CRAIG F. SZEMPLE v. GEORGE DAGGETT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4859-04T14859-04T1

CRAIG F. SZEMPLE,

Plaintiff-Appellant,

v.

GEORGE DAGGETT, and DAGGETT,

KRAMER, ELIADES, VANDERWIELE

& URSIN,

Defendants-Respondents.

________________________________________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County,

Docket No. L-2916-04.

Appellant, Craig F. Szemple, submitted

a pro se brief.

Daggett, Kraemer, Eliades, Vanderwiele

& Ursin, attorneys for respondents

(George T. Daggett, on the brief).

PER CURIAM

Plaintiff, Craig Szemple, is a convicted murderer, who has been incarcerated since 1994. He appeals from Judge Sapp-Peterson's judgment dismissing, for failure to comply with the six-year statute of limitations, a legal malpractice complaint plaintiff had filed against his former attorneys. We affirm.

The complaint, which plaintiff filed on July 13, 2004, alleged that defendant attorneys: (1) made false statements, disrespected the rights of others, and asked for $128,281 for their services instead of the agreed upon $50,000; (2) failed to respect plaintiff's desire to plead not guilty; (3) failed to act with due diligence and retain an investigator to assess potential defenses; (4) made false and misleading statements about their capital murder trial experience; and (5) made extra-judicial statements regarding plaintiff's desire to plead guilty.

The pertinent statute of limitations is "[six] years next after the cause of [malpractice] shall have accrued." N.J.S.A. 2A:14-1. A malpractice claim accrues "when the essential facts of the malpractice claim are reasonably discoverable." Vastano v. Algeier, 178 N.J. 230, 242 (2003).

Judge Sapp-Peterson dismissed plaintiff's complaint because "[o]n May 12th, 1995, plaintiff recognized his dissatisfaction with his attorney because his attorney revealed privileged information in open court." The judge further concluded that plaintiff knew about: the extra fees that were requested by May 8, 1995, when defendants demanded more money than agreed upon for representation; the contents of the trial file by September 12, 1995, when Harold Bush was appointed to represent plaintiff on defendants' motion to be relieved as plaintiff's counsel; the attorneys' lack of experience by January 24, 1995, when defendants told plaintiff they lacked experience in capital cases; and the failure to retain an investigator by April 28, 1998, when plaintiff was sentenced. Despite this knowledge, plaintiff failed to file his complaint within six years from any of these dates.

In this case, all the essential facts were reasonably discoverable when plaintiff received his case file and Bush was appointed as defendant's new counsel. In short, plaintiff and Bush "possessed all the information necessary to reveal malpractice without resort to the interpretative assistance of an expert." Ibid.

Although plaintiff appears to have serious health problems, both physical and psychological, they are insufficient to toll the statute of limitations. N.J.S.A. 2A:14-21. The damage plaintiff suffered as a result of the alleged malpractice was initially to his criminal defense and only thereafter allegedly to his health. Plaintiff cannot choose the latest occurrence of harm to defer the running of the statute. Any damage proximately caused by the malpractice starts the statute. Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993). By the time plaintiff received an expert's report, on November 18, 2004, the statute of limitations had already run. It is irrelevant that plaintiff's new attorney was appointed solely to represent him in the criminal defense. Had plaintiff asked his new attorney for advice on legal malpractice, that attorney could have made a referral or decided for himself whether he wished to take on the additional matter.

We reject as frivolous plaintiff's assertion that his imprisonment places him in a protected class under federal and state constitutional law for statute of limitations purposes.

Therefore, we agree with the trial judge and affirm substantially for the reasons articulated by Judge Sapp-Peterson. This result renders moot plaintiff's arguments regarding the affidavit of merit.

 
Affirmed.

(continued)

(continued)

4

A-4859-04T1

December 6, 2005