Kohn & Kohn Realty, LLC v. Margaret A. Uhrich ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2121-23
KOHN & KOHN REALTY, LLC,
CAROL L. KRUEGLE TRUST,
JENNIFER M. LAWLOR, an
individual, JAMES D. HANNAH &
LESLEE A. JACKSON, husband
and wife, NORMA C. COSTA &
CLAUDIA COSTA, mother and
daughter,
Plaintiffs-Appellants,
v.
MARGARET A. UHRICH,
MICHAEL P. UHRICH, WILLIAM
D. MARTIN, and WILLIAM D.
MARTIN REVOCABLE TRUST,
Defendants-Respondents.
_________________________________
MICHAEL P. UHRICH, MARGARET
A. UHRICH,
Plaintiffs-Respondents,
v.
MARIANO D. MOLINA, ALI
MOLINA, BOB VAN BUREN,
ROBYN VAN BUREN, JOE CORBI,
DANA CORBI, MANNY GUARDA,
JOANNA GUARDA, CHRIS NICOSIA,
HILLARY BELL, JOEL HENKIN
and ELLEN S. HENKIN, and
WILLIAM D. MARTIN,
Defendants,
and
KOHN & KOHN REALTY, LLC,
JENNIFER M. LAWLOR AND
MATTHEW F. DICZOK, JAMES
D. HANNAH and LESLEE A.
JACKSON, CAROL L. KRUEGLE
TRUST, NORMA C. COSTA and
CLAUDIA COSTA,
Defendants-Appellants.
_________________________________
Argued September 19, 2024 – Decided October 1, 2024
Before Judges Mawla, Natali, and Vinci.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Chancery Division, Ocean
County, Docket Nos. C-000099-22 and C-000101-22.
Richard P. DeAngelis, Jr. argued the cause for
appellants (Connell Foley LLP, attorneys; Timothy E.
Corriston, of counsel; Richard P. DeAngelis, Jr., of
counsel and on the briefs; Meredith Sarah Rubin, on the
briefs).
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Richard Michael King, Jr. argued the cause for
respondents (KingBarnes, attorneys; Richard Michael
King, Jr. and Marissa J. Hermanovich, on the brief).
PER CURIAM
We granted plaintiffs Kohn & Kohn Realty, LLC, Carole L. Kruegle Trust,
Jennifer M. Lawlor, James D. Hannah, Leslee A. Jackson, and Norma C. and
Claudia Costa leave to appeal from a February 15, 2024 order, which granted
defendants Michael and Margaret Uhrich, William D. Martin, and William D.
Martin Revocable Trust's motion to bar admission of plaintiffs' expert reports1
at trial. We reverse and remand for the reasons expressed in this opinion.
This matter concerns a dispute regarding defendants' construction of new
bulkhead, which plaintiffs claimed obstructed their ability to use an easement
that granted them access to Barnegat Bay on Long Beach Island. Defendants
own property fronting Barnegat Bay on Friends Way. Plaintiffs also own homes
on Friends Way, and their deeds grant them a twenty-foot-wide easement down
to defendants' property. For decades, plaintiffs have used the easement to access
the bay for recreational purposes.
1
Although the order barred both of plaintiffs' experts, plaintiffs' appellate briefs
focus on the report of their engineering expert, which we in turn discuss.
A-2121-23
3
Martin has owned his property since the 1980s. The bulkhead on the
Martin property did not extend into the easement. The Uhrichs purchased their
property in 2020. The Uhrichs planned to replace the dilapidated bulkhead on
their property, which did extend into the easement. The bulkhead builder
recommended they connect their new bulkhead with Martin's. Although the new
bulkhead was constructed in accordance with township code, which required an
elevation of six feet above mean sea level, it was done without State and
Township permits. The New Jersey Department of Environmental Protection
(DEP) initially issued a permit, but later terminated it because the Uhrichs did
not: disclose the construction was within an easement; obtain the consent of
easement holders; and show the attachment of the bulkhead to the Martin
property in the approved plan.
In May 2022, plaintiffs filed a complaint in the Chancery Division seeking
a declaratory judgment that the bulkhead: interfered with their easement;
unlawfully obstructed the easement area; and tortiously interfered with their
ability to advertise their properties as summer rentals with bay access. In
addition to the declaratory relief, plaintiffs sought a judgment requiring the
Uhrichs to remove the bulkhead and restore the section over the easement area
to its previous configuration, as well as a judgment enjoining defendants from
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restricting access to the bay, compensatory and punitive damages, and attorneys'
fees and costs.2 Defendants filed their own complaint seeking a declaratory
judgment regarding who could use the easement, including the activities and
structures permitted in it, punitive damages, and other relief not relevant to our
discussion. The court consolidated both matters.
On August 17, 2022, the court entered a case management order setting
an initial discovery schedule, including that all depositions be completed by
December 15, 2022, and expert reports be served by January 30, 2023. On
August 14, 2023, the court entered a case management order requiring all fact
and expert witness discovery be completed by September 29, 2023. The order
granted plaintiffs the ability to file a responsive expert report within twenty days
of receiving the defense's expert report. Further, the order stated a trial readiness
conference would occur on December 18, 2023, and scheduled trial for January
9, 2024.
2
In April 2023, plaintiffs amended their complaint to include a count against
Martin for interference with the easement regarding the construction of the
bulkhead on his property. The Uhrichs also amended their complaint to include
claims for intentional interference with prospective economic advantage,
slander of title, and punitive damages arising from plaintiffs reporting the
inaccuracies in the Uhrichs' permit to the DEP.
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On October 3, 2022, the court granted plaintiffs partial summary
judgment. It ruled the title to plaintiffs' properties included the right to the
easement "for access to both Long Beach Boulevard and the water of the
Barnegat Bay."
On November 17, 2023, plaintiffs again moved for summary judgment
and appended an engineering expert report to the motion. The expert report was
separately served by email on defendants the same day. Defense counsel
responded he could not accept the report because it was served late, and he had
"made decisions and refrained from certain investigation and litigation activities
based upon the absence of these reports."
Plaintiffs also wrote to the court on November 17, 2023, seeking an
adjournment of the trial and a case management conference. They explained
"[t]he parties had been working cooperatively to schedule and conduct numerous
depositions." Due to scheduling conflicts and plaintiffs' expert's ill health , the
parties agreed to a revised case management schedule, which included that
plaintiffs' counsel offered defense counsel deposition dates between November
8 and 17, 2023.
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On December 5, 2023, defendants filed a cross-motion for summary
judgment. On December 22, 2023, defendants filed a motion to bar plaintiffs'
expert reports.
Following a settlement conference on January 3, 2024, the court adjourned
trial from January 9, 2024, to January 29 and 30, 2024. On January 12, 2024,
the court denied each party's motion for summary judgment. Defendants
advised they were unable to proceed with trial on January 29. As a result, the
court heard oral argument on the motion to bar, adjourned trial to April 30, 2024,
and advised it would decide the motion to bar on the first day of trial. Plaintiffs
requested the court decide the motion sooner, to enable the parties to prepare for
trial.
At the January 12 oral argument, plaintiffs' counsel stated the expert
reports were served late, because the parties were discussing this issue in tandem
with the completion of depositions of both fact and expert witnesses, which
defense counsel insisted upon taking. Defense counsel denied the two issues
were interrelated.
Plaintiffs' counsel also claimed the delay was occasioned by the fact their
expert had experienced health problems, and counsel "kept waiting for . . . him
to get out of the woods with respect to his health issues." Counsel explained the
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expert was important to his clients' case "not just because he's an engineer, . . .
he's a commercial diver, . . . a dock builder, and . . . [would be] an excellent and
. . . compelling witness . . . ." Counsel also filed a certification in opposition to
the motion to bar, claiming defense counsel "did not communicate at that time
that he no longer wished to depose" certain fact witnesses and "[t]he first
[plaintiffs] learned that he no longer wished to depose [them] was by way of his
December 4 letter to the [c]ourt that came more than two weeks after [p]laintiffs
filed their motion for summary judgment."
Plaintiffs' expert filed a certification stating he was retained in December
2022 and inspected the property in February 2023 to evaluate "safety issues
related to bay access over the bulkhead and whether the new bulkhead could be
modified to allow access consistent with what existed prior to its construction."
The expert explained he had multiple orthopedic surgeries over the prior year,
which impacted his ability to do his work, beginning in January 2023, then
March 2023, June 2023, August 2023, and September 2023. Following the last
surgery, he was hospitalized on September 12, 2023, with complications, and
was not released until late in the evening on September 25, 2023. He required
further treatment and medication during his convalescence at home, which lasted
until November 6, 2023.
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The expert explained he worked sporadically between September and
November 2023. He had to attend many doctor's appointments and only recently
returned "to a more normal daily schedule." He also had more surgeries
scheduled.
Defense counsel acknowledged plaintiffs' expert had health problems. He
spoke with plaintiffs' counsel on September 29, 2023, and agreed plaintiffs
would serve their expert reports on October 20, 2023, with depositions to occur
on October 27, 2023. However, defense counsel said he never received the
expert report on October 20. Counsel also filed a certification with the motion
to bar in which he stressed he rejected the reports because "[u]nder no
circumstances did [defendants] ever agree that expert reports could be served on
November 17[] . . . and Defendants would be prejudiced if required to accept or
respond to [p]laintiffs' expert reports served months out of time, shortly before
trial." He further certified he made strategic decisions on behalf of his client
based on the fact plaintiffs were not relying on expert evidence, including
"elect[ing] not to take a number of depositions because [defendants] felt
comfortable with [their] record before the [c]ourt as [they] moved toward trial."
Defense counsel argued plaintiffs' expert reports were not dispositive "and
their absence would not render . . . [p]laintiffs' claim futile." Further, given that
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plaintiffs knew about their expert's health problems, they could have hired
another expert, or formally move to extend discovery. Defendants alleged
plaintiffs had not shown exceptional circumstances for the late expert
submission, they also lacked good cause to extend discovery, and defendants
would be prejudiced by the late submission.
When the court asked plaintiffs' counsel what the exceptional
circumstances were to warrant an extension of discovery, counsel pointed out
the expert was "out of commission between September [and] November" 2023,
due to his health problems. The court questioned whether an expert was
necessary because plaintiffs won partial summary judgment, declaring they had
a right to access the bay from the easement area. However, plaintiffs' counsel
pointed out "now the issue is . . . whether the bulkhead should come down . . .
[a]nd there is [a] need for testimony as to whether and how that can occur . . .
[and] whether it was reasonable access . . . ." The court remarked that an expert
was unnecessary to comment on these issues. The parties could testify about
how "they were impacted by the construction of that bulkhead . . . [and] how it's
changed the nature of the easement . . . ."
On February 15, 2024, the court entered an order barring plaintiffs' experts
from testifying at trial. Its written findings explained it granted the motion by
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adopting the reasons set forth in defendants' brief "and for the failure of the
opposition to establish exceptional circumstances warranting the late admission
of the prof[f]erred reports."
I.
On appeal, plaintiffs argue the trial court made no findings as to why it
barred their expert. They assert the court ignored the purpose of our best
practices rules and abused its discretion, because there were exceptional
circumstances, namely, their expert's severe health issues. Moreover,
defendants failed to explain how they would be prejudiced by an adjournment ,
especially because they were willing to enter a modified case management
schedule to accommodate any discovery difficulties. Plaintiffs contend they
cannot meet the burden of proof as to damages without their expert.
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
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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) (citing Vitti v. Brown, 359 N.J. Super. 40(Law Div. 2003)).]
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) (second alteration in original).]
Having thoroughly reviewed the record, we are convinced the decision to
bar plaintiffs' experts was a misapplication of discretion and could lead to an
unjust result. There were exceptional circumstances that clearly warranted
extending the discovery period. Although we have refrained from discussing
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the details of plaintiffs' expert's medical procedures and ailments in the interests
of his privacy, his medical problems were substantial. The expert's condition,
in addition to the fact plaintiffs explained why this expert was important to their
case, warranted the trial court accommodating an additional extension of the
discovery deadlines.
The record also shows plaintiffs acted with diligence in that they and
defense counsel maintained an open line of communication and accommodated
one another during the discovery period. Once defense counsel told plaintiffs
he could no longer accommodate an extension of discovery, plaintiffs' counsel
communicated with the court about an extension. We recognize plaintiffs
should have filed a motion to extend the discovery deadlines, but the record
shows the court, and counsel, worked collaboratively and informally to schedule
conferences to resolve the pre-trial issues during the case.
Finally, although defense counsel asserted his clients would be prejudiced
by the late admission of plaintiffs' expert's reports, neither the appellate briefing,
nor the record, elucidates the exact nature of the prejudice. Regardless, we are
unconvinced the prejudice could not be remedied by extending discovery for a
limited and final time to complete it.
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For these reasons, the February 15, 2024 order barring plaintiffs'
engineering expert report is reversed and the matter remanded for further
proceedings consistent with this opinion. The trial court shall issue a shortened
and final schedule to enable the parties to complete discovery and try the case.
Reversed and remanded. We do not retain jurisdiction.
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