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Gourvitz v. Colfax

Superior Court of New Jersey, Appellate Division

May 24, 2013

ELLIOT H. GOURVITZ, Plaintiff-Respondent,
DONNA DAY COLFAX, Defendant/Third-Party Plaintiff-Appellant,
ELLIOT H. GOURVITZ, an Attorney at Law of the State of New Jersey; ELLIOT H. GOURVITZ, P.A.; ARI GOURVITZ, an Attorney at Law of the State of New Jersey; RICHARD A. OUTHWAITE, ESQ., an Attorney at Law of the State of New Jersey, Third-Party Defendants-Respondents, and JAMES P. YUDES, an Attorney at Law of the State of New Jersey; JAMES YUDES, P.C., KAREN TICHENOR WILLITTS, an Attorney at Law of the State of New Jersey; SEYMOUR CHASE, an Attorney at Law of the State of New Jersey; CHASE & CHASE; ROTENBERG, MERIL, SOLOMON, BERTIGER & GUTTILLA, P.C.; LESLIE M. SOLOMON, CPA, Third-Party Defendants.


Argued December 4, 2012.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9544-06.

Giovanni De Pierro argued the cause for appellant (Ambrosio, De Pierro & Wernick, LLC, attorneys; Mr. De Pierro and Alberico De Pierro, on the brief).

John L. Slimm argued the cause for respondents (Marshall, Dennehey, Warner, Coleman & Goggin, and Gourvitz & Gourvitz, LLC, attorneys; Mr. Slimm and Ari H. Gourvitz, on the brief).

Before Judges Alvarez, Waugh and St. John.


Defendant/third-party plaintiff Donna Day Colfax appeals from the March 5, 2010 Law Division order dismissing her malpractice claims against defendants Elliot H. Gourvitz (Gourvitz), Elliot H. Gourvitz, P.A., Ari Gourvitz, and Richard A. Outhwaite (collectively referred to as the Gourvitz defendants) with prejudice, in violation of the technical requirements of Rule 4:23-5(a)(2). Thereafter, Colfax sought an order vacating the dismissal; her motion was denied on August 3, 2010. We now reverse.

Gourvitz represented Colfax in divorce litigation and afterwards sued for unpaid counsel fees. Colfax then filed a third-party complaint asserting malpractice causes of action against Gourvitz and others, alleging not only professional negligence but fraud. The complaint included causes of action asserting professional negligence claims related to the divorce litigation against an accountant and his firm, Leslie Solomon, C.P.A., and Rotenberg, Meril, Solomon, Bertiger & Guttilla, P.C. (the Solomon defendants). The Solomon defendants had filed suit against Colfax for unpaid accounting fees, which action was consolidated with the Colfax/Gourvitz litigation. This appeal only involves the Gourvitz defendants, all others having settled their disputes with Colfax.

In fact, Colfax and the Gourvitz defendants on August 25, 2011, entered into a consent judgment, incorporating mutual releases, with regard to the collection aspect of the matter. Under the terms of that consent judgment and mutual releases, Colfax retained her right to appeal from the dismissal of her malpractice claims against the Gourvitz defendants, as well as her right to pursue her remedies against a third attorney who represented her in these and related proceedings.[1] On appeal, Colfax also attempts to have us reconsider our prior denial of her application for leave to take an interlocutory appeal from a judgment entered in the collection action. In our view, because that matter is settled, she is barred from raising this issue just as we are barred from reviewing it. See DeAngelis v. Rose, 320 N.J.Super. 263, 280-81 (App. Div. 1999) ("A judgment or order entered with the consent of the parties is ordinarily not appealable for the purpose of challenging its substantive provisions." (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 2:2-3 (1999)) (internal quotations omitted)).

The judgment in Colfax's divorce was rendered June 29, 2006. Because of her unhappiness with Gourvitz's representation, Colfax appealed from the divorce judgment utilizing another attorney. Eventually, the dispute between Colfax and her former husband was resolved by way of an additional payment to her of $750, 000.

On July 24, 2007, the Gourvitz defendants sought discovery from Colfax in the malpractice action, including answers to interrogatories and the production of documents. At that juncture, Colfax was represented by Christina M. Thomas. On January 8, 2008, the trial court stayed the matter until the underlying appeal from the divorce judgment was resolved.

On May 1, 2009, Colfax retained a third attorney, discharging Thomas. Because the divorce appeal had been settled, the trial judge dissolved the stay, conducted a case management conference, and filed an order on September 30, 2009, directing the parties to serve all written discovery requests by October 15, 2009, and to respond to such requests by December 15, 2009. The order further required depositions to be completed by May 3, 2010, and Colfax to provide any expert reports by May 31, 2010. On Colfax's behalf, the third attorney obtained an extension of time in which to answer interrogatories to December 21, 2009. Despite the extension, however, Colfax did not answer the interrogatories.

The third attorney subsequently explained Colfax's failure to comply with discovery deadlines, because she, the third attorney, had been "experiencing exhaustion and extreme fatigue" since December 2009, brought on by the Epstein-Barr virus and Lyme disease. Additionally, the third attorney asserted that her time had been further consumed during this period in addressing a child's medical problems, also involving chronic fatigue.

On January 6, 2010, the Gourvitz defendants filed a notice of motion to dismiss the malpractice claims against them without prejudice. The Rule 4:23-5(a)(1) application was based on Colfax's failure to answer the interrogatories propounded two and one-half years prior.

Accordingly, on January 22, 2010, the trial judge entered an order dismissing the malpractice claims against the Gourvitz defendants, without prejudice, pursuant to Rule 4:23-5(a)(1). That same day, Gourvitz filed a notice of motion seeking summary judgment against Colfax on the collection claims, based largely on facts deemed admitted by Colfax's failure to respond to Gourvitz's request for admissions. Gourvitz's summary judgment motion was scheduled to be heard on March 5, 2010.

In February 2010, the trial judge conducted a case management conference by telephone, at which time he advised the third attorney to file a motion to vacate the order dismissing Colfax's malpractice claims against the Gourvitz defendants and to restore the matter pursuant to Rule 4:23-5(a)(1). Also, the judge advised her to provide the discovery requested by the Gourvitz defendants by the scheduled March 5, 2010 argument.

The third attorney did not take any steps to restore Colfax's malpractice claims against the Gourvitz defendants, nor did she provide any discovery as to either the collection or malpractice claims. Instead, on March 2, 2010, she sent a letter to the trial judge, asking for a two-week adjournment of the March 5, 2010 hearing because she was overworked and therefore unable to oppose the Gourvitz defendants' and the Solomon defendants' motions in a timely manner.

The trial judge denied the third attorney's request for adjournment, informing her that the Gourvitz defendants' and the Solomon defendants' motions would be treated as unopposed if she did not appear. On March 4, 2010, she sent a second letter stating that she would appear at the hearing and that Gourvitz's motion should be denied because his collection claims were inextricably intertwined with Colfax's malpractice claims. The letter was accompanied by the third attorney's certification, in which she explained that she had been unable to respond adequately to the Gourvitz defendants' and the Solomon defendants' motions because she had been exhausted and extremely fatigued over the prior weeks.

At the March 5, 2010 hearing, the trial judge rejected the third attorney's explanation concerning her exhaustion and fatigue, stating that the information should have been brought to his attention much earlier. The trial judge also granted Gourvitz's motion for summary judgment on the collection claims, based chiefly on the lack of any opposition.[2]

The Gourvitz defendants also reminded the judge that, contrary to the directive issued to the third attorney at the February case management conference, Colfax had not filed a motion to restore the malpractice claims and had not provided any of the discovery. In light of those deficiencies, the Gourvitz defendants asked the judge to dismiss the malpractice claims with prejudice.

The trial judge dismissed with prejudice Colfax's malpractice complaint against the Gourvitz parties. However, the executed order was in error because, while the judge had crossed out the "out" portion of the phrase "without prejudice" on the first page of the submitted order, he failed to do so on the second page, which incorrectly stated that the malpractice action was dismissed "without prejudice, pursuant to R. 4:23-5(a)(1)."

The Gourvitz defendants later provided the trial judge with a corrected order, entered on March 17, 2010. The revised order indicated throughout that the dismissal was with prejudice, but it eliminated any reference to Rule 4:23-5(a). The third attorney objected to the entry of the amended order because it contravened the notice and timing requirements of Rule 4:23-5(a)(2).

On April 15, 2010, the third attorney filed another certification with the court, including doctor's notes dated March 16 and 25, 2010. The certification reiterated her position that she had been incapacitated by fatigue and was thus unable to meet Colfax's discovery obligations in a timely manner.

On May 26, 2010, the third attorney filed a notice of motion, pursuant to Rule 4:50-1(a), (d), and (f), to vacate the dismissal with prejudice of the malpractice claims. The submission included a request for "[l]eave to [s]erve [r]esponses to [d]emand for [a]dmissions." That request contained a misstatement, because she actually sought permission to serve answers to interrogatories; answers were submitted with the notice of motion. The third attorney filed a certification with the notice, explaining that Colfax bore no responsibility for the delay in responding to the discovery requests; instead, the delay reflected her own health problems involving Lyme disease, the Epstein-Barr virus, and her son's illness.

On June 11, 2010, the third attorney also argued under Rule 4:50-1, that the Gourvitz defendants failed to adhere to the requirements of Rule 4:23-5(a)(2) in seeking dismissal with prejudice for Colfax's failure to provide discovery. When reminded that Colfax had yet to name legal or accounting experts, the third attorney responded that, if the malpractice claims were to be reinstated, she would obtain experts, but that it made no sense to do so until that time. She also stated that, upon ...

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