Jan. 12 — A New Jersey statute that requires malpractice plaintiffs to file an affidavit of merit attesting to the viability of the complaint doesn't apply to a lawsuit accusing an attorney of malicious use of process, the New Jersey Superior Court, Appellate Division, held Jan. 12 (Perez v. Zagami, LLC, 2016 BL 7198, N.J. Super. Ct. App. Div., No. A-3268-14T2, 1/12/16).
The case resolves a question of first impression on the scope of New Jersey's affidavit of merit statute—which, like similar laws in eight other states, requires plaintiffs who sue lawyers for “malpractice or negligence” to support their claims with an expert's affidavit stating there's a reasonable probability the defendant's conduct fell below the applicable standard of care.
“[M]alicious use of process is an intentional tort requiring proof of malice, and not a deviation from a standard of care.”
Judge Heidi W. Currier said the affidavit of merit statute doesn't apply to malicious use of process claims, often referred to as “SLAPP-back” suits, because the gravamen of that action “is not the alleged negligence of the attorney in doing his work; rather, it goes to the attorney's intentions and motive in doing the work.”
‘Disguising' a Malpractice Claim?
The ruling affirms the trial court's refusal to dismiss Luis Perez's malicious use of process claims against Nash Law Firm LLC and two attorneys. The claims are based on the Nash defendants' actions while representing Zagami LLC, a company that operates a night club, in a lawsuit that accused Perez of defaming Zagami during a municipal hearing on the renewal of Zagami's liquor license.
After the defamation suit was dismissed, Perez sued Zagami and the Nash defendants for malicious use of process. That statutory cause of action requires Perez to prove the traditional elements of malicious prosecution—that the defamation suit lacked probable cause, was brought with malice and resolved in his favor—and also that the suit caused him to incur substantial legal fees and had the effect of discouraging his civic participation.
The Nash defendants moved to dismiss, saying Perez was required to file an affidavit of merit under N.J. Rev. Stat. §2A:53A-27, which provides in relevant part:
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.
Perez argued that the statute didn't apply because malicious use of process is an intentional tort and not a claim for malpractice or negligence. Nash countered that Perez was merely “disguising” a professional negligence claim under another label.
Focus on Nature of Claim
Currier said the concern about disguising a malpractice claim was addressed in Couri v. Gardner, 801 A.2d 1134 (N.J. 2002).
The applicability of the affidavit of merit statute doesn't turn on “whether the claim is denominated as tort or contract,” the Couri court said, but instead depends on whether the “underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession.”
Applying that test here, Currier said the affidavit of merit statute didn't apply because “malicious use of process is an intentional tort requiring proof of malice, and not a deviation from a standard of care.”
“Nash contends that the scrutiny of its advice to Zagami regarding the defamation action and the subsequent drafting and filing of that complaint lie in professional malpractice,” Currier noted. “The claim, however, is not the alleged negligence of the attorney in doing his work; rather, it goes to the attorney's intentions and motive in doing the work.”
In a footnote, the court said it expressed “no opinion as to whether, during the course of the action, Perez may need to support some aspect of his claim or rebut some aspect of the defense with expert testimony.”
Marshall Dennehey Warner Coleman & Goggin P.C. represented the Nash defendants. The Law Office of Sander D. Friedman represented Perez.
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