A title insurance company involved in litigation with a competitor should have been granted a little more time to obtain an affidavit of merit after it learned well into the litigation that its expert had a conflict of interest, a New Jersey appeals court has ruled.
A two-judge Appellate Division panel said the interests of justice would have been better served had a Morris County trial judge granted a brief extension of time, even though the deadline for the end of discovery had expired.
“Under the totality of [the] circumstances, and in the interest of justice, we conclude the should adjournment was warranted,” said Appellate Division Judges Douglas Fasciale and Greta Gooden Brown in a per curiam decision Nov. 29.
The case involves litigation filed by Stewart Title Guaranty Co. against All-Pro Title Group in a dispute over a mortgage application. Stewart alleges that All-Pro failed to abide by generally accepted standards when it neglected to disclose an outstanding mortgage.
According to the decision, Stewart Title had retained an expert: John Cannito, an attorney with Property Title Group, LLC.
At some point, All-Pro filed a third-party complaint against another company, Action Title Research, alleging that it, too, failed to live up to generally accepted standards.
After the discovery period ended, the trial judge made it clear that there would be no further extensions of time, according to the decision.
At that point, however, Stewart Title realized it could not use Cannito as its expert, nor rely on his affidavit of merit, because of a professional conflict of interest in connection with Action Title, which had been brought in to the case late as a third party.
Stewart Title said it could retain another expert and provide another affidavit within a week, but the trial judge, without hearing oral arguments, denied the application, the panel said.
Electronic court records identify the judge below as Superior Court Judge Louis Sceusi.
Stewart Title appealed, arguing that the judge abused his discretion in denying the application, that it had established good cause, that it was asking for only a short extension, that there would be no prejudice to All-Pro, and that there is a judicially recognized preference for adjudicating cases on the merits.
In an unpublished decision, Fasciale and Gooden Brown agreed with Stewart Title and reversed the trial judge’s denial of the application for an extension, limited to the purpose of getting a new expert and affidavit.
Stewart Title satisfied the good-cause standard for being granted an extension, the panel said.
“A judge’s discretion on reconsideration should ‘exercised in the interest of justice,’” the appeals court judges said. “We conclude that the judge’s refusal to hear arguments on reconsideration, and consider the matter on the merits, constituted an abuse of discretion, especially because the judge did not exercise his discretion ‘in the interest of justice.’”
Stewart Title retained Brian English of the Newark office of Tompkins, McGuire, Wachenfeld & Barry, while All-Pro turned to John Campbell of Florham Park’s Schenck, Price, Smith & King.
Neither returned a call seeking comment.