December 14, 2011
NANCY J. RITSCHEL, PLAINTIFF-APPELLANT,
NEWMAN, SCAROLA*FN1 AND SAWYER, GALE, LAUGHLIN & SCHNEIDER, L.L.P. AND ERICH SCHNEIDER, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-782-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 25, 2011
Before Judges Payne and Reisner.
Plaintiff, Nancy J. Ritschel, appeals the denial by Judge Brennan of a motion for reconsideration of an order granting summary judgment in defendants' favor in plaintiff's legal malpractice case. We affirm.
Plaintiff was represented by defendant Erich Schneider in the negotiation of a property settlement agreement in connection with her divorce while Schneider was employed at the defendant firm of Newman Scarola and in a post-divorce dispute while he was employed by defendant Sawyer, Gale, Laughlin & Schneider, L.L.P. (Sawyer Gale). On March 11, 2008, plaintiff filed suit against the two defendant firms and Schneider alleging legal malpractice. The case was placed on Track III, affording plaintiff 450 days for discovery. See R. 4:5A-1, 4:24-1(a) and Appendix XII (case information statement). The discovery period thus ended on August 9, 2009. Although defendant Sawyer Gale sought a sixty-day extension of discovery pursuant to Rule 4:24-1(c), that request was "vehemently oppose[d]" by plaintiff, personally, and as a result, consent to a discovery extension was denied.
Because no expert reports had been served by plaintiff, in late July 2009, defendants moved to bar any expert testimony on her behalf. In response to defendants' motion, plaintiff's counsel cross-moved for a thirty-day extension of discovery, stating, among other things, that he had undergone open-heart surgery soon after suit was filed, thereby delaying the discovery process, and that, for a two-week period, plaintiff's expert had not had access to plaintiff's file, because it was being copied at the request of Sawyer Gale. Additionally, on August 6, 2009, plaintiff served the report of her damages expert. However, she did not serve the report of her liability expert until September 14, 2009 after the discovery period had ended. In an order dated October 1, 2009, the court denied defendants' motion, set a discovery schedule, and extended discovery by almost six months to January 29, 2010.
On August 28, 2009, defendants moved for summary judgment. Plaintiff filed opposition to the motions on September 20, 2009. Thereafter, in December 2009, the depositions of plaintiff's experts were taken. Additionally, on December 11, 2009, oral argument on the motions for summary judgment occurred. Following oral argument, Judge Brennan asked for additional briefing on certain issues, setting a return date of January 22, 2010. Newman Scarola filed a supplemental letter brief on December 22, 2009, and both Schneider and Sawyer Gale filed supplemental briefs on December 23, 2009.
While the summary judgment motions were pending, in November 2009, plaintiff's counsel was diagnosed with cancer, for which he received chemotherapy and radiation treatments concluding on January 18, 2010. As a consequence, counsel sought an adjournment of argument on the motions for summary judgment, and on January 19, 2010, the motions were adjourned to March 5, 2010. On January 24, 2010, plaintiff's counsel submitted supplemental opposition to the pending motions. Because counsel was later scheduled for surgery on March 2, 2010, a further adjournment of the motions was granted, and trial was adjourned to May 24, 2010. Trial was later adjourned further to June 28, 2010.
On March 17, 2010, plaintiff's counsel notified the court that his condition would not permit him to continue on the case and that he and plaintiff were in the process of obtaining new counsel. Representation by plaintiff's counsel formally ended on May 7, 2010, at which time plaintiff signed a substitution of attorney that indicated that she would proceed pro se.
On May 11, 2010, the court held a telephonic case management conference in which plaintiff participated. At that time, plaintiff expressed the desire to settle the case and stated that if settlement could not be reached, oral argument on the pending summary judgment motions should be scheduled. She stated that she "would not mind" arguing in opposition to the motions and she urged counsel to file promptly any supplements to the pending motions. On May 14, 2010, Newman Scarola supplemented its summary judgment motion, incorporating in it discovery obtained as the result of the depositions of plaintiff's experts. Sawyer Gale and Schneider joined in Newman Scarola's submission. Thereafter, on May 20, 2010, plaintiff wrote to defense counsel to advise that a settlement offer of $900,000 would remain open only until May 21, 2010, as she was hoping to settle before having to retain new counsel, who would be retained effective May 24, 2010, at which time the settlement demand would be doubled.
Nonetheless, plaintiff continued to proceed pro se, filing additional opposition to summary judgment on or about June 2, 2010. A hearing on the summary judgment motions took place on June 11, 2010, at which time plaintiff appeared pro se. At that time, Judge Brennan asked plaintiff to tell him what she wanted him to do about the case, so that he could decide whether what she wanted was appropriate or not. After a lengthy discussion on the record regarding plaintiff's pro se status, plaintiff stated: "I am prepared to move ahead."
Following argument on the merits, Judge Brennan granted summary judgment in defendants' favor, ruling that there was no evidence that Schneider had proximately caused the plaintiff any harm, and there was no evidence of damages. An order was entered dismissing plaintiff's claims.
Plaintiff then hired new counsel who, by way of a motion for reconsideration, sought leave to reopen discovery to address the deficiencies in the reports of plaintiff's experts that had led to the entry of summary judgment. After hearing oral argument, Judge Brennan gave a detailed history of the case and the accommodations that had been given to plaintiff and her prior counsel. As stated by the court, counsel "was, simply, never pushed to do anything that would interfere with his efforts at recovery, or that would compel him to take any steps that he felt he was unable to do." Judge Brennan continued:
But it is relevant that at the time the expert reports were prepared in August and September of 2009, [plaintiff's counsel] was involved in the case. He was the one who . . . retained the experts, who provided them with information, and who helped them, in ways that lawyers always do, execute their . . . expert reports.
And so it is not as though the pro se plaintiff was simply left to her own to obtain these reports.
And between the time March 17th, when [counsel] was . . . forced to retire from the case almost two months elapsed. Ms. Ritschel said that she would represent herself. And then I gave her any number of opportunities to make any request. I wasn't going to suggest on June 11 what her requests should be. That would not be fair to the defendants. And fairness is a two way street.
But I did give her the opportunity to make any requests that she wanted to. And at that time I would certainly have considered any such request, which was not forthcoming. She said she was ready to proceed.
And her view of a Motion for Reconsideration is effectively that litigation would go on forever. If Summary Judgment is entered then one simply has the chance to cure any deficiencies in one's case, and represent it to a judge who would then undo what he or she had done previously. And we just can't have that.
The court then acknowledged that what plaintiff was seeking was not reconsideration "in a classic sense," but rather, further indulgence from the court to supply the information that always was in her control and not within the control of the defendants. Determining that plaintiff "has, in fact, had her day in court," Judge Brennan denied the motion.
Plaintiff has appealed, arguing that Judge Brennan should have granted reconsideration, vacated the orders of summary judgment and reopened discovery to permit the submission of proof of liability and damages. She argues that her attorney's illness and eventual death constituted exceptional circumstances warranting the extension of discovery.
We reject plaintiff's arguments and affirm the denial of reconsideration substantially on the basis of Judge Brennan's comprehensive oral opinion. In doing so, we note, as did Judge Brennan, that an ample opportunity to cure the deficiencies existing in the reports of plaintiff's experts existed while plaintiff was represented by counsel. Defendants moved for summary judgment on August 28, 2009, and at that time they disclosed what they perceived to be the defects in plaintiff's case. Thereafter, plaintiff had several months to cure those defects prior to her counsel's cancer diagnosis. Indeed, in the court's October 1, 2009 order, the court extended the time for plaintiff to serve expert reports to October 30, 2009. Supplementation, if counsel found it to be warranted, could have taken place during this period. Additionally, although suffering from cancer, plaintiff's counsel continued to participate in the litigation for a substantial period of time after depositions of her experts in December 2009 exposed further flaws in their analyses. We thus agree that plaintiff has failed to set forth facts that would provide grounds for the extraordinary relief that she now seeks.