December 21, 2009
LA-TONIA BOBBITT, PLAINTIFF-APPELLANT,
THE LAW OFFICES OF RONALD L. WASHINGTON, LLC AND RONALD L. WASHINGTON, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1491-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 2, 2009
Before Judges J. N. Harris and Newman.
Plaintiff La-Tonia Bobbitt appeals from an order granting summary judgment and dismissing her legal malpractice action against defendant, Ronald L. Washington, and from an order denying reconsideration of the order granting summary judgment. In denying reconsideration, Judge Cifelli stated:
Plaintiff has provided no legal basis for vacating the S.J. Order entered on 2/6/06. The matter, was in fact, already decided on the "merits", the order was not entered based on any procedural defect, but on the facts presented & the law.
We now reverse and remand for a summary judgment hearing enabling the plaintiff to file opposition to said motion.
By way of background, defendant represented plaintiff in a lawsuit against New Jersey Transit and the City of Newark under the New Jersey Tort Claims Act*fn1 for a fall she sustained upon arriving at Newark Penn Station and alighting from a New Jersey Transit bus. According to an engineering expert, Wayne Nolte, in a report secured by present counsel for plaintiff, there was a hazardous condition existing at the site where the bus dropped off passengers. The expert opined that this condition had existed over a period of time and should have been observable to both the City, which purportedly had inspection obligations, and the bus driver who was dropping off passengers at this unsafe location.
Plaintiff was unsuccessful in that action because she failed to establish that the defendant did have actual or constructive notice of the condition of the sidewalk area. In affirming the summary judgment granted to defendants, New Jersey Transit and the City of Newark, we commented that plaintiff failed to present evidence of actual or constructive notice. Bobbit v. New Jersey Transit, No. A-2471-04 (App. Div. Nov. 15, 2005) (slip op. at 2-4). Our court observed that plaintiff did not provide an expert's opinion that the condition of the sidewalk which had a crack was not of recent origin but had developed over a period of time. Id. at 3. In that posture, we said that a jury would be asked to speculate as to the length of time without showing additional information. Ibid.
In the present case, there are a number of theories describing defendant's negligence in handling the dismissed underlying action. Defendant allegedly did not conduct a proper property search to find out who was the title owner of the property and who owned or controlled the manhole that was part of the condition causing plaintiff to fall; did not obtain an engineering expert, as has now been done, to establish the duration of existence of the alleged dangerous condition; and failed to conduct discovery through deposition, notices to produce documents, and supplemental interrogatories. Defendant also failed to submit a color photograph in the appeal from the summary judgment dismissal to enlighten the appellate court as to the condition of the property. Ibid.
Plaintiff's attorney also represented at argument before us that the attorney who prepared the affidavit of merit for the present action against defendant would testify at trial and a report from that attorney detailing the negligent actions of defendant would be forthcoming, even though it was never requested in discovery. In any event, none of this information was presented to Judge Cifelli on the summary judgment motion which was marked as "Unopposed."
The undisputed history of what transpired before the motion was decided on February 6, 2009, was as follows. Discovery ended on January 5, 2009. On the very next day, defendant moved for summary judgment returnable after the scheduled trial date of February 2, 2009. The motion was clearly out of time, in violation of the thirty-day rule in Rule 4:46-1. Moreover, the summary judgment motion was defective insofar as when filed, it did not contain a statement of undisputed facts. That statement was furnished on January 22, 2009, which should have been treated as the filing date of the motion instead of the earlier date of January 6, 2009.
Plaintiff requested that the trial date be adjourned to allow the summary judgment motion to be heard in accordance with the timeline of Rule 4:46-1. That did not occur, and the parties appeared in court for a calendar call on February 2, 2009. The trial was assigned to Judge Claude M. Coleman who informed the parties that he would have the motion transferred to himself and, then, adjourn the trial. Judge Coleman indicated that the motion would be heard at 10:30 a.m. on March 6, 2009. He also agreed to hear it telephonically to accommodate defendant who was no longer practicing law in New Jersey but had relocated to the State of Georgia.
Unfortunately, the best laid plans of Judge Coleman did not take place. On February 6, 2009, Judge Cifelli decided the summary judgment motion on the grounds that plaintiff did not produce a liability expert's opinion on legal malpractice. The motion was marked "Unopposed." There was no oral argument on the motion, which had not been requested by defendant.
Plaintiff immediately moved to vacate the order pursuant to Rule 4:50-1 and requested oral argument. The management effort by Judge Coleman to have the motion carried and assigned to him, which we have just set forth, was explained in the certification accompanying plaintiff's motion for reconsideration. That certification was not factually disputed. Oral argument was declined by the court. The motion for reconsideration was denied for the reasons as previously described.
Defendant did not appear for argument and provided no opposition to plaintiff's position on this appeal. We are persuaded that the motion for reconsideration should have been granted, and that plaintiff be afforded an opportunity to respond to defendant's summary judgment motion. The initial motion for summary judgment was untimely and should not have been heard when it was decided on February 6, 2009. Furthermore, it is indelibly clear that the parties relied on what transpired before Judge Coleman who, in effect, had held a case management conference and re-scheduled the motion to be telephonically heard on March 6, 2009. We have no explanation for why the file that was before Judge Cifelli was not promptly retrieved so that everything relating to this matter would have been before Judge Coleman as expected by the parties. We therefore reverse and remand the matter to the Civil Presiding Judge for further proceedings consistent with this opinion. We express no opinion on the merits of the motion. Jurisdiction is not retained.
Reversed and remanded.