NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1144-13T2
GARDEN HOWE URBAN RENEWAL APPROVED FOR PUBLICATION ASSOCIATES, L.L.C., February 26, 2015 Plaintiff-Appellant, APPELLATE DIVISION v.
HACBM ARCHITECTS ENGINEERS PLANNERS, L.L.C.,
Defendant/Third-Party Plaintiff-Respondent,
and
DEL-SANO CONTRACTING CORP.,
Third-Party Defendant.
__________________________________________
Argued January 6, 2015 – Decided February 26, 2015
Before Judges Yannotti, Fasciale and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L- 1126-11.
Robert C. Scrivo argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Scrivo, of counsel; Lawrence S. Cutalo and Andrew Gimigliano, on the briefs). Thomas M. Madden argued the cause for respondent (Hack, Piro, O'Day, Merklinger, Wallace & McKenna, P.A., attorneys; Mr. Madden, of counsel; Mr. Madden and Christine McCarthy on the brief).
The opinion of the court was delivered by
YANNOTTI, P.J.A.D.
Plaintiff Garden Howe Urban Renewal Associates, L.L.C.
appeals from an order dated July 2, 2013, barring its expert
report; an order dated July 12, 2013, denying its motion to
adjourn the trial date and extend the time for discovery; and an
order dated September 24, 2013, dismissing its remaining claim
with prejudice. We reverse.
I.
In November 2004, HACBM Architects, Engineers, Planners
L.L.C. ("HACBM") submitted a proposal to plaintiff for
architectural and engineering services to "design and document"
a roof-level addition and various alterations to an existing
four-story building in Passaic (the "Project"). According to the
proposal, the services required included "architecture,
structural engineering, and mechanical, electrical, plumbing,
and fire protection engineering."
The proposal indicated that the services would be provided
in three phases. In the first phase, HACBM would analyze
structural and building codes, review schematic design plans and
2 A-1144-13T2 elevations, and develop preliminary plans, details and
specifications. In the second phase, HACBM would develop the
required "architectural, structural, mechanical, electrical,
plumbing, and fire protection systems in sufficient detail to
set forth the requirements for construction of th[e] project,"
and provide plaintiff with detailed plans and specifications
"for the architectural and engineering systems described." In
the third phase, HACBM would periodically observe and evaluate
the construction progress, and visit the site on a semi-monthly
basis during an eight-month construction period.
On November 19, 2004, James Robbins ("Robbins"),
plaintiff's President, signed the agreement, accepting the
proposal. The parties also executed a "Standard Form of
Agreement Between Owner and Architect for a Small Project" of
the American Institute of Architects ("AIA"), which set forth
the architect's responsibilities (the "Agreement"). The
Agreement stated that "[t]he Architect shall provide
architectural services for the project, including normal
structural, mechanical, and electrical design services. Services
shall be performed in a manner consistent with professional
skill and care."
In October 2008, plaintiff filed a complaint in the Law
Division against HACBM, asserting professional malpractice
3 A-1144-13T2 claims. In January 2009, HACBM filed an answer and counterclaim
against plaintiff. In February 2009, plaintiff served an
Affidavit of Merit (the "AOM") from David V. Abramson
("Abramson"), an architect licensed in New Jersey and New York.
In January 2009, Abramson provided a letter report
concerning certain deficiencies in the construction documents.
Abramson also provided a letter report, dated March 12, 2010,
which addressed the replacement of "an existing means of egress
stair" which was part of the Project ("Stairway No. 2").
Abramson analyzed certain provisions of the "Rehabilitation
Subcode" in the State's Uniform Construction Code ("UCC"),
N.J.A.C. 5:23-6.1 to -6.33. Based on that review, Abramson
concluded that replacement of Stairway No. 2 and a related
structure had not been necessary.
Plaintiff also served a report from Project Control
Associates ("PCA"), dated April 15, 2010, which resulted from
its investigation of the professional design and construction
phase services that HACBM had provided for the Project.
According to the report, the investigation was conducted and the
report prepared by Harold M. Tepper ("Tepper"), a professional
engineer; John Lyssikatos ("Lyssikatos"), a professional
engineer; and Frank M. Graczyk ("Graczyk"), a licensed building
code, fire protection code and mechanical code inspector. The
4 A-1144-13T2 report stated that it had been prepared with Abramson's
assistance.
Robbins was deposed in October 2010. During his deposition,
Robbins indicated that, in addition to other claims against
HACBM, plaintiff was asserting a claim for an alleged
overpayment of approximately $900,000 to the general contractor
on the Project, Del-Sano Contracting Corp. ("Del-Sano"). In
addition, Robbins had authored a report detailing plaintiff's
business-loss claim of about $1,150,000.
Based on Robbins's deposition testimony, HACBM filed a
motion seeking: (1) leave to file a third-party claim against
Del-Sano; (2) to bar PCA's "agents" and Abramson from being
qualified as experts due to concerns that they were acting as
advocates for plaintiff, rather than providing objective expert
opinions; (3) to preclude Robbins from testifying as an expert
as to plaintiff's business losses since he did not have the
qualifications to do so; and (4) to limit Abramson's testimony
to the replacement of Stairway No. 2.
It appears that the trial court did not rule on the motion.
Rather, the parties agreed to the dismissal of the complaint
without prejudice. On March 3, 2011, plaintiff filed a new
complaint against HACBM. On April 12, 2011, HACBM filed an
answer, counterclaim and third-party complaint against Del-Sano.
5 A-1144-13T2 On May 13, 2011, Del-Sano filed an answer to the third-party
complaint, and on May 23, 2011, plaintiff filed an answer to the
counterclaim.
On June 22, 2011, HACBM filed a petition in the United
States Bankruptcy Court under Chapter 7 of the Bankruptcy Act,
11 U.S.C.A. §§ 701-784, and proceedings in this case were
stayed. The bankruptcy proceedings were completed on March 2,
2012.
On September 13, 2012, plaintiff filed an amended, four-
count complaint against HACBM, which included a claim against
Del-Sano. In count one, plaintiff alleged that HACBM breached
the Agreement by, among other things, failing to address
construction issues as they arose, provide adequate plans to
construct the Project, undertake adequate job supervision,
ensure proper implementation of the plans, and submit complete
plans or revisions when required.
Furthermore, in count two, plaintiff alleged that HACBM was
comprised of licensed architects and that it was negligent since
it failed to meet the minimum standard of care "as set by the
industry" with regard to the services provided for the Project.
In addition, in count three, plaintiff claimed that HACBM
breached a duty to provide architectural services in a non-
negligent manner.
6 A-1144-13T2 Moreover, in count four, plaintiff alleged that HACBM had
contracted with Del-Sano to perform certain services for the
Project. Plaintiff claimed that Del-Sano was obligated to carry
out and implement the plans for construction that HACBM had
prepared. Plaintiff stated that Del-Sano had not done so.
Plaintiff alleged that, if HACBM is not found liable on these
claims, Del-Sano should be held "accountable" for HACBM's
"breaches."
Subsequently, the trial was scheduled for June 24, 2013,
and later rescheduled for July 15, 2013. On April 25, 2013,
HACBM filed a motion to bar PCA and its "agents" from testifying
at trial. Among other things, HACBM argued that PCA's report
should be barred because it was prepared by two professional
engineers and a code official, rather than an architect. HACBM
maintained that these individuals were not qualified to offer
opinions in a case involving claims of architectural
malpractice.
Plaintiff opposed the motion. Plaintiff argued that an
architect had participated in the preparation of the report and
the architect was prepared to testify on all issues. Plaintiff's
counsel acknowledged that the report detailed various claims,
and did not specify which of the authors would address each
claim, but counsel said this could be clarified.
7 A-1144-13T2 The judge considered HACBM's motion on June 21, 2013, and
placed his decision on the record. The judge ruled that
plaintiff's expert report was "inappropriate." The judge pointed
out that this case involved claims of alleged architectural
malpractice and that the report had not been prepared by an
architect. The judge noted that an architect had contributed to
the report, but said that was insufficient. The judge decided
that the report should be barred except for the supplement
pertaining to the replacement of Stairway No. 2. The judge
stated, however, that the authors of the report could testify as
to factual issues.
The judge noted that the case was scheduled for trial in
July of 2013 and suggested that an application be made to
adjourn the trial so that plaintiff could obtain another expert
report, which would be "the fairest way to handle the matter."
The judge entered an order dated July 2, 2013, which
provided in part that: (1) substantially all of the PCA report
is barred; (2) Tepper, Lyssikatos and Graczyk could testify as
to "factual issues"; and (3) Abramson's testimony would be
limited to the replacement of Stairway No. 2.
Plaintiff thereafter made a motion to adjourn the trial
date and to extend the time for discovery. Another judge entered
an order dated July 12, 2013, denying the motion. On the order,
8 A-1144-13T2 the judge noted that the case already had 802 days of discovery,
with five discovery extensions, and that the case had previously
been dismissed without prejudice. The judge concluded that
plaintiff had failed to show exceptional circumstances for a
discovery extension, which was required by the court rules.
The case was called for trial on July 15, 2013, but it was
later rescheduled for trial on September 24, 2013. HACBM
thereafter filed a motion to bar Abramson from testifying that
it had deviated from the applicable standard of care because he
did not include that opinion in his report. The trial judge
noted that Abramson did not set forth an opinion that HACBM had
deviated from the standard of care in his report. The judge
ruled that, because Abramson was limited to the opinions in his
report, he could not testify as to the standard of care and
whether HACBM was negligent.
HACBM then moved for a directed verdict, arguing that
plaintiff could not sustain its burden of proof on the sole
remaining claim in the case, which was the claim regarding
Stairway No. 2. The judge granted the motion and entered an
order dated September 24, 2013, dismissing the complaint with
prejudice. This appeal followed.
On appeal, plaintiff argues: (1) the motion judge abused
his discretion by barring substantially all of the PCA report;
9 A-1144-13T2 (2) the trial court erred by refusing to extend the time for
discovery because plaintiff established exceptional
circumstances for the extension; and (3) the trial judge erred
by entering a directed verdict against plaintiff on the claim
regarding Stairway No. 2.
II.
We first consider plaintiff's contention that the motion
judge mistakenly exercised his discretion by barring
substantially all of PCA's expert report. Plaintiff contends
that the judge erroneously determined that only an architect
could testify as an expert in a case involving claims of
architectural malpractice. Plaintiff further argues that the
judge failed to conduct a "proper" inquiry into the
qualifications of the proposed expert witnesses.
Expert testimony may be offered "[i]f scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue." N.J.R.E. 702. If so, "a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise." Ibid.
Thus, there are
three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2)
10 A-1144-13T2 the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
[State v. Kelly, 97 N.J. 178, 208 (citation omitted) (1984).]
In an action involving a claim of professional malpractice,
"[t]he test of an expert witness's competency . . . is whether
[that witness] has sufficient knowledge of professional
standards to justify the expression of an opinion." Carey v.
Lovett, 132 N.J. 44, 64-65 (1993) (citing Sanzari v. Rosenfeld,
34 N.J. 128, 136 (1961)). The determination of whether a
proposed expert witness has sufficient knowledge of professional
standards is committed to "the sound discretion of the trial
court." Id. at 64. The trial court's decision may not be
reversed unless "clearly shown to be erroneous as a matter of
law." State v. Campisi, 42 N.J. Super. 138, 147 (App. Div. 1956)
(citing Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 141
(1950)), rev'd on other grounds, 23 N.J. 513 (1957).
Our opinion in Alliance for Disabled in Action, Inc. v.
Continental Props., 371 N.J. Super. 398, 402 (App. Div. 2004),
aff'd 185 N.J. 331 (2005), is instructive. There, the plaintiff
brought suit against the developers and architect of a
residential housing complex alleging, among other things, that
the developers failed to comply with New Jersey's Barrier Free
11 A-1144-13T2 Subcode (the "Barrier Free Subcode"), N.J.A.C. 5:23-7.1 to -
7.31. In support of its claims, the plaintiff served three
reports from its expert, a person who dealt with handicapped-
accessibility matters for New Jersey Transit, and held a
certificate issued by the State Department of Community Affairs,
evidencing his completion of a course in the requirements of the
Barrier Free Subcode. Id. at 405.
The trial court dismissed the plaintiff's claims against
the architect, finding that the claims against this defendant
were essentially a claim of architectural malpractice, and the
claims could not proceed without the opinion of a licensed
architect. Id. at 406. We noted, however, that not all experts
must possess a professional license. Ibid. (citing Landrigan v.
Celotex Corp., 127 N.J. 404, 421-22 (1992); State v. One Marlin
Rifle, 319 N.J. Super. 359, 368 (App. Div. 1999)).
We concluded that the trial court erred by characterizing
the case as involving a claim of architectural malpractice.
Ibid. We observed that the plaintiff had not alleged that the
defendant architect had "deviated from the standard of care
governing architects charged with the responsibility for
designing such a project." Ibid. We stated that the plaintiff's
"claim was restricted to its allegation that the design of the
project did not comply with the [S]ubcode." Ibid. We determined
12 A-1144-13T2 that the plaintiff's expert was qualified to testify as to
whether the complex was built in compliance with the Subcode.
Ibid.
We are convinced that the motion judge in this case
mistakenly barred substantially all of the PCA report merely
because it was not signed by an architect. As we indicated in
Continental Properties, not all experts must possess a
professional license, and whether an expert witness may testify
in a case involving a claim of architectural malpractice will
depend on the claim involved, the specific allegations made, and
the opinions that the expert proposes to offer at trial.
Here, plaintiff is pursuing claims of architectural
malpractice. The PCA report details the standards of care for
each claim being made. The standards of care are based in large
part upon HACBM's alleged failure to comply with the UCC and
several of its subcodes. The standards of care are also based
on, among other things, the rules of professional conduct for
architects, the AIA's Handbook of Professional Practice, and the
Manual of Steel Construction of the American Institute of Steel
(the "Steel Construction Manual").
The motion judge mistakenly failed to consider whether
Tepper and Lyssikatos had sufficient knowledge and experience as
professional engineers to opine as to the requirements of the
13 A-1144-13T2 UCC, the UCC's subcodes, the Steel Construction Manual, and
other structural requirements cited in the PCA report. Moreover,
Graczyk is listed as one of the persons who prepared the report.
According to the report, Graczyk is licensed as a building, fire
protection, and mechanical code inspector. The motion judge
mistakenly failed to consider whether Graczyk had the requisite
qualifications to testify as to the code requirements referenced
in the report and HACBM's alleged failure to meet those
requirements.
In addition, the report states that it was prepared with
Abramson's assistance. While Abramson authored a supplemental
report concerning Stairway No. 2, there is no indication that
his involvement was limited to preparing that supplement. The
motion judge mistakenly failed to consider whether Abramson
assisted with other sections of the report which cited standards
pertaining to architects, and whether he was prepared to testify
as to the opinions set forth in those sections of the report.
Furthermore, we note that the judge's ruling that a
licensed professional engineer may not testify as an expert in a
case involving alleged architectural malpractice is not
supported by the statutes that govern the practice of
architecture and engineering in this state. These statutes
indicate that there is no clear demarcation of the line between
14 A-1144-13T2 services that can be provided by licensed architects and by
licensed engineers.
Architectural practice is regulated in New Jersey pursuant
to N.J.S.A. 45:3-1 to -46. Under this statutory scheme, the term
"architecture" is defined in part as "the art and science of
building design and particularly the design of any structure for
human use or habitation." N.J.S.A. 45:3-1.1c. The licensing
statutes for architects also provide that the practice of
architecture includes
the rendering of services in connection with the design, construction, enlargement, or alteration of a building or a group of buildings and the space within or surrounding those buildings, which have as their principal purpose human use or habitation. These services include site planning, providing preliminary studies, architectural designs, drawings, specifications, other technical documentation, and administration of construction for the purpose of determining compliance with drawings and specifications.
[N.J.S.A. 45:3-1.1k.]
Furthermore, the practice of engineering is subject to
regulation in New Jersey under N.J.S.A. 45:8-27 to -60. The
practice of engineering is defined to include
any service or creative work the adequate performance of which requires engineering education, training, and experience and the application of special knowledge of the mathematical, physical and engineering sciences to such services or creative work
15 A-1144-13T2 as consultation, investigation, evaluation, planning and design of engineering works and systems, planning the use of land and water, engineering studies, and the administration of construction for the purpose of determining compliance with drawings and specifications; any of which embraces such services or work, either public or private, in connection with any engineering project including: utilities, structures, buildings, machines, equipment, processes, work systems, projects, telecommunications, or equipment of a mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or property, and including such other professional services as may be necessary to the planning, progress and completion of any engineering services. The design of buildings by professional engineers shall be consistent with section 7 of the "Building Design Services Act." [N.J.S.A. 45:4B-7].
[N.J.S.A. 45:8-28(b).]
Moreover, the Building Design Services Act (the "BDSA"),
N.J.S.A. 45:4B-1 to -14, recognizes that there is "an area of
concurrent practice between the practice of architecture and the
practice of engineering, specifically in the area of building
design." N.J.S.A. 45:4B-2. Indeed, the BDSA provides that
engineers may design certain kinds of buildings and structures.
See N.J.S.A. 45:4B-7. The BDSA also provides that both
architects and engineers may administer construction "for the
purpose of determining compliance with drawings and
specifications." N.J.S.A. 45:4B-3h to -3i.
16 A-1144-13T2 Thus, the statutes governing the practice of architecture
and engineering in New Jersey recognize that architects and
engineers may both engage in practice that affects building
design. These statutes also allow both architects and engineers
to engage in construction administration, which is the basis for
one of the claims asserted in this case. In addition, some of
the claims asserted by plaintiff relate to design elements that
may implicate "engineering education."
Therefore, the motion judge should have considered whether
some or all of the claims asserted in this case fall within
those areas where the practices of architecture and engineering
overlap, and whether Tepper and Lyssikatos have the requisite
knowledge and experience to offer opinions as to the standards
of care that apply to architects in the performance of any such
services.
We further note that recently, a panel of this court
determined that when a suit claiming malpractice or negligence
is brought against a professional listed in N.J.S.A. 2A:53A-26,
an affidavit of merit ("AOM") is required from a "like-licensed"
professional, except when the claim involves (1) matters of
common knowledge; (2) conduct outside the scope of the
defendant's professional duties; (3) intentional wrongdoing; or
(4) theories of vicarious liability or agency exclusively. Hill
17 A-1144-13T2 Int'l, Inc. v. Atlantic City Bd. of Educ., N.J. Super. __, __
(App. Div. 2014) (slip op. at 35-41).
However, the Hill Int'l case does not apply here because
the issue raised in this appeal does not concern the
requirements of the AOM statute.1 Rather, the issue presented
concerns the qualifications of witnesses to testify as experts
at the trial of a case in which claims of architectural
malpractice are asserted. The admissibility of a proposed
expert's trial testimony is governed by the standards in
N.J.R.E. 702, not the AOM statute.
We therefore reverse the trial court's order barring
substantially all of the PCA report. We remand the matter to the
trial court for reconsideration of HACBM's motion to strike. On
remand, the court should review the specific claims asserted and
the standards of care cited in the PCA report for those claims.
The court should determine whether Tepper, Lyssikatos, Graczyk,
and/or Abramson are qualified to testify at trial as to some or
all of the opinions set forth in the report. The court should
conduct a N.J.R.E. 104 hearing if the parties' written
submissions are insufficient to allow a decision to be made on
these issues.
1 As stated previously, plaintiff served an AOM from Abramson, a licensed architect.
18 A-1144-13T2 III.
We next consider whether the trial court erred by refusing
to extend the time for discovery after the motion judge barred
substantially all of the PCA report.
Here, the motion to extend discovery was subject to Rule
4:24-1(c), which provides in pertinent part that "[n]o extension
of the discovery period may be permitted after . . . [a] trial
date is fixed, unless exceptional circumstances are shown."
In order to extend discovery based upon "exceptional circumstances," 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 Partnership, 378 N.J. Super. 68, 79 (App. Div.) (quoting Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)), certif. denied, 185 N.J. 296 (2005).]
In our view, the trial court mistakenly exercised its
discretion by refusing to extend the time for discovery.
Plaintiff was diligent in pursuing discovery, and served the PCA
report in April 2010. HACBM filed a motion to bar that report in
November 2010, but did not specifically argue that the report
19 A-1144-13T2 should be barred because it was not authored by an architect. As
noted, the court did not rule on the motion at that time because
the parties agreed to the dismissal of the complaint without
prejudice.
The matter was reinstated and plaintiff filed a new
complaint in March 2011. The discovery end date was adjourned
several times. Eventually, the court scheduled the matter for
trial. HACBM did not move to strike the PCA report until after
discovery ended, and for the first time claimed the report
should be barred because it had not been written by an
architect. As we have determined, the motion judge erred in
doing so.
However, even if the judge had correctly decided that most
of the PCA report should be barred, the judge's decision, coming
literally on the eve of trial, presented an exceptional
circumstance that warranted the extension of time for discovery,
particularly since HACBM did not move to bar the report and its
authors' testimony until after discovery had ended. We conclude
that, under the circumstances, the discovery extension should
have been granted.
Therefore, on remand, if the court determines that some or
all of plaintiff's claims require the report and testimony of a
20 A-1144-13T2 licensed architect, it should extend the time for discovery to
allow plaintiff to serve a new report.
IV.
Plaintiff also argues that the trial judge erred by
entering a directed verdict on the claim regarding Stairway No.
2. The trial judge ruled that Abramson could testify as to the
analysis in his report, but could not offer an opinion on the
standard of care because that opinion was not expressly set
forth in the report.
As we have explained, the PCA report states that it was
prepared with Abramson's assistance. The report sets forth the
basis for plaintiff's claim regarding Stairway No. 2. In
essence, plaintiff alleges that HACBM misinterpreted the
Rehabilitation Subcode as requiring the reconstruction of the
stairway and related structure. The PCA report sets forth the
standard of care for the claim, citing several provisions of the
Architect's Handbook of Professional Practice, as well as an
architect's obligation to comply with applicable building codes.
In his separate report, Abramson detailed the provisions of
the Rehabilitation Subcode which he believed applied to the
Project. Abramson stated that an analysis of the relevant
sections of that Rehabilitation Subcode should have been used to
determine whether the existing stairway was adequate. Abramson
21 A-1144-13T2 opined that, based on this analysis, the demolition and new work
on Stairway No. 2 was not necessary. He further opined that the
delays and costs associated with that work were unnecessarily
incurred.
We are convinced that the trial judge mistakenly failed to
consider the relevant section of the PCA report in determining
whether Abramson should be permitted to testify as to the
standard of care applicable to the claim regarding Stairway No.
2. In our view, the judge should have determined whether
Abramson assisted in the preparation of the section of the PCA
report pertaining to the Stairway No. 2 claim, and whether the
opinions stated therein regarding the standard of care were his
opinions.
Moreover, Abramson's separate report concerning Stairway
No. 2 provided a sufficient basis to allow him to testify as to
the standard of care applicable to this claim. In his report,
Abramson stated that HACBM failed to apply the Rehabilitation
Subcode correctly, thereby causing the unnecessary demolition
and additional work on the stairway. Implicit in that report is
the opinion that, by doing so, HACBM deviated from the
applicable standard of care for architects. Abramson should not
have been precluded from so testifying at trial.
22 A-1144-13T2 Reversed and remanded for further proceedings in conformity
with this opinion. We do not retain jurisdiction.
23 A-1144-13T2