On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1098-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 30, 2009
Before Judges Cuff, Baxter and King.
Plaintiff is an owner of a residential condominium unit in Jersey City. She filed a six-count complaint seeking a resurvey of her unit and an adjustment of the basis for calculation of her common area assessment. In this appeal, we review a series of orders that struck plaintiff's expert, granted summary judgment in favor of defendants on all legal claims, and barred use of plaintiff's expert in any subsequent proceeding addressing plaintiff's surviving equitable claims. We affirm the order striking her expert and the order granting summary judgment of plaintiff's legal claims. We reverse the order barring use of the expert plaintiff sought to use in this action or a similar expert in any future proceeding and direct that sanctions, if any, for discovery violations be considered by the court if plaintiff pursues her equitable claims.
On February 23, 2007, plaintiff filed a six-count complaint against defendants 2600 Condominium Association, Inc. (the Association), Taylor Management, Inc., John Phillips, in his capacity as President of the Association Board of Directors, and defendants Diane Maxion, Mario Sotolongo, and Keith Purcell, all members of the Association Board. In her complaint, plaintiff alleged that she paid more common expenses than other similarly situated owners due to an inaccurate survey of the square footage of the condominium units. She claims that the failure by defendants to conduct a resurvey and modify her common element assessment, as well as any special assessments, constituted racial discrimination (Count One); fraud and misrepresentation (Count Two); breach of contract (Count Three); conversion (Count Four); breach of the covenant of good faith and fair dealing (Count Five); and breach of fiduciary duty (Count Six).
Plaintiff obtained an extension of the discovery deadline and served her first set of interrogatories and request for production of documents in October 2007. When defendants did not respond, plaintiff obtained an order requiring responses. On January 11 and 24, 2008, defendants provided interrogatory responses and produced documents. In response to a motion for summary judgment filed by defendants, plaintiff submitted a certification from an attorney, John Lamb, in opposition to the motion and in support of her own motion for summary judgment. Plaintiff plainly sought to use Lamb as an expert to support her various claims; however, plaintiff had not identified Lamb as an expert in any interrogatory response or provided an expert report. Five days after filing her response to defendants' summary judgment motion and filing her own summary judgment motion, plaintiff notified the court by letter that she intended to use Lamb as an expert.
On April 14, 2008, plaintiff filed a motion to extend discovery to allow Lamb to be designated as plaintiff's expert. On April 24, 2008, defendants filed a motion in limine to exclude plaintiff's expert. At this time, the first trial date of April 16, 2008, had been adjourned and the matter was scheduled for trial on May 19, 2008.
On May 2, 2008, the motion judge entered partial summary judgment in favor of defendants and dismissed Counts One (racial discrimination), Two (fraud and misrepresentation), and Four (conversion). When the parties appeared for trial, the trial judge granted defendants' motion to exclude plaintiff's proposed expert and proceeded to grant summary judgment on Counts Three (breach of contract), Five (breach of the covenant of good faith and fair dealing), and that part of Count Six seeking compensatory damages. The judge dismissed without prejudice that part of Count Six seeking equitable relief. He conditioned the dismissal, however, by precluding plaintiff from using Lamb "or any other expert proffered for similar purpose . . . in any subsequent refiling of the equitable claims[.]" Finally, the June 4, 2008 order entered by the trial judge provided that plaintiff would pay the remaining monthly maintenance and other assessments due to the Association on or before the first of each month in settlement of defendants' counterclaim for unpaid monthly maintenance and assessments.
On appeal, plaintiff argues that the trial judge erred by striking her expert and further contends that the judge should have extended the discovery deadline. She further insists that the court should have imposed sanctions for defendants' discovery defalcations and should not have dismissed her complaint with prejudice due to those omissions. Plaintiff also contends that the judge erred by barring the use of her proffered expert or any other expert in any future action in which she seeks solely equitable relief and that plaintiff's responsibility to pay future assessments should not have been added to the June 4, 2008 order. We have carefully reviewed this record and find no basis to disturb any provision of the June 4, 2008 order other than the provision barring the use of plaintiff's original expert or a similar expert who provides an opinion on the manner in which the common element and special assessment charges are calculated. Indeed, we find that plaintiff's contentions are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), but for the following brief comments.
The trial judge properly barred the expert proffered by plaintiff. Defendants received notice of plaintiff's intention to rely on an expert in a certification appended to her response to defendants' summary judgment motion and later through a letter to the court and counsel. See R. 4:17-7. Moreover, plaintiff fell far short of establishing the requisite exceptional circumstances to extend discovery and to allow consideration of her proffered expert. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 473 (App. Div.), remanded on other grounds, 185 N.J. 290 (2005).
A sanction was in order and the ultimate sanctions of barring plaintiff's expert and granting summary judgment to defendants on claims that required an expert opinion were effective and proportionate to redress the defalcation. A judge may also attach conditions to a voluntary dismissal without prejudice of a claim taken by a plaintiff after service of an answer by the adverse party. R. 4:37-1(b). The issue here is whether barring the use of Lamb or any similar expert in support of the remaining equitable claim is an appropriate term and condition of the voluntary dismissal without prejudice sought by plaintiff.
The judge agreed to allow plaintiff to voluntarily dismiss without prejudice that portion of Count Six of her complaint that sought equitable relief for defendants' alleged breach of their fiduciary duty to her. He conditioned that relief by barring the use of Lamb or any similar expert in any future proceeding. Fashioning appropriate terms and conditions resides in the discretion of the judge. Shulas v. Estabrook, 385 N.J. Super. 91, 97 (App. Div. 2006). We have previously remarked that plaintiff did not establish exceptional circumstances to either extend discovery or relax the rules to allow the late notice of her expert opinion. At no time either before the trial court or this court has plaintiff made a cogent and convincing presentation to explain her inability to assemble the requisite documents and timely seek the requisite expert report. Simply asserting that defendants produced only 20% of requested material and failing to specifically identify the missing 80% that had not been produced does not establish exceptional circumstances, particularly when defendants are not the sole repository of the governing documents.
On the other hand, the remedy imposed for plaintiff's omissions is drastic and the terms and conditions imposed on the surviving claim may well doom any future action. In short, plaintiff obtained nothing by accepting a voluntary dismissal without prejudice because her equitable claim is doomed without expert support. Under these circumstances, the remedy to be imposed if plaintiff seeks to rely on the expert opinion of Lamb or any other condominium ...