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McGrogan v. Till

May 24, 2001

RAYMOND MCGROGAN AND PAULINE MCGROGAN, PLAINTIFFS-APPELLANTS,
v.
PETER W. TILL, AN ATTORNEY AT LAW OF THE STATE OF NEW JERSEY; ANDREW J. GOLDSTEIN, ESQ., AN ATTORNEY AT LAW OF THE STATE OF NEW JERSEY; ALLYN Z. LITE, ESQ., AN ATTORNEY AT LAW OF THE STATE OF NEW JERSEY AND THE FIRM OF GOLDSTEIN LITE & DEPALMA, LLC SUCCESSOR FIRM OF GOLDSTEIN, TILL, LITE & REIKEN, DEFENDANTS-RESPONDENTS,
AND SAMUEL N. REIKEN, ESQ., AN ATTORNEY AT LAW OF THE STATE OF NEW JERSEY, DEFENDANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 327 N.J. Super. 595 (App. Div. 2000).

The opinion of the court was delivered by: LaVECCHIA, J.

Argued January 2, 2001

This case raises the question whether the shorter two-year statute of limitations under N.J.S.A. 2A:14-2, instead of the six-year limitations period under N.J.S.A. 2A:14-1 usually applied to legal-malpractice actions, should pertain to a claim of legal malpractice allegedly committed by defense counsel in the context of a criminal prosecution. The Appellate Division raised the question sua sponte. On this record, as the Appellate Division found, it matters not which statute of limitations applies because under either a two-year or six-year period, plaintiff's action was untimely. McGrogan v. Till, 327 N.J. Super. 595, 603 (App. Div. 2000). The Appellate Division nonetheless addressed the question whether the shorter statute of limitations should apply. The court commented that legal malpractice occurring in the context of a criminal prosecution causes primarily personal injury; economic injuries are "incidental to and flow from the personal injury caused by a criminal prosecution, including disrepute in the community." Id. at 604-05. Citing to Montells v. Haynes, 133 N.J. 282 (1993), for the proposition that the nature of the injury is determinative of which statute of limitations applies, the Appellate Division held that the two-year limitations period in N.J.S.A. 2A:14-2 for "injury to the person" should govern. McGrogan, supra, 327 N.J. Super. at 603.

We granted certification, 165 N.J. 132 (2000), and now affirm the judgment of the Appellate Division substantially for the reasons expressed in the opinion below except as modified in respect of the applicable statute of limitations. We hold that a single statute of limitations controls the timeliness of all legal-malpractice actions, irrespective of the specific injuries that are asserted. We hold further that the six-year limitations period set forth in N.J.S.A. 2A:14-1, which has applied heretofore to claims of legal malpractice, continues to govern those actions.

I.

Sometime prior to 1989, plaintiff Raymond McGrogan retained defendant Peter W. Till to represent him in connection with a criminal investigation into charges that he, while a member of the Wayne Township Planning Board, conspired with other Wayne Township officials to extort money from developers. On February 2, 1989, McGrogan was indicted and charged with one count of extortion and three counts of misprision of a felony. A superseding indictment filed on April 6, 1989, charged McGrogan with six counts of extortion. On April 26, 1989, the federal trial court granted Till's application to be relieved as counsel and entered an order appointing a federal public defender as McGrogan's new counsel.

McGrogan entered into a written plea agreement with the Department of Justice dated December 4, 1989. McGrogan agreed to plead guilty to count three of the superseding indictment and to cooperate with the government's investigation in exchange for dismissal of the remaining charges. Count three charged that McGrogan conspired with the mayor of Wayne Township and another member of the planning board to extort money from a joint venture constructing residential apartment buildings. McGrogan admitted that he received a bribe of $10,000 from the joint venture, portions of which he allocated to the mayor and the planning- board member. Sentencing was adjourned because McGrogan was cooperating with the government in securing evidence against others.

In a letter dated March 22, 1991, McGrogan wrote to the federal trial court concerning a civil complaint Wayne Township had filed against McGrogan and others. In that letter, McGrogan complained that Till had not performed legal services commensurate with his fees, that Till had prevented McGrogan from cooperating with the government, and that the government would not have indicted McGrogan if he had cooperated at an early stage of the investigation. In January 1992, the court sentenced McGrogan to an eighteen-month prison term on condition that he serve four months in a halfway house. The remainder of the term was suspended, and he was given a probationary period of five years. McGrogan also was required to perform community service and pay a fine.

On September 2, 1997, McGrogan and his wife filed a seven- count complaint in State court against Till and his law firm, alleging that Till committed legal malpractice. The complaint's contentions centered on Till's alleged failure to inform McGrogan of available opportunities for immunity and cooperation with investigating authorities that caused McGrogan to be indicted and incarcerated, incur a criminal record, and sustain economic loss and emotional pain. Till moved for summary judgment, asserting that the six-year statute of limitations governing actions for legal malpractice caused the complaint to be time barred. The trial court granted summary judgment, holding that the action filed in September 1997 was time barred because the six-year statute of limitations governed McGrogan's legal-malpractice action and the limitations period began to run no later than March 22, 1991, when McGrogan revealed his knowledge of fault in writing the letter to the sentencing court complaining of Till's representation.

The Appellate Division then affirmed the trial court's judgment insofar as it ruled the legal-malpractice action time barred. McGrogan, supra, 327 N.J. Super. at 598. We affirm that judgment for the sound reasons expressed by the Appellate Division in its decision below, holding that the six-year limitation period began to run no later than March 22, 1991 and that therefore plaintiff's suit was time-barred by N.J.S.A. 2A:14-1. The Appellate Division, however, additionally concluded, "as an alternative ground for [its] affirmance of the judgment, that the two-year limitations period applies." Id. at 603.

II.

A.

For more than twenty-five years, an uncontested principle of New Jersey's decisional law has been that the six-year statute of limitations of N.J.S.A. 2A:14-1 applies to legal-malpractice actions. Olds v. Donnelly, 150 N.J. 424, 440 (1997) (noting that plaintiff filed his legal-malpractice suit "well within the six- year limitations period prescribed by N.J.S.A. 2A:14-1"); Grunwald v. Bronkesh, 131 N.J. 483, 487-88 (1993) (discussing accrual of legal-malpractice action in relation to six-year limitations period); Grunwald v. Bronkesh, 254 N.J. Super. 530, 534 (App. Div. 1992) (commenting that "six-year limitations period applies to claims for legal malpractice"), rev'd on other grounds, 131 N.J. 483 (1993); Mant v. Gillespie, 189 N.J. Super. 368, 372 (App. Div. 1983) (same); Carney v. Finn, 145 N.J. Super. 234, 236 (App. Div. 1976) (determining that six-year statute applies to "assertion that an attorney engaged for particular purpose was negligent in the handling of it, resulting in pecuniary loss to appellant"); Akyan v. Goldzweig, 238 N.J. Super. 389, 390 (Law Div. 1989) (noting agreement that six-year statute of limitations applies to legal-malpractice action); Fuschetti v. Bierman, 128 N.J. Super. 290, 294 (Law Div. 1974) (finding six-year limitations period applicable to legal- malpractice action arising out of attorney's alleged failure to bring personal-injury action on behalf of client).

The bedrock nature of that principle for practitioners is evidenced by the Practising Law Institute's unqualified instruction: "In New Jersey, the statute of limitations for legal malpractice claims is 6 years." Charles W. Stotter, Legal Malpractice in New Jersey: Some Basic Principles, the Affidavit of Merit and Recent Developments, in Legal Malpractice: Techniques to Avoid Liability 1999, at 276 (PLI Litig. & Admin. Practice Course Handbook Series No. 003Q, 1999). That black- letter law is stated in the context of informing practitioners of methods of avoiding malpractice liability. In that risk-averse context, the omission of any mention of the possibility that the shorter two-year limitations period might apply to legal- malpractice actions is especially significant. The statement conveys a sense of settled expectations on the issue of the statute of limitations for legal-malpractice actions. Indeed, until the issue arose in this matter, no published decision in New Jersey had held that ...


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