Filed: Jul. 11, 2014
Latest Update: Jul. 11, 2014
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM. Plaintiff Ellen Nevins appeals from three Law Division orders dated: April 29, 2009, directing that plaintiff serve her expert's report by August 30, 2009; September 9, 2009, directing that plaintiff serve her expert report by October 13, 2009; and November 30, 2011, barring her expert from testifying beyond the scope of his report and dismissing her complaint with prejudice. Plaintiff's claims related to alleged de
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM. Plaintiff Ellen Nevins appeals from three Law Division orders dated: April 29, 2009, directing that plaintiff serve her expert's report by August 30, 2009; September 9, 2009, directing that plaintiff serve her expert report by October 13, 2009; and November 30, 2011, barring her expert from testifying beyond the scope of his report and dismissing her complaint with prejudice. Plaintiff's claims related to alleged def..
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff Ellen Nevins appeals from three Law Division orders dated: April 29, 2009, directing that plaintiff serve her expert's report by August 30, 2009; September 9, 2009, directing that plaintiff serve her expert report by October 13, 2009; and November 30, 2011, barring her expert from testifying beyond the scope of his report and dismissing her complaint with prejudice. Plaintiff's claims related to alleged defects in defendants' construction of her custom-built home. We previously addressed her complaint in an earlier decision, reversing a trial court's dismissal of her claims based on its determination that her expert supplied a "net opinion," and remanding the matter for trial. See Nevins v. Toll Brothers, Inc., No. A-0946-10 (App. Div. July 5, 2011). On remand, the trial court conducted a N.J.R.E. 104 hearing. After that hearing, the court was satisfied that plaintiff's expert failed to give any opinion as to the one remaining issue in the case, the builder's warranty claim. In this appeal, plaintiff argues that the only reason her expert did not address that claim is because he "was not given adequate time to complete his task." We disagree and affirm.
In order to understand our reasoning, a description of the procedural posture of this case at the time the court entered its final order is necessary. On September 13, 2001, plaintiff filed her first amended complaint alleging breaches of contract, guaranty, implied warranty and the covenant of good workmanship and habitability, as well as negligence and a claim for consequential loss. On August 27, 2004, the court granted defendant's motion for partial summary judgment dismissing several counts of the amended complaint.1
On April 29, 2009, the trial court ordered the parties to exchange expert reports by August 30, 2009. In its September 9, 2009 order, the court extended the deadline for plaintiff to serve her expert's report to October 13, 2009.
Before that deadline, on September 18, 2009, the court granted defendant's motion for partial summary judgment limiting plaintiff's damages "in accordance with paragraph 10 of the parties July 22, 1995 Agreement of Sale, to the repair of the Premises in accordance with the applicable Builder's Limited Warranty on the Premises." The court's order further stated,
... [p]laintiff may introduce no other evidence at the time of trial other than evidence supporting her claims that warrantable defects exist and evidence of what work is required to repair those alleged defects in accordance with the warranty standards[.]
On October 13, 2009, plaintiff's then counsel wrote to the court seeking to extend the deadline for the expert's report to November 20. According to counsel's letter, plaintiff had retained a new expert, and the extension was necessary "d[ue] to the expert's schedule." The letter did not mention the limitations imposed by the court's September 18 order. Defendant objected to plaintiff's request, and the court denied it, but allowed plaintiff an extension to October 22.
Plaintiff timely served her expert's report dated October 22, 2009.2 The expert's report did not, however, address the warranty claims left for trial, as stated in the court's September 18, 2009 order. At no time did plaintiff file a motion seeking further extensions to allow her expert to address those claims.
After our decision reversing the earlier grant of summary judgment, the court scheduled a November 18, 2011 trial date. In advance of that date, defendant filed a motion in limine seeking an order barring plaintiff's expert from testifying to "matters outside the scope of his October 22, 2009 report." In response, the court scheduled a N.J.R.E. 104 hearing for November 29, 2011. As the court later explained in its oral decision, it ordered the hearing in an attempt to see if the expert
could pull from his report ... information that complies with the warranty provisions. That's basically why I granted the 104 hearing to see if he could. Give him a chance. In fact, I gave him an entire week to review the warranty and discuss with counsel to see if he could pull it together. In his report we know he makes no reference to the warranty and, in fact, in the deposition he specifically states that he didn't take a look at it, wasn't even informed of it when he prepared his report. And so I listened to [the expert's] testimony and I — and it became quite obvious that he did not take the homeowners warranty into consideration at all. In fact, he offers that the first time he saw it was last week.
....
So I am compelled to grant the motion.
I am reluctant. My reluctance was evidenced by the fact that I granted a 104 hearing to see if [the expert] could pull it together and [he] wasn't able to. So I think I've given the plaintiff every opportunity to try to pull their case together.
After the hearing, on November 30, 2011, the court granted defendant's motion to bar plaintiff's expert's testimony and to dismiss the complaint with prejudice as plaintiff had no other experts to testify on her behalf. Plaintiff did not file a reconsideration motion but, rather, filed this appeal.
As previously stated, the only argument plaintiff raises on appeal is her "expert witness was not given adequate time to complete his task." Based on our review of the record, we find this argument to be without sufficient merit to warrant an extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), because, even if we were to assume there was legal merit to plaintiff's argument, there is absolutely no support in the record for her position.
Specifically, there is no testimony or certification from her expert or any other competent witness that was presented to the trial court indicating that her expert needed more time to issue an opinion limited to the parameters stated in the court's September 18, 2009 order. Also, notably, the record indicates that neither the plaintiff nor her attorney even gave the expert the court's order until after the trial date arrived, years after the September 2009 order. In addition, neither her attorney in his letter to the court, nor the expert during his testimony relative to the warranty issue, ever even raised the need for more time so that the expert could tailor his opinion to the limitations of the court's order.
While we are sympathetic to the plaintiff's frustration with the situation in which she finds herself, she has advanced no reason for us to disturb the outcome of this case.
Affirmed.
