                                NOT FOR PUBLICATION WITHOUT THE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-4999-17T1

SOCIETY HILL AT JERSEY CITY
CONDOMINIUM ASSOCIATION
I, INC., a not-for-profit corporation
of the State of New Jersey,

          Plaintiff-Respondent,

v.

JOHN ESAINKO and EILEEN
TOBIN, a/k/a EILEEN ESAINKO,

     Defendants-Appellants.
________________________________

                    Submitted February 27, 2019 – Decided June 26, 2019

                    Before Judges Vernoia and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-0537-17.

                    The Cintron Firm, LLC, attorneys for appellants (Mark
                    J. Cintron, on the brief).

                    Buckalew Frizzell & Crevina LLP and Law Office of
                    Steven J. Tegrar, attorneys for respondent (David B.
                    Joyandeh and Suzanne D'Amico Brodock, on the brief).
PER CURIAM

      Defendants, John Esainko and Eileen Tobin, also known as Eileen

Esainko, who were sued by plaintiff, Society Hill at Jersey City Condominium

Association I, Inc. for unpaid assessments for their share of common expenses,

together with late fees, interest on arrears, attorneys' fees and costs of collection,

appeal from the trial court's orders of: February 16, 2018, denying their motion

to extend discovery; March 29, 2018, denying their motion for reconsideration

of the court's February 16 denial; March 29, 2018, dismissing their answer

without prejudice for failure to appear at court-ordered depositions; and May

25, 2018, granting plaintiff summary judgment and entering judgment against

defendants in the amount of $28,043.87. We affirm the trial court's orders

denying both the motion to extend discovery and the motion for reconsideration

of same; but reverse and remand the trial court's order granting summary

judgment and entering judgment in favor of plaintiff.

      Defendants argue good cause existed to extend the discovery period. We

note that defendants first filed, on November 29, 2017, a motion to extend

discovery from the original discovery end date (DED) of December 22, 2017.

That unopposed motion was granted on December 22, 2017; the court's order




                                                                              A-4999-17T1
                                          2
extended discovery for ninety days and provided the parties, "may furnish

additional written discovery requests through January 22, 2018[.]"

      Defendants claim discovery requests were provided to a paralegal in their

attorney's firm on November 6, 2017 but their counsel first learned from

plaintiff's counsel on January 23, 2018 that those requests were never served.

Plaintiff's counsel was served with requests via fax at 6:03 p.m. on January 24.

After plaintiff's counsel refused to answer the discovery requests because they

were served beyond the January 22 DED, defendants filed a second motion to

extend discovery. On February 16, Judge Mary K. Costello entered an order

denying the motion "for lack of exceptional circumstances shown. Stated reason

for extension is the admitted failure of moving party to send written discovery

requests. Moving party halted all discovery to their own detriment. DED

remains [March 22, 2018]."

      "We generally 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, 378 N.J.

Super. 68, 80 (App. Div. 2005) (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524,

559 (1997)). The "abuse of discretion" standard "arises when a decision is 'made

without a rational explanation, inexplicably departed from established policies,


                                                                        A-4999-17T1
                                       3
or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J.

561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization

Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

      In the order denying the motion for reconsideration of the order we now

review, Judge Costello indicated that an "arbitration date of April 5, 2018 was

scheduled to occur after the DED expired on March 22, 2018." Inasmuch as

Rule 4:24-1(c) provides, "[n]o extension of the discovery period may be

permitted after an arbitration or trial date is fixed, unless exceptional

circumstances are shown," defendants were required, contrary to their

contention, to show more than good cause.

      In Rivers, 378 N.J. Super at 79, we recognized the four "Vitti1 factors" in

holding:

            In order to extend discovery based upon "exceptional
            circumstances," the moving party must satisfy four
            inquiries: (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.

1
  The factors were announced in Vitti v. Brown, 359 N.J. Super. 40, 51 (Law
Div. 2003).
                                                                         A-4999-17T1
                                       4
      We agree with Judge Costello that defendants failed to show exceptional

circumstances.     Defendants never served written discovery requests on

plaintiff's counsel before the extended DED. Despite not receiving responses to

the requests he thought were sent, defendants' counsel did not follow-up with

plaintiff's counsel prior to the DED. Had he done so, he would have learned

plaintiff's counsel never received them.       Thus, defendants' counsel did not

"establish that he . . . ma[d]e effective use of the time permitted under the

[R]ules," as is required for an attorney requesting a discovery extension. Ibid.

(quoting Vitti, 359 Super. at 51). If "the 'delay rests squarely on [defendants']

counsel's failure to . . . pursue discovery in a timely manner,' and the Vitti factors

are not present, there are no exceptional circumstances to warrant an extension."

Ibid. (quoting Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463,

473-74 (App. Div. 2005)).

      Here, none of the Vitti factors are present. We perceive no compelling

reason proffered by defendants to support their contention that the sought

discovery was essential. Additionally, as Judge Costello noted, the "reason for

[the] extension [was defendants'] admitted failure . . . to send written discovery

requests." And the circumstances were entirely in the control of defendants'

counsel; discovery could have been obtained if timely requests had been served.


                                                                              A-4999-17T1
                                          5
Judge Costello did not abuse her discretion in denying the discovery-extension

request. Applying more of the Vitti principles, we recognized that, under Best

Practices, see R. 4:5A, "applications to extend the time for discovery should be

the exception and not the rule." Rivers, 378 N.J. Super. at 78 (quoting Vitti, 359

N.J. Super. at 45).

      We also reject defendants' argument that Judge Costello erred in denying

their motion for reconsideration. In addition to the aforementioned reference to

the scheduled April 5, 2018 arbitration date following the DED, and resulting

application of the "exceptional circumstances" standard, the judge's order

provided: "The moving party willingly stopped discovery and has now allowed

300 days of allotted discovery time lapse without even conducting written

discovery"; "the moving party has failed to satisfy the requirements of R[ule]

4:49-2 for reconsideration."

      We review a denial of a motion for reconsideration for abuse of discretion,

Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996), which "'arises

when a decision is "made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis,"'" Pitney Bowes

Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div.

2015) (quoting Flagg, 171 N.J. at 571). We accord the trial court's findings of


                                                                          A-4999-17T1
                                        6
fact substantial deference provided they are "supported by adequate, substantial

and credible evidence." Cosme v. Borough of E. Newark Twp. Comm., 304 N.J.

Super. 191, 202 (App. Div. 1997) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins.

Co., 65 N.J. 474, 484 (1974)). We also defer to a trial court's discretionary

determinations and concomitant conclusions. Pitney Bowes Bank, 440 N.J.

Super. at 382-83. We do not, however, give deference to a trial court's legal

interpretations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.

366, 378 (1995).

      Judge Costello correctly applied our prescription in Cummings that

            [r]econsideration should be utilized only for those cases
            which fall into that narrow corridor in which either 1)
            the [c]ourt has expressed its decision based upon a
            palpably incorrect or irrational basis, or 2) it is obvious
            that the [c]ourt either did not consider, or failed to
            appreciate the significance of probative, competent
            evidence.

            [295 N.J. Super. at 384 (quoting D'Atria v. D'Atria, 242
            N.J. Super. 392, 401 (Ch. Div. 1990)).]

      Defendants contend the judge's "application of an 'exceptional

circumstances' standard was mistaken based on the mandate of the [Conference

of Civil Presiding Judges at a February 26, 2002 meeting] and Rule 4:21A-1"

because the arbitration was scheduled despite the fact that defendants' original

motion to extend discovery "was made well before the [DED] and was returnable

                                                                          A-4999-17T1
                                        7
over a month before the [DED]." This argument ignores that the arbitration date

– April 5, 2018 – was within sixty days of the March 22, 2018 DED, thus

complying with Rule 4:21A-1(d) which mandates that, absent the written

consent of the parties, the arbitration "hearing shall not be scheduled for a date

prior to the end of the applicable discovery period, including any extension

thereof" and that the hearing must take place "no later than [sixty] days

following the expiration of that period."

      Defendants also contend the judge failed to take into account the difficulty

they encountered in arranging travel from their home in North Carolina to New

Jersey for depositions because of their daughter's unfortunate medical condition.

Defendants' concern was first raised in their reconsideration motion, not in

support of their initial discovery-extension motion. We fully support that "if a

litigant wishes to bring new or additional information to the [c]ourt's attention

which it could not have provided on the first application, the [c]ourt should, in

the interest of justice (and in the exercise of sound discretion), consider the

evidence." Cummings, 295 N.J. Super. at 384 (quoting D'Atria, 242 N.J. Super.

at 401). Defendants' argument for reconsideration, however, relied on facts

which were known to them and could have been presented in their first

application for an extension. Furthermore, the hardships they faced in caring


                                                                          A-4999-17T1
                                        8
for their child did not provide justification for the late-served written discovery

requests.2 Judge Costello did not abuse her discretion in denying the motion for

reconsideration.

      Another judge granted plaintiff's motion for summary judgment. The

court's order provides the only reason for its decision:

            First, there are no issues of material fact present. The
            record shows that [d]efendant owed certain fees
            associated with the condominium. Defendant has not
            proffered anything which disputes same. Second, the
            legal fees sought are plainly provided in the governing
            documents. . . . Further, the [c]ourt finds that the legal
            fees sought are reasonable and are within the scope of
            this litigation. Defendant's argument is that the fees
            prior to this litigation are not relevant. The governing
            documents clearly permit [p]laintiff to seek fees in
            connection with the foreclosure action. . . . This action
            was commenced after the foreclosure in order to
            recover the expenses of same. . . . In sum, the fees
            sought are explicitly provided for in the governing
            documents.




2
  We note defendants did not address in their merits brief the March 29, 2018
order which dismissed their answer without prejudice for failure to appear for
court-ordered depositions, allowing defendants to move to restore their pleading
after they were deposed. Defendants' child's illness was raised in connection
with their argument regarding only the reconsideration motion. We will not
address issues which are not briefed. Skldowsky v. Lushis, 417 N.J. Super. 648,
657 (App. Div. 2011) (holding that an issue not briefed on appeal is deemed
waived).
                                                                           A-4999-17T1
                                        9
      Defendants argue: existent fact issues precluded summary judgment;

plaintiff sought legal fees that exceeded the amount limited by plaintiff's

governing documents, were unreasonable and billed for work outside the scope

of litigation to recover the association's assessments for common expenses;

plaintiff failed to prove arrears and late fees incurred after defendants filed their

petition for relief in bankruptcy; and the grant of summary judgment was based

on an inadequate record.

      We ordinarily review summary judgment decisions de novo. Globe Motor

Co. v. Igdalev, 225 N.J. 469, 479 (2016). But "our function as an appellate court

is to review the decision of the trial court, not to decide the motion tabula rasa."

Estate of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301-302 (App. Div.

2018). The trial court's failure to comply with Rule 1:7-4(a) leaves us in that

position.

      Because the court did not, in a written or oral opinion or memorandum

decision, set forth findings of fact and correlate them to legal conclusions in

accordance with the Rule, made applicable to summary judgment decisions by

Rule 4:46-2(c), we are unable to conduct the proper analysis required under Brill

v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995). As we

observed in Great Atlantic & Pacific Tea Co. v. Checchio, 335 N.J. Super. 495,


                                                                             A-4999-17T1
                                        10
498 (App. Div. 2000), "neither the parties nor we are well-served by an opinion

devoid of analysis or citation to even a single case." See also Doerfler, 454 N.J.

Super. at 301. The conclusory reasons set forth by the trial court at the bottom

of its order compel us to reverse the grant of summary judgment and remand

this matter. In doing so, we do not suggest that summary judgment, in whole or

part, is not appropriate in this case.

      On remand, however, the trial court must address defendants' arguments.

The decision shall include an exact calculation of any amount due plaintiff,

recognizing plaintiff's right to collect the assessments and related charges due

under the master deed and by-laws. See N.J.S.A. 46:8B-21(a); Highland Lakes

Country Club & Cmty. Ass'n v. Franzio, 186 N.J. 99, 110-12 (2006); Park Place

E. Condo. Ass'n v. Hovbilt, Inc., 279 N.J. Super. 319, 323-24 (Ch. Div. 1994).

The court must consider defendants' arguments regarding the impact of the

bankruptcy and foreclosure proceedings on that calculation. Further, the court,

in determining any amount due plaintiff for counsel fees, is required to examine

the extent of any limitation on that amount imposed by the governing

documents, specifically section 5.11 of the master deed and 5.11V of the by-

laws. The court must also conduct an analysis of the fees sought, as supported

by an affidavit required under Rule 4:42-9(b), by applying the factors set forth


                                                                          A-4999-17T1
                                         11
in RPC 1.5(a)3 and the tenets set forth in Rendine v. Pantzer, 141 N.J. 292

(1995), and its progeny, see Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372,

385-88 (2009); Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21-23 (2004);

Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-46 (2001).

      We agree with defendants that the court, before deciding the summary

judgment motion, should have granted oral argument, LVNV Funding, LLC v.

Colvell, 421 N.J. Super. 1, 5 (App. Div. 2011), which we expect shall occur

upon remand.




3
  RPC 1.5(a) lists the factors to be considered in determining the reasonableness
of an attorney's fee:

             (1) the time and labor required, the novelty and
            difficulty of the questions involved, and the skill
            requisite to perform the legal service properly; (2) the
            likelihood, if apparent to the client, that the acceptance
            of the particular employment will preclude other
            employment by the lawyer; (3) the fee customarily
            charged in the locality for similar legal services; (4) the
            amount involved and the results obtained; (5) the time
            limitations imposed by the client or by the
            circumstances; (6) the nature and length of the
            professional relationship with the client; (7) the
            experience, reputation, and ability of the lawyer or
            lawyers performing the services; (8) whether the fee is
            fixed or contingent.


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                                       12
      Affirmed in part, reversed in part and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.




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                                      13
