ERNEST, RONALD et al. v. OGB LAW FIRM, CHRIS ALGEO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3917-05T13917-05T1

ERNEST, RONALD and GORDON MILES,

Plaintiffs-Appellants,

v.

OGB LAW FIRM, CHRIS ALGEO,

and JOHN MENSCHING,

Defendants-Respondents.

___________________________________

 

Argued March 7, 2007 - Decided April 12, 2007

Before Judges Wefing and Messano.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

No. OCN-L-234-05.

Ronald Miles argued the cause pro se

for appellants (Ronald Miles, on the

pro se brief).

Richard J. Bolger argued the cause

for respondents (Orlovsky, Grasso, Bolger,

Mensching & Daley, attorneys; Mr. Bolger,

on the brief).

PER CURIAM

Plaintiffs, Ernest, Ronald and Gordon Miles, filed a malpractice action against the law firm of Orlovsky, Grasso, Bolger, Mensching, Halpin & Daley, P.A. ("OGB"), John Mensching, Esq., and Christopher Algeo, Esq. They appeal from a trial court order dismissing this action with prejudice. After reviewing the record in light of the contentions advanced on appeal, we reverse. The effect of this reversal, however, for reasons we set forth below, does not have the effect of restoring plaintiffs' complaint to the calendar.

Because we are dealing with a dismissal with prejudice, we recite the facts in the light most favorable to plaintiffs. We recognize that plaintiffs' allegations have not yet been tested in court and that plaintiffs may not be able to garner sufficient evidence to prove their allegations.

Plaintiffs are descendants of Ernest Miles, Sr., who died intestate on July 5, 1972. His wife, Gladyce Miles, died in December 1972, also intestate. At the time of his death, Ernest Miles, Sr. owned six contiguous lots in Barnegat in Ocean County, but no effort was made following his death to prepare and record new deeds to these lots.

In or around November 2001, Gordon Miles, acting on behalf of his siblings, approached the OGB law firm and requested that it prepare new deeds for these six lots. Plaintiffs allege the firm agreed to do so upon payment of a retainer of one thousand five hundred dollars. Plaintiffs paid this sum and were told that it would take approximately six months to complete all the deeds. Plaintiffs allege that the firm did not finish preparation of these deeds until March 2004 and that they were damaged by the delay. According to plaintiffs, a large development was constructed on property adjoining theirs, but the fact that they were not record owners meant that they did not receive notification of the various applications for approval that were filed. At oral argument, we were told that certain of the improvements that were built on this adjoining tract of land in fact encroach upon plaintiffs' property. Plaintiffs attribute this to the delay in preparing the appropriate deeds.

In January 2005 plaintiffs filed a malpractice action against the firm and two of the attorneys involved in the deed preparation. Answers were filed in due course. A case management conference was held on September 20, 2005, and during the conference plaintiffs were instructed that they needed to file an affidavit of merit. N.J.S.A. 2A:53A-27 to -29. On October 5, 2005, plaintiffs filed what they characterized as an affidavit of merit, but the document, prepared and executed by Ronald Miles, one of the pro se plaintiffs, clearly did not comply with the statute's requirements.

Defendant Algeo filed a motion to dismiss for failure to comply with the affidavit of merit statute. The trial court denied the motion by an order entered November 4, 2005, but directed plaintiffs to file a proper affidavit of merit by November 18, 2005. It also provided that if plaintiffs had not filed such an affidavit by November 18, Algeo could submit an affidavit to that effect and plaintiffs' case would be dismissed as to him. When plaintiffs had not filed an affidavit of merit by that date, the court entered an order on December 5, 2005, dismissing the case against Algeo with prejudice.

In the interim, the court held a previously-scheduled case management conference on November 15, 2005. During the course of that conference, plaintiffs raised the possibility of dismissing their complaint without prejudice, and the trial court directed them to file a motion. Plaintiffs did so, and the court granted their motion and entered an order on December 16, 2005, dismissing plaintiffs' complaint without prejudice.

Thereafter, OGB filed a motion to dismiss plaintiffs' complaint with prejudice for failure to file an affidavit of merit. That motion was argued on January 20, 2006. At the end of the argument on that motion, the court held that the complaint against OGB should be dismissed without prejudice and that the earlier dismissal with prejudice against defendant Algeo should be amended to a dismissal without prejudice.

OGB later filed a motion for reconsideration, seeking to convert the dismissal into one with prejudice. That motion was argued on March 3, 2006. After hearing argument, the trial court granted the motion and dismissed the matter with prejudice as to all defendants. This appeal resulted.

As we view the matter, it is not necessary to address whether plaintiffs complied with the affidavit of merit statute, although clearly they have not. At the time OGB filed its motion to dismiss, the trial court had already entered an order granting plaintiffs' motion to dismiss their complaint without prejudice. There was thus no action pending before the trial court when OGB filed its motions and the trial court entered its orders; there was nothing remaining which could be dismissed for the entire action had been dismissed without prejudice on December 16, 2005.

We are thus compelled to reverse the order of March 3, 2006. As we noted at the outset of this opinion, this reversal does not have the effect of restoring plaintiffs' complaint to the calendar. Plaintiffs will have to seek that relief from the trial court if they wish to proceed with this action. If plaintiffs do decide to proceed further with this action, they must be prepared to meet the applicable statutory requirements and deadlines for a claim of professional malpractice.

Reversed.

 

(continued)

(continued)

5

A-3917-05T1

 

April 12, 2007