Cornblatt v. Barow

• Citation: 696 A.2d 65,303 N.J.Super. 81
• Parties: Alan J. CORNBLATT, Plaintiff-Respondent, v. Aileen BAROW, Defendant-Appellant.
• Decision Date: 07 July 1997
• Court: New Jersey Superior Court – Appellate Division

Page 81

303 N.J.Super. 81

696 A.2d 65

Alan J. CORNBLATT, Plaintiff-Respondent, v. Aileen BAROW, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued June 2, 1997.

Decided July 7, 1997.

Michael E. Wilbert, Brick Town, for defendant-appellant (Wilbert & Montenegro, P.C., attorneys; Mr. Wilbert, of counsel; Suzanne White-Ballou, on the brief).

Mark H. Sobel, Woodbridge, for plaintiff-respondent (Greenbaum, Rowe, Smith, Ravin, Davis & Himmel, L.L.P., attorneys; Mr. Sobel, of counsel; Richard L. Hertzberg, on the brief).

Before Judges PETRELLA and KIMMELMAN.

The opinion of the court was delivered by

KIMMELMAN, J.A.D.

At issue on this appeal is the interpretation of and effect to be given to recently enacted legislation requiring the filing of an affidavit of merit in order to maintain a cause of action against certain licensed professional persons for malpractice or negligence. See N.J.S.A. 2A:53A-26 to -29 (the "statute"). The statute was signed into law by the Governor on June 29, 1995, and became effective on that date as part of a "tort reform" package of five bills. ¹

Factually, it appears that plaintiff, an attorney, had represented defendant in a contested matrimonial action which required a lengthy trial. When plaintiff rendered his bill for legal services, defendant objected and requested that her fee dispute with plaintiff be arbitrated in accordance with the provisions of R. 1:20A. Such hearings were held and, on October 11, 1995, the District Fee Arbitration Committee (Committee) issued its determination that plaintiff was entitled to the total reasonable charge of $212,529.22, less the sum of $40,817.60 previously paid by defendant, leaving a net balance due plaintiff of $171,711.62. Defendant was advised by the Committee that the amount awarded was to be paid within thirty days and if not so paid that judgment in accordance with R. 1:20A-3 may be entered against her.

Defendant then lodged an appeal from the decision of the Committee with the Disciplinary Review Board of the Supreme Court (D.R.B.). The determination of the Committee was affirmed by the D.R.B. and defendant's appeal was dismissed. See R. 1:20A-3(c); R. 1:20-15(1).

When the fee award was not paid within thirty days, plaintiff filed a complaint in the Law Division against defendant to reduce to judgment the sum of $171,711.62. Defendant answered and filed a counterclaim alleging that plaintiff had breached his contract with defendant by not performing his services in a timely fashion. It was alleged that his neglectful breach caused the underlying matrimonial matter to go to trial rather than to settle, thereby forcing defendant to incur additional costs and attorney's fees. Although not described as a cause of action for malpractice in defendant's counterclaim, the allegations contained all the requisite elements of a claim of legal malpractice. Albright v. Burns, 206 N.J.Super. 625, 632, 503 A.2d 386 (App.Div.1986).

Plaintiff filed his answer to the counterclaim in which he demanded that defendant submit within sixty days the affidavit of merit required by the statute. A case management order, entered on February 13, 1996, required defendant to submit the affidavit of merit by April 5, 1996. The trial judge later acknowledged the date should have been April 10, 1996.

Defendant, in effect, was the plaintiff on the malpractice counterclaim. The statute requires that such plaintiff file the affidavit of merit within sixty days of defendant's answer. N.J.S.A. 2A:53A-27 provides:

Affidavit required in certain actions against licensed persons

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 person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

When no affidavit of merit had been provided by April 24, 1996, some two weeks after the statutory sixty-day deadline, plaintiff moved to dismiss defendant's counterclaim for failure to comply with the statute and moved for summary judgment on his complaint. On May 1, 1996, defendant cross-moved, after the expiration of the sixty-day statutory period, for the court to grant an additional period of sixty days. Alternatively, defendant claimed that her legal malpractice counterclaim did not fall within the statutory definitions of malpractice causes of action. On May 8, 1996, the trial court denied defendant's request for a sixty-day extension finding that there was no justification presented for an extension beyond the initial sixty-day period. The court then dismissed with prejudice defendant's counterclaim for failure to provide an affidavit of merit consistent with the statute and to do so within the prescribed time limit. Defendant does not contend on appeal that good cause existed to justify an extension of an additional period of sixty days.

I

Initially, we refer to the structure and plain language of the statute to determine whether the statute encompasses malpractice claims against attorneys. N.J.S.A. 1:1-1; Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 128, 527 A.2d 1368 (1987). The statute applies to "any action ... for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice ... by a licensed person...." N.J.S.A. 2A:53A-27 (emphasis added). An attorney admitted to practice law in New Jersey is one of the professionals defined by the statute as a "licensed person." N.J.S.A. 2A:53A-26c.

The alleged malpractice or negligence of other licensed persons covered by the statute such as architects, physicians, registered nurses, or engineers, may result in "personal injuries[ ]" or "wrongful death[,]" but it is not generally expected that an attorney's alleged malpractice might result in personal injuries or wrongful death. The statute, however, further applies to claims of malpractice resulting in property damage. The issue is whether defendant's claim that plaintiff's alleged malpractice resulted in money damages was contemplated by the Legislature as a claim for "property damage" under the statute. The term "property damage" is not defined by the statute, but when given a generally accepted meaning considering the purpose and structure of the statute there is no doubt that damages both to real and personal property are within the legislative intent. N.J.S.A. 1:1-1; Midlantic Nat'l Bank v. The Peerless Ins. Co., 253 N.J.Super. 137, 142-43, 601 A.2d 243 (App.Div.1992).

Malpractice or negligence committed by architects, engineers, or attorneys may very well result in damage to real and personal property. Personal property embraces everything that may be tangible or intangible such as a chose in action. The right or claim to "money damages ... is a property right ... beyond question." Beedie v. Int'l Bhd. of Elec. Workers, 25 N.J.Super. 269, 272, 96 A.2d 89 (App.Div.), certif. denied, 13 N.J. 392, 99 A.2d 859 (1953). See also Black's Law Dictionary 1216-1218, (6th ed.1990). Accordingly, we conclude that a claim against an attorney for alleged malpractice is a claim for property damage within the legislative intent and plain meaning of the statute.

II

A certification (rather than an affidavit) dated May 16, 1996, by Michele Donato, an attorney who had represented defendant before the Committee and on the appeal to the D.R.B., was submitted by defendant on May 24, 1996. This certification was provided some six weeks late and well after the May 8, 1996 dismissal of defendant's counterclaim because of her failure to provide a timely affidavit of merit.

The statute specifically requires that an "affidavit" of an appropriately licensed person be provided by the claimant alleging malpractice. The furnishing of a certification in place of an affidavit is not compliance with the statutory mandate. R. 1:4-4(b) does provide that: "In lieu of the affidavit, oath or verification required by these rules, the affiant may submit [a] certification...." (Emphasis added). Here, however, the Legislature, not the Rules of Court, requires that an "affidavit" be provided. The Legislature did not provide for the submission of a certification in lieu of an affidavit as is permitted by the Rules of Court. This distinction is material and dispositive. See, e.g., Matthews v. Deane, 196 N.J.Super. 428, 437, 483 A.2d 224 (Ch.Div.1984), appeal dismissed, 206 N.J.Super. 608, 503 A.2d 376 (1986). Moreover, the case management order required the production by defendant of an expert's "affidavit."

A court may not ignore or modify the express legislative language and thereby change the word affidavit to read certification. N.J.S.A. 1:1-1. See DeHart v. Bambrick, 177 N.J.Super. 541, 549, 427 A.2d 113 (App.Div.1981) (citing Fahey v. Jersey City, 52 N.J. 103, 107, 244 A.2d 97 (1968); Watt v. Mayor & Council of the Borough of Franklin, 21 N.J....