NOT FOR PUBLICATION WITHOUT THE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-5086-17T3
MICHAEL AVERSANO and
KAREN AVERSANO, husband
and wife,
Plaintiffs-Appellants,
v.
ENERGY SMARTS MECHANICAL,
LLC,
Defendant-Respondent.
________________________________
Argued May 21, 2019 – Decided June 11, 2019
Before Judges Geiger and Enright.
On appeal from Superior Court of New Jersey, Law
Division, Hunterdon County, Docket No. DC-000363-
16.
Joseph F. Trinity argued the cause for appellants
(Trinity & Farsiou, attorneys; Joseph F. Trinity, on the
briefs).
John R. Lanza argued the cause for respondents (Lanza
& Lanza, LLP, attorneys; John R. Lanza, of counsel;
Monica Alayne Hoopes, on the brief).
PER CURIUM
Plaintiffs, Michael and Karen Aversano, appeal from a summary judgment
order entered in favor of defendant, Energy Smarts Mechanical, LLC (ESM).
Additionally, they appeal from an order denying their application to reopen
discovery. We affirm both rulings.
Plaintiffs claim ESM negligently installed a geothermal heating and
cooling (HVAC) system in their home. They filed suit on March 24, 2016,
alleging ESM was liable for breach of contract, breach of implied covenant,
negligent construction, unjust enrichment and violations of the Consumer Fraud
Act (CFA). After ESM filed its Answer, the case was listed for trial on August
8, 2016. Neither party appeared for trial so the case was dismissed. The trial
court later acknowledged this trial date was premature, as the original discovery
end date would have been September 7, 2016.
Unaware the case had been dismissed, neither party requested an
extension of the original discovery end date and the parties continued to
exchange discovery. In August and September 2016, plaintiffs identified a first
and second liability expert. Then, in December 2017, well over a year following
the dismissal of their case, plaintiffs moved to reinstate their case, advising
neither party had received notice of the initial trial date. When they moved for
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2
reinstatement, plaintiffs did not seek to reopen discovery nor did they disclose
an intention to name a third liability expert, namely, Al Jarvis. Their motion to
reinstate was granted and a new trial date of January 22, 2018 was fixed.
Just three days after the new trial date was set, ESM moved for summary
judgment and to disqualify plaintiffs' second liability expert. In response,
plaintiffs served ESM with two expert reports from Jarvis. ESM then moved to
bar Jarvis from testifying as an expert. The motion judge denied ESM's requests
for summary judgment and to bar Jarvis from testifying but granted its request
to bar plaintiffs' second expert from testifying. The parties were given another
trial date of February 12, 2018, but that date was adjourned to April 30, 2018 to
give ESM time to review Jarvis's reports.
ESM quickly responded to Jarvis' reports by serving plaintiffs with its
own liability expert report. Then, ESM filed a second motion for summary
judgment or alternatively, to disqualify Jarvis as an expert witness. ESM
asserted, in part, that dismissal of plaintiffs' non-negligence claims was
appropriate because they had signed an "Energy Star Certificate of Completion"
form when ESM had concluded its work. That form specifically stated that if
"any of the work had not been completed or if there were concerns in regards to
any aspect of the work performed, the customer and contractor MUST resolve
A-5086-17T3
3
any such issues BEFORE signing this form." Thus, ESM argued plaintiffs
should not be able to take a position contrary to the representations they made
in the form. ESM also contended plaintiffs' completion of the form resulted in
their receipt of a $5000 government rebate, along with a $10,000 interest -free
loan so they should not be able to "double-dip" by suing ESM.
In response to the summary judgment motion, plaintiffs sought to reo pen
discovery to obtain a new expert, advising Jarvis no longer wished to be
involved in the case. Although the trial date was postponed to May 8, 2018, it
did not proceed on that date. Rather, on May 25, 2018, the trial court denied
plaintiffs' request for an extension of discovery and granted summary judgment
in favor of ESM. The trial judge found plaintiffs could not prove their claims
without expert testimony, that they needed competent proof of an "ascertainable
loss" as a prerequisite to recovery under the CFA and that their non-negligence
claims were subject to dismissal based on the plain language of the Certificate
of Completion. Lastly, as Jarvis already had declined to serve as plaintiffs '
expert, the court deemed the application to disqualify him as moot. Plaintiffs
appeal from the order granting summary judgment and denying their application
to reopen discovery.
A-5086-17T3
4
Plaintiffs first complain the trial court erred by failing to provide them
"with all legitimate inferences" as to the evidence before it. Additionally, they
argue the motion judge mistakenly found the circumstances regarding their
retention of an expert were not "clearly beyond the control" of plaintiffs and
their attorney. Plaintiffs also assert the motion judge erred by opining that legal
fees and costs assessed against them could exceed the face amount of their
damages claim and that their execution of a Certificate of Completion
constituted a waiver. Lastly, they claim any prejudice to ESM in proceeding to
trial is far outweighed by prejudice plaintiffs will suffer if they cannot proceed
to trial.
We first address the order denying plaintiffs' application to reopen
discovery. Ordinarily, "we decline to interfere with discretionary rulings
involving discovery unless it appears that an injustice has been done."
Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). "[W]e apply
an abuse of discretion standard to decisions made by . . . trial courts relating to
matters of discovery." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 371 (2011) (citing Bender v. Adelson, 187 N.J. 411, 428 (2006)). "As it
relates to extensions of time for discovery, appellate courts . . . have likewise
A-5086-17T3
5
generally applied a deferential standard in reviewing the decisions of trial
courts." Ibid.
We note plaintiffs sought an extension of discovery after a number of trial
dates had been set. Therefore, their motion to extend discovery was governed
by Rule 4:24-1(c), which provides that "[n]o extension of the discovery period
may be permitted after an arbitration or trial date is fixed, unless exceptional
circumstances are shown." To demonstrate exceptional circumstances, we
generally require a showing that the attorney diligently pursued the information
sought during the discovery period but was frustrated from obtaining the
discovery by circumstances largely beyond counsel's control. Bender, 187 N.J.
at 429. Specifically, the moving party must show:
(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.
[Castello v. Wohler, 446 N.J. Super. 1, 25 (App. Div.
2016) (quoting Rivers v. LSC Partnership, 378 N.J.
Super. 68, 79 (App. Div. 2015)).]
A-5086-17T3
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The motion judge found plaintiffs had not demonstrated exceptional
circumstances justifying the extension. We agree with this assessment in light
of plaintiffs' failure to explain why all expert discovery was not completed
during the original discovery period and why, after two years of litigation, they
were unable to secure an expert for trial. Indeed, it is uncontroverted that at
least three liability experts graced this litigation but declined to appear for trial.
By the time ESM's second motion for summary judgment was heard, a fifth trial
date had been set and plaintiffs' third liability expert, Jarvis, had given notice he
would not appear at trial. The trial court found "plaintiffs and/or their attorney
had ample time to retain competent and reliable experts and had the ability to
bind any of those experts to a contractual commitment to testify on behalf of
plaintiffs." Although the motion judge did not question plaintiffs ' need for a
competent, reliable liability expert, he could not find these circumstances
presented were clearly beyond the control of either plaintiffs or their attorney.
We find the motion judge's extensive findings fully supported by the record.
Thus, we find no error in the denial of the extension of discovery nor in the
denial of plaintiffs' request to serve another expert report on the defense.
Next, we review the grant of summary judgment de novo, applying the
same standard used by the trial court. Viewing the evidence "in the light most
A-5086-17T3
7
favorable to the non-moving party," a reviewing court must determine whether
the competent evidential materials demonstrate "there is no genuine issue as to
any material fact challenged[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 528-29 (1995) (quoting R. 4:46-2(c)). "[W]hen the evidence is so one-
sided that one party must prevail as a matter of law, the trial court should not
hesitate to grant summary judgment." Id. at 540 (internal quotation marks and
citations omitted). Accordingly, to defeat a motion for summary judgment, the
non-moving party must "come forward with evidence that creates a 'genuine
issue'" for trial. Id. at 529 (quoting R. 4:46-2). See also Rule 4:46-5(a) (stating
"an adverse party may not rest upon the mere allegations or denials of the
pleading.") "It should be a rare case where nothing whatsoever is submitted to
contest the motion." Robbins v. City of Jersey City, 23 N.J. 229, 241(1957)
(citation omitted).
Given these principles, we must decide whether the "competent evidential
materials presented" were "sufficient to permit a rational factfinder to resolve
the alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at
540. We accord no "special deference" to the motion judge's "interpretation of
the law and the legal consequences that flow from established facts[.]"
Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A-5086-17T3
8
Nevertheless, "[t]he jurisdiction of appellate courts . . . is bounded by the proofs
and objections critically explored on the record before the trial court by the
parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Consequently,
"the points of divergence developed in proceedings before a trial court define
the metes and bounds of appellate review." Ibid.
Looking at plaintiffs' claims against ESM, we observe that to establish a
cause of action for negligence, they had to prove the "defendant owed a duty of
care, the defendant breached that duty, and injury was proximately caused by
the breach." Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005) (citing
Gilleski v. Comty. Med. Ctr., 336 N.J. Super. 646, 652 (App. Div. 2001)). "[I]t
is ordinarily a plaintiff's burden to prove negligence, and . . . it is never
presumed." Khan v. Singh, 200 N.J. 82, 91 (2009) (citation omitted).
As to plaintiffs' non-negligence claims, again, certain elements had to be
established in order for them to recover damages on the basis of breach of
contract, breach of implied covenant, unjust enrichment and violations of the
CFA. To establish their breach of contract claim, plaintiffs were required to
prove (1) the parties entered into a contract containing various terms; (2) they
abided by the terms of the contract; (3) ESM did not do what it was required to
do under the contract; and (4) ESM's breach or failure to abide by the contract
A-5086-17T3
9
terms caused a loss to the plaintiffs. See Model Jury Charge (Civil), 4.10A,
"The Contract Claim - Generally" (approved May 1998); see also Globe Motor
Co. v. Igdalev, 225 N.J. 469, 482 (2016). Next, to recover on the basis of unjust
enrichment, plaintiffs were required to show that ESM "received a benefit and
that retention of that benefit without payment would be unjust." VRG Corp. v.
GKN Realty Corp., 135 N.J. 539, 554 (1994). To prove a violation of the CFA,
plaintiffs had to demonstrate unlawful conduct on the part of ESM, that they
suffered an "ascertainable loss" and that a causal relationship existed between
the unlawful conduct and the ascertainable loss. D'Agostino v. Maldonado, 216
N.J. 168, 184 (2013). The CFA, N.J.S.A. 56:8-1 to 56:8-106, and its
implementing regulations, N.J.A.C. 13:45A-16.2, are designed to protect
consumers against improper selling practices of contractors with whom
consumers deal directly. The CFA aims to prevent deception, fraud, and falsity,
whether by acts of commission or omission. Talalai v. Cooper Tire & Rubber
Co., 360 N.J. Super. 547 (Law Div. 2001). A breach of contract is not per se
unfair or unconscionable and does not alone violate the CFA. Palmucci v.
Brunswick Corp., 311 N.J. Super. 607 (App. Div. 1998).
Next, an implied covenant of good faith and fair dealing exists in all
contracts, such that "neither party shall do anything which will have the effect
A-5086-17T3
10
of destroying or injuring the right of the other party to receive the fruits of the
contract . . . ." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997)
(quoting Palisades Props., Inc. v. Brunetti, 44 N.J. 117, 130 (1965)). See
Kalogeras v. 239 Broad Ave., LLC, 202 N.J. 349, 366 (2010) (covenant inherent
in every contract). A party may obtain relief "if its reasonable expectations are
destroyed when [the other party] acts with ill motives and without any legitimate
purpose." Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr.
Assocs., 182 N.J. 210, 226 (2005) (citations omitted). Thus, a breach of this
implied covenant necessarily requires "[b]ad motive or intention" on the part of
the breaching party. Wilson v. Amerada Hess Corp., 168 N.J. 236, 251 (2001).
"The party claiming a breach of the covenant of good faith and fair dealing 'must
provide evidence sufficient to support a conclusion that the party alleged to have
acted in bad faith has engaged in some conduct that denied the benefit of the
bargain originally intended by the parties.'" Brunswick Hills Racquet Club, 182
N.J. at 225 (quoting 23 Williston on Contracts, § 63:22 at 513-14 (Lord ed.
2002) (footnotes omitted)).
The motion judge reviewed plaintiffs' negligence and non-negligence
claims, but noted that "[o]ther than the negligence theory, neither party briefed,
at any length, the motion to dismiss the balance of plaintiffs ' claims. . . . The
A-5086-17T3
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lack of thorough briefing of these issues can be attributed to the fact that the
motion arguments are inextricably interrelated." The motion judge then noted
that its ruling "barring plaintiffs from producing an expert witness could be
viewed as fatal to the remainder of plaintiffs' claims."
We affirm the grant of summary judgment to ESM, substantially for the
reasons expressed by the motion judge in his fourteen-page written opinion. As
the trial court observed, plaintiffs' signatures on the plainly worded Certificate
of Completion attested to the satisfactory performance of ESM's work.
Moreover, without an expert witness, plaintiffs could not establish how ESM
negligently installed the HVAC system and breached its duty of care, causing
injury to plaintiffs. Additionally, as the trial court pointed out, plaintiffs could
not provide competent proof of damages attributable to ESM's alleged
misconduct. Expert testimony was required, because "the matter to be dealt with
is so esoteric that jurors of common judgment and experience [could not] form
a valid judgment as to whether the conduct of defendant was reasonable." Davis
v. Brickman Landscaping, Ltd., 219 N.J. 395, 407 (2014) (quoting Butler v.
Acme Mkts., Inc., 89 N.J. 270, 283 (1982)). Accordingly, we perceive no reason
to disturb the grant of summary judgment in ESM's favor.
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Lastly, plaintiffs take issue with the motion judge questioning the viability
of Jarvis' report and his mentioning the potential counsel fees plaintiffs could
face if discovery was reopened. We are not persuaded this type of commentary,
although providing context for the trial judge's rulings, distracted the motion
judge from adhering to the legal principles governing this matter.
Affirmed.
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