HOLLYWOOD CAFÉ DINER, INC. v. GERI JAFFEE (L-2786-19, CAMDEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2272-20
HOLLYWOOD CAFÉ
DINER, INC.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, July 15, 2022
APPELLATE DIVISION
v.
GERI JAFFEE, ESQUIRE
and MARKS, O'NEILL,
O'BRIEN, DOHERTY &
KELLY, P.C.,
Defendants-Respondents.
____________________________
Argued May 23, 2022 1
Reargued July 7, 2022 – Decided July 15, 2022
Before Judges Messano, Accurso, and Rose.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-2786-19.
Richard P. Coe, Jr. argued the cause for appellant
(Weir Greenblatt Pierce, LLP, attorneys; Richard P.
Coe, Jr., on the briefs).
1
As Judge Accurso was added after oral argument, the appeal was reargued
pursuant to Rule 2:13-2(b).
Robert A. Berns argued the cause for respondents
(Kaufman Dolowich & Voluck, LLP, attorneys;
Robert A. Berns and Timothy M. Ortolani, of counsel
and on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
Plaintiff Hollywood Café Diner, Inc., (the Diner) filed this legal
malpractice action against defendants alleging they negligently represented the
Diner in a dram shop case brought by Kevin P. Fynes, a patron who
participated in a "Pub Crawl" on St. Patrick's Day 2012. Fynes visited a series
of pubs before stopping at the Diner. He left in an intoxicated state and was
seriously injured in a single-car accident when he failed to negotiate a curve in
the road. Liberty International Underwriters insured the Diner at the time and
retained defendants' firm (the Firm) to represent the Diner in the Fynes
litigation. Defendant Geri Jaffee primarily handled the defense, settling the
case for $1.5 million.
In its malpractice complaint, the Diner alleged Jafee and the Firm
(collectively, defendants) breached their professional duties by failing to:
investigate the accident; disclose, consult, or discuss the settlement with it; and
include a confidentiality provision in the settlement agreement. By way of
example, the Diner asserted defendants negligently failed to name the other
taverns Fynes visited on the pub crawl as co-defendants. The Diner asserted
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defendants' negligence caused it to suffer damages, including fines levied by
the Division of Alcoholic Beverage Control and increased insurance
premiums, as well as adverse publicity. The Diner supplied an affidavit of
merit which stated, "there exist[ed] a reasonable probability that the care, skill
or knowledge exercised or exhibited by [defendants] . . . fell outside the
acceptable professional standards for attorneys."
Defendants filed an answer in September 2019, and discovery
commenced in halting fashion. Because the procedural history is critical to the
issues now raised, we recount it in detail.
I.
Both parties served demands for written discovery in October 2019, but
neither answered their adversary's requests. Meanwhile, the court referred the
case to mediation in January 2020; that was unsuccessful. On October 3,
2020, the court notified both parties the discovery end date (DED) was
December 13, 2020, apparently sparking defendants' November 3 response to
the Diner's discovery demand by supplying more than 6000 pages of
documents.2 The Diner claimed it never saw most of those documents during
2
The case was designated a Track IV case, with 450 days of discovery. See
R. 4:5A-1; Pressler & Verniero, Current N.J. Court Rules, Appendix XII
(2022).
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the Fynes litigation. The next day defendants wrote the Diner demanding
responses to their discovery requests.
Also on November 4, 2020, although the DED had not passed, the court
sent the parties notice that trial was set for March 8, 2021. With defendants'
consent, the Diner's counsel wrote the judge pursuant to Rule 4:24-1(c)
requesting a sixty-day extension of the DED to February 11, 2021. The only
response in the record is the court's November 9, 2020 notice adjourning the
trial date three weeks, to March 29, 2021, however, it is apparent from later
proceedings that the court extended the DED to February 11, 2021.
On December 7, 2020, defendants moved to dismiss the complaint
without prejudice because the Diner still had not served discovery responses;
however, the motion was withdrawn ten days later when the discovery arrived.
On January 6, 2021, while still asserting deficiencies in the Diner's responses,
defendants moved to extend discovery. Counsel's certification noted the
Diner's consent and asserted the "good cause" standard applied to the motion
because the DED had not expired. See R. 4:24-1(c). Defendants' proposed
order included dates for the service of experts' reports, fact and expert
depositions, and extended the DED to June 7, 2021.
On January 21, 2021, in an oral opinion consisting of twenty-three
transcript lines, the judge denied defendants' motion. He noted the inactivity
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between service of discovery requests in October 2019, and responses in late
2020, concluding "nothing happened, nothing was scheduled, no expert reports
served, depositions taken or anything of this nature." Recognizing arbitration
and trial dates were already set, the judge determined no exceptional
circumstances existed.
The Diner moved for reconsideration, and, although it sought oral
argument, none occurred. In an oral opinion issued on the record, a second
judge reviewed the procedural history of the litigation, noting, "through no
fault of their own, the parties have had to navigate circumstances of Covid."
The judge also recognized the Diner's principal contracted the disease and its
counsel lost personnel at its firm, but observing there had been 510 days of
discovery, she said, "It is still not clear . . . why [the parties] would wait such
an extraordinary amount of time." The judge concluded the Diner failed to
"satisf[y its] burden under Rule 4:49-2," and denied the motion. She entered a
conforming order on February 19, 2021.
In the interim, on January 27, defendants moved for summary judgment,
essentially arguing the Diner provided no expert opinion regarding the alleged
professional negligence, and having failed to do so, summary judgment was
appropriate. See, e.g., Buchanan v. Leonard, 428 N.J. Super. 277, 288–89
(App. Div. 2012) (citations omitted) (recognizing generally expert testimony is
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necessary to sustain a legal malpractice claim). The Diner immediately served
a deposition notice on defendant Jaffee, but defense counsel refused to produce
her as a witness unless the court granted the pending reconsideration motion.
The Diner cross-moved for an order re-opening discovery and compelling
Jaffee's deposition.
The motion and cross-motion were heard by the second judge.
Concluding the lack of expert opinion was fatal to the Diner's complaint, the
judge granted defendants' summary judgment. She denied the Diner's cross-
motion and entered conforming orders on March 5, 2021.
II.
The Diner contends the first judge mistakenly exercised his discretion by
denying defendants' motion to extend discovery because he applied the
"exceptional circumstances" standard instead of the "good cause" standard in
deciding the motion. Despite supporting their motion to extend discovery by
asserting the "good cause" standard applied, defendants now say the first judge
did not abuse his discretion because there were no "exceptional circumstances"
justifying a discovery extension.
The Diner also argues the second judge should have denied summary
judgment because the jury could find defendants breached their duty without
expert testimony. Defendants counter by contending expert testimony was
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essential. Because we agree with the Diner's first point, we reverse without
considering its second point.
"An appellate court applies 'an abuse of discretion standard to decisions
made by [the] trial courts relating to matters of discovery.'" C.A. by
Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (alteration in original)
(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371
(2011)). "It 'generally defer[s] 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.'" Ibid. (first
alteration in original) (quoting Pomerantz Paper Corp., 207 N.J. at 371).
However, "we review legal determinations based on an interpretation of
our court rules de novo." Occhifinto v. Olivo Constr. Co., LLC, 221 N.J. 443,
453 (2015) (citing State ex rel. A.B., 219 N.J. 542, 554–55 (2014)). In that
regard, "[w]e apply the same canons of construction to a court rule that we
apply to a statute." Cadre v. Proassurance Cas. Co., 468 N.J. Super. 246, 263
(App. Div. 2021) (citing Mortg. Grader, Inc. v. Ward & Olivo, LLP, 438 N.J.
Super. 202, 210 (App. Div. 2014), certif. denied, 249 N.J. 338 (2021)).
Rule 4:24-1(c) permits the parties to extend discovery for sixty days
"prior to the expiration of the discovery period" by written consent. If a longer
extension is sought, "a motion for relief shall be filed . . . and made returnable
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prior to the conclusion of the applicable discovery period." Ibid. "[I]f good
cause is otherwise shown, the court shall enter an order extending discovery."
Ibid. (emphasis added). However, "[n]o extension of the discovery period may
be permitted after an arbitration or trial date is fixed, unless exceptional
circumstances are shown." Ibid. (emphasis added).
We have recognized the obvious. The good cause standard is "more
lenient" and "'flexible . . .' without a fixed or definite meaning." Bldg.
Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 480 (App.
Div. 2012) (quoting Tynes ex rel. Harris v. St. Peter's Univ. Med. Ctr., 408
N.J. Super. 159, 169 (App. Div. 2009)). We have identified a non-exhaustive
list of nine factors courts may consider in determining whether good cause
exists in this context. Ibid. (quoting Tynes, 408 N.J. Super. at 169–70). In
contrast, under the more rigorous exceptional circumstances standard, the
movant must demonstrate
(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.
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[Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App.
Div. 2005) (emphasis added) (citing Vitti v. Brown,
359 N.J. Super. 40, 51 (Law Div. 2003)).]
This appeal asks us to decide which standard applies if a motion to extend
discovery is made before discovery ends — when the court shall grant the
motion for good cause — but after a trial date is set — when the court may
grant the motion only if exceptional circumstances exist.
It is readily apparent that a court could render meaningless the "good
cause" standard applicable to motions to extend discovery that are timely filed
before expiration of the DED by simply assigning an arbitration or trial date
early in the litigation. Nothing in the Rules specifically prohibits the court
from doing so. However, as with a statute, we strive to construe a court rule so
as "to avoid rendering any part . . . inoperative, superfluous or meaningless."
MasTec Renewables Constr. Co. v. SunLight Gen. Mercer Solar, LLC, 462
N.J. Super. 297, 318 (App. Div. 2020) (citing Jersey Cent. Power & Light Co.
v. Melcar Util. Co., 212 N.J. 576, 587 (2013)).
Reading our Part IV Rules in pari materia further demonstrates why the
practice of setting a trial date while discovery is ongoing, at the least, creates
confusion. See ibid. (noting statutes "that deal with the same matter or subject
should be read in pari materia . . . as a unitary and harmonious whole" (quoting
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Nw. Bergen Cnty. Utils. Auth. v. Donovan, 226 N.J. 432, 444 (2016))). Rule
4:36-2, for example, provides:
The court shall send a notice to each party to the
action [sixty] days prior to the end of the prescribed
discovery period. The notice shall advise that if an
extension of the discovery period is required,
application therefor must be made prior to its
expiration and that if no such application is made, the
action shall be deemed ready for trial.
The plain language of the Rule requires the court to advise the parties of the
impending DED, and that if an extension is necessary, they must file a motion
within the next sixty days. The Rule also specifically tells the parties that "if
no such application is made," the case is deemed ready for trial.
We recognize "[t]he critical aim of [the 2000 Rule Amendments was] the
establishment of a realistic arbitration and trial date." Leitner v. Toms River
Reg'l Schs., 392 N.J. Super. 80, 90–91 (App. Div. 2007) (citing Report of the
Conference of Civil Presiding Judges on Standardization and Best Practices ,
156 N.J.L.J. 80, 82 (April 5, 1999)). But, that laudable goal is not served
when the court notifies the parties that a discovery extension motion must be
brought within the next sixty days or the case "shall be deemed" ready for trial,
and at the same time, or, as in this case, halfway through the sixty day period,
the court sets the actual trial date.
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The mixed messages caused by these two notices might cause nothing
more than confusion, except, as occurred here, the setting of a trial date
triggered the "exceptional circumstances" standard for a discovery extension
request essentially sought by both parties in a timely manner as permitted by
Rule 4:24-1(c). And, denial of the extension that defendants initially sought
certainly contributed to the ultimate dismissal of the complaint on summary
judgment.
We also consider the effect of the "exceptional circumstances" standard
once an arbitration or trial date is set during discovery in conjunction with the
timeframes governing summary judgment practice. Rule 4:46-1 requires all
motions for summary judgment be made "returnable no later than [thirty] days
before the scheduled trial date, unless the court otherwise orders for good
cause shown." The motion "shall be served and filed not later than [twenty-
eight] days before the time specified for the return date." Ibid. For all intents
and purposes, summary judgment motions must be filed almost sixty days
before the trial date.
In this case, in order to meet the requirements of Rule 4:46-1, defendants
filed their summary judgment motion nearly two weeks before the DED of
February 11. Although the additional two weeks may not have mattered here,
and there are exceptions that we need not explore, "in general, 'summary
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judgment is inappropriate prior to the completion of discovery.'" Mohamed v.
Iglesia Evangelica Oasis De Salvacion, 424 N.J. Super. 489, 498 (App. Div.
2012) (quoting Wellington v. Est. of Wellington, 359 N.J. Super. 484, 496
(App. Div. 2003)).
Lastly, we can cite no more authoritative source than Judge Pressler
regarding what the significant 2000 Rule amendments, including those made to
Rule 4:24-1, were intended to achieve and to avoid.
The Best Practices rules were "designed to improve
the efficiency and expedition of the civil litigation
process and to restore state-wide uniformity in
implementing and enforcing discovery and trial
practices." They were not designed to do away with
substantial justice on the merits or to preclude rule
relaxation when necessary to "secure a just
determination."
[Tucci v. Tropicana Casino & Resort, Inc., 364 N.J.
Super. 48, 53 (App. Div. 2003) (emphasis added) (first
quoting Vargas v. Camilo, 354 N.J. Super. 422, 425
n.1 (App. Div. 2002); and then quoting R. 1:1-2).]
We have no idea how widespread the practice of setting an arbitration or
trial date before discovery ends is among trial courts, but our point here is not
to criticize the practice of sending out arbitration and trial notices before the
end of discovery, although doing so causes obvious tension among a series of
rules designed to foster trial date certainty. The capable presiding judges and
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managers of the Civil Division in the various vicinages know best how to
manage the court's calendar.
However, the use of such an administrative tool only fosters the
unintended, adverse consequences cited by Judge Pressler if Rule 4:24-1(c) is
applied mechanistically. We conclude when the court chooses to send out
arbitration and trial notices during the discovery period, judges evaluating a
timely motion to extend discovery may not utilize the "exceptional
circumstances" standard, but rather the judge "shall enter an order extending
discovery" upon a showing of "good cause." R. 4:24-1(c). Our construction of
the Rule is consonant with its plain language and gives meaning to all its
terms, is consistent with the purposes of other rules designed to set realistic
trial dates, and favors the general policy of adjudicating litigation on its merits.
We also conclude in this case the Diner established good cause for a
further extension of discovery. As noted, the parties served paper discovery
demands on each other in fall 2019. In January 2020, the court ordered the
parties to mediation, which was unsuccessful. On March 27, 2020, the Court
issued its First Omnibus order that, among other things, suspended all jury
trials, further extended all discovery time periods, and postponed civil
arbitration sessions.
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We need not detail the orders that followed, however, it suffices to say
that the Court's Tenth Omnibus Order, issued February 17, 2021,
approximately a month after the first judge denied defendants' motion to
extend discovery said: "In recognition of the pervasive and severe effects of
the COVID-19 public health crisis, the court in any individual matter
consistent with Rule 1:1-2(a) may suspend proceedings, extend discovery or
other deadlines, or otherwise accommodate the legitimate needs of parties,
attorneys, and others in the interests of justice."3 Additionally, all court
locations were not reopened to the public until August 2, 2021. Further, as the
second judge noted on reconsideration, the effects of COVID-19 on the court
system in this state, and this litigation, were pervasive.
We have no idea whether the Diner will be able to obtain the expert
opinion that is likely necessary to prove its malpractice case. We only hold it
was error to deny a further extension of discovery that may have provided that
evidence. We therefore reverse the order granting defendants' summary
judgment, as well as the orders that effectively denied any further discovery to
both parties. We remand the matter to the trial court to appropriately manage
3
The same language was included in the Eleventh Omnibus Order, issued
March 23, 2021
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discovery going forward, leaving the terms and conditions for any extension of
the discovery period and proceedings that follow to the trial court's discretion.
Reversed and remanded.
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