On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5433-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Messano.
This is plaintiff's appeal from an order dismissing with prejudice her complaint sounding in legal malpractice. We reverse and remand for further proceedings.
Plaintiff Hong Jun Chen was represented by defendant Frank J. LaRocca in an action for divorce, equitable distribution, alimony and child support. Prior to trial, plaintiff and her husband entered into a settlement agreement that is incorporated in their dual final judgment of divorce. That judgment was entered on August 8, 2006.
On July 16, 2008, plaintiff filed a complaint alleging that LaRocca failed to uncover her ex-husband's income and pension resulting in a recommendation by a matrimonial early settlement panel that was based on false financial information; later learned but failed to advise her that her husband's earnings were higher; charged her excessive fees causing her to accept an inadequate settlement; added a clause to the property settlement agreement without her knowledge and approval; and filed the case in a way other than he had promised.*fn1 She also identified the harm she allegedly sustained as a result of LaRocca's conduct. She asserted that she did not get as much alimony, pension and child support as she should have received. LaRocca filed an answer, counterclaim and notice of his intention to seek fees for frivolous litigation on October 22, 2008.
On January 8, 2009, plaintiff filed a motion to compel LaRocca to produce her file on the divorce case. Among the documents submitted in support of her application is a letter of November 5, 2008 from a member of LaRocca's firm. It provides: "[A]s your file is voluminous, you can still have an addition [sic] copy of these documents . . . if you will advance costs of reasonably [sic] copying at twenty-five cents ($0.25) per page, and you can schedule a time to visit our office to inspect the documents and decide which documents you would like requested [sic]." While plaintiff recited difficulties she encountered in attempting to get access to her file prior to November 5, 2008, she did not describe any subsequent efforts.
On January 9, 2009, LaRocca filed a motion to dismiss plaintiff's complaint "for failure to state a claim upon which relief may be granted, pursuant to R. 4:6-2(e)." LaRocca's motion was supported by nothing other than a "legal brief." In that brief he argued: "[p]laintiff has not plead[ed] any facts, but simply a statement of [p]laintiff's position and [p]laintiff's conclusion."
In response, plaintiff characterized her litigation as a "malpractice lawsuit based on defendant's wrongful conduct in his representation of [her]" in the divorce litigation. She further asserted that her complaint included a description of "incidents and events that formed the bases of [her] malpractice claim."
LaRocca replied with a letter to the judge in which he claimed, for the first time, that plaintiff had not complied with the affidavit of merit statute, N.J.S.A. 2A:53A-26 to -29.
The trial judge decided the motions on the papers submitted. Although LaRocca had not raised the issue of compliance with the affidavit of merit statute in his moving papers, the judge entered an order dismissing plaintiff's complaint, with prejudice, pursuant to Rule 4:6-2(e) and on the additional ground that plaintiff "failed to provide an affidavit of merit pursuant to N.J.S.A. 2A:53A-29." No further explanation of the judge's findings and reasons was provided.
This appeal raises two preliminary questions relevant to exercise of our jurisdiction. First, it is not clear whether the order of dismissal is interlocutory. Although both parties have indicated that all issues have been disposed of, no one has provided any order or application to withdraw indicating that the claims raised by LaRocca have been resolved. Second, because the notice of appeal was filed two days after the expiration of the forty-five-day period permitted, R. 2:4-1(a), the notice of appeal was not timely filed. Considering the de minimis delay and the significance of the order dismissing this claim with prejudice, there is adequate cause for a grant of an extension of time to file and leave to appeal as within time in the interest of justice. See R. 2:2-4; R. 2:4-4(b)(2).
The court erred by dismissing this complaint with prejudice for failure to comply with the affidavit of merit statute. Because LaRocca did not seek dismissal on that ground in his moving papers and raised the issue only by way of letter to the judge submitted after plaintiff filed her opposition to the motion, plaintiff had insufficient notice and no reasonable opportunity to demonstrate either substantial compliance or other circumstances excusing non-compliance. See Galik v. Clara Maass Medical Ctr., 167 N.J. 341, 353-56 (2001); Hubbard v. Reed, 168 N.J. 387, 394-95 (2001). In this circumstance, a dismissal with prejudice for ...