VINCENT HAGER v. HOWARD D. POPPER, ESQ

NOT FOR PUBLICATION WITHOUT THE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-5009-15T4

VINCENT HAGER,

        Plaintiff-Appellant,

v.

HOWARD D. POPPER, ESQ.,

     Defendant-Respondent.
______________________________

              Argued October 30, 2017 – Decided November 17, 2017

              Before Judges Sabatino, Whipple and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Docket No.
              L-1477-13.

              Angela M. Roper argued the cause for appellant
              (Roper & Thyne, LLC, attorneys; Kenneth S.
              Thyne, on the brief).

              Maxwell L. Billek argued the cause for
              respondent (Wilson, Elser, Moskowitz, Edelman
              & Dicker, LLP, attorneys; Mr. Billek, of
              counsel and on the brief; Diana Rivas Hamar,
              on the brief).

PER CURIAM

        Plaintiff    Vincent    Hager    appeals    the   trial   court's    order

granting summary judgment in favor of Howard D. Popper, Esq., the
defendant attorney in this legal malpractice case, and dismissing

the    complaint   as     untimely     under      the   six-year      statute        of

limitations, 
N.J.S.A. 2A:14-1.            For the reasons that follow, we

remand for an evidentiary hearing pursuant to Lopez v. Swyer, 
62 N.J. 267, 275 (1973) to address fact-dependent and credibility-

dependent issues of equitable tolling.

       Because the record will be developed further on remand, we

need not recite the facts fully or conclusively.                    The following

brief summary will suffice for our present purposes.

       Plaintiff, a construction worker, was injured in a workplace

accident in August 2001 when a truck dumped several yards of

concrete on him.        Plaintiff retained Popper to represent him in a

workers' compensation petition and also in a separate civil action

against the operator of the truck and the concrete subcontractor

that employed the operator.

       In the fall of 2005, defendants in the civil action proposed

to    pay   plaintiff    $178,000    in       settlement,    a    figure   that      he

apparently     accepted     on   his      counsel's     recommendation            with

reluctance     after     plaintiff     had      personally       researched     other

verdicts on the Internet and concluded that the offer was "a joke."

Plaintiff signed a release in the civil action in October 2005 and

received the settlement funds.



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       Popper eventually moved to be relieved as counsel in the

workers' compensation case in March 2007 after the lawyer-client

relationship deteriorated and plaintiff ceased communicating with

him.    A successor attorney thereafter represented plaintiff in the

compensation case.1

       According to plaintiff, he did not learn until February 2013

that    Popper   had    allegedly    violated     standards   of   care     in

representing     him.    Plaintiff     contends    that   Popper   concealed

pertinent information from him before he agreed to settle the

civil action, including the fact that two of his potential experts

in the civil action were likely to be barred because of a failure

to serve their expert reports. Plaintiff also contends that Popper

misadvised him that his medical bills would be fully reimbursed

and covered in the workers' compensation case.

       Plaintiff filed the present legal malpractice action in May

2013.     He argues that principles of equitable tolling justify

extending the statute of limitations to the time when he had reason

to know that his former attorney had caused him harm.          He contends

that, as a minimum, the matter should be remanded to the trial

court for a Lopez hearing.          Id. at 275.    Plaintiff also appeals



1
  We have been advised in correspondence from plaintiff's counsel
that the compensation case resulted in an award of temporary
benefits of $123,200, subject to a lien of $117,916.65.

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the trial court's denial of his cross-motion for leave to amend

his complaint to assert allegations of fraud, based on materials

supplied in discovery.

       Popper counters that no such hearing is needed, and that

plaintiff's cause of action accrued as a matter of law in October

2005 when he agreed to settle the civil action and signed a

release.      With respect to plaintiff's claim of being prejudiced

by the court's exclusion of two potential medical experts, Popper

asserts that he had not strategically planned to have those two

particular doctors, who had examined plaintiff in the compensation

case, testify.        Instead, Popper contends that he had obtained a

report from a separate medical expert, who was prepared to testify

if   the    case    had   not   settled.        Popper     further    contends    that

plaintiff's        cross-motion      to   amend     the   complaint   was   properly

denied as untimely and unfounded by evidence.

       The Supreme Court in Lopez set forth the seminal principles

of   equitable      tolling     of   a    statute    of   limitations,      sometimes

referred to as the "discovery rule." Id. at 272-76. "The doctrine

. . . provides that in an appropriate case a cause of action will

be held not to accrue until the injured party discovers, or by an

exercise of reasonable diligence and intelligence should have

discovered that he has a basis for an actionable claim."                      Id. at

272.       A plaintiff has the burden of proof in establishing the

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equitable grounds for the indulgence of the discovery rule.                           Id.

at 276.

     The Court has extended these equitable tolling principles to

the specific context of legal malpractice cases.                        Ordinarily, a

six-year statute of limitations applies to such claims.                        Vastano

v. Algeier, 
178 N.J. 230, 236 (2003).2              A cause of action for legal

malpractice    generally   accrues        "when         an   attorney's      breach    of

professional   duty   proximately         causes        a    plaintiff's     damages."

Grunwald v. Bronkesh, 
131 N.J. 483, 492 (1993).                        However, under

"special   circumstances       and   in   the       interest      of   justice,"      the

discovery rule may be applied "to postpone the accrual of a cause

of action when a plaintiff does not know and cannot know the facts

that constitute an actionable claim."                Ibid.      Given the fiduciary

relationship    between    a    lawyer        and   a       client,    the   Court    has

instructed that the discovery rule applies in legal malpractice

cases, such that "the statute of limitations begins to run only

when the client suffers actual damage and discovers, or through




2
  We are aware that efforts have been pursued (and opposed) to
persuade the Legislature to shorten this period and make the
statute of limitations for legal malpractice claims co-extensive
with medical malpractice claims.    Even so, no such legislative
reform has taken place. We provide no commentary on the subject
other than our recognition of the ongoing policy debate.


                                          5                                     A-5009-15T4
the   use   of    reasonable       diligence     should    discover,      the     facts

essential to the malpractice claim."                 Id. at 494 (emphasis added).

      Here,      the    critical    date       for    evaluating   the     level       of

plaintiff's knowledge of such "essential" facts to support a legal

malpractice claim is May 30, 2007, i.e., six years before he filed

his complaint.         The key issue is whether, by that date, plaintiff

knew or had sufficient reason to know that he had been harmed by

the alleged negligent actions and inactions of Popper, his former

attorney.

      The trial court determined that plaintiff knew or should have

known in October 2005, when he reluctantly agreed to accept a

settlement that he regarded as a "joke," that he had a perceived

basis for a legal malpractice claim against Popper.                      To be sure,

the record is clear that plaintiff at that time was dissatisfied

with the amount of the settlement.                   However, the present record

is incomplete and murky as to when plaintiff possessed sufficient

knowledge of the "essential" information to have reason to know

that Popper was negligent and that his negligence caused plaintiff

to be offered a disappointing settlement.

      For instance, the record is unclear if plaintiff knew by May

30, 2007 that his medical bills would not be covered fully in the

compensation case, assuming that such limitation on recovery is

actually correct.          A memorandum to the file from plaintiff's

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successor compensation attorney dated June 30, 2010 spotlights

this medical reimbursement problem, but is unclear as to when

plaintiff was first alerted to it. In addition, it is also unclear

when plaintiff was first alerted about the motion to exclude two

potential experts, or of Popper's position that their testimony

was unnecessary to the case.

     Given these and other uncertainties, we conclude that the

most appropriate course of action is to remand the matter for an

evidentiary hearing under Lopez.    As the Court noted in Lopez,

such a hearing is not always necessary, but "[g]enerally the

[knowledge] issue will not be resolved on affidavits or depositions

since demeanor may be an important factor where credibility is

significant."   Lopez, supra, 
62 N.J. at 275.    Although we have

been supplied in the record with various excerpts of deposition

testimony, we discern that credibility remains an issue that is

best explored at an evidentiary hearing.

     We also are mindful of the relatively short period of time

between the filing of Popper's motion to be relieved in March 2007

and the pivotal six-year "trigger" date of May 30, 2007.         The

record is unclear as to what Popper or another attorney might have

told plaintiff before the motion to be relieved was granted, or




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before May 30, 2007.3   Plaintiff's claim to amend the complaint

should be reconsidered by the trial court, depending on the outcome

of the Lopez hearing.

     Summary judgment is therefore vacated without prejudice, and

the matter is remanded for an evidentiary hearing.      We do not

retain jurisdiction.    Any aggrieved party may pursue a timely

appeal, or motion for leave to appeal as the case may be, from the

outcome of the remand hearing.




3
  We hasten to make clear that we are not determining that
plaintiff's allegations regarding substance, as well as, the
timing of his knowledge, are credible.    Nor are we determining
that Popper acted negligently or harmed plaintiff in any way. We
are simply affording plaintiff, as we must, all reasonable
inferences from the existing summary judgment record. Brill v.
Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995).

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