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Ellen Nevins v. Toll Brothers

July 5, 2011

ELLEN NEVINS, PLAINTIFF-APPELLANT,
v.
TOLL BROTHERS, INC., AND ESTATES AT RIVERS EDGE, LP, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1102-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 7, 2011 -- Before Judges Messano and Waugh.

Plaintiff Ellen Nevins appeals the order of the Law Division dismissing her breach of contract claim against defendants Toll Brothers, Inc., and Estates at Rivers Edge, LP. We reverse.

I.

We discern the following facts and procedural history from the record on appeal.

In July 1995, Nevins contracted with defendants for the purchase of a custom-built home at a development in Belle Mead known as the Estates at Rivers Edge. She closed on the property in June 1997.

Following the closing, Nevins was not satisfied with the quality of the construction, so she submitted a punch list of items for repair. Because she was not satisfied with defendants' response to her request, Nevins filed a seven-count complaint in July 2001, seeking damages based upon her allegation that there were numerous construction defects.*fn1

Following a period of discovery, defendants filed a motion for summary judgment, which was opposed. In August 2004, the motion judge dismissed three of the claims, but denied the motion as to remaining claims.

The case was called for trial in September 2004. The parties entered into settlement, but the terms of the settlement were not reduced to writing until August 1, 2005. The settlement provided for the appointment of a neutral expert who would oversee repairs to the house.

On June 13, 2008, Nevins' attorney wrote to the judge, stating that Nevins was unwilling to continue with the settlement because of disagreements between the parties and requesting that the case be listed for trial. In July 2008, defendants filed a motion to enforce the settlement or, in the alternative, to have it declared "null and void." In August 2008, the motion judge entered an order enforcing the settlement and setting forth provisions for its implementation.

For reasons not reflected in the record, the settlement agreement was vacated in April 2009. At that time, the case came under case management by a single judge. Nevins was ordered to provide an expert report and to allow defendants' expert to inspect her home. Nevins had difficulty retaining an expert. In July 2009, defendants filed a motion to preclude the filing of any further expert reports. Apparently because Nevins had finally retained a new expert, the motion was denied.

Defendants filed a motion for partial summary judgment in August 2009. On September 18, the managing judge granted the motion. She dismissed all claims except the one for breach of the Builder's Limited Warranty contained in the contract of sale.

A case management conference was held on September 9, 2009. The managing judge ordered Nevins to submit her expert's report by October 13, 2009. The judge also ordered that all depositions be completed by November 13.

Nevins did not provide an expert report by the October 13 deadline, but instead asked for additional time for preparation of the report and completion of deposition. Defendants wrote to the managing judge to oppose the request, stating that they intended to file a motion to "bar[] the submission of any new expert evidence" by Nevins. On October 16, the judge denied Nevins' request for an extension of discovery to January 2010, and required submission of the report no later than ...


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