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Politi v. Morrison

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 15, 2008

ALESIO POLITI, PLAINTIFF-APPELLANT,
v.
MARTIN MORRISON AND KATHLEEN MORRISON, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-88-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2008

Before Judges Messano and Chambers.

Plaintiff Alesio Politi appeals from the April 3, 2007, order that granted defendants Martin and Kathleen Morrison's motion and dismissed his complaint with prejudice.*fn1 We affirm.

Plaintiff filed a pro se application to be permitted to proceed as an indigent, along with handwritten allegations regarding various complaints he had against defendants who are attorneys. On February 15, 2005, the motion judge issued an order that granted plaintiff's request to proceed as an indigent, and treated the balance of the filing as a complaint. Service was effectuated, and defendants filed an answer on July 14, 2005 that generally denied plaintiff's allegations and asserted a variety of affirmative defenses.

After discovery, defendants moved to dismiss the complaint pursuant to Rule 4:6-2(e); alternatively, they sought summary judgment. R. 4:46-2. A different judge entertained oral argument on the motion, and concluded the complaint was "barred by the statute of limitations," finding the allegations in the complaint dealt with "events [that] had occurred prior to defendant's last representation of the plaintiff in February of 1995," some ten years prior to the filing of the complaint. The judge also concluded plaintiff's claims as to Martin were barred by the doctrine of "laches" and by defendant's intervening bankruptcy petition in which plaintiff was listed as a potential creditor.

As to Kathleen, the judge concluded that plaintiff's complaint was barred by "res judicata" because plaintiff's prior suit, dismissed years earlier "with prejudice," presented "issues of law and fact" that were "substantially similar" to the present suit. The judge also concluded that even if the claims were not barred by res judicata, the complaint should be barred against Kathleen by application of the entire controversy doctrine.

The judge also found that the parties had arbitrated a fee dispute and Martin had refunded certain monies to plaintiff, thus, barring the instant suit because plaintiff had "exhausted his remedies on that issue." Lastly, although finding that it was not a "reason for the ultimate sanction of dismissal," the judge noted plaintiff had failed to file an affidavit of merit as required to support a claim for legal malpractice. N.J.S.A. 2A:53A-27. He entered an order dismissing the complaint with prejudice and this appeal followed.

Defendants have urged the dismissal of plaintiff's appeal based upon numerous procedural violations. Pursuant to Rule 2:8-2, we may dismiss an appeal because of procedural defects, particularly when the deficiencies make it impossible to review the issues on their merits. In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000); Pressler, Current N.J. Court Rules, comment 1.2.8 on R. 2:8-2 (2008).

Plaintiff's statement of the procedural history is deficient under Rule 2:6-2(a)(3); his statement of facts fails to incorporate "all pertinent evidence" and is not in the form of a "narrative chronological summary" as required by Rule 2:6-2(a)(4); and there is no legal argument as required by Rule 2:6-2(a)(5). Plaintiff's appendix does include documents ostensibly pertaining to the claims he now raises on appeal. But, although there is a two-page letter "brief" filed with the motion judge in opposition to defendants' motion to dismiss, there is no way to determine whether any of the appendix documents were submitted below.*fn2 However, because defendants have supplied most of the missing pieces of the puzzle in their appendix allowing us to adequately consider its merits, we decline to dismiss the appeal on procedural grounds.

Plaintiff's entire argument consists of essentially three sentences. He contends the "statute of limitations [cannot apply to] this kind of case"; that defendants "caused all the long delays" and that "proceedings were going on in this case from 1990 to date"; and that he was not required to furnish an affidavit of merit because his allegations could be understood "by any reasonable jury." None of these arguments are of sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), but we add these brief comments.

It is clear that plaintiff's complaint against Kathleen was properly dismissed by the motion judge based upon either theory he espoused. While defendant claimed in his opposition that the earlier litigation was a "contract" action, not a malpractice case, it is clear from the 1995 pleading that defendant alleged that Kathleen and Martin had committed various breaches of professional conduct during their representation of defendant. Defendant consented to the dismissal of the action with prejudice, the order reflecting that he "d[id] not wish to continue with his [c]omplaint" against Kathleen. Moreover, Kathleen has consistently claimed that she never represented plaintiff, a point never disputed by plaintiff, and therefore we must conclude that plaintiff has no claim against her under any circumstances.

As to Martin, it is clear that plaintiff's allegations involved events that occurred no later than 1996. Indeed, in the attorney grievance form he filed in February of that year, plaintiff claimed that Martin no longer represented him. In 1995, plaintiff made similar claims against Martin in the same suit he filed against Kathleen. Therefore, to the extent any of the allegations in this complaint were not contained in the 1995 complaint, they were time-barred by the six-year statute of limitations that applies to attorney malpractice claims. McGrogan v. Till, 167 N.J. 414, 420 (2001).

We acknowledge a series of events that occurred between plaintiff and Martin between 1996 and 2005, but none of them serve to somehow preserve plaintiff's complaint. First, the 1995 complaint was dismissed without prejudice when Martin filed for bankruptcy. At that time, Martin listed plaintiff as a possible creditor, and in his order of discharge dated August 30, 1999, the bankruptcy judge discharged Martin from bankruptcy, enjoining plaintiff from taking any further action based upon the 1995 complaint. Thus, to the extent the new complaint contained factual allegations that were the same or similar to the 1995 complaint, they were properly dismissed.

Plaintiff's complaint to the Office of Attorney Ethics did not serve to somehow toll the statute of limitations, nor did his recovery of a portion of the fee that he paid to Martin by way of fee arbitration somehow preserve his legal malpractice claim. In short, there is no legal support for plaintiff's proposition that because "there were proceedings going on in this case from 1990 to date," his claim was not time-barred or otherwise subject to dismissal.

Affirmed.


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