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Mitchell v. Procini

November 05, 1998

ANTHONY D. MITCHELL, PLAINTIFF-APPELLANT,
v.
CHARLES P. PROCINI, D.D.S., P.A., CHARLES P. PROCINI, DEFENDANTS-RESPONDENTS.



Before Judges King, Newman and Fall.

The opinion of the court was delivered by: The opinion of the court was delivered by King, P.j.a.d.

[9]    Argued: October 7, 1998

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

I.

This case involves the application of newly-amended R. 4:5-1(b)(2) requiring "Notice of Other Actions and Potentially Liable Persons" as it interacts with newly-amended R. 4:30A, the topical entire controversy doctrine rule. Both amendments were effective on September 1, 1998. The Law Division Judge decided this case on August 8, 1997.

II.

On April 21, 1994 plaintiff, Anthony D. Mitchell filed an amended complaint against Tony Palma a/k/a Tony Di Palma trading as Planet Cherry Hill; Patricia Palma a/k/a Patricia Di Palma trading as Planet Cherry Hill (a bar and restaurant); Dan-Des Promotional Enterprises, Inc., trading as Planet Cherry Hill; M.V.S. Entertainment, Inc.; Albert Van Sciver; and John Doe (Cherry Hill defendants). The plaintiff asserted negligence claims against these Cherry Hill defendants, alleging that their careless conduct in separating two brawling patrons on January 1, 1994 caused him severe facial and dental injuries. As a result of this event defendant Dr. Procini, now a defendant, initially examined plaintiff for injuries to his teeth on January 27, 1994. After this examination, Dr. Procini determined there was severe loss of bone, presence of bone deformity, and two (#6 and #7) dental implants were needed.

On March 31, 1994 Dr. Procini started treatment which included the insertion of dental implants. Plaintiff made twenty-three follow-up visits with Dr. Procini after insertion of the dental implants. Plaintiff's final office visit with Dr. Procini occurred on January 3, 1995. At the request of plaintiff's attorney on June 1, 1995, Dr. Procini furnished a report of the treatment he rendered.

Plaintiff was next examined by Dr. Thomas Westcott, another dentist. Dr. Westcott informed plaintiff that the two dental implants installed by Dr. Procini would not accommodate functional prosthetic teeth. On July 27, 1995 Dr. Bradford Porter removed and replaced these dental implants installed by Dr. Procini.

On August 9, 1995, soon after Dr. Porter removed plaintiff's dental implants, a Superior Court arbitration hearing for the plaintiff and the original Cherry Hill defendants was conducted, see R. 4:21A. Plaintiff submitted an arbitration memorandum which referred to Dr. Procini's report submitted on June 1, 1995. The arbitration memorandum also described in list-form the dental implant removal and replacement conducted on July 27, 1995 as "installation of implants." Counsel did not specify the dentist who did this installation. At the arbitration hearing plaintiff was awarded $90,000 total damages for his fractured jaw and other facial and dental injuries. The arbitration panel found 35% liability on plaintiff's part. Plaintiff rejected the arbitration award and on September 6, 1995 filed a demand for jury trial de novo. R. 4:21A-6.

On May 22, 1996, the scheduled trial date, plaintiff settled his claims against the Cherry Hill defendants through a "joint tort-feasor release," presumably preserving his rights against other potential tortfeasor defendants. Also on the May 22, 1996 trial date plaintiff filed a notice of motion to amend his complaint to include claims against the additional defendants, Charles P. Procini, D.D.S., P.A. and Charles Procini. This motion to file a second amended complaint pursuant to R. 4:9-1 ultimately was granted by Judge Fluharty on June 7, 1996 after a labyrinthine procedure.

On June 10, 1996 plaintiff sent the order signed by Judge Fluharty granting plaintiff's motion to file a second amended complaint together with the second amended complaint to the Clerk of the Superior Court in Camden County. On July 2, 1996 a stipulation of dismissal as to the Cherry Hill defendants was filed pursuant to the understanding expressed in the joint tort-feasor release of May 22, 1996.

On about July 17, 1996 plaintiff's attorney became aware he had not received a filed copy of the second amended complaint from the Clerk's office. Plaintiff sent a letter dated July 17, 1996 along with another copy of the second amended complaint and a copy of Judge Fluharty's order to the Clerk's office requesting the second amended complaint be filed.

A civil processing document dated July 26, 1996 was then sent to the plaintiff by the Clerk of the Superior Court, Camden County. According to this document the second amended complaint had not been filed because plaintiff did not include all defendants listed in the caption of the original case and because the amended complaint was mailed in tandem with the motion to file the second amended complaint, causing confusion in the Clerk's office. According to plaintiff's attorney, the Clerk's office informed him in a telephone conversation that he should mail another copy of the second amended complaint to the Clerk's office.

On August 12, 1996 the Clerk of the Superior Court, Camden County, informed plaintiff that as a result of the stipulation of dismissal filed on July 2, 1996 the computer system would not accept the entry of the plaintiff's second amended complaint. Thus, plaintiff needed to have the entire case reinstated in order to proceed.

On September 30, 1996 Judge Fluharty signed an order to reinstate plaintiff's original case, Mitchell v. Palma, under the original docket number L-03107-94. Plaintiff then attempted to file the second amended complaint pursuant to Judge Fluharty's order but still was unsuccessful, ...


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