November 5, 2007
MARTIN GREENBLATT, PLAINTIFF-APPELLANT,
ARON SCHWARTZ, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-0837-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2007
Before Judges Grall and Chambers.
Plaintiff, Martin Greenblatt, appeals from the order entered on December 1, 2006, dismissing his legal malpractice case against his wife's former attorney, defendant Aron Schwartz.
Defendant, an attorney at law, was retained by plaintiff's wife, Martha Greenblatt and her company, Jay's Jewelers, to represent them in the seizure of jewelry from her business by the Sheriff of Somerset County pursuant to a writ of execution.
The assets were seized on behalf of judgment creditors of Mrs. Greenblatt's husband, plaintiff herein. The seizure of the jewelry led to litigation between the judgment creditors on one hand and Mrs. Greenblatt and her corporation on the other.
Plaintiff was not a party to that litigation. Eventually a settlement of the litigation was reached whereby half of the jewelry was returned to Mrs. Greenblatt and the other half went to satisfy plaintiff's judgment creditors. Plaintiff has brought this legal malpractice action against defendant alleging various mistakes he purportedly made in the course of representing Mrs. Greenblatt and her corporation. Defendant never represented plaintiff in any of the proceedings noted above.
Defendant's first motion for summary judgment based on plaintiff's failure to supply an affidavit of merit was denied without prejudice on March 31, 2006, in order to allow further discovery. At the close of discovery, defendant again moved for summary judgment, and that motion was granted.
In granting the motion, the trial judge explained that plaintiff has no legal malpractice claim against the defendant because no attorney client relationship existed between them nor did defendant have any independent duty to plaintiff, stating:
To assert a claim for legal malpractice, a plaintiff must demonstrate the existence of an attorney-client relationship creating the duty of care upon the attorney; two, the breach of that duty; and proximate causation. That's Conklin v. Hannoch Weisman, 145 N.J. 395, 416 of our state's Supreme Court decision, the seminal decision regarding the current law on obligations of an attorney to his client. That was issued in 1996.
See also the decision in McGrogan v. Till, 167 N.J. [414,] 425, again, a New Jersey State Supreme Court decision issued in the year 2001.
In the present matter it is clear that there was no attorney-client relationship between plaintiff and defendant during the course of the underlying litigation. Defendant had a duty as Martha Greenblatt's attorney to protect her interests, not plaintiff's interest; therefore, plaintiff cannot establish a prima facie case for legal malpractice.
Moreover, plaintiff cannot establish a basis for an independent duty because the core of the defendant's representation of Martha Greenblatt was in conflict with the plaintiff's interests. Specifically, defendant sought to recover Martha Greenblatt's assets, which necessarily left plaintiff's judgment unsatisfied. Without an attorney-client relationship between the plaintiff and the defendant during the underlying litigation, and no additional evidence justifying the equitable . . . imposition of a duty, the defendant is entitled to summary judgment.
The trial court also found that summary judgment dismissing the complaint was warranted because plaintiff had failed to file the requisite affidavit of merit as required by N.J.S.A. 2A:53A-27. The trial court rejected plaintiff's argument that no affidavit was required because the asserted malpractice was a matter of common knowledge. Finding that the affidavit of merit requirement had not been met, the trial court stated:
Summary judgment in favor of defendant is also appropriate because plaintiff has failed to provide an affidavit of merit. To maintain a claim for malpractice against a licensed professional, a plaintiff must satisfy the requirements N.J.S.A. 2A:53A -27, which requires in pertinent part the following:
"In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of a filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause."
In the case of an action for medical malpractice, then there is a specific section of the statute that addresses that.
Now, the only exception to the requirement on the affidavit of merit exists where a lawsuit's issues are considered common knowledge. That's Hubbard v. Reed, 168 N.J. 387, 394-95, [a] 2001 decision of our state Supreme Court.
If an affidavit of merit is not timely filed and the case does not fall within the common knowledge exception, the failure is tantamount to a failure to state a cause of action.
That's the statute N.J.S.A. 2A:53A-29.
Here, though plaintiff's claim is not labeled a malpractice claim, it sounds in negligence against a licensed attorney in his professional capacity, therefore, the affidavit of merit statute applied. In its first application for summary judgment, the plaintiff argued that the common knowledge exception applied to the instant case, however, this case parallels cases wherein the courts found that the common knowledge exception did not apply. See Risko v. Ciocca, 356 N.J. Super. 406 (App. Div. 2003) and Balthazar v. Atlantic City Medical Center, 358 N.J. Super. 13 at 24 n.9 (App. Div. 2003). See also Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536 at 542 n.4 (App. Div. 2002).
Here, as in other legal malpractice cases, expert testimony is required to prove whether defendant owed plaintiff a duty and if so, how that duty can be reconciled with the duties defendant owed to his client Martha Greenblatt.
Defendant had filed an answer on May 5, 2005 so the affidavit of merit was due no later than September 6, 2005. Plaintiff has never filed an affidavit of merit. Though plaintiff is a pro se, he is not excused from complying with all technical and substantive rules of court. . . .
Since plaintiff has not provided the affidavit of merit, defendant is entitled to summary judgment as a matter of law and dismissal of the plaintiff's complaint.
On appeal, plaintiff raises the following issues:
The lower court abused its discretion when it dismissed the complaint for plaintiff's failure to provide an affidavit of merit, pursuant to the statute, ignoring plaintiff's reliance on the common knowledge doctrine, where an expert is not required.
The lower court abused its discretion by granting summary judgment by its failure to recognize that it granted an order to amend the complaint pursuant to the spoliation doctrine, the record is clear, defendant's answer to the amended complaint was filed on November 14, 2006, and the December 1, 2006, hearing for summary judgment were within the time constraints of the statute, therefore the order for summary judgment was improper.
The lower court abused its discretion by disregarding plaintiff's argument "I ask the court to accept my use and reliance upon case law from sister states in giving its ruling" recited at T9 line 9.
The lower court committed an abuse of discretion, by dismissing plaintiff's lawsuit, as plaintiff's injuries did not require an expert.
The lower court abused its discretion by its failure to consider the tort of spoliation raised in the amended complaint but rather focused on legal malpractice in granting summary judgment for defendant.
The lower court abused its discretion in its failure to consider third party beneficiary argument raised by plaintiff.
The lower court failed to consider plaintiff's argument, as the subrogation doctrine falls under the common knowledge doctrine, and does not require an expert's opinion under the statute.
The lower court abused its discretion in its failure to question defendant what the basis was for an expert to testify and common knowledge cannot apply.
The appellate court, when reviewing an appeal from a decision on a summary judgment motion, employs the same standard that governs the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A motion for summary judgment will be granted where "no genuine issue as to any material fact" is present, and "the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When deciding the motion, the court must view the evidence in the light most favorable to the nonmoving party, and determine whether a rational fact finder could resolve the dispute in that party's favor; if so, then the motion must be denied. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
After a careful review of the record and briefs, we are satisfied that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The motion for summary judgment was properly granted for the reasons set forth by the trial judge on the record. We add only the following comments on the spoliation claim which was not expressly addressed by the trial judge.
The amended complaint sets forth a spoliation count, asserting that defendant failed to obtain and provide to plaintiff and Mrs. Greenblatt various documents when representing Mrs. Greenblatt in the collection matter.
Spoliation is defined as "the hiding or destroying of litigation evidence, generally by an adverse party." Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001). The allegations here do not fall within this definition, since there is no contention that defendant hid or destroyed any evidence. Rather the allegation is that he failed to obtain or provide certain evidence and documents. Further, New Jersey does not recognize a separate tort for spoliation. Id. at 405-07. While New Jersey does recognize the tort of fraudulent concealment, the elements of that tort do not apply here.*fn1 Ibid.