Olds v. Donnelly

• Decision Date: 11 June 1996
• Citation: 677 A.2d 238,291 N.J.Super. 222
• Parties: Robert OLDS, Plaintiff-Appellant, v. Dennis DONNELLY, Defendant-Third Party Plaintiff-Respondent-Cross-Appellant, v. Joe MARAN, Third Party Defendant-Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 222

291 N.J.Super. 222

677 A.2d 238

Robert OLDS, Plaintiff-Appellant, v. Dennis DONNELLY, Defendant-Third Party Plaintiff-Respondent-Cross-Appellant, v. Joe MARAN, Third Party Defendant-Cross-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued April 30, 1996.

Decided June 11, 1996.

Joe Maran, Newark, for appellant (Maran & Maran, attorneys; Joe Maran, on the brief).

Christopher J. Carey, Newark, for respondent Dennis Donnelly (Tompkins, McGuire & Wachenfeld, attorneys, Newark; Mr. Carey, of counsel; Mr. Carey and John P. O'Toole, Canada, on the brief).

Diane M. Acciavatti, Morris Plains, for cross-respondent Joe Maran (Voorhees & Acciavatti, attorneys; Ms. Acciavatti, of counsel and on the brief).

Before Judges PRESSLER, WEFING and A.A. RODRIGUEZ.

The opinion of the court was delivered by

WEFING, J.A.D.

Plaintiff sued defendant for legal malpractice. The case was tried to a jury, which returned a verdict of $500,000 in plaintiff's favor. The trial court subsequently entered a judgment in favor of defendant notwithstanding that verdict. Plaintiff appeals and we reverse.

On June 27, 1985, Robert Olds underwent hernia repair surgery at the hands of Floyd J. Donahue, M.D., at Elizabeth General Hospital. Olds suffered an infarcted right testicle as a result of that surgery; necrosis set in and the testicle shriveled to the size of a pea.

Less than a month after the surgery, plaintiff consulted with defendant in connection with a possible medical malpractice action against Dr. Donahue and plaintiff signed a retainer agreement. In June 1986, defendant advised plaintiff he could not proceed further with the case unless he received $500 to cover out-of-pocket costs. Plaintiff eventually forwarded that sum.

On June 25, 1987, two days before the statute of limitations expired, the two met at defendant's office. Defendant advised plaintiff that he could no longer represent him. According to plaintiff, defendant offered to prepare a pro se complaint to be filed within the statutory deadline. A pro se complaint was, in fact, prepared and filed in timely fashion. Further, according to plaintiff, defendant said he would have the complaint served upon Dr. Donahue by mail.

The summons was prepared and issued in defendant's name and sent to Dr. Donahue. The wrong address was used, however, and it was returned to defendant's office. In August 1987, defendant sent the summons and complaint to Dr. Donahue at the correct address. The papers were sent certified mail, with the return receipt addressed to plaintiff. For reasons that do not appear on the record, service was not effected.

In 1988, Olds received a notice from the court that the matter was going to be dismissed for lack of prosecution. Plaintiff testified that he then called defendant who said "he would take care of it." In May 1989, the plaintiff received another notice from the court that the matter was going to be dismissed for lack of prosecution.

In June, plaintiff wrote and requested that the case be continued to permit him to obtain legal counsel. A clerk then assisted him in preparing a summons which was then delivered to the Union County Sheriff's department for service on Dr. Donahue in July 1989.

Dr. Donahue forwarded the matter to counsel and in February 1991, Donahue's attorneys filed a motion to dismiss plaintiff's complaint for failure to timely serve the summons and complaint. In connection with that motion, Dr. Donahue certified that certain x-rays taken at Elizabeth General Hospital in 1985 were destroyed before he was served with the summons and complaint and that this substantially and irreparably prejudiced his defense. He also certified that he was unable to obtain copies of certain testicular scans from Overlook Hospital which further substantially prejudiced his ability to defend the action.

Shortly after Dr. Donahue filed that motion, plaintiff's present counsel filed a substitution of attorney within the medical malpractice action and argued in opposition to Dr. Donahue's motion to dismiss. The trial court in that action determined that the two year delay in serving Dr. Donahue was prejudicial to the doctor because of the loss or destruction of medical records and granted the doctor's motion to dismiss that matter with prejudice.

Fourteen months later, in April 1992, plaintiff began this action alleging legal malpractice by defendant. Plaintiff alleged that defendant failed to effect proper and timely service of the complaint in the underlying medical malpractice action thus causing the suit to be dismissed with prejudice and depriving the plaintiff of the opportunity to seek compensation for his post-surgical injuries.

When defendant filed an answer to this complaint, he also filed a third-party complaint against plaintiff's present counsel; he alleged that plaintiff's present counsel negligently represented plaintiff in connection with the motion to dismiss and thereby caused the pro se complaint to be dismissed. That third-party complaint was eventually dismissed for failure to state a claim.

During trial of the matter, plaintiff presented expert medical testimony in support of his malpractice claim against Dr. Donahue and expert legal testimony in support of his malpractice claim against defendant. Defendant, similarly, presented expert testimony on both issues. Defendant made a motion to dismiss at the end of plaintiff's case under R. 4:37-2b, which the trial court denied. At the close of all of the evidence, defendant renewed his motion. The trial court, in accordance with R. 4:40-2(a), reserved on the motion and submitted the case to the jury.

While the jury found in plaintiff's favor and, as noted, returned a verdict of $500,000, the trial court, four days later, granted defendant's motion to dismiss and entered judgment notwithstanding the verdict. The trial court did so on the grounds that there was nothing within the record to support a finding of legal malpractice which proximately caused the dismissal of the action against Dr. Donahue. We are satisfied that in doing so, the trial court failed to apply the correct standards to decide such a motion. We are thus constrained to reverse.

The standards the trial court must employ in deciding such motions are well-known:

A motion for a judgment notwithstanding the verdict ... must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." In each case, "the court must accept as true all the evidence which supports the position of the party defending against the motion and must accord him the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could differ, the motion must be denied."

[Lanzet v. Greenberg, 126 N.J. 168, 174, 594 A.2d 1309 (1991).] (citations omitted)

The standard has been referred to as "rather mechanical." Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969).

In order to understand our conclusion that the trial court erred in granting defendant's motion, it is necessary to set forth some portion of the evidence presented at trial.

The summary of the testimony we set forth is that presented on behalf of plaintiff. We recognize that defendant presented evidence of quite a contrary version of what occurred. A motion for judgment NOV, however, requires that we accept plaintiff's version. Lanzet v. Greenberg, supra at 174, 594 A.2d 1309.

Plaintiff testified that after he met with defendant initially, there was a brief exchange of correspondence back and forth for a week or two, and that he did not hear from defendant thereafter for "a good six months." Plaintiff said he then called defendant to inquire about the status of the case and defendant replied that "he had to get it filed." Then defendant asked plaintiff to see a doctor in New York, Dr. Orkin. In 1986, defendant contacted plaintiff and told him he needed $500 to cover expenses and that he would not proceed without it. After plaintiff paid that sum, he got a letter from defendant asking him to set forth in writing his chronology of the case. Plaintiff said he did so. The plaintiff continued that the next time he heard from defendant was in June 1987 when he was asked to come in for an appointment. On June 25, 1987, he went to defendant's office where he learned defendant would no longer represent him.

Plaintiff's legal expert testified that in his opinion defendant did not send for plaintiff's medical records in a timely fashion. Plaintiff's legal expert testified:

You just can't hold onto a case for so long and then throw a client out, you know, when the statute is about to run. At least if he did it twelve months, eighteen months after the retainer, [plaintiff] would have had six months to get another lawyer, but instead it came right to the brink, ... You just can't turn a client out in the cold because he is not prejudiced because of this two-year delay and failure to serve the summons and complaint in a timely fashion. [Plaintiff's] case was prejudiced.

In addition, had he acted promptly ... he would have gotten a critical x-ray which was the testicular scan. That scan was no longer available for Dr. Donahue ... and that ... was an important consideration for his complaint having been dismissed.

Defendant's case file was entered into evidence. According to plaintiff, the only documents in defendant's file prior to June 1987 were the retainer agreement, a copy of the client's notes, prescriptions and medical bill, defendant's interview notes, a July 1985 letter requesting plaintiff to sign medical authorizations and a July 1986 letter from defendant requesting the results of certain testing and a written chronology.

The plaintiff's legal expert also testified that defendant deviated from acceptable standards of legal practice by terminating the lawyer-client relationship on June 25, 1987, two days before the statute of limitations was to expire....