KENNETH J. MARCANTONIO v. JAY L. HUNDERTMARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2102-04T52102-04T5

KENNETH J. MARCANTONIO,

Plaintiff-Appellant,

v.

JAY L. HUNDERTMARK,

Defendant-Respondent,

and

VALORE LAW FIRM, P.C., A

Partnership including

professional corporations,

CARL J. VALORE, BEVERLY I.

VALORE, JEFFREY H. SUTHERLAND,

and MEMBERS OF THE VALORE

LAW FIRM,

Defendants.

________________________________________________________________

 

Argued December 20, 2005 - Decided January 17, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of

New Jersey, Law Division, Monmouth

County, Docket No. L-5463-03.

Appellant, Kenneth J. Marcantonio,

argued the cause pro se.

Daniel S. Jahnsen argued the cause

for respondent (Bolan, Jahnsen &

Reardon, attorneys; Elizabeth A.

Wilson, on the brief).

PER CURIAM

Plaintiff Kenneth Marcantonio, pro se, brought a legal malpractice action against his former attorneys, the Valore Law Firm, Carl Valore, Beverly Valore, Jeffrey Sutherland, and Jay Hundertmark. Plaintiff's complaint alleged "Attorney Negligence," "Attorney Breach of Contract," and "constructive fraud and breach of fiduciary duty." Judge Joseph Quinn concluded that plaintiff made a fatal mistake by failing to file an affidavit of merit pursuant to N.J.S.A. 2A:53A-27, and dismissed the complaint. Plaintiff appealed, also pro se, and we now affirm.

On appeal, plaintiff advances four reasons to excuse his failure to file the affidavit. First, plaintiff argues that his action is not only for malpractice, but is also for breach of contract and fraud. Second, plaintiff asserts that the malpractice issue is so basic and obvious that no expert witness would have been necessary. Third, plaintiff contends that his failure should be excused because he was pro se, defendants failed to inform him of the statutory requirements, and the court never conducted a case management conference, which is required by Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). Finally, plaintiff also contends that the affidavit of merit statute is unconstitutional.

I.

In the course of explaining why we have rejected each of plaintiff's arguments, we address sufficient relevant facts to illuminate our explanations. Plaintiff's first point is that his complaint raised causes of action for fraud and breach of contract that were in addition to his malpractice claim and were not subject to the affidavit of merit requirement.

Some background facts are necessary to focus this contention. Plaintiff retained the Valore law firm to sue his former attorneys for their alleged negligence in representing plaintiff in a wrongful termination claim against Rutgers University. Plaintiff and the firm executed a written retainer agreement signed by plaintiff and Carl Valore.

The agreement provided that plaintiff was retaining not only the law firm, but also "such other associate legal counsel, special counsel or trial counsel involved and/or designated by the Valore Law Firm." Thus, on its face, the retainer covered, as Valore's agents, Sutherland, an associate of the Valore firm, and Hundertmark, who was special or trial counsel designated by the firm, though neither lawyer signed the agreement.

The retainer further provided that "[t]he Law Firm shall continue to expend its best efforts to successfully complete the legal action filed on behalf of the Client, and obtain a satisfactory settlement or verdict in the case[.]" The firm also agreed in the retainer that though "all litigation involves risks," the firm would "exercise its best efforts to successfully conclude this case in furtherance of the Client's interests."

During the course of the litigation, Hundertmark and plaintiff encountered difficulties working together. Among other things, the two disagreed about the "primary theory" of the case; what defendants to join; what claims to raise; what witnesses to call; deposition tactics; and Hundertmark's preparation of an expert witness.

At one point, Hundertmark questioned plaintiff's veracity, though he later apologized, and plaintiff requested several times that the Valore firm take Hundertmark off the case. Despite his requests, however, plaintiff contends Hundertmark remained on the case and continued to "interfere" with his claim.

In fact, when the defendant attorneys moved for summary judgment, Hundertmark handled the opposition. According to plaintiff, the opposition omitted "crucial arguments and evidence pertaining to the actions of [one particular] underlying defendant," which was the agreed upon "crux" of the case. Plaintiff claimed that "Hundertmark decided to drop the pivotal claims of the case and hand over Summary Judgment to the adversary at the eleventh hour without warning [plaintiff] and then he quit the case and left town!"

The record clearly reflects that Hundertmark vigorously disagreed with plaintiff's assessment of the situation. Letters between plaintiff and Hundertmark reflect an ongoing and spirited dispute on how best to proceed in plaintiff's case. Hundertmark's professional opinion differed significantly from plaintiff's own opinion.

Ultimately, Judge Higbee granted summary judgment to the defendants and dismissed the Valore firm's malpractice complaint that it had filed on plaintiff's behalf. One day shy of six years thereafter, plaintiff filed the pro se complaint that is the subject matter of this appeal.

There is no doubt that the thrust of plaintiff's complaint is legal malpractice. Essentially plaintiff alleges that defendants negligently represented his interests and failed to "make a full and sincere effort" in pursuing the malpractice matter against his former attorneys who had represented plaintiff in the prior dispute with Rutgers University.

Plaintiff contended, however, that his current malpractice complaint against Hundertmark and the other defendants also alleged breach of contract and fraud claims that should have survived defendants' motion to dismiss for failure to file an affidavit of merit pursuant to N.J.S.A. 2A:53A-27.

"[A] breach of contract claim for failing to perform up to professional standards [is] within the ambit of the statute, regardless of the phrasing[]" of the claim. Couri v. Gardner, 173 N.J. 328, 338 (2002) (citing Cornblatt v. Barrow, 153 N.J. 218, 236 (1998)). "It is not the label placed on the action that is pivotal but the nature of the legal inquiry." Id. at 340. The focus is on whether the "underlying factual allegations require proof of a deviation from the professional standard of care." Ibid.

Plaintiff's allegations stem from disagreements with his attorneys over general case strategy, what evidence to present, deposition tactics and the preparation of an expert witness. Such claims implicate the professional standard of care, and are not a simple breach of contract. No attorney is required to follow without question or exception the client's directives on litigation tactics. To evaluate precisely what Hundertmark did, it would be necessary to assess his actions vis- -vis the client as restricted by the particular controlling factual and legal parameters of the underlying claim against plaintiff's former attorneys. This can only be done by measuring his conduct against the professional standard of care, not through a simple reading of the retainer agreement.

In short, whether the attorneys used their best efforts, as required by the retainer agreement, can only be assessed through evaluating the pertinent standard of care. The statute and its underlying policy "cannot be so readily circumvented" through simply "adding the label 'fraud' [or 'breach of contract'] to [plaintiff's] allegations." Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312, 315 (App. Div. 1999).

II.

Plaintiff next argues that defendants' conduct was so blatantly negligent and violative of an attorney's fundamental obligations to a client that plaintiff needs no expert to maintain his professional negligence action. It is true that in some malpractice cases, expert testimony may not be needed if "the questioned conduct presents such an obvious breach of an equally obvious professional norm that the fact-finder could resolve the dispute based on its own ordinary knowledge and experience without resort to technical or esoteric information[.]" Brach, Eichler, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001). For an expert to be unnecessary, however, the legal malpractice should be the legal equivalent of a dentist pulling the wrong tooth or a surgeon amputating the right instead of the diseased left leg. See Hubbard v. Reed, 168 N.J. 387, 395-96 (2001).

An expert is needed, however, when the trier of fact would be required "to evaluate an attorney's legal judgment concerning a complex legal issue." Brach, Eichler, P.C., supra, 345 N.J. Super. at 13. Here, the alleged breach is far from obvious and the questioned conduct concerns the exercise of legal judgment. What are involved in this matter are detailed and nuanced determinations made with regard to case strategy, evidence, and deposition tactics. An expert would have been required.

III.

Plaintiff next argues that "application of the affidavit of merit statute deprives the indigent pro se equal access of justice." According to plaintiff, pro se litigants, like him, who cannot afford to "buy" an affidavit are deprived of "equal protection of the laws by denying them equal access to the courts." In addition, plaintiff claims he was unaware of the need to file the affidavit until after the 120 day filing period had expired. Moreover, the court failed to conduct the case management conference required by the Supreme Court in Ferriera, supra, 178 N.J. at 147-55.

We begin our response to these arguments by noting that the only evidence of plaintiff's indigency is our granting his motion to proceed as an indigent in February 2005. The trial court did not believe plaintiff to be indigent and the relevant time period for plaintiff's indigency would be January 2004, when Hundertmark's answer was filed. The record does not establish indigency for that period. In any event, the affidavit of merit statute does not excuse indigent pro se litigants from its requirements.

"Procedural rules are not abrogated or abridged by plaintiff's pro se status." Rosenblum v. Boro. of Closter, 285 N.J. Super. 230, 241 (App. Div. 1995), certif. denied, 146 N.J. 70 (1996). Importantly, if litigants choose to represent themselves, "they must understand that they are required to follow accepted rules of procedure promulgated by the Supreme Court to guarantee an orderly process. Such litigants are also presumed to know, and are required to follow, the statutory law of this State." Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989). Failure of a pro se to comply with statutorily based litigation requirements cannot raise an equal protection argument.

In addition, "ignorance of the law or failure to seek legal advice will not excuse failure to meet the filing deadline [of N.J.S.A. 2A:53A-27]." Hyman Zamft & Manard L.L.C. v. Cornell, 309 N.J. Super. 586, 593 (App. Div. 1998). The 120-day deadline for which to file an affidavit of merit may be extended under extraordinary circumstances, but the deadline will not be extended for "carelessness, lack of circumspection, lack of diligence, or ignorance of the law." Balthazar v. Atlantic City Med. Ctr., 358 N.J. Super. 13, 26 (App. Div.), certif. denied, 177 N.J. 221 (2003) (citing Palangue v. Lambert-Woolley, 327 N.J. Super. 158, 164 (App. Div. 2000), rev'd on other grounds, 168 N.J. 398 (2001); Hyman Zamft & Manard L.L.C., supra, 309 N.J. Super. at 593). This case is different from those situations where an affidavit of merit has been obtained but was untimely filed. In contrast with such cases, plaintiff simply failed to obtain the affidavit to begin with.

Furthermore, we do not understand the law as requiring defendants in this case to notify plaintiff of his obligation under the statute. See Ferreira, supra, 178 N.J. at 154; Palanque, supra, 327 N.J. Super. at 164 n.5; Burns v. Belafsky, 326 N.J. Super. 462, 472 (App. Div. 1999). Defendants cannot be penalized for waiting until the 120-day period had passed before filing their respective motions to dismiss.

Plaintiff further argues that the Law Division erred in not holding a case management conference as required by Ferreira, supra, 178 N.J. 144, so that he would have been properly advised of his obligations. Although the failure to conduct such a conference may warrant relief under some circumstances, we do not find this case worthy.

The Court has adopted no rule requiring such conferences, and Hundertmark's answer warned plaintiff that his "complaint is barred by failure to comply with N.J.S.A. 2A:53A-28." The cited provision is entitled "Sworn statement in place of affidavit permitted." Even though the statutory reference was in error, if the provision had been carefully read it would have alerted plaintiff to the affidavit of merit requirement.

In addition, defendants did nothing to hinder plaintiff or prevent him from timely filing an affidavit. Plaintiff can not show even the slightest effort to comply with the statute, and there are no extraordinary circumstances explaining his noncompliance. Ferriera, supra, 178 N.J. at 151.

The Legislature has clearly stated that "[i]f the plaintiff fails to provide an affidavit or a statement in lieu thereof . . . it shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. The absence of a case management conference cannot resurrect a failed cause of action.

IV.

Finally, plaintiff argues that "the constitutionality of the affidavit of merit statute is questioned." In support of his argument, plaintiff relies entirely on the separation of powers concerns expressed by Justice Zazzali's concurrence in Ferreira, supra, 178 N.J. at 159. This precise argument was not raised below, and the record contains little factual context to assist our review. Consequently, we need not consider it on appeal. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234-35 (1973).

Nevertheless, our Supreme Court has already stated that "the constitutional principle of separation of powers in this context is not implicated." Cornblatt, supra, 153 N.J. at 248. "[T]he Legislature's choice to require the affidavit of merit is in no way incompatible with this Court's rules regarding malpractice suits and will not interfere with the judiciary's role in resolving such disputes." Ibid. "It is within the Legislature's authority to define a cause of action to include a limitations period within which the plaintiff must act." Ibid.

In conclusion, we reject all four of plaintiff's arguments. And contrary to plaintiff's contention, there is nothing in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), that was violated by the trial court. Because plaintiff failed to act, as required by N.J.S.A. 2A:53A-27, Judge Quinn properly granted summary judgment and dismissed the complaint.

 
Affirmed.

The Valore Law Firm and Carl and Beverly Valore have defaulted and are in bankruptcy. Sutherland was an associate of the Valore Law Firm and Hundertmark was an independent contractor. Sutherland filed a letter brief relying on Hundertmark's opposition to Marcantonio's appeal. Sutherland did not appear at oral argument.

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A-2102-04T5

January 17, 2006