                                NOT FOR PUBLICATION WITHOUT THE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


                                                                         A-5086-17T3
                                       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
                                       6
      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
                                       11
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.




                                                                            A-5086-17T3
                                        12
      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.




                                                                           A-5086-17T3
                                       13
