On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. CAM L-5412-01.
Before Judges Wefing, Fall and C.S. Fisher.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2004
In this appeal, we consider the extent of a trial court's discretion, in the wake of the 2000 rule amendments known as"Best Practices," to extend the time for the submission of expert reports after the discovery end date has passed and in the absence of a scheduled arbitration or trial date. Because, in these circumstances, the trial judge erroneously adopted a mechanical approach to the application of the"Best Practices" rule amendments, and misconceived his authority to impose some lesser sanction, we reverse the trial judge's refusal to allow plaintiff to submit and rely upon an expert report beyond the discovery end date, and we vacate the summary judgment entered against plaintiff as a result.
Plaintiff Linda Ponden (plaintiff) filed this legal malpractice action against defendants V. Richard Ferreri, P.C. and V. Richard Ferreri, individually (Ferreri). Ferreri represented plaintiff in an action she filed against her husband, William E. Ponden (Ponden), in 1998,*fn1 seeking a dissolution of their twenty-eight year marriage, equitable distribution of their marital assets, and the resolution of various other matrimonial and child-related issues.
In the divorce action, plaintiff claimed that Ponden had threatened to leave her and their children"in the gutter" and repeatedly told her that he was"moving to China,"*fn2 or somewhere else outside the United States. During the divorce proceedings, plaintiff repeatedly complained that Ponden refused to provide meaningful discovery regarding the extent and nature of marital assets, particularly those held solely in Ponden's name. On more than one occasion, the trial judge entered orders restraining Ponden from dissipating assets that may have been subject to equitable distribution. It appears, however, that Ferreri never sought the issuance of restraints against the entities that held these assets.
Eventually, the marital partners resolved their disputes and, on February 8, 1999, a property settlement agreement (PSA) was spelled out in proceedings in open court. A final judgment of divorce, based upon the PSA, was entered on February 18, 1999. The PSA contained the parties' agreement that they would equally divide certain investment and retirement accounts held by Ponden's employer, Wyeth-Ayerst Global Pharmaceuticals (Wyeth), Wyeth's parent corporation, American Home Products Corporation (AHP), and The Vanguard Group.*fn3 While plaintiff possessed a 50% equitable interest in those marital assets as agreed upon in the PSA, they were titled only in Ponden's name.
On February 10, 1999, Ferreri wrote to AHP and Vanguard, informing them of the PSA and asking that they honor the restraints contained in prior court orders. On February 17, 1999, AHP advised that, in accordance with their procedures in such circumstances, it would place"a temporary, 14-day restriction" on Ponden's pension and saving plan assets, but advised that the restriction would not continue if it did not receive a draft qualified domestic relations order (QDRO) within the following fourteen days. Ferreri apparently did not submit a draft QDRO until April 15, 1999.
On February 18, 1999, in response to Ferreri's February 10, 1999 letter, Vanguard stated that it would place"a temporary freeze on the accounts" held by Ponden, but that if Ponden objected,"the freeze will be lifted." Vanguard correctly observed that the prior court orders restrained Ponden but not Vanguard. On April 30, 1999, Vanguard again wrote to Ferreri to advise that Ponden objected to the freeze referred to in Vanguard's February 18, 1999 letter, and, as a result, it had lifted the freeze.
On May 19, 1999, at or around the time Ponden terminated his relationship with AHP and Wyeth, Ferreri obtained an order to show cause with temporary restraints, including restraints prohibiting AHP, Wyeth and Vanguard, among others, from transferring any funds or assets to Ponden without court approval. By that time, it appears that Ponden had obtained assets from these sources in the approximate amount of $1,700,000. He immediately left the country.*fn4 In subsequent proceedings, a judgment was entered by the Family Part judge on June 8, 1999, in favor of plaintiff and against Ponden in the amount of $692,181.76. This judgment has so far proven uncollectible.*fn5
Claiming that Ferreri negligently failed to pursue proper and effective means to protect her interests against Ponden's anticipated unlawful and improper actions, plaintiff commenced this legal malpractice action on February 8, 2001. Ferreri filed a responsive pleading on July 17, 2001, and the case was assigned by the court ...