FRANCINE GUDIN VS. 6108 HUDSON AVE, LLC DAVID HEPPERLE VS. LEVY, EHRLICH, PETRIELLO, PCFRANCINE GUDIN VS. STEPHEN CEA(L-5635-13, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2039-15T4

FRANCINE GUDIN,

Plaintiff-Appellant,

v.

6108 HUDSON AVE., LLC, DAVID
HEPPERLE, and RAY DELGAUDIO,

Defendants.

_______________________________

DAVID HEPPERLE,

Third-Party Plaintiff,

v.

LEVY, EHRLICH, PETRIELLO, P.C.,
EHRLICH, PETRIELLO, GUDIN &
PLAZA, P.C., and STEPHEN F. CEA,
ESQUIRE,

Third-Party Defendants-
Respondents.

________________________________

FRANCINE GUDIN,

Third-Party Plaintiff-
Appellant,

v.
STEPHEN CEA and EHRLICH, PETRIELLO,
GUDIN & PLAZA, P.C.,

Third-Party Defendants-
Respondents.

__________________________________

Argued September 27, 2017 – Decided October 17, 2017

Before Judges Fuentes, Manahan and Suter.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-5635-13.

John P. Gleason argued the cause for appellant
Francine Gudin (Gleason & Koatz, LLP,
attorneys; Mr. Gleason, on the brief).

Peter V. Koenig argued the cause for
respondents Levy, Ehrlich & Petriello, PC and
Ehrlich, Petriello, Gudin & Plaza, PC (Mr.
Koenig, on the brief).

Michael J. Canning argued the cause for
respondent Stephen F. Cea (Giordano, Halleran
& Ciesla, attorneys; Mr. Canning, of counsel
and on the brief).

PER CURIAM

On December 3, 2013, plaintiff Francine Gudin filed a one-

count complaint against 6108 Hudson Avenue, LLC, and David Hepperle

and Ray Delgaudio individually, seeking to collect the balance due

of a $262,500 promissory note executed by defendants, together

with continuing interest accruing from October 19, 2007. Plaintiff

filed an amended complaint on October 10, 2014, adding two counts

against defendants' attorney Stephen Cea and his former employer,

2 A-2039-15T4
the law firm of Levy, Ehrlich, Petriello, P.C. These counts were

predicated on legal malpractice and breach of fiduciary duty

arising from the attorney-client relationship "established by and

between Gudin on the one hand as client and Cea and [the law firm]

on the other hand as attorney[s]."

Defendants 6108 Hudson Avenue, LLC, and David Hepperle filed

an answer to plaintiff's complaint, which included a third-party

complaint against the law firm Levy, Ehrilch & Petriello, P.C.,

the law firm of Ehrilch, Petriello, Gudin & Plaza, P.C., and Cea,

a member of the firm Levy, Ehrilch & Petriello. After joinder of

issue, plaintiff Francine Gudin served defendants with the

affidavit of merit required under N.J.S.A. 2A:53A-27, with respect

to the counts in her complaint predicated on professional

malpractice.1

1
The Affidavit of Merit authored by attorney Carl G. Archer dated
December 22, 2014 stated, in relevant part, as follows:

I have reviewed the pleadings in this matter
in addition to the supporting documents
provided to me by Plaintiff and Third-Party
Plaintiff Francine Gudin.

Based on my review of these documents, I have
concluded that there exists a reasonable
probability that the care, skill, or knowledge
exercised or exhibited in the treatment,
practice, or work that is the subject of Ms.
Gudin's Third-Party Complaint fell outside
acceptable professional standards.

3 A-2039-15T4
 The matter proceeded from this point through the traditional

discovery process. On March 14, 2015, the Civil Division Manager's

Office sent a written notice to the parties reminding them that

the discovery end date (DED) was May 21, 2015. The notice also

included the following caveat:

If additional discovery is needed, appropriate
application to the court must be made pursuant
to [Rule] 4:24-1(c). Otherwise discovery will
be deemed complete on the above date and the
case will be scheduled for arbitration or
trial with no adjournments thereafter granted
absent exceptional circumstances.

By letter dated May 18, 2015, plaintiff's counsel confirmed

a "conversation" he had with a representative of "Team 1" in the

Civil Division Manager's Office, through which the DED of May 21,

2015 was extended "for an additional 60 days so that the Parties

shall complete discovery[.]" By virtue of this extension, the

court established July 20, 2015 as the new DED. In an order

entered on August 7, 2015, Judge Mary Costello, the vicinage's

Presiding Judge of the Civil Division, granted plaintiff's motion

seeking a thirty-day extension of the July 20, 2015 DED. In the

I have been licensed to practice law since
2008, and since that time I have devoted my
practice substantially to the general area of
contract drafting and enforcement between
parties in a variety of settings. I have been
involved in matters such as these both inside
and outside of a litigation context.

4 A-2039-15T4
order granting plaintiff's motions, Judge Costello established

August 20, 2015 as the new DED. Judge Costello also included the

following handwritten statement: "All discovery includ[ing]

exchange of expert reports shall be completed by 8/20/15. Trial

date is October 13, 2015."

In an order entered on September 18, 2015, Assignment Judge

Peter Bariso granted plaintiff another thirty-day extension of the

DED, requiring the parties to complete discovery "on or before

September 20, 2015." Judge Bariso included the following

handwritten statement: "Trial date remains 10/13/15. The relief

granted shall not form the basis of an adjournment of the trial

date."

On October 13, 2015, the parties and their respective counsel

appeared before Judge Jeffrey R. Jablonski presumably ready to try

this case. Judge Jablonski mentioned on the record the

"discussions" he previously had with the attorneys in his chambers

concerning plaintiff's readiness for trial. Specifically, despite

having been granted a total of 120 days of additional discovery

beyond the original May 21, 2015 DED, plaintiff's counsel had not

provided defense counsel an expert report within the timeframe

established by the court. Mindful of Judge Bariso's emphatic

statement in his September 18, 2015 order, that failure to complete

discovery "shall not form the basis of an adjournment of the trial

5 A-2039-15T4
date[,]" Judge Jablonski concluded that "the matter presented to

me now is whether . . . the expert report should be barred[.]"

Cea's counsel moved to preclude plaintiff "from producing at

this trial an expert" based on plaintiff's failure to submit a

report in a timely fashion, despite having been granted three

extensions of the DED. Cea's counsel also argued he made a

"strategic decision" to not retain his own expert until he had the

opportunity to review plaintiff's expert's report and take his

deposition if he deemed necessary. As Cea's counsel explained:

It's not unusual that a defendant would do
that. A defendant has no obligation to come
forward with any type of expert report until
such time as the standard of care has been
established by the plaintiff's own expert.
Absent that expert testimony in this case by
a timely expert report, it was our view that
plaintiff would not be able to proceed with
the case and accordingly, we rely upon that
order in not doing anything as far as getting
our own expert.

Cea's counsel also emphasized that Judge Bariso's order

permitting plaintiff to file an expert report by September 20,

2015, while at the same time setting a preemptory trial date of

October 13, 2015, made it impossible for defendants to file a

motion for summary judgment consistent with the time restrictions

in Rule 4:46-1. Despite this procedural impediment, Cea's counsel

filed a motion for summary judgment on his client's behalf on

September 23, 2015. Counsel anticipated he would be able to

6 A-2039-15T4
establish "good cause" to relax the Rule 4:46-1 requirement that

a motion for summary judgment must be returnable "no later than

30 days before the scheduled trial date."

The record shows plaintiff's counsel served his expert report

on defendants on September 30, 2015, ten days after the DED

established by Judge Barisao, and thirteen days before the

peremptory trial date. The report was dated September 28, 2015.

Cea's counsel informed Judge Jablonski that he immediately

"objected to its service" as untimely. He also apprised

plaintiff's counsel that he planned to file an in limine motion

to preclude plaintiff from presenting expert testimony at the time

of trial.

Plaintiff's counsel conceded before Judge Jablonski that the

expert's report was not timely. Counsel also argued that if the

court were to prevent him from presenting expert testimony, he

should be permitted to proceed under the common knowledge doctrine.

The following statement from plaintiff's counsel captured the

essence of this specious argument:

I can't prove a case unless you are willing
to apply [the] common knowledge [doctrine] and
the only reason I'm mentioning that now is
because you've said well I'm not going to
allow your expert so call it a fallback, call
it a secondary position. You're right, I
intended Mr. Archer all along to be the
expert. I was intending to have an expert
because I think you need one.

7 A-2039-15T4
 But since I can't have one, well then I find
all these cases that say common knowledge and
I think it fits the bill here. Again I'm
repeating a bit but I don't think it takes
much to understand a mortgage. It doesn't
matter what kind of mortgage it was.

[Emphasis added.]

At the end of this exchange, Judge Jablonski granted

defendants' in limine motion to bar plaintiff from presenting

expert testimony and denied plaintiff's counsel's "fallback"

application to rely on the common knowledge doctrine. With respect

to the breach of the promissory note raised in count one of

plaintiff's complaint, Judge Jablonski noted for the record that

plaintiff's counsel had indicated to him that that matter was ripe

for disposition as a matter of law via summary judgment. This

appeal is thus limited to counts two and three, which are

exclusively based on legal malpractice.

Against this record, plaintiff now argues on appeal that the

trial judge erred in preventing him from prosecuting this legal

malpractice case relying on the common knowledge doctrine.

Plaintiff has also made a facially irrelevant argument concerning

the suitability of her affidavit of merit, an issue that was not

raised by any defendant in this case and was not addressed by the

trial court.

8 A-2039-15T4
 We review a trial judge's decision to admit or exclude expert

testimony under an abuse of discretion standard. Townsend v.

Pierre, 221 N.J. 36, 52 (2015). An "abuse of discretion only

arises on demonstration of 'manifest error or injustice[,]'"

Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,

183 N.J. 554, 572 (2005)), and occurs when the trial judge's

"decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div.

2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

(2002)).

Here, plaintiff's belated and facially disingenuous attempt

to jettison the requirement of expert testimony on the day of

trial and rely instead on the common knowledge doctrine does not

warrant discussion by this court in a written opinion. R. 2:11-

3(e)(1)(E). The record shows the trial court extended plaintiff's

counsel every courtesy and offered him an extremely reasonable

timeframe for him to meet his discovery obligations. Counsel's

failure to fulfill those obligations are entirely of his own

making. We discern no legal basis to disturb Judge Jablonski's

well-reasoned decision.

Affirmed.

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