Simon Coull v. Jamie Von Ellen ( 2023 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3858-21
SIMON COULL,
Plaintiff-Appellant,
v.
JAMIE VON ELLEN,
Defendant-Respondent.
Submitted November 6, 2023 – Decided December 4, 2023
Before Judges Marczyk and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3996-21.
Simon Coull, appellant pro se.
Jamie K. Von Ellen, respondent pro se.
PER CURIAM
Plaintiff Simon Coull appeals pro se from the trial court's June 24, 2022
order dismissing his complaint against his former attorney defendant, Jamie Von
Ellen, based on his failure to comply with the Affidavit of Merit Statute.
N.J.S.A. 2A:53A-26 to -29. Following our review of the record and the
applicable legal principles, we affirm in part, vacate in part, and remand for
further proceedings consistent with this opinion.
I.
Plaintiff retained defendant on December 19, 2013 to represent him in a
Family Part post-judgment application to decrease his support obligations to his
former wife and children. Plaintiff was a self-employed cinematographer at the
time of defendant's retention, so it was necessary to have an accounting expert
analyze his financial status before moving for a modification of alimony and
child support. Once a report was obtained, defendant filed the appropriate
motion and succeeded in convincing the court that a prima facie case of changed
circumstances had been established. Pursuant to the Family Part judge's
decision, plaintiff and his former wife were required to engage in discovery.
Plaintiff's former wife retained her own accounting expert who made findings
regarding plaintiff's income which contradicted those of plaintiff's expert.1
After expert reports were exchanged, the parties attended mediation.
However, mediation failed as the parties' experts were unable to agree on
1
Plaintiff filed a separate action against his former wife's accounting expert
which is the subject of a separate appeal. Coull v. Eisner Amper and Klein, No.
A-2226-21.
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plaintiff's income, including the nature and extent of his personal expenses paid
through his business. Thereafter, the court set a trial date for October 2015.
Defendant notes plaintiff's case was complex for various reasons, including his
self-employment status, the condition of his books, and the disagreement of the
experts. Defendant further cites additional factors impacting the complexity of
the case, including delays caused by opposing counsel and plaintiff's former
wife, as well as the court's schedule and the tension between plaintiff and his
former spouse. Defendant asserts the case would have been costly to try, and
the complexity of the case made it impossible to guarantee an outcome at trial
that would have justified the time and cost of the trial itself.
Shortly before trial, plaintiff advised defendant of his willingness to
accept the settlement offer that had been extended by his former spouse. 2
Plaintiff went to defendant's office on October 16, 2015, and signed a consent
order reflecting the agreed-upon terms, and defendant forwarded same to
opposing counsel. After plaintiff signed the consent order, the parties agreed to
several minor modifications, and plaintiff returned to defendant's office to sign
a revised version on or about December 21, 2015. Thereafter, the final consent
2
In an effort to assist plaintiff, defendant offered that in the event plaintiff chose
to accept the settlement terms that were presented on the eve of trial, she would
reduce plaintiff's bill by $12,000.
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order was submitted to the court. Defendant contends plaintiff was successful
in significantly reducing his obligations to his former wife and children without
the necessity of a trial, albeit not as much as he was hoping to achieve. 3 As
discussed more fully below, plaintiff paints a very different portrait as to the
circumstances surrounding the settlement. He alleges defendant threatened him
and stated he only signed the agreement because he feared for his safety.
The parties had no additional contact after 2017. However, plaintiff
continued to litigate the Family Part case as a self-represented litigant.
Specifically, in 2019, plaintiff filed another post-judgment motion requesting a
further reduction of his support obligations. The application was denied by the
trial court, and we subsequently affirmed the trial court.
In October 2021, shortly after our decision, plaintiff filed a complaint
against defendant. Therein, he alleged defendant "abused her position of trust
and client duty of care" by exerting "undue influence" over him during the 2015
matter. In an addendum to his complaint, plaintiff asserts:
On or around October 13[,] 2015[,] I discovered
the attorney representing me in a contentious litigation
3
Defendant also explains: "Subsequent to the entry of the December 22, 2015
[c]onsent [o]rder, on or about September 21, 2017, [p]laintiff returned to [her
firm] for further legal advice. . . . At that time, he met with [an associate, and
because her firm] was sympathetic to [p]laintiff's circumstances, [it] did not
require him to pay for [these] services . . . ."
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had been contacted by the other part[y's] expert in an
effort to get me to accept an offer from the other party.
I had been protesting the expert [opinion]
throughout the litigation as they appeared to be clearly
grossly incorrect and had been asking to sit down face
to face with the expert and go through how he arrived
at his figures as they did not make sense and made
several inaccurate statements.
My Attorney Jamie Von Ellen in a phone call
then used her position to threaten me stating "I can do
some very bad things to you" in relation to me not
accepting the offer that was . . . based on the expert[']s
calculations. It was clear in the recorded call that I did
not want to accept the offer but felt I had no choice.
Also throughout litigation Ms[.] Von Ellen
refused to act on abusive discovery and litigation
practice by the other part[y's] attorney which included
canceling numerous agreed events at the very last
minute delaying discovery.
Plaintiff further alleged he suffered a loss of income, legal fees, emotional
distress, and physical injury.
Plaintiff subsequently moved to amend his complaint, and defendant
cross-moved to dismiss based on plaintiff's failure to provide an affidavit of
merit. On February 18, 2022, the court granted plaintiff's motion to amend his
complaint and extended the time to serve an affidavit of merit until March 12,
2022. Plaintiff's amended complaint alleged lack of fiduciary duty, conflict of
interest, witness tampering, and defendant using undue influence to force
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plaintiff to sign the settlement agreement. Plaintiff failed to provide an affidavit
of merit.
Defendant subsequently moved to dismiss plaintiff's complaint with
prejudice based on his failure to serve an affidavit of merit in May 2022. In
response, plaintiff asserted an affidavit of merit was not required because the
nature of his claims was rooted in various torts other than malpractice stemming
from defendant's alleged threat and that his claims fall within the "common
knowledge" exception to the affidavit of merit requirement.
In June 2022, the court held oral argument. Defendant's attorney
explained "the basic elements of the statute apply here and requires dismissal of
the complaint." Specifically, counsel explained defendant is an attorney and
"the claims . . . plaintiff is seeking to pursue against her arise from and relate to
the exercise of her professional duties." Counsel also addressed plaintiff's
argument about the "common knowledge" exception and argued that "these
issues all involve complex . . . issues related to how matrimonial attorneys are
charged with representing their clients under the professional standards . . . and
. . . must be proved by expert testimony."
Plaintiff countered this is "not really a professional complaint" because it
happened on a phone call "when I tried to talk to my attorney. It was a threat
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. . . where I stated I didn't want to proceed to sign anything. I also stated I was
suspecting something was going on here." In describing the threat, plaintiff
alleged defendant said: "if you don't do this some very bad things can happen to
you." According to plaintiff, this prevented him from going to court and moving
forward. "[Y]ou know, this isn't professional, this is a personal threat to prevent
me from having my day in court . . . ."
Two weeks later, the trial judge rendered an oral decision. The judge
explained he was dismissing the complaint based on plaintiff's failure to produce
an affidavit of merit, not only because plaintiff failed to file an affidavit of merit
after exhausting the maximum 120-day period provided under the statute, but
the judge also found that plaintiff "cannot overcome the fundamental character
of the attorney[-]client relationship underlying the claim [and] the plaintiff
cannot transform a claim of professional malpractice into something other than
what was alleged . . . simply to avoid the statutory requirements [of N.J.S.A.
2A:53A-27]." Ultimately, the court found plaintiff did not comply with the
affidavit of merit statute and did not meet the common knowledge exception
because "[t]he complaint of the plaintiff directly involves the duties that
[defendant] had with [plaintiff] as an attorney." The trial court entered an order
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dated June 24, 2022, granting defendant's motion and dismissing plaintiff's
complaint with prejudice. Thereafter, plaintiff appealed.
II.
Before us, plaintiff argues "[a]n affidavit of merit is not required in this
matter as the complaint is not about the standard of work performed or
professional services and therefore [is] not a professional malpractice
complaint." More particularly, plaintiff asserts, "[t]his is very clearly a personal
threat between two people and not the subject of the performance of
[defendant's] work" and thus cannot fall under malpractice. According to
plaintiff, the threat was conveyed outside of a professional relationship, similar
to how if an attorney assaulted their client, which would not fall under the
affidavit of merit statute. Plaintiff contends that because the conduct was not in
the context of professional services, "a[n] [a]ffidavit of [m]erit serves no
purpose in this complaint and is not required[.]"
Defendant contends plaintiff's claims arise from the attorney-client
relationship, and the provisions of N.J.S.A. 2A:53A-27 are clearly implicated.
Accordingly, defendant maintains plaintiff's failure to serve an affidavit of merit
warranted a dismissal of the complaint.
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We review de novo motions to dismiss based on failures to comply with
the affidavit of merit statute, in part because they involve a legal determination,
specifically "the statutory interpretation issue of whether a cause of action is
exempt from the affidavit of merit requirement," and in part because they
involve a dismissal of a complaint for failure to state a claim. Cowley v. Virtua
Health Sys., 242 N.J. 1, 14-15 (2020). We also note that we conduct a de novo
review of a decision on a motion to dismiss under Rule 4:6-2(e), applying the
same standard as the motion court. Frederick v. Smith, 416 N.J. Super. 594, 597
(App. Div. 2010). We therefore "owe no deference to the . . . judge's
conclusions[.]" Mac Prop. Grp. LLC & The Cake Boutique LLC v. Selective
Fire & Cas. Ins. Co., 473 N.J. Super. 1, 16 (App. Div. 2022) (quoting State ex
rel. Comm'r of Transp. v. Cherry Hill Mitsubishi, Inc., 439 N.J. Super. 462, 467
(App. Div. 2015)).
In determining whether to grant a motion to dismiss under Rule 4:6-2(e),
"the complaint's allegations are accepted as true with all favorable inferences
accorded to plaintiff." Ibid. A court must consider only "the legal sufficiency
of the facts alleged on the face of the complaint[,]" Nostrame v. Santiago, 213
N.J. 109, 127 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,
116 N.J. 739, 746 (1989)), and must search the complaint "in depth and with
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liberality to ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of a claim[.]" Mac Prop., 473 N.J. Super. at 16
(quoting Printing Mart, 116 N.J. at 746).
N.J.S.A. 2A:53A-27 states:
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 [sixty] 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 [sixty] days, to file the
affidavit pursuant to this section, upon a finding of
good cause.
[N.J.S.A. 2A:53A-27.]
The affidavit of merit statute was enacted by the Legislature to "curtail
the filing of frivolous malpractice actions" by requiring plaintiffs to "make a
threshold showing that their claim is meritorious . . . ." Hyman Zamft and
Manard, L.L.C. v. Cornell, 309 N.J. Super 586, 593 (App. Div. 1998) (quoting
In re Hall, 147 N.J. 379, 391 (1997)). As the Supreme Court has explained, the
statute "was designed as a tort reform measure and requires a plaintiff in a
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malpractice case to make a threshold showing that the claims asserted are
meritorious." Yagnik v. Premium Outlet Partners, LP, 467 N.J. Super. 91, 107
(App. Div. 2021) (quoting Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350
(2001)). "It is designed to weed out frivolous lawsuits at an early stage and to
allow meritorious cases to go forward." Ibid.The Supreme Court recently explained "[t]he failure to provide an
affidavit or its legal equivalent is 'deemed a failure to state a cause of action,'
and this Court has 'construed the statute to require dismissal with prejudice for
noncompliance . . . .'" Cowley, 242 N.J. at 16 (first quoting N.J.S.A. 2A:53A-
29, then quoting A.T. v. Cohen, 231 N.J. 337, 346 (2017)).
An affidavit of merit is required in all actions (1) filed against a licensed
person and (2) in which proof of the claim "require[s] proof of a deviation from
the professional standard of care for that specific profession." Mortg. Grader,
Inc. v. Ward & Olivo, L.L.P., 225 N.J. 423, 443 (2016) (quoting Couri v.
Gardner, 173 N.J. 328, 341 (2002)). "If such proof is required, an affidavit of
merit shall be mandatory for that claim, unless [an exception applies]." Ibid.We initially observe that plaintiff's complaints are not models of clarity.
Although plaintiff argues he is not asserting a malpractice claim, his initial
complaint begins by alleging "MALPRACTI[C]E." He further contends
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defendant abused her "duty of care" and failed to "act on abusive discovery and
litigation practice" by his adversary. The amended complaint asserts undefined
claims of breach of fiduciary duty and conflicts of interest. Accordingly,
defendant was understandably under the belief plaintiff was, at least in part,
asserting professional negligence claims and therefore moved to dismiss based
on plaintiff's failure to serve an affidavit of merit. Moreover, the court correctly
dismissed the complaint to the extent plaintiff was asserting a legal malpractice
action. Accordingly, we affirm that aspect of the court's decision dismissing
any and all professional negligence claims. This does not end our inquiry.
Plaintiff asserts the common knowledge exception applies in this case as
"it is easily understood by a jury what a threat is and is not required for an expert
to give a technical explanation beyond the [jury's] understanding." We are
unpersuaded by this argument.
It is well-settled that in order to establish legal malpractice, a plaintiff will
typically have to present expert testimony to prove the essential elements to
show "(1) the existence of an attorney-client relationship creating a duty of care
upon the attorney; (2) the breach of that duty; and (3) proximate causation."
Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 14 (App. Div. 2006) (quoting
Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996)). An expert is
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necessary because the duty a lawyer owes to a client is not known by the average
juror. Ibid. An exception to this requirement is the common knowledge
exception. The exception "applies where 'jurors' common knowledge as lay
persons is sufficient to enable them, using ordinary understanding and
experience, to determine a defendant's negligence without the benefit of the
specialized knowledge of experts.'" Hubbard v. Reed, 168 N.J. 387, 394 (2001)
(emphasis added) (quoting Est. of Chin v. Saint Barnabas Med. Ctr., 160 N.J.
454, 469 (1999)).
Plaintiff makes clear he is not asserting a professional negligence claim
against defendant. Rather, it appears he is asserting an intentional tort claim
based on defendant's alleged threats that caused him to enter into the settlement
agreement against his wishes.4 That is, plaintiff is not asserting defendant
deviated from accepted practices, but that she threatened his "wellbeing" and his
claims "cannot be considered a professional matter." Plaintiff explains "[t]his
is very clearly a personal threat . . . and not the subject of the performance of
4
Despite plaintiff's claims he was threatened and coerced to enter into the
settlement agreement, he never moved to vacate the agreement in the family
court. In fact, as noted above, plaintiff later sought to reduce his support
obligations under the agreement, but there is no indication he ever asserted the
agreement itself was invalid because it was not entered into voluntarily.
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[defendant's] work" and does not fall under malpractice. Because plaintiff
concedes this is not a negligence matter, the common knowledge doctrine is not
applicable because the doctrine applies in the context of negligence claims—not
in the context of intentional torts.
Plaintiff's complaint contains allegations defendant threatened him by
saying she "can do some very bad things to [him] in relation to [him] not
accepting the offer . . . ." The amended complaint further alleges lack of
fiduciary duty, witness tampering, defendant using her position to exert undue
influence upon him, and forcing him to sign an agreement against his wishes. 5
He argues defendant threatened his well-being and he feared for his safety, and
therefore he signed the settlement agreement.6 Plaintiff also appears to argue
defendant breached a fiduciary duty by making the threat.
The court did not squarely address this threat claim. We are convinced
this allegation does not require an affidavit of merit. Under the circumstances,
5
Witness tampering is a violation of the criminal code, not a civil cause of
action. N.J.S.A. 2C:28-5. Moreover, plaintiff's brief also references the
affirmative defenses of duress, under N.J.S.A. 2C:2-9, and criminal coercion,
under N.J.S.A. 2C:13-5. These are also not civil causes of action.
6
Plaintiff claims there was another threat six months after he signed the
settlement agreement, but that was apparently made by his ex-wife's expert, not
defendant.
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though inartfully drafted, plaintiff's amended complaint appears to assert a
fundament of a cause of action involving the alleged threat that is separate and
apart from any professional negligence claims dismissed by the court based on
plaintiff's failure to provide an affidavit of merit. Because we must accept
allegations in the complaint as true with all favorable inferences accorded to
plaintiff, we are constrained to remand on this issue.
However, plaintiff has not clearly articulated the precise civil cause of
action being asserted. It appears plaintiff is asserting an intentional tort. If that
is the case, it should be made clear. Defendant and the trial court should not be
left to speculate as to what specific cause of action plaintiff is alleging.
Moreover, plaintiff's amended complaint does not contain the addendum
attached to the first complaint, and it is not clear if he is still making those same
allegations. On remand, plaintiff must file a second amended complaint which
will be the controlling pleading for plaintiff. Therein, plaintiff must clearly state
the civil cause of action (not criminal offenses or defenses to contract formation)
he seeks to advance against defendant in order to put defendant on notice of the
precise claim being asserted. 7 Plaintiff shall file the amended complaint within
7
Plaintiff also argued on appeal the statute of limitations should be tolled under
extraordinary circumstances due to plaintiff being threatened, which prevented
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thirty days of the issuance of this decision. We leave to the court's sound
discretion whether to initially consider further motion practice after plaintiff
files the second amended complaint or whether to proceed with discovery.
Affirmed in part, vacated in part, and remanded for further proceedings
consistent with this opinion.
the underlying family action from being fully adjudicated. The trial court did
not address the statute of limitations because it does not appear it was even
raised by plaintiff. We decline to address the issue here for the first time on
appeal. Ins. Co. of N. Am. v. Gov't Emps. Ins. Co., 162 N.J. Super. 528, 537
(App. Div. 1978). We do not foreclose plaintiff from making this argument on
remand if defendant moves to dismiss based on the statute of limitations,
depending on the claims asserted in the second amended complaint plaintiff is
now required to file.
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