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Jacqueline Nguyen v. Harmon H. Lookhoff


June 27, 2012


On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-207-10.

Per curiam.


Submitted May 2, 2012

Before Judges Graves, J. N. Harris and Koblitz.

Plaintiff Jacqueline Nguyen appeals from a September 30, 2010 order dismissing her complaint alleging legal malpractice for failure to provide an affidavit of merit (AOM) within 120 days of defendant's April 16, 2010 answer. Plaintiff contends that extraordinary circumstances, including the failure to hold a Ferreira hearing, mandate that she be given additional time to file an AOM. See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant Harmon H. Lookhoff is a practicing attorney in the State of New Jersey. Plaintiff Jacqueline Nguyen retained Lookhoff to represent her in a legal malpractice action against an attorney Nguyen had retained to represent her in a prior legal malpractice action against another attorney. Lookhoff certified that he billed against the $2000 retainer at $250 per hour. On January 5, 2010, after exhaustion of the retainer, Lookhoff submitted a bill to Nguyen for a balance due of $1990.75. Nguyen paid $1000 of the balance on or about January 29, 2010. Lookhoff further certified that as of January 29, 2010, he was unable to determine whether or not a sufficient factual basis existed to pursue a legal malpractice action. Lookhoff also certified that at some point shortly after January 29, 2010, Nguyen requested that Lookhoff perform no further work on her behalf.

Nguyen does not contest the dates specified in Lookhoff's certification, but denies that she requested he cease pursuing her malpractice claim against her former attorney.

From September 24, 2009, the date on which Nguyen retained Lookhoff, through February 2, 2010, Lookhoff sent seven letters to Nguyen, and an itemized bill. In addition, Lookhoff sent a letter to the former lawyer and two letters to Civil Case Management requesting the files for the claim handled by that lawyer.

Nguyen filed a pro se complaint against Lookhoff on March 31, 2010, alleging legal malpractice. Lookhoff filed his answer on or about April 16, 2010. On June 16, 2010, Lookhoff's counsel sent a letter to Nguyen providing notice of her failure to file an AOM within sixty days of the filing date of his answer. See N.J.S.A. 2A:53A-27. The letter further informed Nguyen of Lookhoff's intention to move to dismiss her complaint with prejudice for failure to comply with the mandate of N.J.S.A. 2A:53A-27. Nguyen replied to Lookhoff's counsel by letter dated June 17, 2010, in which she claimed to have provided the necessary AOM, although, in fact, she had not done so.

As Nguyen's appeal does not dispute the material facts and is based on the claimed erroneous application of N.J.S.A. 2A:53A-27 by the motion judge, our review of the motion court's determination is plenary. See Triarsi v. BSC Group Servs., LLC, 422 N.J. Super. 104, 113 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

N.J.S.A. 2A:53A-27 requires that:

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 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.

The statute applies to legal malpractice actions. See N.J.S.A. 2A:53A-26(c).

As the statute unambiguously states, an AOM should be filed within sixty days of the filing of the answer. N.J.S.A. 2A:53A-27. However, "if provided within sixty-one to 120 days after the answer is filed, the affidavit will be deemed timely so long as (1) leave to file is sought and (2) good cause is established." Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2010) (citing Burns v. Belafsky, 166 N.J. 466, 475-77 (2001)). Nevertheless, the 120-day period provided by statute "does not constitute a non-extendable barrier" if a plaintiff can show that an extension is warranted because of extraordinary circumstances. Balthazar v. Atlantic City Med. Ctr., 358 N.J. Super. 13, 26 (App. Div. 2003) (citing Barreiro v. Morais, 318 N.J. Super. 461, 472 (App. Div. 1999)).

In assessing extraordinary circumstances, we have "rejected arguments that have as their foundation carelessness, lack of circumspection, lack of diligence, or ignorance of the law." Ibid. (citing Palanque v. Lambert-Woolley, 327 N.J. Super. 158, 164 (App. Div. 2000), rev'd on other grounds, 168 N.J. 398 (2001)).

Nguyen's primary challenge to the dismissal of her complaint is the judge's failure to hold a Ferreira conference. More specifically, Nguyen argues that "the state of the law" at the time she filed her complaint entitled her to "reasonably rely" on a Ferreira conference to apprise her of the obligation to file the necessary AOM.

In Ferreira, the Court "developed a prophylactic measure to encourage the timely filing of affidavits." Paragon, supra, 202 N.J. at 423 (citing Ferreira, supra, 178 N.J. at 154-55). In doing so, the Court recognized the AOM statute as a means "to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from the many legitimate claims[.]" Ferreira, supra, 178 N.J. at 154. The Ferreira Court thus prescribed "an accelerated case management conference [to] be held within ninety days of the service of an answer in all malpractice actions," the purpose of which was to "ensure compliance with the discovery process, including the [AOM] statute, and to remind the parties of the sanctions that will be imposed if they do not fulfill their obligations." Id. at 154, 147.

At the time Nguyen filed her complaint, the question of whether a judge's failure to hold a Ferreira conference affected the time constraints of N.J.S.A. 2A:53A-27 was unsettled. In Saunders ex rel. Saunders v. Capital Health Sys., 398 N.J. Super. 500, 510 (App. Div. 2008), overruled by Paragon, supra, 202 N.J. 415, an appellate decision held that "Ferreira mandates a case management conference within ninety days of the filing of an answer in a professional malpractice case." Failure to do so precluded dismissal for failure to serve a timely AOM. Id. at 510-11. One year later, in Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 542 (App. Div. 2009), certif. denied, 203 N.J. 93 (2010), another appellate decision found that failure to conduct the conference did not affect the statute's time constraints and, thus, did not excuse a failure to timely produce an AOM. Ibid.

In Paragon, supra, the Court clarified that the Ferreira conference was not intended to act as a tolling device for the affidavit of merit statute. 202 N.J. at 425. Rather, it is a tool "intended to benefit the administration of justice and to assist the parties with an expeditious resolution of malpractice cases, as well as an attempt to reduce the flow of litigation that has arisen from the Affidavit of Merit statute." Quinn, supra, 410 N.J. Super. at 542; see also Paragon, supra, 202 N.J. at 425 (noting the conference was intended to "ensure that discovery related issues, such as compliance with the [AOM] statute, do not become sideshows to the primary purpose of the civil justice system--to shepherd legitimate claims expeditiously to trial") (internal quotations omitted).

In Paragon, supra, defendant Peachtree filed a third-party complaint against Key Engineers, Inc. (Key), indicating on its case information statement (CIS) that the matter was a construction dispute. Id. at 419-20. Key answered and asserted the AOM statute as a defense, indicating on its CIS that the third-party complaint alleged professional malpractice, and requested a track reassignment. Id. at 420. Before Peachtree served an AOM and before any Ferreira conference, but after 120 days had expired from the filing of its answer, Key moved to dismiss. Ibid. Peachtree argued that the failure to conduct a Ferreira conference tolled the time to comply with the AOM statute. Ibid. The motion judge rejected that argument and dismissed the third-party complaint, and we affirmed. Id. at 420-21 (citation omitted).

The Supreme Court reversed, concluding that the failure to conduct a Ferreira conference had no effect on the time limits established in N.J.S.A. 2A:53A-27. Id. at 424-25. The Court recognized that prior decisions by the Appellate Division diverged and confused the issue, see Saunders, supra, 398 N.J. Super. at 510-11 and Quinn, supra, 410 N.J. Super. at 542, and that "lawyers also may have been unclear regarding the import of the failure to hold a Ferreira conference and . . . may have assumed that the absence of the conference provided a safe harbor from the [AOM] statute's requirements." Paragon, supra, 202 N.J. at 425. That confusion counseled lenience in that case.*fn1 Ibid. The issue is whether it counsels lenience here.

Unlike in Paragon, supra, the parties here at no point disputed whether this suit, from its inception, was based on a claim of professional malpractice. Thus, there can be no debate as to whether Nguyen was required by law to file an AOM. See N.J.S.A. 2A:53A-27.

While it should be recognized that "[w]here extraordinary circumstances are present, a late affidavit will result in dismissal without prejudice." Paragon, supra, 202 N.J. at 422-23 (emphasis added). Here, the asserted extraordinary circumstances are that (1) no Ferreira conference was held to apprise Nguyen of the AOM requirement; (2) Nguyen was representing herself and was ignorant of the AOM requirement; and (3) because of previous experiences,*fn2 Nguyen chose not to consult an attorney on the matter.

First, because the omission of a Ferreira conference does not toll the deadline for submission of an AOM, the failure to hold a conference, without more, does not qualify as an extraordinary circumstance. As a plaintiff must submit an AOM in every professional malpractice action, Nguyen cannot now fairly claim that she was "relying" on a Ferreira conference to inform her of that statutory obligation. In his June 16, 2010 letter to Nguyen, Lookhoff's counsel clearly informed her of that obligation and the applicable statute, as well as his intention to file a motion to dismiss for her failure to comply with its mandate. Nguyen could have consulted either the statute or an attorney to help her understand the AOM requirement. She apparently failed to do both.*fn3 Such inaction does not constitute extraordinary circumstances. Hyman Zamft and Manard, LLC v. Cornell, 309 N.J. Super. 586, 593 (App. Div. 1998) (explaining that "ignorance of the law or failure to seek legal advice," will not constitute an extraordinary circumstance sufficient to excuse a plaintiff's failure to meet the filing deadline).

Moreover, "parties are presumed to know the law and are obliged to follow it." Paragon, supra, 202 N.J. at 424-425 (2010) (citing Emanuel v. McNell, 87 N.J.L. 499, 504 (E. & A. 1915)). Self-representation cannot serve as a stand-alone basis to assert extraordinary circumstances. See Hyman Zamft and Manard, supra, 309 N.J. Super. at 593 (App. Div. 1998). Nor does her purported disenchantment with the "legal process given her past experience with [] Lookhoff" elevate her self-representation to extraordinary circumstances.

More than 120 days elapsed between the date on which Nguyen filed her complaint, March 31, 2010, and the date on which Lookhoff filed his motion to dismiss for failure to provide an AOM, August 27, 2010. As announced in Ferreira, if a plaintiff fails to provide the necessary affidavit by the 120-day deadline and defense counsel subsequently files a motion to dismiss, which is what happened here, "the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance[*fn4 ] and extraordinary circumstances do not apply." Ferreira, supra, 178 N.J. at 154.

Thus, regardless of whether the motion judge conducted a Ferreira conference, for Nguyen's malpractice claim to survive Lookhoff's motion to dismiss, she was required to make the requisite showing of extraordinary circumstances. She failed to do so. As a result, the motion judge correctly dismissed Nguyen's complaint with prejudice.

Nguyen further asserts that dismissal of her malpractice claim did not preclude her from pursuing a breach of contract claim against Lookhoff. We are unable to ascertain whether or not she asserted a breach of contract claim in her original complaint, which she composed without legal assistance. Any purported breach of contract would be attendant to Lookhoff's failure to conform to the professional standard of care. In such cases, the AOM statute would equally apply to procedurally bar Nguyen from advancing such a claim. See Couri v. Gardner, 173 N.J. 328, 338 (2002).


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