Kohn & Kohn Realty, LLC v. Margaret A. Uhrich

• Court: New Jersey Superior Court Appellate Division
• Decided: October 1, 2024
• Docket: A-2121-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2121-23

KOHN & KOHN REALTY, LLC, CAROL L. KRUEGLE TRUST, JENNIFER M. LAWLOR, an individual, JAMES D. HANNAH & LESLEE A. JACKSON, husband and wife, NORMA C. COSTA & CLAUDIA COSTA, mother and daughter,

Plaintiffs-Appellants,

v.

MARGARET A. UHRICH, MICHAEL P. UHRICH, WILLIAM D. MARTIN, and WILLIAM D. MARTIN REVOCABLE TRUST,

Defendants-Respondents. _________________________________

MICHAEL P. UHRICH, MARGARET A. UHRICH,

Plaintiffs-Respondents,

MARIANO D. MOLINA, ALI MOLINA, BOB VAN BUREN, ROBYN VAN BUREN, JOE CORBI, DANA CORBI, MANNY GUARDA, JOANNA GUARDA, CHRIS NICOSIA, HILLARY BELL, JOEL HENKIN and ELLEN S. HENKIN, and WILLIAM D. MARTIN,

Defendants,

and

KOHN & KOHN REALTY, LLC, JENNIFER M. LAWLOR AND MATTHEW F. DICZOK, JAMES D. HANNAH and LESLEE A. JACKSON, CAROL L. KRUEGLE TRUST, NORMA C. COSTA and CLAUDIA COSTA,

Defendants-Appellants. _________________________________

Argued September 19, 2024 – Decided October 1, 2024

Before Judges Mawla, Natali, and Vinci.

On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Ocean County, Docket Nos. C-000099-22 and C-000101-22.

Richard P. DeAngelis, Jr. argued the cause for appellants (Connell Foley LLP, attorneys; Timothy E. Corriston, of counsel; Richard P. DeAngelis, Jr., of counsel and on the briefs; Meredith Sarah Rubin, on the briefs).

A-2121-23 2 Richard Michael King, Jr. argued the cause for respondents (KingBarnes, attorneys; Richard Michael King, Jr. and Marissa J. Hermanovich, on the brief).

PER CURIAM

We granted plaintiffs Kohn & Kohn Realty, LLC, Carole L. Kruegle Trust,

Jennifer M. Lawlor, James D. Hannah, Leslee A. Jackson, and Norma C. and

Claudia Costa leave to appeal from a February 15, 2024 order, which granted

defendants Michael and Margaret Uhrich, William D. Martin, and William D.

Martin Revocable Trust's motion to bar admission of plaintiffs' expert reports1

at trial. We reverse and remand for the reasons expressed in this opinion.

This matter concerns a dispute regarding defendants' construction of new

bulkhead, which plaintiffs claimed obstructed their ability to use an easement

that granted them access to Barnegat Bay on Long Beach Island. Defendants

own property fronting Barnegat Bay on Friends Way. Plaintiffs also own homes

on Friends Way, and their deeds grant them a twenty-foot-wide easement down

to defendants' property. For decades, plaintiffs have used the easement to access

the bay for recreational purposes.

1 Although the order barred both of plaintiffs' experts, plaintiffs' appellate briefs focus on the report of their engineering expert, which we in turn discuss. A-2121-23 3 Martin has owned his property since the 1980s. The bulkhead on the

Martin property did not extend into the easement. The Uhrichs purchased their

property in 2020. The Uhrichs planned to replace the dilapidated bulkhead on

their property, which did extend into the easement. The bulkhead builder

recommended they connect their new bulkhead with Martin's. Although the new

bulkhead was constructed in accordance with township code, which required an

elevation of six feet above mean sea level, it was done without State and

Township permits. The New Jersey Department of Environmental Protection

(DEP) initially issued a permit, but later terminated it because the Uhrichs did

not: disclose the construction was within an easement; obtain the consent of

easement holders; and show the attachment of the bulkhead to the Martin

property in the approved plan.

In May 2022, plaintiffs filed a complaint in the Chancery Division seeking

a declaratory judgment that the bulkhead: interfered with their easement;

unlawfully obstructed the easement area; and tortiously interfered with their

ability to advertise their properties as summer rentals with bay access. In

addition to the declaratory relief, plaintiffs sought a judgment requiring the

Uhrichs to remove the bulkhead and restore the section over the easement area

to its previous configuration, as well as a judgment enjoining defendants from

A-2121-23 4 restricting access to the bay, compensatory and punitive damages, and attorneys'

fees and costs.2 Defendants filed their own complaint seeking a declaratory

judgment regarding who could use the easement, including the activities and

structures permitted in it, punitive damages, and other relief not relevant to our

discussion. The court consolidated both matters.

On August 17, 2022, the court entered a case management order setting

an initial discovery schedule, including that all depositions be completed by

December 15, 2022, and expert reports be served by January 30, 2023. On

August 14, 2023, the court entered a case management order requiring all fact

and expert witness discovery be completed by September 29, 2023. The order

granted plaintiffs the ability to file a responsive expert report within twenty days

of receiving the defense's expert report. Further, the order stated a trial readiness

conference would occur on December 18, 2023, and scheduled trial for January

9, 2024.

2 In April 2023, plaintiffs amended their complaint to include a count against Martin for interference with the easement regarding the construction of the bulkhead on his property. The Uhrichs also amended their complaint to include claims for intentional interference with prospective economic advantage, slander of title, and punitive damages arising from plaintiffs reporting the inaccuracies in the Uhrichs' permit to the DEP. A-2121-23 5 On October 3, 2022, the court granted plaintiffs partial summary

judgment. It ruled the title to plaintiffs' properties included the right to the

easement "for access to both Long Beach Boulevard and the water of the

Barnegat Bay."

On November 17, 2023, plaintiffs again moved for summary judgment

and appended an engineering expert report to the motion. The expert report was

separately served by email on defendants the same day. Defense counsel

responded he could not accept the report because it was served late, and he had

"made decisions and refrained from certain investigation and litigation activities

based upon the absence of these reports."

Plaintiffs also wrote to the court on November 17, 2023, seeking an

adjournment of the trial and a case management conference. They explained

"[t]he parties had been working cooperatively to schedule and conduct numerous

depositions." Due to scheduling conflicts and plaintiffs' expert's ill health , the

parties agreed to a revised case management schedule, which included that

plaintiffs' counsel offered defense counsel deposition dates between November

8 and 17, 2023.

A-2121-23 6 On December 5, 2023, defendants filed a cross-motion for summary

judgment. On December 22, 2023, defendants filed a motion to bar plaintiffs'

expert reports.

Following a settlement conference on January 3, 2024, the court adjourned

trial from January 9, 2024, to January 29 and 30, 2024. On January 12, 2024,

the court denied each party's motion for summary judgment. Defendants

advised they were unable to proceed with trial on January 29. As a result, the

court heard oral argument on the motion to bar, adjourned trial to April 30, 2024,

and advised it would decide the motion to bar on the first day of trial. Plaintiffs

requested the court decide the motion sooner, to enable the parties to prepare for

trial.

At the January 12 oral argument, plaintiffs' counsel stated the expert

reports were served late, because the parties were discussing this issue in tandem

with the completion of depositions of both fact and expert witnesses, which

defense counsel insisted upon taking. Defense counsel denied the two issues

were interrelated.

Plaintiffs' counsel also claimed the delay was occasioned by the fact their

expert had experienced health problems, and counsel "kept waiting for . . . him

to get out of the woods with respect to his health issues." Counsel explained the

A-2121-23 7 expert was important to his clients' case "not just because he's an engineer, . . .

he's a commercial diver, . . . a dock builder, and . . . [would be] an excellent and

. . . compelling witness . . . ." Counsel also filed a certification in opposition to

the motion to bar, claiming defense counsel "did not communicate at that time

that he no longer wished to depose" certain fact witnesses and "[t]he first

[plaintiffs] learned that he no longer wished to depose [them] was by way of his

December 4 letter to the [c]ourt that came more than two weeks after [p]laintiffs

filed their motion for summary judgment."

Plaintiffs' expert filed a certification stating he was retained in December

2022 and inspected the property in February 2023 to evaluate "safety issues

related to bay access over the bulkhead and whether the new bulkhead could be

modified to allow access consistent with what existed prior to its construction."

The expert explained he had multiple orthopedic surgeries over the prior year,

which impacted his ability to do his work, beginning in January 2023, then

March 2023, June 2023, August 2023, and September 2023. Following the last

surgery, he was hospitalized on September 12, 2023, with complications, and

was not released until late in the evening on September 25, 2023. He required

further treatment and medication during his convalescence at home, which lasted

until November 6, 2023.

A-2121-23 8 The expert explained he worked sporadically between September and

November 2023. He had to attend many doctor's appointments and only recently

returned "to a more normal daily schedule." He also had more surgeries

scheduled.

Defense counsel acknowledged plaintiffs' expert had health problems. He

spoke with plaintiffs' counsel on September 29, 2023, and agreed plaintiffs

would serve their expert reports on October 20, 2023, with depositions to occur

on October 27, 2023. However, defense counsel said he never received the

expert report on October 20. Counsel also filed a certification with the motion

to bar in which he stressed he rejected the reports because "[u]nder no

circumstances did [defendants] ever agree that expert reports could be served on

November 17[] . . . and Defendants would be prejudiced if required to accept or

respond to [p]laintiffs' expert reports served months out of time, shortly before

trial." He further certified he made strategic decisions on behalf of his client

based on the fact plaintiffs were not relying on expert evidence, including

"elect[ing] not to take a number of depositions because [defendants] felt

comfortable with [their] record before the [c]ourt as [they] moved toward trial."

Defense counsel argued plaintiffs' expert reports were not dispositive "and

their absence would not render . . . [p]laintiffs' claim futile." Further, given that

A-2121-23 9 plaintiffs knew about their expert's health problems, they could have hired

another expert, or formally move to extend discovery. Defendants alleged

plaintiffs had not shown exceptional circumstances for the late expert

submission, they also lacked good cause to extend discovery, and defendants

would be prejudiced by the late submission.

When the court asked plaintiffs' counsel what the exceptional

circumstances were to warrant an extension of discovery, counsel pointed out

the expert was "out of commission between September [and] November" 2023,

due to his health problems. The court questioned whether an expert was

necessary because plaintiffs won partial summary judgment, declaring they had

a right to access the bay from the easement area. However, plaintiffs' counsel

pointed out "now the issue is . . . whether the bulkhead should come down . . .

[a]nd there is [a] need for testimony as to whether and how that can occur . . .

[and] whether it was reasonable access . . . ." The court remarked that an expert

was unnecessary to comment on these issues. The parties could testify about

how "they were impacted by the construction of that bulkhead . . . [and] how it's

changed the nature of the easement . . . ."

On February 15, 2024, the court entered an order barring plaintiffs' experts

from testifying at trial. Its written findings explained it granted the motion by

A-2121-23 10 adopting the reasons set forth in defendants' brief "and for the failure of the

opposition to establish exceptional circumstances warranting the late admission

of the prof[f]erred reports."

I.

On appeal, plaintiffs argue the trial court made no findings as to why it

barred their expert. They assert the court ignored the purpose of our best

practices rules and abused its discretion, because there were exceptional

circumstances, namely, their expert's severe health issues. Moreover,

defendants failed to explain how they would be prejudiced by an adjournment ,

especially because they were willing to enter a modified case management

schedule to accommodate any discovery difficulties. Plaintiffs contend they

cannot meet the burden of proof as to damages without their expert.

We review a trial court's decision determining whether to extend a period

of discovery for abuse of discretion. Leitner v. Toms River Reg'l Schs., 392

N.J. Super. 80, 87 (App. Div. 2007). Rule 4:24-1(c) permits an extension of

discovery after the discovery period has closed, upon a showing of exceptional

circumstances. Exceptional circumstances are satisfied when the movant can

show

(1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during

A-2121-23 11 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) (citing Vitti v. Brown, 359 N.J. Super. 40 (Law Div. 2003)).]

We have stated:

In our judicial system, "justice is the polestar and our procedures must ever be moulded and applied with that in mind." N.J. Highway Auth. v. Renner, 18 N.J. 485, 495 (1955) . . . . "There is an absolute need to remember that the primary mission of the judiciary is to see justice done in individual cases. Any other goal, no matter how lofty, is secondary." Santos v. Est. of Santos, 217 N.J. Super. 411, 416 (App. Div. 1986).

. . . For that reason, "[u]nless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." [R. 1:1-2(a).]

[Salazar v. MKGC Design, 458 N.J. Super. 551, 557- 58 (App. Div. 2019) (second alteration in original).]

Having thoroughly reviewed the record, we are convinced the decision to

bar plaintiffs' experts was a misapplication of discretion and could lead to an

unjust result. There were exceptional circumstances that clearly warranted

extending the discovery period. Although we have refrained from discussing

A-2121-23 12 the details of plaintiffs' expert's medical procedures and ailments in the interests

of his privacy, his medical problems were substantial. The expert's condition,

in addition to the fact plaintiffs explained why this expert was important to their

case, warranted the trial court accommodating an additional extension of the

discovery deadlines.

The record also shows plaintiffs acted with diligence in that they and

defense counsel maintained an open line of communication and accommodated

one another during the discovery period. Once defense counsel told plaintiffs

he could no longer accommodate an extension of discovery, plaintiffs' counsel

communicated with the court about an extension. We recognize plaintiffs

should have filed a motion to extend the discovery deadlines, but the record

shows the court, and counsel, worked collaboratively and informally to schedule

conferences to resolve the pre-trial issues during the case.

Finally, although defense counsel asserted his clients would be prejudiced

by the late admission of plaintiffs' expert's reports, neither the appellate briefing,

nor the record, elucidates the exact nature of the prejudice. Regardless, we are

unconvinced the prejudice could not be remedied by extending discovery for a

limited and final time to complete it.

A-2121-23 13 For these reasons, the February 15, 2024 order barring plaintiffs'

engineering expert report is reversed and the matter remanded for further

proceedings consistent with this opinion. The trial court shall issue a shortened

and final schedule to enable the parties to complete discovery and try the case.

Reversed and remanded. We do not retain jurisdiction.

A-2121-23 14