On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3195-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges Payne and Messano.
Plaintiff, Charles K. Geyer, appeals from orders of August 27, 2009 granting the motion of defendants Loalbo & Bassetti and Edward Bassetti (defendants*fn1 ) to bar expert reports and testimony on behalf of plaintiff in his legal malpractice action and denying plaintiff's cross-motion to strike defendants' answer and defenses and to schedule service of expert reports, depositions and a case management conference. Plaintiff also appeals from an October 16, 2009 order dismissing plaintiff's complaint with prejudice for failure to produce a legal malpractice expert's report.
A complaint in the matter was filed on November 27, 2006 --almost three years before the action's dismissal -- alleging legal malpractice on the part of Bassetti, who utilized loan proceeds resulting from a loan refinancing to pay plaintiff, family members, and miscellaneous creditors, rather than applying the money to pay off a prior mortgage loan. As a result, the mortgage creditor instituted a foreclosure action against the residential property subject to the mortgage. Plaintiff did not allege misappropriation of funds on the part of Bassetti. Rather, issue was joined as to whether Bassetti disposed of the loan proceeds pursuant to plaintiff's instructions, and whether Bassetti's conduct constituted a violation of his duty of care.
Until October 16, 2008, plaintiff was represented by counsel other that Ronald Nagle. After the complaint was served, defendants moved for summary judgment and, upon denial of that motion, filed an answer on April 25, 2007. A discovery end date of August 9, 2008 was established. On July 16, 2008, a motion by defendants to extend the discovery end date for 120 days, set a date certain for expert reports, and to compel depositions was filed. It was granted in an order, filed on August 5, 2008, which extended discovery to December 7, 2008, ordered completion of fact witness depositions by September 30, 2008, scheduled service of plaintiff's expert reports by October 21, 2008 and defendants' expert reports by November 11, 2008, and ordered that the depositions of experts be completed by December 7, 2008.
On September 22, 2008, a request by defendants for a thirty-day extension of the schedule and discovery end date was filed to permit depositions to be conducted following receipt from Commerce Bank of the checks written by Bassetti on trust accounts maintained by him for plaintiff. The motion was granted on October 2, 2008, and discovery was extended to January 7, 2009.
A further request for an extension of the period for discovery was made by defendants on December 18, 2008, and was granted on January 13, 2009. In the order of that date, depositions of fact witnesses were to be completed by January 28, 2009, plaintiff was to serve his expert's reports by February 5, 2009, defendants were to serve their reports by March 7, 2009, and the depositions of all experts were to be completed by April 7, 2009.
On January 15, 2009, plaintiff moved to compel production of documents and answers to interrogatories.*fn2 The motion was carried by consent to February 20, 2009 and granted five weeks later on April 2, 2009. The discovery was ordered to be produced within ten days of receipt of the order, which was sent to defense counsel on April 6, 2009. Thereafter, plaintiff agreed to a ten-day extension of time to produce discovery.
In compliance with the court's discovery order and the parties' agreement, on April 27, 2009, defendants' counsel served upon plaintiff relevant attorney trust account checks and ledgers showing zero balances in eleven Geyer accounts.
Nonetheless, on May 22, 2009, plaintiff's counsel wrote to defendants' attorney stating that the April 2, 2009 order required "production of all bank records" and that the "bank ledger/balance statements/monthly statements for the years 2002, 2003 and 2004" were not produced. No response was received.
On May 27, 2009, three months after plaintiff's expert report was ordered to be served and after a trial date of July 13, 2009 had been established, defendants filed a notice of motion to bar expert reports and testimony of behalf of plaintiff. In response, plaintiff filed a cross-motion*fn3 for entry of an order dismissing defendants answer and separate defenses and/or fixing a date for service of expert reports and for a case management conference. In connection with his motion, plaintiff claimed that he had not received account statements or ledger documents as requested in document requests 2 and 3. Those requests were for:
2. All trust account ledgers maintained by Defendants for any person or entity named in number 1 above.
3. All Bank statements generated for the client trust sub accounts referred to in number 2 above.
Plaintiff claimed that the documents were "critical to show the balance that Bassetti had in his trust account at the time of the refinancing issue." This was claimed to be "especially critical as Bassetti represented that he had the full finance amount in his account at the time he was to pay off the prior mortgage." As a consequence of the missing documents, ...