WIDMAN, COONEY, WILSON MCGANN & FITTERER v. MAUREEN HECK

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0011-16T2


WIDMAN, COONEY, WILSON,
MCGANN & FITTERER,

        Plaintiff-Respondent,

v.

MAUREEN HECK,

     Defendant-Appellant.
______________________________

              Submitted October 23, 2017 – Decided December 6, 2017

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No.
              L-2312-15.

              Bendi Rindosh, attorneys for appellant (Jason
              A. Rindosh, on the briefs).

              Traub, Lieberman, Straus, & Shrewsberry, LLP,
              attorneys for respondent (Aileen F. Droughton,
              of counsel and on the brief; Laura M.
              Faustino, on the brief).

PER CURIAM

        Defendant Maureen Heck appeals from a June 29, 2016 order

confirming      an   arbitration     award   granting     summary    judgment      in
plaintiff Widman, Cooney, Wilson, McGann & Fitterer's (Widman)

favor,     and    an   August   19,   2016    denial     of   a   motion    for

reconsideration.       We affirm.

     We discern the following facts from the record.                    Widman

previously represented defendant in an attorney's fee dispute with

a former firm and in a civil action regarding the administration

of her father's estate. On June 22, 2015, Widman filed a complaint

alleging defendant owed $74,742.35 in attorney's fees.               Defendant

counterclaimed, asserting Widman was professionally negligent in

handling    the    settlement   of    the    estate    litigation.      Widman

originally represented itself on both claims.

     A Ferreira1 conference was held on October 29, 2015 for the

legal malpractice claim and shortly thereafter, Widman retained

counsel to represent it in the legal malpractice counterclaim but

continued to represent itself on the fee claim.               Defendant, who

represented herself, did not serve an expert report in support of

her claim.

     On April 6, 2016, the case proceeded to mandatory, non-binding

arbitration.      An attorney from Widman appeared on the fee claim


1
   Ferreira v. Rancocas Orthopedic Assocs., 
178 N.J. 144 (2003),
requires a case management conference early in the stages of
malpractice actions to address the sufficiency or deficiency of a
plaintiff's Affidavit of Merit, which is an expert's sworn
statement attesting that there exists a "reasonable probability"
that the professional's conduct fell below acceptable standards.

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and   the   firm's   counsel   appeared   on   the   malpractice    claim.

Defendant appeared pro se.       The arbitrator entered an award in

favor of Widman for $74,742.35 and found no cause for defendant's

legal malpractice counterclaim.

      On April 29, 2016, defendant filed a demand for a trial de

novo within the thirty-day limits of Rule 4:21A-6.             Defendant

attempted to serve Widman's counsel with notice of the trial de

novo demand by mail, but service was not timely due to an incorrect

address, and defendant made no attempt to serve Widman.

      On May 12, 2016, Widman's counsel moved to confirm the

arbitration award and, in the alternative, for summary judgment

on the counterclaim.    After receiving the motion, on May 20, 2016,

defendant faxed Widman's counsel a letter, requesting withdrawal

of the motion because she had filed a demand for a trial de novo.

Defendant attached a return to sender notice dated May 6, 2016

showing the attempted service.          The May 20, 2016 letter also

referenced that it was faxed to a lawyer at Widman.           Defendant

thereafter retained counsel who submitted opposition to the motion

on defendant's behalf.

      On June 29, 2016, after hearing argument and placing her

findings on the record, the trial judge confirmed the $74,742.35

arbitration award and granted summary judgment in Widman's favor.

In particular, the judge found the de novo notice was timely filed

                                    3                              A-0011-16T2
but not timely served.         After reviewing the certification and

attachments submitted by defendant the judge declined to find

sufficient cause to relax the thirty-day service requirement,

because when defendant learned the notice was not served within

thirty days, she failed to take any corrective steps until she

received    Widman's    motion.    The     judge   granted    Widman   summary

judgment on the counterclaim because defendant did not respond to

or deny anything set forth in plaintiff's statement of undisputed

material facts and did not provide an expert's report supporting

her malpractice claim before the close of discovery.

     Defendant moved for reconsideration, which the court denied

on August 19, 2016.      This appeal followed.

     On    appeal,   defendant    argues    the    trial   judge   abused   her

discretion in refusing to relax the Rule 4:21A-6(b)(1) service

requirements    under    the   doctrine     of     substantial     compliance.

Defendant further asserts the trial court erred in granting summary

judgment in favor of plaintiff because genuine issues of material

fact precluded the entry of summary judgment.              We disagree.

                                     I.

     Following the issuance of an arbitration award, the trial

court shall,

            upon motion of any of the parties, confirm the
            arbitration decision, and the action of the
            court shall have the same effect and be

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            enforceable as a judgment in any other action;
            unless one of the parties petitions the court
            within 30 days of the filing of the
            arbitration decision for a trial de novo[.]

            [N.J.S.A. 2A:23A-26.]

Rule 4:21A-6(b), in pertinent part, provides:

            An order shall be entered dismissing         the
            action   following   the   filing of         the
            arbitrator's award unless:

            (1) within 30 days after filing of the
            arbitration award, a party thereto files with
            the civil division manager and serves on all
            other parties a notice of rejection of the
            award and demand for a trial de novo[.]

We have said "the requirement of service should be strictly

enforced[.]"    Jones v. First Nat. Supermarkets, Inc., 
329 N.J.

Super. 125, 127 (App. Div.), certif. denied, 
165 N.J. 132 (2000).

"[T]he thirty-day period for filing a demand for a trial de novo

may be relaxed only upon a showing of extraordinary circumstances."

Flett Assocs. v. S.D. Catalano, Inc., 
361 N.J. Super. 127, 131

(App. Div. 2003) (citing Hartsfield v. Fantini, 
149 N.J. 611 (1997)

and Wallace v. JFK Hartwyck at Oak Tree, 
149 N.J. 605 (1997)).

     However, "[w]hen a party undertakes to comply with a statutory

requirement, but fails to comply strictly, and there is no showing

another party has been prejudiced, 'courts invoke the doctrine of

substantial    compliance   to   avoid   technical   defeats   of     valid

claims.'"   Corcoran v. St. Peter's Med. Ctr., 
339 N.J. Super. 337,



                                    5                               A-0011-16T2
341-42 (App. Div. 2001) (quoting Alan J. Cornblatt, P.A. v. Barow,


153 N.J. 218, 239 (1998)).          Indeed, "the substantial compliance

doctrine applies to the filing requirement of Rule 4:21A-6(b)(1)."

Id. at 342.

     In   order   to   avail     itself       of   the   substantial      compliance

doctrine, the moving party must show:

           (1) the lack of prejudice to the defending
           party; (2) a series of steps taken to comply
           with the statute involved; (3) a general
           compliance with the purpose of the statute;
           (4) a reasonable notice of petitioner's claim,
           and (5) a reasonable explanation why there was
           not a strict compliance with the statute.

           [Barow, supra, 
153 N.J. at 239 (citing
           Bernstein v. Bd. of Trs., 
151 N.J. Super. 71,
           76-77 (App. Div. 1977)).]

     In   Corcoran,     supra,    339   N.J.       Super.    at    337,   we   said    a

defendant who mistakenly served a demand for trial de novo to the

plaintiffs' original counsel, instead of its substituted counsel,

substantially     complied       with     the      service        requirement      when

plaintiffs were not prejudiced by the delay, the defendant took a

"series of steps" to comply with the service requirement, and the

defendant provided a reasonable explanation for its failure to

strictly comply.       Id. at 343-44.         However, in Woods v. Shop-Rite

Supermarkets, 
348 N.J. Super. 613 (App. Div.), certif. denied, 
174 N.J. 38 (2002), the plaintiff did not substantially comply with

the service requirement because the plaintiff failed altogether

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to serve the defendant with a demand and provided no "explanation

for the failure to serve the demand . . . upon defendant."                     Id.

at 618.

     Here, defendant did not strictly comply with the service

requirement for a trial de novo, and she demonstrated neither

substantial compliance nor any extraordinary circumstances.

     Since Widman represented itself as to the affirmative fee

action, defendant was required to serve both Widman and its

counsel.    Defendant offers no explanation for not providing notice

to Widman separately.      Further, her notice to Widman's lawyer was

returned undelivered because of an insufficient address.                 Nowhere

in any of her submissions to the motion judge did defendant certify

when the undelivered mail was returned to her or what steps she

took when she received it.

     In    support   of   her   motion       for   reconsideration,     defendant

secured an unsworn letter from the postmaster stating the postal

service    cannot    confirm    when   defendant       received   the    returned

letter.     However, this overlooks the obvious, that defendant

herself knows when she received it and omitted such information

from her certification in opposition to Widman's motion.                       The

undelivered letter may have been returned within the thirty-day

filing period, in which case defendant knew, or should have known,

neither Widman nor its lawyer had notice.             Despite this knowledge,

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defendant did not explain what action she took, if any, until May

20, 2017.   As such, defendant did not demonstrate a "series of

steps" to comply with the service requirement.

     The trial judge found defendant's failure to comply with the

strict service requirement prejudiced Widman's ability to prepare

for trial, which was scheduled for July 18, 2016, soon after the

expiration of the trial de novo filing period.

     We discern no error in the court's determination, and find

the trial judge properly confirmed the arbitration award.

                               II.

     Defendant further argues the trial court erred in granting

summary judgment to Widman on the legal malpractice claim because

genuine issues of material fact precluded summary judgment.

     We review a grant of summary judgment under the same standard

as the trial court.   Prudential Prop. & Cas. Ins. Co. v. Boylan,


307 N.J. Super. 162, 167 (App. Div.), certif. denied, 
145 N.J. 608

(1998).   An opposing party who offers no substantial or material

facts in opposition to the motion cannot complain if the court

takes as true the un-contradicted facts in the movant's papers.

Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 529 (1995)

(citing Judson v. Peoples Bank & Trust Co. of Westfield, 
17 N.J.
 67, 75 (1954)); R. 4:46-2.



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     In order to survive summary judgment, defendant would have

to demonstrate a viable legal malpractice claim.         She had to

establish: "[1] the existence of an attorney-client relationship

creating a duty of care upon the attorney; [2] that the attorney

breached the duty owed; [3] that the breach was the proximate

cause of any damages sustained; and [4] that actual damages were

incurred."     Cortez v. Gindhart, 
435 N.J. Super. 589, 598 (App.

Div. 2014), certif. denied, 
220 N.J. 269 (2015) (citation omitted).

     Expert    testimony   is   ordinarily   required   in   a     legal

malpractice case.    Kranz v. Tiger, 
390 N.J. Super. 135, 147 (App.

Div.), certif. denied, 
192 N.J. 294 (2007).     "Expert testimony is

required in cases of professional malpractice where the matter to

be addressed is so esoteric that the average juror could not form

a valid judgment as to whether the conduct of the professional was

reasonable."     Sommers v. McKinney, 
287 N.J. Super. 1, 10 (App.

Div. 1996) (citing Butler v. Acme Markets, Inc., 
89 N.J. 270, 283

(1982)).     It follows from this that lack of expert testimony is

not fatal to a legal malpractice claim only in the rare cases

"where the duty of care to a client is so basic that it may be

determined by the court as a matter of law."    Ibid. (citing Brizak

v. Needle, 
239 N.J. Super. 415, 429 (App. Div.), certif. denied,


122 N.J. 164 (1990)).



                                  9                              A-0011-16T2
     As the trial court noted, defendant neither submitted a timely

expert report nor did she argue her issue was "so basic that it

may be determined by the court as a matter of law" and thereby did

not require an expert.

     Further, though defendant alleged several discovery issues

which prevented her from challenging the plaintiff's statement of

facts, we find these arguments to be without merit.

     First, defendant asserted she was prevented from obtaining

her file from Widman for her expert's review.           However, she did

not seek the court's assistance either by compelling the file's

production, moving to extend discovery, or requesting leave to

submit the report late.         Next, defendant contended her case

received   an   incorrect   track   assignment,   but   the   judge     noted

defendant never requested a change of track assignment as set

forth under Rule 4:5A-2.

     We recognize that the United States Supreme Court stated in

Haines v. Kerner, 
404 U.S. 519, 520, 
92 S. Ct. 594, 596, 
30 L. Ed. 2d 652, 654 (1972), that a self-represented litigant's pleadings

are held to a less stringent standard than an attorney's. However,

self-represented litigants are not entitled to greater rights than

litigants represented by counsel, and are expected to adhere to

the court rules.    Rubin v. Rubin, 
188 N.J. Super. 155, 159 (App.

Div. 1982); Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super.

                                    10                                A-0011-16T2
90, 99 (App. Div. 2014).       Moreover, by the time defendant was in

the defensive posture of responding to Widman's summary judgment

motion she was represented by counsel, yet defendant inexplicably

did not challenge plaintiff's statement of material facts.

     Accordingly,     the   trial     court     correctly     granted   summary

judgment in plaintiff's favor.

                                      III.

     Defendant also asserts the court abused its discretion in

denying her motion for reconsideration and for a change of track.

We disagree.

     Reconsideration is reserved "for those cases which fall into

that narrow corridor in which either 1) the [c]ourt has expressed

its decision based upon a palpably incorrect or irrational basis,

or 2) it is obvious that the [c]ourt either did not consider, or

failed to appreciate the significance of probative, competent

evidence."    Cummings v. Bahr, 
295 N.J. Super. 374, 384 (App. Div.

1996) (quoting D'Atria v. D'Atria, 
242 N.J. Super. 392, 401 (Ch.

Div. 1990)).      The decision to deny a motion for reconsideration

falls "within the sound discretion of the [trial court], to be

exercised in the interest of justice."             Ibid.      A party's motion

for reconsideration "shall state with specificity the basis on

which   it   is   made,   including    a     statement   of   the   matters    or



                                      11                                A-0011-16T2
controlling   decisions    which   counsel   believes   the   court   has

overlooked or as to which it has erred."       R. 4:49-2.

     Defendant's motion does not state with specificity the errors

she alleges the trial court made.       Thus, defendant failed to show

the judge expressed her decision based upon a palpably incorrect

or irrational basis.      Further, she failed to show that the judge

either did not consider, or otherwise failed to appreciate the

significance of probative, competent evidence sufficient to vacate

the previously entered orders, reopen discovery, and change the

track assignment.      As such, we discern no error in the trial

judge's denial of defendant's motion for reconsideration and to

change track.

     All additional arguments introduced by defendant are without

sufficient merit to warrant discussion in a written opinion.            R.

2:11-3(e)(1)(E).

     Affirmed.




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