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Olds v. Donnelly

June 11, 1996

ROBERT OLDS, PLAINTIFF-APPELLANT,
v.
DENNIS DONNELLY, DEFENDANT-THIRD PARTY PLAINTIFF-RESPONDENT-CROSS-APPELLANT, V. JOE MARAN, THIRD PARTY DEFENDANT-CROSS-RESPONDENT.



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

Approved for Publication June 11, 1996.

Before Judges Pressler, Wefing and A. A. Rodriguez. The opinion of the court was delivered by Wefing, J.A.D.

The opinion of the court was delivered by: Wefing

The opinion of the court was delivered by WEFING, J.A.D.

Plaintiff sued defendant for legal malpractice. The case was tried to a jury, which returned a verdict of $500,000 in plaintiff's favor. The trial court subsequently entered a judgment in favor of defendant notwithstanding that verdict. Plaintiff appeals and we reverse.

On June 27, 1985, Robert Olds underwent hernia repair surgery at the hands of Floyd J. Donahue, M.D., at Elizabeth General Hospital. Olds suffered an infarcted right testicle as a result of that surgery; necrosis set in and the testicle shriveled to the size of a pea.

Less than a month after the surgery, plaintiff consulted with defendant in connection with a possible medical malpractice action against Dr. Donahue and plaintiff signed a retainer agreement. In June 1986, defendant advised plaintiff he could not proceed further with the case unless he received $500 to cover out-of-pocket costs. Plaintiff eventually forwarded that sum.

On June 25, 1987, two days before the statute of limitations expired, the two met at defendant's office. Defendant advised plaintiff that he could no longer represent him. According to plaintiff, defendant offered to prepare a pro se complaint to be filed within the statutory deadline. A pro se complaint was, in fact, prepared and filed in timely fashion. Further, according to plaintiff, defendant said he would have the complaint served upon Dr. Donahue by mail.

The summons was prepared and issued in defendant's name and sent to Dr. Donahue. The wrong address was used, however, and it was returned to defendant's office. In August 1987, defendant sent the summons and complaint to Dr. Donahue at the correct address. The papers were sent certified mail, with the return receipt addressed to plaintiff. For reasons that do not appear on the record, service was not effected.

In 1988, Olds received a notice from the court that the matter was going to be dismissed for lack of prosecution. Plaintiff testified that he then called defendant who said "he would take care of it." In May 1989, the plaintiff received another notice from the court that the matter was going to be dismissed for lack of prosecution.

In June, plaintiff wrote and requested that the case be continued to permit him to obtain legal counsel. A clerk then assisted him in preparing a summons which was then delivered to the Union County Sheriff's department for service on Dr. Donahue in July 1989.

Dr. Donahue forwarded the matter to counsel and in February 1991, Donahue's attorneys filed a motion to dismiss plaintiff's complaint for failure to timely serve the summons and complaint. In connection with that motion, Dr. Donahue certified that certain x-rays taken at Elizabeth General Hospital in 1985 were destroyed before he was served with the summons and complaint and that this substantially and irreparably prejudiced his defense. He also certified that he was unable to obtain copies of certain testicular scans from Overlook Hospital which further substantially prejudiced his ability to defend the action.

Shortly after Dr. Donahue filed that motion, plaintiff's present counsel filed a substitution of attorney within the medical malpractice action and argued in opposition to Dr. Donahue's motion to dismiss. The trial court in that action determined that the two year delay in serving Dr. Donahue was prejudicial to the doctor because of the loss or destruction of medical records and granted the doctor's motion to dismiss that matter with prejudice.

Fourteen months later, in April 1992, plaintiff began this action alleging legal malpractice by defendant. Plaintiff alleged that defendant failed to effect proper and timely service of the complaint in the underlying medical malpractice action thus causing the suit to be dismissed with prejudice and depriving the plaintiff of the opportunity to seek compensation for his post-surgical injuries.

When defendant filed an answer to this complaint, he also filed a third-party complaint against plaintiff's present counsel; he alleged that plaintiff's present counsel negligently represented plaintiff in connection with the motion to dismiss and thereby caused the pro se complaint to be dismissed. ...


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