New Jersey Superior Court

Winters v. Gold Parc Condominium Association, Inc.

JO DEE WINTERS and AMIT LEVITIN, Plaintiffs-Appellants,

v.

GOLD PARC CONDOMINIUM ASSOCIATION, INC., ARTHUR EDWARDS, INC., TIFPHANI WHITE, NEERJA AGGARWAL, GLYNELL BRADLEY and JURE TOMAS, Defendants-Respondents.

No. A-4732-08T3.

Superior Court of New Jersey, Appellate Division.

Argued September 28, 2010.

Decided October 14, 2010.

Carl A. Salisbury argued the cause for appellants (Killian & Salisbury, attorneys; Mr. Salisbury, on the brief).

Jeffrey S. Posta and Chris E. Piasecki argued the cause for respondents (Stark & Stark, attorneys for respondents Gold Parc Condominium Association, Inc., Tifphani White, Neerja Aggarwal, Glynell Bradley and Jure Tomas; Graziano, Piasecki, Whitelaw & Simko, attorneys for respondent Arthur Edwards, Inc.; Mr. Posta and Mr. Piasecki, of counsel and on the joint brief).

Before Judges Yannotti and Espinosa.

PER CURIAM.

Plaintiffs Jo Dee Winters and Amit Levitin appeal from a final order that dismissed their complaint against defendants Gold Parc Condominium Association, Inc. (Gold Parc), Arthur Edwards, Inc. (Arthur Edwards), the manager and agent of the condominium association, and members of the board of the condominium association (the board), with prejudice. We affirm.

Plaintiffs, who resided in a condominium unit at Gold Parc, alleged that Gold Parc failed to repair a leak in the roof and cracks in the exterior walls of the building that caused flooding in their unit when it rained. They commissioned Microbiological Air Safety Laboratories, Inc. (M.A.S. Labs) to test the unit for mold contamination in July 2007. In August 2007, plaintiffs formally notified Gold Parc management of the problems and moved out of the unit pursuant to advice given by Winters's physician. Plaintiffs allege that defendants had been generally aware of the water problems since November 2006 and "flatly refused" to make necessary repairs.

In October 2007, plaintiffs filed a complaint against defendants, Gold Parc and Arthur Edwards, seeking a declaratory judgment that defendants had breached their contractual duties to plaintiffs, specific performance of repairs, and compensatory damages. In an amended complaint, they added four members of the board as defendants and a claim for breach of fiduciary duty.

The discovery period was extended twice, resulting in a fifteen-month discovery period. By order dated November 21, 2008, the trial court set a discovery end date of February 27, 2009, and a trial date of March 30, 2009.

On or about January 30, 2008, defendants served interrogatories upon plaintiffs. Interrogatory No. 8a requested the following:

Set forth in detail and itemize all damages you allege are a result of Leaks, Mold, Mold Remediation, Improvements, or Damages, which form the basis of the Complaint. Set forth in detail the basis for your answer to this Interrogatory and provide all documents upon which you relied relative to same.

Plaintiffs responded to this interrogatory on April 15, 2008, by providing three Bates-stamped documents and stating, "Plaintiffs will supplement this response with additional responsive documents." Plaintiffs did not provide any additional responsive documents until February 26, 2009, one day before the close of discovery. Defendants received by overnight courier a package of documents that represented plaintiffs' out-of-pocket expenses after they moved out of the condominium unit.¹ Another package of documents arrived thereafter via first class mail, with an enclosure letter dated February 26 explaining that the second set of documents were "inadvertently" omitted from the first package. In sum, these documents totaled approximately 2000 pages.

Interrogatories No. 14, 15 and 16 asked plaintiffs for the disclosure of experts and expert reports. Plaintiffs responded, in part, "To the extent that this Interrogatory [No. 14] seeks disclosures relating to a testifying expert, Plaintiff has not retained any testifying experts. Plaintiff's unit has been tested for mold. See the documents Bates Numbered WINTERS373-386." The Bates Numbered document referred to is the M.A.S. Labs mold inspection report prepared for plaintiffs. Although an order dated June 20, 2008, required the production of all expert reports by August 15, 2008, plaintiffs never identified this as an expert report or provided any other expert report to defendants in support of their claim. In fact, an order dated October 10, 2008, denied a defense motion to bar expert testimony as moot, noting, "Plaintiffs have represented that they do not intend to call any testifying experts on their case in chief at the trial of this matter."

During the month of February 2009, before the delivery of the additional responsive documents, the parties agreed that the depositions of the plaintiffs could be taken after the close of discovery because Winters would be undergoing medical treatment during the last week of the month. Defendants took the plaintiffs' depositions on March 19 and 20, 2009.

The trial was adjourned after defendants filed a summary judgment motion, which was denied on March 31, 2009. Defendants later filed two motions in limine that are the subject of this appeal. In one, they sought to preclude plaintiffs from introducing evidence of economic damage, on the grounds that plaintiffs' late production of documents failed to comply with the requirements of Rule 4:17-7. In the other motion, defendants sought to exclude the M.A.S. Labs Report as hearsay. The trial court granted both motions. Because plaintiffs were unable to prove damages as a result of the court's rulings on the in limine motions, the court dismissed their complaint with prejudice.

In this appeal, plaintiffs argue that the trial court abused its discretion in granting the motions in limine and, subsequently, in dismissing their case with prejudice. After reviewing the record, briefs and arguments of counsel, we are satisfied that these arguments lack merit.

Rule 4:17-7 governs the amendment of answers to interrogatories and provides in pertinent part:

[I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period . . . . Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties.

[(Emphasis added).]

Here, plaintiffs served 2000 documents on the eve of the expiration of the discovery period. It is undisputed that no certification was filed to excuse this untimely amendment by representing "that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date," either at the time that the documents were provided or at any time thereafter. As Rule 4:17-7 states, amendments to discovery responses made within the last twenty days of the discovery period are only allowed if such a certification is made. With commendable candor, plaintiff's counsel acknowledged at oral argument that such a certification could not truthfully be supplied. As a result, the unequivocal language of Rule 4:17-7 requires that "the late amendment shall be disregarded by the court and adverse parties." (Emphasis added).

Plaintiffs argue, however, that the trial court erred in applying R. 4:17-7 as written. Generally, we defer "to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 80 (App. Div. 2005). Here, plaintiffs are unable to represent, let alone show, that the documents produced as the discovery period expired were "not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." As a result, there is "no reason to upset the trial court's exercise of discretion." Bender v. Adelson, 428 (2006). See alsoSmith v. Schalk, 346 (App. Div. 2003).

Plaintiffs also argue that the trial court abused its discretion in excluding the M.A.S. Labs report as hearsay. As previously noted, plaintiffs represented during the discovery period that they did not intend to call any expert witnesses during their case-in-chief. The M.A.S. Labs mold inspection report contained findings that certain specific forms of mold were present in plaintiffs' unit and recommendations that included a professional remediation. Defendants argued that the report constituted inadmissible hearsay evidence. Plaintiffs countered that the existence of mold in their condominium unit was not a disputed fact and further, that they were willing to have the report admitted for limited purposes, i.e., to show the notice provided to the board and to show the reasonableness of their decision to vacate the unit. The trial court rejected this argument and stated the following reasons for granting defendants' motion:

[T]he entire purpose of the M.A.S. Labs report being in evidence would be to prove the truth of what's in there as to the nature and extent of — of the mold infestation that was allegedly in the unit.

While it might be conceded that there was mold, the — the Plaintiffs can testify that they observed — what they observed within the apartment. But in terms of the contents of the report coming in to prove the truth of what it reports as far as the nature of the mold that was there, the extent of the mold, it is not properly admissible without expert testimony to establish the nature of the testing that was done and the conclusions that were drawn as to the nature of the mold that was allegedly found in the apartment.

We grant substantial deference to the trial judge's discretion on evidentiary rulings. Board of Educ. v. Zoning Bd. of Adjustment, 430 (App. Div. 2009); Benevenga v. Digregorio, 32 (App. Div. 1999) certif.denied, 163 N.J. 79 (2000). As a general rule, a trial court's evidentiary ruling will not be disturbed unless there is a clear abuse of discretion. Board of Educ., supra, 409 N.J. Super. at 430; Dinter v. Sears, Roebuck & Co., , 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 106 (1982). SeealsoVerdicchio v. Ricca, 34 (2004).

The trial court here considered each of plaintiffs' arguments and determined that the issue of the extent of the mold was disputed and that, despite the offer to use the report for limited purposes, the conclusions contained in the report to support the arguments to be advanced required expert testimony to be admissible. We are satisfied that the trial court did not abuse its discretion in granting the motion to exclude the report. Because plaintiffs were unable to sustain their burden of proof following the court's rulings, their complaint was properly dismissed with prejudice.

Affirmed.