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Glass v. Suburban Restoration Co.

December 30, 1998


Before Judges Petrella, Cuff and Collester.

The opinion of the court was delivered by: The opinion of the court was delivered by Petrella, P.j.a.d.

[9]    Argued November 16, 1998

On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Defendants Suburban Restoration Co., Inc. and John Markovic *fn1 (collectively "Suburban") appeal from the dismissal with prejudice, on the eve of a peremptory trial date, of their legal malpractice counterclaim against Helen Glass, their former attorney, for failure to comply with court orders to submit an expert's report. They also appeal from the jury verdict awarding attorney's fees to Glass in the amount of $56,165.28, which was reduced by the amount Suburban had already paid to $27,405.53. Their motions for a new trial or, in the alternative, remittitur, were denied.

On appeal, Suburban argues that the court abused its discretion in dismissing their counterclaim with prejudice; the court should have granted their request for an adjournment; and that their motion for a new trial or remittitur should have been granted. Among Suburban's arguments are various subsidiary issues, including whether the same Judge, who entered earlier orders requiring the submission of an expert's report within a fixed time period, should have ruled with respect to the motion to dismiss the counterclaim, and whether Glass, as attorney for Suburban, had any legal basis to file a summary judgment motion in one of the matters she handled which allegedly resulted in extensive legal fees.

From October 1992, Helen Glass represented Suburban and provided legal services for a period of about eight months on approximately fourteen matters in New Jersey and New York, until Suburban discharged Glass from all but one matter on June 3, 1993. Subsequent to June 3, 1993, Glass continued to represent Suburban on a matter referred to as "International Fidelity."

During the period Glass represented Suburban she submitted bills aggregating $56,165.28 for legal services, including $1,669.03 for disbursements. Suburban paid $28,759.75 in several payments, the last on April 29, 1993. Thereafter, on June 7, 1994, Glass filed a complaint for the unpaid balance *fn2 against Suburban Restoration, as well as Markovic, as personal guarantor of the corporation's obligations.

Rather than fully detail the extensive procedural history of this case we need merely highlight the matters relevant to our decision. On November 23, 1994, Suburban filed its answer which essentially denied most of the allegations of the complaint and its counterclaim alleging, in vague and general terms, legal malpractice against Glass.

On or about January 4, 1995, Glass served Suburban with a demand for production of documents and a first set of interrogatories. The attorney defending Glass on the legal malpractice counterclaim served a set of interrogatories on Suburban on or about January 27, 1995. Thereafter, on April 21, 1995, Suburban served Glass with interrogatories, and on June 22, 1995, a notice to produce documents. Suburban also served a notice to take Glass's deposition on August 16, 1995.

Glass furnished answers to interrogatories and provided documents on October 2, 1996. Glass was deposed on November 21, 1996 and again on January 15, 1997. As for Suburban, an order dated October 16, 1995 directed Suburban to produce by a date certain more specific answers to interrogatories, documents as earlier requested, and an expert report or else be precluded from relying on any expert. The record is unclear if Suburban produced more specific answers to interrogatories or the requested documents.

On October 11, 1996, Glass moved for summary judgment dismissing the malpractice counterclaim. A November 22, 1996 order by Judge Troast granted Glass's summary judgment "without prejudice" for forty-five days, to allow Suburban additional time to produce an expert report. Subsequent orders to the same effect were entered. Suburban thereafter filed additional motions for extension of time to contest the summary judgment and also moved to vacate Judge Simon's earlier order barring expert testimony. By an order dated March 21, 1997, Judge Simon effectively again extended the time for Suburban to procure an expert report despite Suburban's repeated failures in producing an expert report. On a later motion, Judge Troast deferred making a decision in order to allow Judge Simon an opportunity to reconsider the motion before her with respect to the expert's report. That motion before Judge Simon was subsequently denied, with reconsideration thereafter denied, except that Judge Simon indicated she would entertain a motion "upon submission of an expert report." Shortly after that order was entered Judge Simon was reassigned to the Chancery Division.

On the peremptory trial date, Judge Guida resolved the pending issues against Suburban. By an order dated May 14, 1997, Judge Guida dismissed the malpractice counterclaim with prejudice, after consulting with Judge Simon, *fn3 because no expert report had been produced despite all the prior orders. Suburban's request for additional time to produce an expert's report was denied and it was precluded from presenting expert opinion testimony with respect to Glass's claim for attorneys fees.

After presenting testimony and documentary evidence at the jury trial before Judge Smith, Glass was awarded attorneys fees as previously indicated. Judge Smith denied Suburban's motion for a new trial or remittitur and denied Glass's cross motion for attorney fees for a frivolous claim on July 11. Judge Smith did award prejudgment interest to Glass in a July 23 order. Suburban appeals Judge Guida's May 14, 1997 order, as well as Judge Smith's July 11 and July 23, 1997 orders.

We have considered all of Suburban's arguments in light of the record and the arguments presented and conclude that they are without merit. R. 2:11-3(e)(1)(B) and (E). We add only the following comments. Suburban's challenge to the dismissal with prejudice, on the eve of a peremptory trial date, of their legal malpractice counterclaim against Glass, came essentially after the entry of numerous orders requiring timely production of an expert's report and denial of reconsideration motions that sought continued extensions. The various Law Division Judges were extremely indulgent. The constant resort by Suburban to reconsideration applications was at best an abuse of the letter and the spirit of the rules, see Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996); Palumbo v. Township of Old Bridge, 243 N.J. Super. 142, 147 n.3 (App. Div. 1990), and a disregard of the impact of court orders. As of the date Judge Guida dismissed the counterclaim with ...

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