period."
Defendants also contend the judge failed to take into account the difficulty
they encountered in arranging travel from their home in North Carolina to New
Jersey for depositions because of their daughter's unfortunate medical condition.
Defendants' concern was first raised in their reconsideration motion, not in
support of their initial discovery-extension motion. We fully support that "if a
litigant wishes to bring new or additional information to the [c]ourt's attention
which it could not have provided on the first application, the [c]ourt should, in
the interest of justice (and in the exercise of sound discretion), consider the
evidence." Cummings, 295 N.J. Super. at 384 (quoting D'Atria, 242 N.J. Super.
at 401). Defendants' argument for reconsideration, however, relied on facts
which were known to them and could have been presented in their first
application for an extension. Furthermore, the hardships they faced in caring
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for their child did not provide justification for the late-served written discovery
requests.2 Judge Costello did not abuse her discretion in denying the motion for
reconsideration.
Another judge granted plaintiff's motion for summary judgment. The
court's order provides the only reason for its decision:
First, there are no issues of material fact present. The
record shows that [d]efendant owed certain fees
associated with the condominium. Defendant has not
proffered anything which disputes same. Second, the
legal fees sought are plainly provided in the governing
documents. . . . Further, the [c]ourt finds that the legal
fees sought are reasonable and are within the scope of
this litigation. Defendant's argument is that the fees
prior to this litigation are not relevant. The governing
documents clearly permit [p]laintiff to seek fees in
connection with the foreclosure action. . . . This action
was commenced after the foreclosure in order to
recover the expenses of same. . . . In sum, the fees
sought are explicitly provided for in the governing
documents.
2
We note defendants did not address in their merits brief the March 29, 2018
order which dismissed their answer without prejudice for failure to appear for
court-ordered depositions, allowing defendants to move to restore their pleading
after they were deposed. Defendants' child's illness was raised in connection
with their argument regarding only the reconsideration motion. We will not
address issues which are not briefed. Skldowsky v. Lushis, 417 N.J. Super. 648,
657 (App. Div. 2011) (holding that an issue not briefed on appeal is deemed
waived).
A-4999-17T1
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Defendants argue: existent fact issues precluded summary judgment;
plaintiff sought legal fees that exceeded the amount limited by plaintiff's
governing documents, were unreasonable and billed for work outside the scope
of litigation to recover the association's assessments for common expenses;
plaintiff failed to prove arrears and late fees incurred after defendants filed their
petition for relief in bankruptcy; and the grant of summary judgment was based
on an inadequate record.
We ordinarily review summary judgment decisions de novo. Globe Motor
Co. v. Igdalev, 225 N.J. 469, 479 (2016). But "our function as an appellate court
is to review the decision of the trial court, not to decide the motion tabula rasa."
Estate of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301-302 (App. Div.
2018). The trial court's failure to comply with Rule 1:7-4(a) leaves us in that
position.
Because the court did not, in a written or oral opinion or memorandum
decision, set forth findings of fact and correlate them to legal conclusions in
accordance with the Rule, made applicable to summary judgment decisions by
Rule 4:46-2(c), we are unable to conduct the proper analysis required under Brill
v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995). As we
observed in Great Atlantic & Pacific Tea Co. v. Checchio, 335 N.J. Super. 495,
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498 (App. Div. 2000), "neither the parties nor we are well-served by an opinion
devoid of analysis or citation to even a single case." See also Doerfler, 454 N.J.
Super. at 301. The conclusory reasons set forth by the trial court at the bottom
of its order compel us to reverse the grant of summary judgment and remand
this matter. In doing so, we do not suggest that summary judgment, in whole or
part, is not appropriate in this case.
On remand, however, the trial court must address defendants' arguments.
The decision shall include an exact calculation of any amount due plaintiff,
recognizing plaintiff's right to collect the assessments and related charges due
under the master deed and by-laws. See N.J.S.A. 46:8B-21(a); Highland Lakes
Country Club & Cmty. Ass'n v. Franzio, 186 N.J. 99, 110-12 (2006); Park Place
E. Condo. Ass'n v. Hovbilt, Inc., 279 N.J. Super. 319, 323-24 (Ch. Div. 1994).
The court must consider defendants' arguments regarding the impact of the
bankruptcy and foreclosure proceedings on that calculation. Further, the court,
in determining any amount due plaintiff for counsel fees, is required to examine
the extent of any limitation on that amount imposed by the governing
documents, specifically section 5.11 of the master deed and 5.11V of the by-
laws. The court must also conduct an analysis of the fees sought, as supported
by an affidavit required under Rule 4:42-9(b), by applying the factors set forth
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in RPC 1.5(a)3 and the tenets set forth in Rendine v. Pantzer, 141 N.J. 292(1995), and its progeny, see Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372,
385-88 (2009); Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21-23 (2004);
Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-46 (2001).
We agree with defendants that the court, before deciding the summary
judgment motion, should have granted oral argument, LVNV Funding, LLC v.
Colvell, 421 N.J. Super. 1, 5 (App. Div. 2011), which we expect shall occur
upon remand.
3
RPC 1.5(a) lists the factors to be considered in determining the reasonableness
of an attorney's fee:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly; (2) the
likelihood, if apparent to the client, that the acceptance
of the particular employment will preclude other
employment by the lawyer; (3) the fee customarily
charged in the locality for similar legal services; (4) the
amount involved and the results obtained; (5) the time
limitations imposed by the client or by the
circumstances; (6) the nature and length of the
professional relationship with the client; (7) the
experience, reputation, and ability of the lawyer or
lawyers performing the services; (8) whether the fee is
fixed or contingent.
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Affirmed in part, reversed in part and remanded for proceedings consistent
with this opinion. We do not retain jurisdiction.
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