Rogers v. Cape May Cnty. Office of the Pub. Defender

• Decision Date: 05 December 2011
• Citation: 31 A.3d 934,208 N.J. 414
• Parties: John ROGERS, Plaintiff–Appellant, v. CAPE MAY COUNTY OFFICE OF the PUBLIC DEFENDER and Erica Smith, Defendants–Respondents.
• Court: New Jersey Supreme Court

208 N.J. 414

31 A.3d 934

John ROGERS, Plaintiff–Appellant,

v.CAPE MAY COUNTY OFFICE OF the PUBLIC DEFENDER and Erica Smith, Defendants–Respondents.

Supreme Court of New Jersey.

Argued Sept. 27, 2011.Decided Dec. 5, 2011.

Frank L. Corrado argued the cause for appellant (Barry, Corrado, Grassi & Gibson, attorneys; Mr. Corrado, Joseph C. Grassi, Wildwood, and James E. Moore on the briefs).

Karen L. Jordan, Chief, Deputy Attorney General, argued the cause for respondents (Paula T. Dow, Attorney General of New Jersey, attorney; Lewis A. Scheindlin and Melissa H. Raksa, Assistant Attorneys General, of counsel, Rahat N. Babar, Deputy Attorney General, on the briefs).

Justice LONG delivered the opinion of the Court.

On this appeal we are asked to revisit the term “exoneration” as used in our decision in McKnight v. Office of the Public Defender, 197 N.J. 180, 962 A.2d 482 (2008), to determine the timeliness of a legal malpractice action based on representation in a criminal matter. In 1999, defendant was convicted of various drug offenses. In October 2007, on appeal from the denial of post-conviction relief (PCR), his conviction was reversed by the Appellate Division based on ineffective assistance of counsel. The case was remanded for trial. In July 2008, the indictment was dismissed with prejudice. In November 2008, defendant filed a notice of tort claim against his trial lawyers for negligence.

The question is whether defendant was “exonerated” at the point at which his conviction was reversed and the case remanded for trial, or on the day the indictment was dismissed. The answer matters because the former date would subject defendant's claim to the one-year time-bar in N.J.S.A. 59:8–9 and the latter would not. The Appellate Division ruled that the earlier date was the date on which exoneration occurred and Rogers' claim accrued, and accordingly precluded the action, a notion with which we disagree. Defendant was not “exonerated” until the indictment was dismissed with prejudice in July 2008, and his claim was thus not barred by the one-year filing limitation in N.J.S.A. 59:8–9. Nevertheless, because the claim was filed ten days beyond the ninety-day limit set forth in N.J.S.A. 59:8–8, further proceedings are required to determine whether the “extraordinary circumstances” standard in N.J.S.A. 59:8–9 was satisfied.

I.

The relevant facts are undisputed. In August 1998, defendant, John Rogers (Rogers), was indicted on nine counts relating to the distribution of controlled dangerous substances. Erica Smith (Smith), an attorney from the Cape May County Office of the Public Defender (OPD), was assigned to represent him. At trial, in an effort to demonstrate that the arresting officer could not distinguish Rogers from his brother, Smith crafted a plan by which Rogers would switch clothing with his brother and sit in the back of the courtroom, while his brother sat at counsel table. Smith apparently hoped that the arresting officer would identify the wrong man. The scheme was uncovered by the State and aborted before it could be carried out. However, the jury was informed of it when the State cross-examined Rogers, thereby damaging his credibility.

The jury convicted Rogers on seven counts, and on July 30, 1999, he was sentenced to a custodial term of fourteen years, with a six-year period of parole ineligibility.¹ The Appellate Division affirmed the conviction and we denied certification. State v. Rogers, 170 N.J. 209, 785 A.2d 437 (2001).

In 2002, Rogers filed a PCR petition. In 2005, an amended petition was filed alleging ineffective assistance by Smith during Rogers' criminal trial. The trial judge denied the petition. On October 23, 2007, the Appellate Division reversed that order and remanded the matter for a new trial on the basis that Smith's “conduct in devising the defendant-substitution plan” amounted to deficient performance, which denied Rogers a fair trial. On July 25, 2008, the trial judge dismissed the indictment against Rogers with prejudice.

On September 11, 2008, Rogers retained his current lawyer to pursue a civil claim for legal malpractice against Smith and the Cape May County OPD. The next day, Rogers' lawyer requested the PCR file, which he certified he needed to review before filing the notice of tort claim. When he did not receive the file by November 3, the lawyer sent a notice of tort claim to the Cape May County OPD. Eight months later, on July 14, 2009, the attorney filed a motion for leave to file a late notice of tort claim, which was denied. The trial judge determined that Rogers' claim accrued on October 23, 2007, when the Appellate Division reversed his conviction and remanded the case for trial. Because Rogers filed his notice of tort claim more than one year later, the court declared that it “lacked jurisdiction to provide the relief that is requested.” Rogers appealed.

The Appellate Division affirmed. According to the panel, late notice must be filed within one year after accrual of a claim under N.J.S.A. 59:8–9. Using the standard for accrual established in McKnight, supra, 197 N.J. at 182, 962 A.2d 482 (noting accrual occurs when “the defendant receives relief in the form of exoneration”), the panel held that Rogers was exonerated on October 23, 2007, when the Appellate Division reversed his conviction and remanded for a new trial. Therefore, notice had to be filed within ninety days of October 23, 2007. The panel noted that Rogers' notice was filed late and that Rogers offered no fair “explanation of extraordinary circumstances” for his late filing. Moreover, the panel concluded that based on the October 23, 2007, date, Rogers' claim was filed more than one year from accrual and thus was time-barred under the Tort Claims Act. Accordingly, the panel affirmed the judgment of the trial court denying Rogers' motion for leave to file a late notice of tort claim.

We granted Rogers' petition for certification and now reverse. Rogers v. Cape May Cnty. Office of the Pub. Defender, 205 N.J. 80, 12 A.3d 212 (2011).

II.

Rogers argues that the dismissal of the charges on July 25, 2008, was the point of exoneration because up until then he still faced conviction; his notice of tort claim was filed within one year of that date; the notice was only ten days late; defendants, who were already aware of the claim, suffered no prejudice therefrom; and, an extraordinary change in law justified the late notice.

Defendants counter that Rogers' claim accrued on October 23, 2007, when he was granted PCR based on ineffective assistance of counsel; that decision was a favorable disposition that was more beneficial compared to an undisturbed criminal conviction; Rogers waited over a year to file his motion and thus his claim is barred; in no event were there extraordinary circumstances warranting an extension within which to file; and, permitting an extension would prejudice the State because the conviction took place over a decade ago.

III.

Claims for damages against defendants—a public entity and a public employee—are subject to the provisions of the Tort Claims Act. See N.J.S.A. 59:1–1 to 12–3. “[T]he Act establishes the procedures by which claims may be brought,” Beauchamp v. Amedio, 164 N.J. 111, 116, 751 A.2d 1047 (2000), including a mandatory pre-suit notification of claim. See N.J.S.A. 59:8–3; 59:8–8. Specifically, the procedures include filing of a timely notice:

A claim relating to a cause of action ... for injury or damage to person or to property shall be presented ... not later than the ninetieth day after accrual of the cause of action. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if:

a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8–9....

[ N.J.S.A. 59:8–8 (emphasis added).]

N.J.S.A. 59:8–9 alleviates the harshness of N.J.S.A. 59:8–8 by allowing a late filing of a notice of claim. It provides that:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8–8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8–8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.

[ N.J.S.A. 59:8–9 (emphasis added).]

To determine whether a notice of claim is timely under the Tort Claims Act, or whether the deadline for a late notice of claim has passed, the accrual date for the cause of action must be ascertained. N.J.S.A. 59:8–8 (noting that claimant must “file his claim with the public entity within 90 days of accrual ” (emphasis added)); N.J.S.A. 59:8–9 (noting that claimant seeking late filing of tort claim notice must “file such notice at any time within one year after the accrual ” (emphasis added)).

IV.

A legal malpractice action is rooted in the tort of negligence and “accrues when an attorney's breach of professional duty proximately causes a plaintiff's damages.” Grunwald v. Bronkesh, 131 N.J. 483, 492, 621 A.2d 459 (1993) (citations omitted). Grunwald instituted a legal malpractice claim against his...