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John Rogers v. Cape May County Office of the Public Defender and Erica Smith

December 5, 2011

JOHN ROGERS, PLAINTIFF-APPELLANT,
v.
CAPE MAY COUNTY OFFICE OF THE PUBLIC DEFENDER AND ERICA SMITH, DEFENDANTS-RESPONDENTS.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Long

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

John Rogers v. Cape May County

Office of the Public Defender

(A-63-10)

(067048)

Argued September 27, 2011 -- Decided December 5, 2011

LONG, J., writing for a unanimous Court.

In this appeal, the Court considers whether defendant was "exonerated" at the point at which his conviction was reversed and the case was remanded for trial, or on the day that the indictment was dismissed. The former date would subject defendant's claim to the one-year time-bar in N.J.S.A. 59:8-9 and the latter would not.

In 1999, defendant, John Rogers, was convicted of various drug offenses. The Appellate Division affirmed the conviction and the Court denied certification. In 2002, Rogers filed a petition for post-conviction relief (PCR). In 2005, an amended petition was filed alleging ineffective assistance by Erica Smith, an attorney from the Cape May County Office of the Public Defender (OPD) that represented Rogers during the criminal trial. The trial judge denied the petition. On October 23, 2007, the Appellate Division reversed Rogers' conviction and remanded the matter for a new trial. On July 25, 2008, the trial judge dismissed the indictment against Rogers with prejudice.

On September 11, 2008, Rogers retained his current lawyer to pursue a civil claim for legal malpractice against Smith and the Cape May County OPD. Rogers' attorney sent a notice of tort claim to the Cape May County OPD on November 3, 2008. On July 14, 2009, Rogers' attorney filed a motion for leave to file a late notice of tort claim, which was denied. The trial judge determined that Rogers' claim accrued on October 23, 2007. Because Rogers filed his notice of tort claim more than one year later, the court declared that it lacked jurisdiction to provide the requested relief. The Appellate Division affirmed, finding that late notice must be filed within one year after accrual of a claim under N.J.S.A. 59:8-9; "exoneration," and therefore accrual, occurred on October 23, 2007; and Rogers' claim was time-barred because it was filed more than one year from accrual. The Supreme Court granted Rogers' petition for certification. 205 N.J. 80 (2011).

HELD: Defendant was not "exonerated" until the indictment was dismissed with prejudice on July 25, 2008, and his claim was thus not barred by the one-year filing limitation in N.J.S.A. 59:8-9. Nevertheless, because the claim was filed ten days beyond the ninety-day limit set forth in N.J.S.A. 59:8-8, further proceedings are required to determine whether the "extraordinary circumstances" standard in N.J.S.A. 59:8-9 was satisfied.

1. Claims for damages against defendants -- a public entity and a public employee -- are subject to the provisions of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. N.J.S.A. 59:8-8 provides that a claim "shall be presented . . . not later than the ninetieth day after accrual of the cause of action . . . . The claimant shall be forever barred from recovering against a public entity or public employee if: a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9 . . . ." N.J.S.A. 59:8-9 provides, "A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits . . . showing sufficient reasons constituting extraordinary circumstances for his failure to file" a timely notice of claim. To determine whether a notice of claim is timely under the TCA, or whether the deadline for a late notice of claim has passed, the accrual date for the cause of action must be ascertained. (pp. 6-8)

2. In Grunwald v. Bronkesh, 131 N.J. 483 (1993), the Court held that the discovery rule applies in legal-malpractice actions, postponing the accrual date until such time as the client suffers actual damage and discovers, or through the use of reasonable diligence should discover, the facts essential to the malpractice claim. The Court found that Grunwald's legal malpractice claim against his attorney accrued when the Chancery Division made its decision in the underlying specific performance action because, at that point, he knew he had been damaged and that his lawyer was responsible, even though the appellate process had not yet been exhausted. In McKnight v. Office of the Public Defender, 197 N.J. 180 (2008), the Court applied Grunwald in a criminal setting. In the underlying criminal matter, the PCR judge granted McKnight's PCR petition, setting aside his guilty plea. In response to a dispute regarding when McKnight's tort claim for negligent legal advice accrued, the Court held that a cause of action against an attorney who represented a defendant in a criminal matter does not accrue "until the defendant receives relief in the form of exoneration," and that the grant of PCR does not constitute exoneration if the defendant is still subject to retrial and reconviction on the original charges. (pp. 8-12)

3. Notions of finality distinguish Grunwald from McKnight. The Chancery Division decision in Grunwald was final. Although subject to the vicissitudes of possible appellate review, the case was over. To the contrary, the PCR judge's determination in McKnight was merely an interim stop on the road to possible exoneration because the defendant was sent back to face a new criminal trial. Although a defendant may finally know of his lawyer's inadequacy when a conviction is reversed and a matter is remanded for a new trial, at that point he cannot be sure of his injury because if reconvicted, he will not have been damaged by his lawyer's inadequacy. It is the outcome of the new trial or plea that finally determines the injury element of a malpractice claim. Temporary relief, in the form of reversal of a conviction and a remand for a new trial, does not constitute exoneration that triggers accrual of a malpractice claim. In this case the Appellate Division erred in holding that Rogers was exonerated when he was granted PCR. It was not until the indictment was dismissed with prejudice that he was, in fact, exonerated. That took place on July 25, 2008. (pp. 12-16)

4. Because Rogers' November 3, 2008, notice of tort claim was filed beyond the ninety-day limit set forth in N.J.S.A. 59:8-8, it was a nullity. Rogers did, however, seek leave to file a late notice of tort claim on July 14, 2009, within the one-year window provided in N.J.S.A. 59:8-9. In order for that motion to succeed, Rogers had to demonstrate that defendants would not be "substantially prejudiced" and that "extraordinary circumstances" caused his failure to file a timely notice. The statute does not define what circumstances are to be considered "extraordinary" and the meaning has been developed on a case-by-case basis. In this case, the focus of the trial judge's opinion was the one-year bar in N.J.S.A. 59:8-9, which he believed precluded him from considering Rogers' motion to file a late notice. That motion should be addressed in the first instance by the trial judge who, in fairness, gave only brief attention to extraordinary circumstances. (pp. 16-20)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LAVECCHIA, ALBIN, HOENS, and PATTERSON, and JUDGE WEFING, temporarily assigned, join in JUSTICE LONG's opinion.

Argued September 27, 2011

JUSTICE LONG delivered the opinion of the Court.

On this appeal we are asked to revisit the term "exoneration" as used in our decision in McKnight v. Office of the Public Defender, 197 N.J. 180 (2008), to determine the timeliness of a legal malpractice action based on representation in a criminal matter. In 1999, defendant was convicted of various drug offenses. In October 2007, on appeal from the denial of post-conviction relief (PCR), his conviction was reversed by the Appellate Division based on ineffective assistance of counsel. The case was remanded for trial. In July 2008, the indictment was dismissed with prejudice. In November 2008, defendant filed a notice of tort claim against his trial lawyers for negligence.

The question is whether defendant was "exonerated" at the point at which his conviction was reversed and the case remanded for trial, or on the day the indictment was dismissed. The answer matters because the former date would subject defendant's claim to the one-year time-bar in N.J.S.A. 59:8-9 and the latter would not. The Appellate Division ruled that the earlier date was the date on which exoneration occurred and Rogers' claim accrued, and accordingly precluded the action, a notion with which we disagree. Defendant was not "exonerated" until the indictment was dismissed with prejudice in July 2008, and his claim was thus not barred by the one-year filing limitation in N.J.S.A. 59:8-9. Nevertheless, because the claim was filed ten days beyond the ninety-day limit set forth in N.J.S.A. 59:8-8, further proceedings are required to determine whether the "extraordinary circumstances" standard in N.J.S.A. 59:8-9 was satisfied.

I.

The relevant facts are undisputed. In August 1998, defendant, John Rogers (Rogers), was indicted on nine counts relating to the distribution of controlled dangerous substances. Erica Smith (Smith), an attorney from the Cape May County Office of the Public Defender (OPD), was assigned to represent him. At trial, in an effort to demonstrate that the arresting officer could not distinguish Rogers from his brother, Smith crafted a plan by which Rogers would switch clothing with his brother and sit in the back of the courtroom, while his brother sat at counsel table. Smith apparently hoped that the arresting officer would identify the wrong man. The scheme was uncovered by the State and aborted before it could be carried out. However, the jury was informed of it when the State cross-examined Rogers, thereby damaging his credibility.

The jury convicted Rogers on seven counts, and on July 30, 1999, he was sentenced to a custodial term of fourteen years, with a six-year period of parole ineligibility.*fn1 The Appellate Division affirmed the conviction and we denied certification. State v. Rogers, 170 N.J. 209 (2001).

In 2002, Rogers filed a PCR petition. In 2005, an amended petition was filed alleging ineffective assistance by Smith during Rogers' criminal trial. The trial judge denied the petition. On October 23, 2007, the Appellate Division reversed that order and remanded the matter for a new trial on the basis that Smith's "conduct in devising the defendant-substitution plan" amounted to deficient performance, which denied Rogers a fair trial. On July 25, 2008, the trial judge dismissed the indictment against Rogers with prejudice.

On September 11, 2008, Rogers retained his current lawyer to pursue a civil claim for legal malpractice against Smith and the Cape May County OPD. The next day, Rogers' lawyer requested the PCR file, which he certified he needed to review before filing the notice of tort claim. When he did not receive the file by November 3, the lawyer sent a notice of tort claim to the Cape May County OPD. Eight months later, on July 14, 2009, the attorney filed a motion for leave to file a late notice of tort claim, which was denied. The trial judge determined that Rogers' claim accrued on October 23, 2007, when the Appellate Division reversed his conviction and remanded the case for trial. ...


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