April 2, 2008
SHIRLEY A. GOODHEART, PLAINTIFF-APPELLANT,
STEVEN P. KARTZMAN, ESQ.; WACKS, MULLEN & KARTZMAN; GLEN SAVITS, ESQ.; LUCAS, SAVITS AND MAROSE, LLC; AND GREEN AND SAVITS, LLC, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3637-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 16, 2008
Before Judges Wefing and Parker.
In this legal malpractice action, plaintiff Shirley Goodheart appeals from an order entered on February 16, 2007 denying her motion (1) to vacate dismissal of the complaint; (2) for reconsideration of an order entered on October 20, 2006; and (3) for leave to file an amended complaint.
This appeal stems from an employment discrimination complaint filed by plaintiff on February 7, 1997 in the U.S. District Court against her former employer, Pitney Bowes. In December 1997, plaintiff retained defendant Steven Kartzman to file a voluntary Chapter 7 bankruptcy. Kartzman filed the bankruptcy petition and plaintiff's pending employment action was included as an asset in the petition. Plaintiff's bankruptcy was discharged on June 8, 1998.
Plaintiff retained Glen Savits in June 1998 to represent her in the employment action. She claims that Savits wrongfully reopened the bankruptcy for approval of a $45,000 settlement in the employment action. Plaintiff then filed a Chapter 13 bankruptcy petition in which Kartzman refused to represent her.
On December 19, 2005, plaintiff, pro se, filed a legal malpractice action against Kartzman and Savits, in which she claimed that "Kartzman failed to advise Plaintiff of the wisdom of filing the bankruptcy and discussing best interest not to file. Defendant Kartzman failed to itemize unmatured asset in a truthful and correct way" with respect to his representation of her in the Chapter 7 bankruptcy.
In the complaint, plaintiff alleged that Savits, who was retained to represent her in the employment case, reported "an unauthorized settlement . . . to the District Court." She claimed that "Savits had devised a plan to reopen [p]laintiff's closed and discharged bankruptcy case to 'Judge' shop, so he could use potential settlement monies for his unearned fees. Defendant Savits misled the District [C]court and breach[ed] his fiduciary duty to Plaintiff when he solicited the former Trustee to reopen [p]laintiff's closed bankruptcy action, clearly causing a conflict of interest."
Plaintiff alleged that "[o]n December 21, 1999, an unauthorized settlement was presented to the bankruptcy court for approval," after which Kartzman "informed Plaintiff he had a conflict and could not represent Plaintiff" in the Chapter 13 petition. Plaintiff further alleged:
As a result of the Defendants [sic] malpractice and negligence and it and their failure to properly advise the Plaintiff and clearly determine if the Plaintiff's understanding of the terms and conditions of a bad faith settlement and the reason for the Defendants [sic] representation of the Plaintiff, that is to ensure the proper and equitable employment settlement of Plaintiff's employment action, the Plaintiff has suffered mentally, physically and financially through this matter.
Plaintiff maintains that "[i]f the Defendants had not committed malpractice by his/her negligent omissions or commissions, the Plaintiff would have received benefit and participated in a structured settlement agreement of Plaintiff's employment action. Therefore, Defendants [are] liable for all damages sustained under New Jersey Statute N.J.S.A. 2A:13-4."
Plaintiff filed the malpractice complaint pro se in December 2005 and on March 7, 2006, the trial court ordered the parties to mediation. Plaintiff failed to appear for mediation. The complaint was dismissed without prejudice on March 20, 2006 because plaintiff failed to file an Affidavit of Merit. Plaintiff then filed an Affidavit of Merit on April 11, 2006, and the complaint was reinstated on April 28.
Plaintiff requested a case management conference, which was scheduled for July 14, 2006. Prior to the conference, however, a computer-generated notice dismissing the action without prejudice for failure to prosecute was sent to the parties on June 30, 2006. Nevertheless, at the July 14 case management conference, the trial court stated to plaintiff "if you're going to file to restore, could we at least have this understanding?
That you're going to be filing within the next [thirty] days," to which plaintiff responded, "Yes." No order was entered directing plaintiff to file an amended complaint within thirty days, however.
On August 27, 2006, plaintiff moved to restore and amend the complaint. Defendants responded, arguing that the six-year statute of limitations barred the complaint. Plaintiff's motion was denied in an order entered on October 20, 2006. Plaintiff then moved for reconsideration of the October 2006 order resulting in the February 16, 2007 order, which is the subject of this appeal.
Plaintiff now argues that (1) the statute of limitations did not bar the amended complaint because the discovery rule should apply and no malpractice claim accrued until the bankruptcy plan was confirmed on June 17, 2002; and (2) the trial court erred in failing to enter an order memorializing the trial judge's instruction that plaintiff file an amended complaint within thirty days, thereby prejudicing a pro se plaintiff.
With respect to the statute of limitations, it is unclear in the complaint whether the allegations arise from confirmation of the bankruptcy plan in 2002 or the reopening of the Chapter 7 bankruptcy proceeding in 1999. We are, therefore, constrained to remand for a hearing pursuant to Lopez v. Swyer, 62 N.J. 267 (1973), to determine when the cause of action actually accrued.
With respect to plaintiff's second point, she is entitled to no special consideration as a pro se plaintiff. She must be aware of the law and compliant with the Rules of Court as does any other litigant. Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989). The judge instructed her to file the amended complaint within thirty days of the July 14, 2006 case management conference. She did not file her motion to restore and amend the complaint until August 27, 2006; however, we expressly decline to reverse the February 16, 2007 order at this juncture. Rather, the matter is remanded for a Lopez hearing to determine whether plaintiff filed the complaint within the statute of limitations. If the court finds that she did, plaintiff may move to restore the complaint and proceed with the litigation. If, on the other hand, the trial court finds that the cause of action accrued in 1999, rather than 2002, the complaint shall remain dismissed.
Remanded for further proceedings. We do not retain jurisdiction.
© 1992-2008 VersusLaw Inc.