VERONICA M. DAVIS ATTORNEY and COUNSELOR AT LAW P.C. v. WENDY ELLIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VERONICA M. DAVIS, ATTORNEY

and COUNSELOR AT LAW, P.C.,

Plaintiff-Respondent,

v.

WENDY ELLIS,

Defendant-Appellant.

____________________________________________

January 31, 2014

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1023-10.

Kimmo Z.H. Abbasi, attorney for appellant.

Veronica M. Davis, respondent pro se.

PER CURIAM
 

In this appeal, we are called upon to determine the applicability of the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 (statute), to defendant-counterclaimant's action. Specifically, we must decide whether defendant-counterclaimant Wendy Ellis was required to submit an affidavit of merit from a certified matrimonial attorney1 in a legal malpractice claim brought against her former attorney, plaintiff Veronica M. Davis, a certified matrimonial attorney. Ellis argues, pursuant to the plain language of the statute, she was not required to file an affidavit of merit from a certified matrimonial attorney. We agree and, therefore, reverse and remand.

Plaintiff filed a complaint in contract in Ocean County, Superior Court on March 4, 2010 for past due legal fees and costs in the amount of $45,784.08 for her representation of Ellis in a matrimonial action. A default judgment was entered on June 21, 2010. Ellis filed a motion to vacate default, and the motion judge entered an order vacating the default judgment. On October 3, 2011, Ellis filed an answer and a counterclaim alleging plaintiff had committed legal malpractice when she represented defendant in the divorce proceedings.

On December 23, 2011, Ellis filed a motion to extend the time to submit an affidavit of merit, pursuant to N.J.S.A. 2A:53A-27. The motion judge granted the motion on January 20, 2012, allowing Ellis an additional sixty days to obtain the affidavit of merit and allowing Ellis "to obtain an Affidavit of Merit from any attorney licensed to practice law in the State of New Jersey." On February 13, 2012, Ellis submitted an affidavit of merit from Milton Bouhoutsos Jr., Esq., who represented that he was admitted to practice in New Jersey since 1998, served as corporation counsel to Jersey City and was engaged in private practice "as a sole general practitioner . . . currently involved in numerous active matters in litigation."

The motion judge held a case management conference on March 26, 2012. The judge entered a case management order directing Ellis to provide an affidavit of merit from a "Certified Matrimonial" attorney by June 1, 2012. On May 31, 2012, defendant moved for another extension to obtain an affidavit. On June 25, 2012, plaintiff moved to dismiss defendant's counterclaim with prejudice and, on August 3, 2012, the judge denied defendant's motion for an extension of sixty days "to obtain an affidavit from a certified matrimonial attorney" and dismissed defendant's counterclaim, with prejudice, for failure to "file an affidavit of merit from an appropriate licensed expert within 120 days." On August 22, 2012, Ellis filed a motion for reconsideration, which was denied on September 14, 2012. This appeal ensued.

N.J.S.A. 2A:53A-27 states:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices . . . .

Furthermore, N.J.S.A. 2A:53A-29 provides: "If the plaintiff fails to provide an affidavit . . . it shall be deemed a failure to state a cause of action." Although the statute refers to "the plaintiff," a counterclaimant is considered to be the same as a plaintiff for purposes of the affidavit of merit statute. Charles A. Manganaro Consulting Eng'rs v. Carneys Point Twp., 344 N.J. Super. 343, 348 (App. Div. 2001); Diocese of Metuchen v. Prisco & Edwards, AIA, 374 N.J. Super. 409, 415 (App. Div. 2005).

On appeal, our standard of review is plenary from dismissal of a claim for failure to serve an affidavit of merit. Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006) ("review of a trial court's order of dismissal of a complaint pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be granted, is plenary").

"A claim against an attorney for alleged malpractice is a claim for property damage within the legislative intent and plain meaning of the statute." Cornblatt v. Barow, 303 N.J. Super. 81, 86 (App. Div. 1997), rev'd on other grounds, 153 N.J. 218 (1998). Whether the affidavit of merit statute is applicable depends on whether "the claim's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession." Couri v. Gardner, 173 N.J. 328, 340 (2002). "If such proof is required, an affidavit of merit shall be mandatory for that claim, unless either the statutory, N.J.S.A. 2A:53A-28, or common knowledge exceptions apply." Id. at 341.

Ellis does not dispute that an affidavit of merit is required in a legal malpractice action alleging negligence in the exercise of professional judgment. See, e.g., Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312, 314 (App. Div. 1999). Ellis argues that the motion judge erred by requiring an affidavit of merit from a certified matrimonial attorney. Further, she contends that since the judge had previously accepted the Bouhoutsos affidavit, dismissal was in error.

The record does not support the assertion by Ellis that the Bouhoutsos affidavit was accepted by the motion judge as sufficient under the statute. However, we agree that the requirement of an affidavit from a certified matrimonial attorney was in error.

The statute in pertinent part provides:

[T]he person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years.

[N.J.S.A.2A:53A-27.]

While we agree with the motion judge that the Bouhoutsos affidavit did not meet the statutory requirements, the statute is explicit that the person executing the affidavit can either evince his or her particular expertise by either "board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years." N.J.S.A. 2A:53A-27. Therefore, the motion judge erred by requiring an affidavit of merit from a certified matrimonial attorney as the sole demonstration of the expertise required by the statute. We reverse the dismissal of the Ellis' counterclaim and remand to the motion judge. Ellis shall have sixty days from the filing of this opinion to submit to the trial court an affidavit of merit which complies with the statute.

1 "An attorney of the State of New Jersey may be certified as

. . . a matrimonial law attorney . . . but only on establishing eligibility and satisfying degree requirements regarding education, experience, knowledge, and skill for [the] designated area of practice . . . ." R. 1:39.