October 25, 2011
CHRISTOPHER GRESH AND NICOLE GRESH, HIS WIFE, PLAINTIFFS-APPELLANTS,
ABC BUILDING SOLUTIONS, L.L.C., ZVEZDAN AND BRANKA TEODOSIC, INSIDE OUT CONSTRUCTION, INC. AND AJEL CONSTRUCTION, INC., DEFENDANTS-RESPONDENTS, AND JOHN CONSTRUCTION, INC., DEFENDANT, AND ABC BUILDING SOLUTIONS, L.L.C., DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
ZVEZDAN AND BRANKA TEODOSIC, AND INSIDE OUT CONSTRUCTION, INC., THIRD-PARTY DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5089-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges Grall and Skillman.
On January 16, 2007, plaintiff Christopher Gresh suffered serious personal injuries when he fell from scaffolding erected at a residential construction site where he was working. At the time of plaintiff's accident, defendant ABC Building Solutions, L.L.C. (ABC), was constructing a second floor on an existing modular home. Plaintiff was employed by the manufacturer of the modular units, Design Homes, L.L.C., which sent him to the work site to correct a problem with the roof that arose during construction.
On December 18, 2008, plaintiff filed this action against ABC and various John Doe defendants. Plaintiff's wife Nicole Gresh joined in the complaint, asserting a per quod claim.
On March 4, 2009, ABC filed an answer and third-party complaint against a subcontractor on the project, Inside Out Construction, Inc., and the owners of the home, Zvezdan and Branka Teodosic.
Sometime in May 2009, plaintiff filed an amended complaint joining Inside Out and the Teodoscis as direct defendants. This complaint alleged that the Teodosics were responsible for the operation, maintenance and supervision of the jobsite and that their negligence may have caused plaintiff's injuries.
The Teodosics did not file an answer to the amended complaint until November 13, 2009.
On December 4, 2009, plaintiff filed a second amended complaint adding John Construction Company as a direct defendant after discovering it had constructed a scaffold on the site.*fn1
Shortly after receiving their answer, plaintiff served interrogatories and a request for the production of documents upon the Teodosics. In response to an interrogatory which asked whether they intended to assert a claim against any third-party, the Teodosics responded: "As to the possible negligence of others, this is subject to further discovery." In response to another interrogatory which asked whether they contended the accident was "contributed to by the negligence of any other person," the Teodosics responded: "See prior answers; subject to further discovery." The request for documents sought production of:
Any and all contracts and/or agreements existing between Zvesdan and Branka Teodosic and each and every contractor and subcontractor relative to construction, carpentry, masonry and/or painting services at the [subject] premises . . . .
After receiving answers to his discovery requests, plaintiff noticed the Teodosics for the taking of depositions on December 14, 2009, February 10, 2010 and May 27, 2010. However, on each of those occasions, the Teodosics cancelled the depositions either because other newly joined defendants had not yet filed answers or because plaintiff was unavailable to have his deposition taken as a result of surgery and other extensive medical treatment and the Teodosics' attorneys allegedly refused to produce their clients for depositions until after plaintiff was deposed.
Based on delays in the joinder of other potentially liable parties and the conduct of necessary discovery, the trial court entered an order extending the deadline for the completion of discovery until August 6, 2010.
Plaintiff was finally able to take the Teodosics' depositions on June 23, 2010. Plaintiff discovered for the first time through these depositions that AJEL Construction had constructed a scaffold on the site, which allegedly was the scaffolding on which plaintiff suffered his accident.
On July 7, 2010, plaintiff moved to amend his complaint to add AJEL as a defendant and to extend discovery until December 6, 2010. Plaintiff's counsel submitted a certification in support of this motion, which alleged that "due to the Teodosics' failure to provide fully responsive answers to written discovery requests, plaintiff's counsel did not reasonably discover that AJEL Construction erected the scaffolding from which plaintiff fell until June 23, 2010, when the Teodosics were deposed." This certification also stated that "[b]ased upon plaintiff's observations regarding the assembly and structure of the scaffolding and the manner in which he fell, it is anticipated that plaintiff's liability expert will opine that AJEL Construction, Inc. negligently constructed the scaffolding in violation of minimum OSHA standards, and that the scaffolding lacked guardrails, fall protection and/or proper planking." The Presiding Civil Judge granted this motion, but only extended the deadline for the completion of discovery until October 6, 2010. The order memorializing this ruling, which was entered on July 26, 2010, also stated that "no further extensions [were] likely to be granted" and set January 10, 2011 as the date for the trial of the case.
Because AJEL's president was out of the country until August 15, 2010, plaintiff was unable to make service of process upon this newly added defendant until August 19, 2010. After effectuating service upon AJEL, plaintiff filed a motion for a further sixty-day extension of the deadline for the completion of discovery in order to enable its liability expert to complete his investigation and submit a report. Plaintiff's counsel submitted a certification in support of this motion, which stated in part:
. . . [I]t is respectfully urged that this Court extend the discovery deadline from October 6, 2010, through December 6, 2010, in order to permit counsel for [AJEL] Construction to enter an appearance, and to allow for deposition of a representative of [AJEL] Construction and the submission of a liability expert's report.
As indicated in my earlier certification, I reasonably believe that [AJEL] Construction built and maintained the scaffolding from which plaintiff fell on January 18, 2007. As such, full and complete liability investigation cannot be had without the deposition of this party.
I reasonably believe that an extension of the discovery deadline from October 6, 2010, through December 6, 2010, will permit the parties to complete the work necessary to have this case trial ready by January 10, 2011, as set forth by the Court's previous order of July 26, 2010.
I have spoken with all defense counsel who have consented to this request and have consented to have this matter presented to the Court on short notice on the return date of October 5, 2010.
On September 27, 2010, which was only nine days before the discovery end date established by the July 26, 2010 order, AJEL filed its answer and a motion to dismiss the complaint with prejudice or, in the alternative, to extend the discovery deadline for 180 days.
The trial court denied AJEL's motion to dismiss and referred plaintiff's motion to extend the discovery deadline to the Presiding Civil Judge, who denied the motion. The October 15, 2010 order denying plaintiff's motion to extend the discovery deadline had an appended handwritten note, which stated: "Exceptional circumstances not documented why discovery is incomplete after 574 days of discovery. Parties may always engage in consensual discovery."
Defendants then filed motions for summary judgment to dismiss plaintiff's complaint on the ground that plaintiff had failed to produce a liability expert report to support his claim that the scaffolding from which he fell was negligently constructed, inspected and maintained. The trial court granted these motions and entered orders dismissing plaintiff's complaint against all defendants.
On appeal, plaintiff's arguments are directed solely at the trial court's denial of its motion for an extension of the discovery deadline after AJEL's joinder as a defendant. Plaintiff does not dispute that if that motion was properly denied, defendants were entitled to summary judgment based on plaintiff's failure to produce an expert report to support his claims.
In addition, plaintiff does not challenge the dismissal of his claim against Inside Out for reasons unrelated to the court's denial of his motion to extend the discovery deadline and his failure to submit an expert report.
Plaintiff's challenge to the October 15, 2010 order denying his motion to extend the discovery deadline is governed by Rule 4:24-1(c), which provides in pertinent part:
. . . If the parties do not agree or a longer extension is sought, a motion for relief shall be filed with the Civil Presiding Judge or designee in Track I, II, and III cases . . . , and made returnable prior to the conclusion of the applicable discovery period. . . . No extension of the discovery period may be permitted after an arbitration or trial date is fixed unless exceptional circumstances are shown.
To establish the "exceptional circumstances" that will justify an extension of time under the last sentence of Rule 4:24-1(c), "the moving party must satisfy four inquiries:
(1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time;
(2) the additional discovery or disclosure sought is essential;
(3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and
(4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time." Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div. 2005).
The record indicates that discovery was not completed in a timely manner because AJEL was not identified as a potentially liable party until the Teodosics indicated at their depositions taken on June 23, 2010 that AJEL had erected scaffolding at the work site, and AJEL could not be served with the amended complaint adding them as a defendant until August 19, 2010. The fifty days between that service and the expiration on October 8, 2010 of the extended date for the completion of discovery established by the July 26, 2010 order was insufficient to complete discovery of AJEL and obtain an expert report regarding its compliance with applicable safety standards for the scaffolding it erected. Moreover, although the Teodosics' depositions should have been taken at an earlier point, defendants bear part of the responsibility for the delay in taking those depositions because they insisted that plaintiff's deposition be taken first and plaintiff's surgery and other medical treatment delayed the taking of his deposition.
There is no doubt that the "additional discovery" of AJEL and the production of an expert report based on that discovery was "essential" to plaintiff's case. The revelation during the Teodosics' depositions that AJEL had erected the scaffolding from which plaintiff apparently fell made AJEL the target defendant in the action. Therefore, plaintiff had to join AJEL and conduct appropriate discovery of this defendant. Moreover, such discovery was necessary before an expert could render a meaningful report regarding the safety of AJEL's scaffolding, because there is no indication that the scaffolding was still in existence when this action was filed or that any other party had any information concerning its design or construction.
Although plaintiff's appeal is directed primarily at the October 8, 2010 order which denied plaintiff's motion for a further extension of time, it was the July 26, 2010 order that placed plaintiff in an untenable position. Plaintiff's motion that resulted in entry of that order sought leave to amend his complaint to add AJEL as a defendant and to extend the deadline for the completion of discovery to December 6, 2010. The other parties to the action consented to this motion. However, the Presiding Civil Judge granted plaintiff leave to amend his complaint to join AJEL, but only extended the discovery deadline until October 8, 2010. It should have been obvious when the July 26, 2010 order was entered that the seventy-four additional days for discovery it allowed would be insufficient for plaintiff to effectuate service upon AJEL and then, after whatever additional time elapsed before AJEL filed an answer, complete discovery of this newly added defendant and serve an expert report based on that discovery. The shortness of this additional period for the completion of discovery provides "[a reasonable] explanation for counsel's failure to request an extension of the time for discovery within the original time period;" and shows that "the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time." Rivers, supra, 378 N.J. Super. at 79.
Indeed, the trial judge to whom this case was assigned recognized in comments placed on the record on October 15, 2010 that plaintiff had presented a compelling case for a further extension of time for the completion of discovery:
[T]he classic tension between the ever present rush to get these cases to trial and the need to fine tune individual cases so that the granular details of a case that has a lot of nuances such as this can be worked out in a fashion that is satisfactory to both the plaintiff and to the defendant so that nobody is harmed is always difficult.
For me, this is a hard call in how to handle it. I am more than satisfied that the plaintiff acted in a reasonable fashion to discover [AJEL's] identity.
The fact [is] that the homeowners who are apparently the only ones who had the information as to who put up that scaffolding and where that scaffolding came from were not cooperative in respective discovery. I mean, if they had in their answers to interrogatories told counsel that your client was the one and they sat on that then this becomes a whole different case, but they didn't. They didn't tell them. They didn't tell them [at] the deposition and then they didn't cooperate to produce themselves for deposition until this past June.
So to deny the plaintiff the opportunity to target [AJEL] who clearly is the target of this case because it's the scaffolding that is the alleged demon here that has caused the injuries, to deny them that opportunity basically says this case is over because who else is going to be responsible? Maybe the homeowner, maybe not.
But their responsibility is certainly going to be tempered. And by the way, the homeowner didn't bring them in. Doesn't that raise a question? Why didn't the homeowner bring them in? I mean, that would be the first thing I would do. Hey, I didn't bring that scaffolding up here, this guy did. It was a favor, you know. Bring them in. Give that information up right away.
You're looking at the wrong party. And so the other defendant, ABC, they would have an equally compelling interest to discover the identity of the person who provided the scaffolding because they would have a claim over as they did against the homeowner and at that point they would have made not only the homeowner a direct -- a third party defendant, they would have made your client a third party defendant and brought them in.
So I can't grant the motion to dismiss with prejudice. I'm more than satisfied on the basis of this record that the plaintiff acted reasonably to discover the identity of the -- of AJEL, that there has not been a perversion of the fictitious name pleading process. The only question is what to do about it.
However, under the terms of the July 26, 2010 order, the trial judge was required to refer a decision on plaintiff's motion for a further extension of the discovery deadline to the Presiding Civil Judge, who denied the motion without any explanation except for the previously quoted handwritten note, which stated that plaintiff had not shown "exceptional circumstances."
For the reasons previously stated, we disagree with this conclusion. We also note that the "exceptional circumstances" standard was applicable only because the July 26, 2010 order, which allowed plaintiff a mere seventy-four days to effectuate service of process upon AJEL and complete all additional discovery, also established a January 10, 2011 trial date.
Accordingly, we reverse the orders dismissing plaintiff's complaint against ABC, the Teodosics and AJEL and remand the case to the trial court. This reversal does not affect the dismissal of Inside Out.