September 20, 2012
SUNG IK CHOI, PLAINTIFF-APPELLANT,
DENNIS OAK A/K/A DENNIS OH, BEVERLY OAK A/K/A BEVERLY OH, KI SUNG CHUNG A/K/A KENNY JUNG A/K/A KENNY CHUNG, NEW STAR REALTY & INV. NJ, DEFENDANTS, AND MICHAEL W. SONG, ESQ., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7430-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2012 -
Before Judges Parrillo and Fasciale.
In this legal malpractice case, plaintiff appeals from an order granting defendant Michael Song summary judgment and denying plaintiff's cross-motion for summary judgment. Plaintiff contends primarily that the common knowledge doctrine applies and therefore no affidavit of merit is required. We disagree and affirm.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewed most favorably to plaintiff, the summary judgment record established the following facts.
Co-defendants New Star Realty & Inv. NJ (NewStar) and Ki Sung Chung (Chung) advertised in a Korean newspaper inviting people to invest in real estate located in Vietnam (the project). Plaintiff noticed the advertisement and called NewStar and Chung, who introduced plaintiff to two other interested investors, co-defendants Dennis and Beverly Oak (the Oaks). Chung and the Oaks then introduced plaintiff to defendant "for the purpose of preparing the investment transaction documents." Plaintiff alleged that defendant acted as the "attorney for the investment project."*fn1
Plaintiff agreed to invest in the project after talking to Chung and the Oaks. Chung then drove plaintiff to defendant's office. Defendant advised plaintiff and the Oaks that each should retain their own attorney. Plaintiff and the Oaks then signed an acknowledgment and waiver that they agreed to enter into the loan agreement without an attorney. After rejecting defendant's advice, plaintiff and the Oaks agreed to compensate defendant for preparing the loan documents. Defendant advised plaintiff "that the best way to secure [plaintiff's] investment was by taking back a mortgage on the Oak's home in [New Jersey]." Plaintiff relied on defendant's representation that his "investment would be secure," and alleged that defendant prepared a note and mortgage.*fn2 Although plaintiff acknowledged and waived his right to retain an attorney, plaintiff relied on defendant to protect him and "make sure that the transaction would be conducted in a proper manner."
Plaintiff provided defendant with two checks totaling $300,000. Defendant deposited the money into his trust account; he prepared and plaintiff signed an authorization to release the money from his trust account to the Oaks. Defendant then wired $295,000 to the Oaks and retained $5,000 for his fee. Thereafter, Chung advised plaintiff that the Oaks had "disappeared," and plaintiff learned that there was insufficient collateral in the Oaks' home to protect his investment.*fn3 Plaintiff filed a complaint against the Oaks and Chung, but did not name defendant as a party. Chung answered the complaint and filed a third-party complaint against defendant alleging attorney malpractice. Plaintiff then filed an amended complaint naming defendant.*fn4 All of the causes of action against defendant arise from his performance as an attorney. Plaintiff did not serve an affidavit of merit.
In July 2011, defendant filed a motion for summary judgment. Plaintiff filed a cross-motion for summary judgment, or sought in the alternative, an extension of time in which to serve an affidavit of merit. Defendant argued that he was entitled to judgment as a matter of law because plaintiff failed to serve an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. Plaintiff contended that an affidavit is not required because the common knowledge doctrine applies.
On August 19, 2011, Judge Mark M. Russello conducted oral argument, granted defendant's motion, dismissed plaintiff's amended complaint,*fn5 and issued a twelve-page opinion. In finding that an affidavit of merit is required, Judge Russello stated:
[I]t is undisputed that [defendant] was sued in his capacity as an attorney for his performance of legal tasks for [the project]. Plaintiff doesn't dispute this fact. [The affidavit of merit is required] based upon the complexities of [the project]. This is precisely the type of case where an expert is needed, since the jury would be required to evaluate an attorney's legal judgment concerning a complex legal issue.
An affidavit of merit is required for all causes of action brought against [defendant], because they all arise from the same set of factual allegations and all require proof of deviation from the professional standard of care for attorneys.
The plaintiff admits that [defendant] was sued in his capacity as an attorney for [the project]. All of the underlying facts . . . that the plaintiff [alleged] in his [amended] complaint . . . arise from [defendant's] capacity as an attorney.
In addition[,] they also arise from his performance of all of his legal tasks, an alleg[ation of] deviation from professional standards[,] which thus triggers the necessity of an affidavit of merit, pursuant to N.J.S.A. 2A:53A-26 [to -29].
In order for the jury to determine whether [defendant] breached the professional standard of care, the jury would have to understand what mortgage disclosure requirements are customary for an attorney who was merely preparing loan documents . . . .
Judge Russello then denied plaintiff's request for an extension
of time in which to serve an affidavit of merit and stated:
Plaintiff filed the amended complaint on August 27, 2010. An answer to the amended complaint was filed on behalf of [defendant] on September 29, 2010. Plaintiff did not file an affidavit of merit within 60 days following the date of filing of the answer to the amended complaint.
A request for an extension to file an affidavit of merit is timely if it is filed within 120 days of defendant's answer . . . . The request for an extension by plaintiff to obtain an affidavit of merit was only made once the motion for summary judgment was filed with the [c]court. As a result[,] the plaintiff never made a timely request for an extension in this case.
Pursuant to N.J.S.A. 2A:53A-28, in the event that the plaintiff is unable to supply an affidavit of merit because the defendant has failed to supply the required record, having a substantial bearing on the preparation on the affidavit within 45 days of [the] written request, the plaintiff shall provide a sworn statement in lieu of the affidavit of merit to that effect.
In this case[,] more than 120 days have passed since the date the defendant . . . filed an answer. And plaintiff has not filed an affidavit of merit nor a sworn statement in lieu thereof.
This appeal followed.
On appeal, plaintiff argues that the judge erred by concluding an affidavit of merit is required and dismissing plaintiff's amended complaint, including his causes of action alleging fraud. Plaintiff maintains that the common knowledge doctrine applies and therefore an expert is unnecessary. Alternatively, plaintiff contends that the judge erred by denying his request for an extension of time to file an affidavit of merit.
Having carefully considered plaintiff's arguments, we affirm the grant of summary judgment to defendant substantially for the reasons stated in Judge Russello's oral opinion. We add the following brief comments.
Plaintiff contends that even if the judge was correct in granting summary judgment, the judge erred by dismissing his fraud claims because an affidavit of merit is not required. In Couri v. Gardner, 173 N.J. 328, 340 (2002), our Supreme Court stated:
It is not the label placed on the action that is pivotal but the nature of the legal inquiry. Accordingly, when presented with a tort or contract claim asserted against a professional specified in the statute, rather than focusing on whether the claim is denominated as tort or contract, attorneys and courts should determine if the claim's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession. If such proof is required, an affidavit of merit is required for that claim, unless some exception applies.
A review of plaintiff's amended complaint demonstrates that the factual allegations would require proof of deviation from the professional standard of care to attorneys. In his amended complaint, plaintiff alleged that defendant "owed a duty of care to [plaintiff]," acted "negligently and carelessly [by] advis[ing] and encourage[ing] [plaintiff] to invest his money [in the project]," and "breached [defendant's fiduciary duty to plaintiff." See Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 540 (App. Div. 2009) (concluding that an affidavit of merit was required for a breach of contract claim against an attorney), certif. denied, 203 N.J. 93 (2010). We therefore agree with the judge's analysis that an affidavit of merit is required to pursue plaintiff's causes of action against defendant, and that plaintiff's failure to serve the affidavit warranted summary judgment in favor of defendant. Affirmed.