MARIANNE MURPHY v. CHARLES F. SHAW, III ESQ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARIANNE MURPHY,

Plaintiff-Appellant,

v.

CHARLES F. SHAW, III, ESQ.,

Defendant-Respondent.

________________________________

December 30, 2014

Submitted September 3, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

Docket No. L-0869-13.

Emolo and Collini, attorneys for appellant (John C. Emolo, on the brief).

Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C. attorneys for respondent (Wendy B. Shepps, on the brief).

PER CURIAM

In this professional negligence action against an attorney, plaintiff Marianne Murphy appeals from the Law Division's August 9, 2013 order dismissing her complaint for failing to state a cause of action, Rule 4:6-2, and the court's October 11, 2013 order, denying her subsequent motion for reconsideration, Rule 4:49-2. Plaintiff's complaint essentially alleged her former attorney, defendant Charles Shaw, Esq., failed to serve on the appropriate government entity a timely notice of Tort Claim, pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -:12-3, which resulted in the dismissal of her earlier complaint for damages arising from a confrontation with a police officer. The court granted defendant's motion to dismiss because it believed his actions did not proximately cause plaintiff's injuries as she could have successfully applied for and obtained permission from a court to serve a late notice pursuant to N.J.S.A. 59:8-9.

On appeal plaintiff argues the court erred because it found "extraordinary circumstances" existed in plaintiff's earlier matter "that would have required the [court in that matter] to grant plaintiff leave to file a late notice of tort claim." She also argues the court erred by finding defendant's conduct was not the proximate cause of her damages. Defendant disagrees and argues proximate cause did not exist as correctly found by the motion judge. In addition, he argues he was not under any duty to represent plaintiff in the prior action and, in any event, plaintiff could not prove her claims in the underlying action.

We have carefully reviewed the record and considered the parties' arguments. We disagree with the trial court's conclusion regarding proximate cause and therefore reverse and remand for reinstatement of plaintiff's complaint.

I.

A.

To give context to our disposition of the issues raised, we begin with a recitation of the facts as alleged by plaintiff in her proposed amended complaint, for which she sought leave to file in the underlying action.

Plaintiff was involved in a motor vehicle accident on June 2, 2010. She alleged the other driver used her vehicle to intentionally strike plaintiff's vehicle during an incident of "road rage." In the first count of the pleading, plaintiff alleged negligent operation of that defendant's motor vehicle; in the second count she alleged a battery; and, in the third count, she alleged an assault.

The fourth count of her (proposed) amended complaint made allegations against a police officer who reported to the scene and the officer's police department. Plaintiff stated she called the police after the other driver became verbally abusive, physically threatening and ultimately struck plaintiff's car with her own. After the police officers arrived, one of them allegedly became confrontational with plaintiff and refused to call for medical assistance which plaintiff claimed she needed as a result of the accident. Moreover, the officer ultimately issued a summons to plaintiff for wielding a weapon, which charges were ultimately dismissed in municipal court. In addition to alleging the officer was nasty, mean and vulgar, plaintiff alleged the officer physically abused plaintiff by shoving her and improperly grabbing plaintiff's crotch.1 Plaintiff claimed the officer made lewd comments and otherwise "humiliated, belittled, stunned and sexually violated" plaintiff. In addition plaintiff alleged the police department refused to turn over copies of the 911 call she made to police, which she claimed supported her allegations against all defendants, despite her numerous requests and obtaining a court order for their production from the municipal court hearing the charges lodged against her.

B.

According to plaintiff's certification filed in opposition to defendant's motion to dismiss in this action, the day after the incident, she met with defendant to discuss his representing her in municipal court and to "sue the [o]officers for their egregious conduct." According to plaintiff, a few weeks after their discussion, plaintiff signed a retainer agreement with defendant in which he agreed to represent her in municipal court and to file a claim against the officers. She could not, however, produce a copy of the agreement.2 Plaintiff later paid defendant a retainer and provided defendant with a written account of what happened on the day of the incident. She had several other conversations with him about her "desire to sue the cops for their egregious behavior during the accident investigation."

The municipal court originally scheduled plaintiff's matter for June 24, 2010. It was, however, adjourned to September 23, 2010 due to defendant's schedule. In July, defendant sought to obtain the 911 tape from the incident but he was never successful in doing so. A dispute arose between plaintiff and defendant when defendant requested plaintiff's matter be adjourned again. As a result, plaintiff "fired [defendant] on 9/22/2010 and he returned the . . . retainer fee to [her]." At no time before that date did defendant speak to plaintiff about serving a notice of tort claim or undertake to serve the notice.

Plaintiff appeared in municipal court with a different attorney and the court dismissed the complaint against her. Afterward, she retained another lawyer to file a lawsuit against the driver, the police officer and the police department. In approximately July 2011, the new attorney filed the complaint. She also served a notice of tort claim without ever filing a motion for leave to do so, N.J.S.A. 59:8-9. According to plaintiff, the motion was not filed because she could not demonstrate "extraordinary circumstances" as required by the TCA.

After filing the complaint and serving the notice, plaintiff's attorney was relieved as counsel pursuant to a motion. Plaintiff then retained new counsel. By that time, the defendants in the underlying action filed a motion to dismiss plaintiff's complaint based on the failure to serve a timely notice. Her new attorneys opposed the motion and cross-moved to amend the complaint to "allege civil rights violations, spoliation and malicious prosecution." On July 20, 2012, the court entered an order granting "defendants' motion to dismiss and/or for summary judgment" dismissing plaintiff's complaint "with prejudice . . . for failure to comply with [] provisions of Tort Claims Act." The court also denied her cross motion to amend her complaint to add a civil rights violation.

C.

On February 8, 2013, plaintiff filed her complaint against defendant and various fictitious defendants for "legal malpractice." The two count complaint alleged negligence and breach of contract. The complaint alleged defendant was negligent and breached his agreement with plaintiff by not informing plaintiff about the need for a notice or serving one on her behalf. In support of her claim, plaintiff filed and served an affidavit of merit pursuant to N.J.S.A. 2A:53A-27 from a New Jersey attorney certifying defendant's conduct "fell outside the acceptable professional standards."

In May 2013, defendant filed his motion to dismiss plaintiff's complaint. In granting the motion, the motion judge correctly observed "that it's the inability to file the late notice of claim that is the proximate cause of her damage." However, based in part on cases cited by plaintiff and the judge's own experience, the judge believed plaintiff could have succeeded in obtaining court permission to file a late notice because of defendant's failure to do so in a timely fashion. As a result, defendant did not proximately cause plaintiff's damages.

According to the judge, who relied upon our holding in Williams v. Macarelli, 266 N.J. Super. 676, 680 (App. Div. 1993)("[T]he circumstances of this case do not warrant our punishing the plaintiff for his attorney's fault."),3 a motion to file a late notice would almost always be granted because "the Appellate Division said, . . . you don't visit . . . on the client the [consequences of an attorney's negligence] as long as there[ is] no prejudice." Ultimately, the judge ruled even though defendant's claim that plaintiff could not prove her case against defendants in the underlying action required discovery, he granted the motion to dismiss "on the grounds of proximate cause only."

Plaintiff filed a motion for reconsideration pursuant to Rule 4:49-2, which the court considered on October 11, 2013. At oral argument plaintiff's counsel explained he incorrectly cited to cases in his earlier opposition to defendant's motion, which had effectively been superseded by a 1994 amendment to the TCA's provision for filing an application for permission to file a late notice. Counsel further argued our decision in Zois v. New Jersey Sports & Exp. Auth., 286 N.J. Super. 670, 674-75 (App. Div. 1996) effectively made clear that an attorney's negligence could not amount to "extraordinary circumstances" required by the amended statute. The court disagreed. Relying on our later decision in Blank v. City of Elizabeth, 318 N.J. Super. 106, 113 (App. Div.) aff'd in part and modified in part, 162 N.J. 150 (1999) the motion judge explained his determination that "extraordinary circumstances" existed which would have required a court to grant plaintiff's application to file a late notice

The extraordinary circumstances w[h]ere she fits into the definition in Blank that she is not aware of the fact that she has a tort claim against the municipality. She has an attorney who is non-responsive. And she, apparently, is diligently pursuing it, at least according to her. And then she goes to another attorney . . . .

And ultimately, during that period of time could have easily said I was diligent, I was pursuing it, and -- and because of my prior attorney's lack of diligence I had to fire him. And I went ahead and got another attorney.

And if [the new] attorney[] had filed leave for -- leave to file a late notice of claim, it would have been granted . . . .

As long as the plaintiff is diligent . . . in a case where the plaintiff knows that she has a claim and is not diligent herself, that's a different story. And at this point in time, I don't think there's anything in the record to indicate she was not diligent. And, in fact, anybody -- any subsequent attorney asserting that would have had the opportunity to prove it. That's what I think.

At the conclusion of oral argument the court entered its order denying plaintiff's "motion for reconsideration to vacate the Order dated August 9, 2013." This appeal followed.

II.

We "apply a plenary standard of review from a trial court's decision to grant a motion to dismiss," under Rule 4:6-2(e), owing "no deference to the trial court's conclusions." Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied, 208 N.J. 368 (2011). The standard of our review for dismissal of a complaint under that rule, like the trial court's, is whether the pleadings even "suggest[]" a basis for the requested relief. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v, Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). As a reviewing court, we assess only the legal sufficiency of the claim. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). Consequently, "[a]t this preliminary stage of the litigation [we are] not concerned with the ability of plaintiffs to prove the allegation contained in the complaint." Printing Mart, supra, 116 N.J. at 746. Rather, we accept the factual allegations as true, Sickles, supra, 379 N.J. Super. at 106, and "'search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim . . . . '" Printing Mart, supra, 116 N.J. at 746 (internal quotations and citation omitted).

"However, we have also cautioned that legal sufficiency requires allegation of all the facts that the cause of action requires." Cornett v. Johnson & Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010), aff'd in part and modified in part, 211 N.J. 362 (2012). In the absence of such allegations, the claim must be dismissed. Ibid. (citing Sickles, supra, 379 N.J. Super. at 106). In the context of a motion to dismiss for failure to state a claim, the law is clear that "a court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief." Sickles, supra, 379 N.J. Super. at 106; see also, County of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009) (recognizing that where a "complaint states no basis for relief and [] discovery would not provide one, dismissal of the complaint" under Rule 4:6-2 is appropriate), certif. denied, 201 N.J. 153 (2010).

Applying this standard, we disagree with the motion judge's conclusion that our holding in Blank, supra, supported a finding that, as a matter of law, defendant's conduct could not be the proximate cause of her damages. Plaintiff's circumstances in Blank were totally different than the plaintiff here and we did not find the extraordinary circumstances required for filing a late notice in that case.

In order to explain the difference between the two, we begin by briefly reviewing the "extraordinary circumstances" requirement for filing a late notice under the TCA. The TCA governs negligence claims against public entities and public employees. N.J.S.A. 59:1-2. No claim may proceed without compliance with the terms of the TCA. Ibid.

"Among the most important limitations that the Act imposes on would-be claimants are the ones that are found in the statutory provisions that govern a claimant's obligation to file a notice of tort claim as a prerequisite to initiating litigation." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013). No action for damages based on a negligent act of a public entity or public employee may proceed without submission of a notice of claim as prescribed by statute. N.J.S.A. 59:8-3 to -7. The notice of claim must be filed within ninety days of accrual of the claim. N.J.S.A. 59:8-8. A person who fails to file a notice of claim within ninety days, may file a late notice of claim, but only by order of the court. N.J.S.A. 59:8-9. The motion to file a late notice of claim must be filed within one year of the accrual of the claim, and the person seeking such relief must demonstrate the public entity or public employee will not be "substantially prejudiced" and "extraordinary circumstances" caused the delay.4 Ibid.

When a motion to allow a late notice is filed within one year, we must determine "whether extraordinary circumstances exist justifying a late notice." Beauchamp v. Amedio, 164 N.J. 111, 118-19 (2000). We must scrutinize the specific facts to determine if sufficient reasons constituting extraordinary circumstances to excuse the late attempt to file a notice of claim. Lowe v. Zarghami, 158 N.J. 606, 626 (1999). "Not any one factor constitutes 'sufficient reasons,' but courts consider a combination of factors." Id. at 629 (quoting Lamb, supra, 111 N.J. at 149). Extraordinary circumstances must be determined on a case-by-case basis. Allen v. Krause, 306 N.J. Super. 448, 455 (App. Div. 1997).

However, "an attorney's inattention, or even an attorney's malpractice, [does not] constitute an extraordinary circumstance sufficient to excuse failure to comply with the ninety-day filing deadline." D.D, supra, 213 N.J. at 156. (finding neither counsel's inattention nor incompetence constituted "extraordinary circumstances" sufficient to extend the notice provisions of the Tort Claims Act). "[A]n attorney's inattention to a file, or even ignorance of the law, [does not] equate[] with extraordinary circumstances for tort claims purposes." Ibid. "Although an attorney's negligence may have been sufficient prior to [the TCA's] 1994 amendment to allow a late filing, under the current version of the statute, if such negligence is the sole basis for the late notice, the claim against the public entity will be lost, Bayer v. Twp. of Union, 414 N.J. Super. 238, 259 (App. Div. 2010), even if the client herself takes "prompt action and [makes] repeated efforts to follow up" in the pursuit of her claim. D.D., supra, 213 N.J. at 156.

For that reason, under the TCA, extraordinary circumstances do not include wrong advice by an attorney, Bayer, supra at 259-60, or dilatory efforts to identify the ownership of the dangerous condition that caused an injury. Blank, supra, 318 N.J. Super. at 110-11. Also, negligence of an attorney's secretary in misplacing a file does not constitute extraordinary circumstances. Zois, supra, 286 N.J. Super. at 674-75. Similarly, the failure of misidentified parties to a complaint to advise the plaintiff of the mistake does not constitute extraordinary circumstances. Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 460-62 (App. Div. 2008).

Our holding and the Court's decision in Blank, supra, did not deviate from the rule that an attorney's negligence cannot support a finding of extraordinary circumstances. In that case, we considered the tort claim of a woman who tripped over a pipe protruding from the sidewalk in front of a private residence. Blank, supra, 318 N.J. Super. at 108. Nine months after the accident, the residence owners' insurance company informed plaintiff's counsel that the pipe belonged to the City of Elizabeth. Id. at 108. The trial court granted plaintiff's motion to file a late notice. We reversed having found that plaintiff failed to demonstrate sufficient reasons constituting "extraordinary circumstances." In its opinion affirming that part of our decision, the Supreme Court agreed counsel's failure to take reasonable efforts to determine the "pipe's" owner and whether a notice was required did not amount to "extraordinary circumstances." Blank, supra, 162 N.J. at 152-53.

Our decision in Blank, therefore, had nothing to do with whether plaintiff was aware of the need to serve a notice in a case in which a public entity was obviously a potential responsible party. As the late Judge Sylvia Pressler noted in Blank,

There is an obvious distinction between knowing that one has a cause of action against a public entity and not pursuing it properly and timely for personal reasons and, on the other hand, not timely knowing or being chargeable with timely knowledge that a public entity may be liable for an injury. We are persuaded that the extraordinary-circumstances requirement is met where a plaintiff, within the ninety-day period, neither knows nor is chargeable with knowing of the existence of a cause of action against a public entity.

[Blank, supra, 318 N.J. Super. at 113 (emphasis added).]

Assuming, as we must, plaintiff's allegations to be true, she and defendant knew from the moment they conferred that she wanted to file a claim against a police officer and a police department. There was absolutely no question that a public entity was involved which needed to be served with a notice. The conclusion reached by the motion judge that plaintiff did not know she had to file a claim, her attorney was unresponsive but she was diligent would not support any court finding extraordinary circumstances.

IV.

In response to defendant's alternative arguments for dismissing plaintiff's complaint, the motion judge stated

I'm not so sure that the case is ripe for a dismissal based on the lack of the ability to prove those cases, in the absence of discovery. . . . [I]f I were to agree with [plaintiff's counsel] on . . . proximate cause, I frankly, would not have dismissed the matter for those issues[,] . . . without prejudice . . . .

Although the judge never incorporated his decision rejecting these arguments, we agree with his reasoning that the then current record did not provide a sufficient basis to dismiss plaintiff's complaint. While we recognize "plaintiffs must allege particular facts in support of their claims of attorney incompetence and may not litigate complaints containing mere generalized assertions of malpractice, Ziegelheim v. Apollo, 128 N.J. 250, 267 (1992), we are satisfied that plaintiff's pleading sufficiently states a cause of action5 and any factual dispute raised by defendant's certification filed in support of his motion must be resolved through discovery and, if necessary, a trial.6

IV.

We would be remiss if we did not mention our concern about plaintiff's counsel's conduct before the motion judge as revealed in the transcript of the reconsideration motion. After first informing the judge that counsel cited to the wrong case law in support of plaintiff's original motion, counsel continuously displayed a contemptuous attitude towards the court once he realized the judge did not agree with his interpretation of the case law he argued in support of plaintiff's motion for reconsideration.

Counsel's behavior included questioning the judge about the case law the court relied upon, telling the judge he read the case wrong and making their disagreement personal ("If Your Honor wants to hold against me on this, that's fine."). Particularly egregious was counsel's repeatedly threatening the judge with an appeal

Where are the extraordinary circumstances? Can you enlighten me, so when I have to argue this before the Appellate Division what Your Honor's finding? Where are . . . the extraordinary circumstances?"

. . . .

"I just want the record to be clear, so when the case goes up . . . the Appellate Division knows I made these arguments.

. . . .

Your Honor has to tell me on the record where you're finding that.

. . . .

Your Honor . . . has to follow Zois. And if you're not going to . . . then we're going to have to go to a higher court . . . .

Counsel also did not hesitate to repeatedly interrupt the judge when the court tried to respond to counsel's interrogation.

Most significant were counsel's comments before he abruptly left the courtroom when the court had not yet concluded the hearing

[COUNSEL]: Judge, maybe you're - -

THE COURT: - - his malpractice - -

[COUNSEL]: - - missing it.

THE COURT: No, I'm - -

. . . .

[COUNSEL]: That's what Your Honor is not getting.

THE COURT: - - and doesn't - - well - - I - -

[COUNSEL]: You're missing it.

THE COURT: Okay. You say I'm missing it.

[COUNSEL]: I - - def - - you're definitely missing it.

THE COURT: Let me - -

[COUNSEL]: You should read [the case law to which plaintiff cited]

. . . .

THE COURT: - - wait, wait, wait, let me ask you a question, then. . . .

[COUNSEL]: . . . Judge, look - - look, you don't really get it. You don't get this case on everything. I'm done. Thank you.

After his last comment, as the judge observed, counsel "picked up his papers and left, rather rudely."

Our reading of the transcript leads us to the conclusion that counsel's behavior was beyond rude. At best it was disrespectful and, at worst, a violation of our Rules of Professional Conduct. R.P.C. 3.5(c): see also, In re Vincenti, 152 N.J. 253 (1998). We are fully aware and appreciate an attorney's obligation to advocate with zeal for his or her client. Advocacy is the art of persuasion. It is not, however, a license to be rude or disrespectful to the court or the people who serve the public as judges, no matter how frustrated counsel might be as a result of not being able to persuade a judge to follow counsel's reasoning.

Intelligent people can disagree about their individual understanding of the law. They do so however while maintaining the highest respect for each other and for the role they each play in our judicial system. Counsel's performance in this case fell far short of that standard. An apology would be an appropriate gesture towards restoring integrity to counsel's chosen method of advocacy.

Reversed and remanded for reinstatement of plaintiff's complaint. We do not retain jurisdiction.

1 It is not clear from the pleading if the officer actually touched plaintiff or pretended to do so.

2 Defendant produced a copy of a June 21, 2010 letter from him to plaintiff confirming his representation of plaintiff in the municipal court matter. The letter did not mention representing plaintiff in any other matters, although there is a reference to filing "various complaints . . . against the other driver." Apparently, defendant was referring to automobile offenses and criminal complaints as he reminded plaintiff she only had "thirty (30) days to sign the reckless driving and the tailgating charge" and that he wanted her to also "sign an assault by auto and a criminal mischief charge . . . . "

3 The case was decided before the TCA's 1994 amendment, the impact of which is discussed in n.5, infra.

4 In D.D., supra, the Supreme Court explained the impact of the 1994 amendment to the TCA

As originally enacted, the statute did not condition leave for late filing on a showing of extraordinary circumstances, but fixed instead a lower threshold that the court was authorized to use in granting relief. That earlier standard permitted the court to grant leave for the late filing of a notice if the court found that plaintiff had "sufficient reasons" for failing to meet the ninety-day deadline.

In 1994, however, the Legislature amended the Act and replaced that standard, substituting instead the language now used in the statute that conditions relief on plaintiff's demonstration of "extraordinary circumstances." As we have recognized, in amending the statute, the Legislature intended to raise the bar for the filing of late notice [] by eliminating what had previously been a fairly permissive standard [] and imposing in its place a more demanding one.

[T]here can be no doubt but that its intent was to create a more exacting standard than the one that courts had used prior to the amendment.

[Id. at 147-48 (internal quotation marks and citations omitted).]

5 "The requisite elements of a cause of action for legal malpractice are: (1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation." Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996) (internal citations omitted).

6 It is not our intention to bar either party from filing motions for summary judgment once discovery is completed.