VINCENT HAGER VS. HOWARD D. POPPER, ESQ.(L-1477-13, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5009-15T4
VINCENT HAGER,
Plaintiff-Appellant,
v.
HOWARD D. POPPER, ESQ.,
Defendant-Respondent.
______________________________
Argued October 30, 2017 – Decided November 17, 2017
Before Judges Sabatino, Whipple and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No.
L-1477-13.
Angela M. Roper argued the cause for appellant
(Roper & Thyne, LLC, attorneys; Kenneth S.
Thyne, on the brief).
Maxwell L. Billek argued the cause for
respondent (Wilson, Elser, Moskowitz, Edelman
& Dicker, LLP, attorneys; Mr. Billek, of
counsel and on the brief; Diana Rivas Hamar,
on the brief).
PER CURIAM
Plaintiff Vincent Hager appeals the trial court's order
granting summary judgment in favor of Howard D. Popper, Esq., the
defendant attorney in this legal malpractice case, and dismissing
the complaint as untimely under the six-year statute of
limitations, N.J.S.A. 2A:14-1. For the reasons that follow, we
remand for an evidentiary hearing pursuant to Lopez v. Swyer, 62
N.J. 267, 275 (1973) to address fact-dependent and credibility-
dependent issues of equitable tolling.
Because the record will be developed further on remand, we
need not recite the facts fully or conclusively. The following
brief summary will suffice for our present purposes.
Plaintiff, a construction worker, was injured in a workplace
accident in August 2001 when a truck dumped several yards of
concrete on him. Plaintiff retained Popper to represent him in a
workers' compensation petition and also in a separate civil action
against the operator of the truck and the concrete subcontractor
that employed the operator.
In the fall of 2005, defendants in the civil action proposed
to pay plaintiff $178,000 in settlement, a figure that he
apparently accepted on his counsel's recommendation with
reluctance after plaintiff had personally researched other
verdicts on the Internet and concluded that the offer was "a joke."
Plaintiff signed a release in the civil action in October 2005 and
received the settlement funds.
2 A-5009-15T4
Popper eventually moved to be relieved as counsel in the
workers' compensation case in March 2007 after the lawyer-client
relationship deteriorated and plaintiff ceased communicating with
him. A successor attorney thereafter represented plaintiff in the
compensation case.1
According to plaintiff, he did not learn until February 2013
that Popper had allegedly violated standards of care in
representing him. Plaintiff contends that Popper concealed
pertinent information from him before he agreed to settle the
civil action, including the fact that two of his potential experts
in the civil action were likely to be barred because of a failure
to serve their expert reports. Plaintiff also contends that Popper
misadvised him that his medical bills would be fully reimbursed
and covered in the workers' compensation case.
Plaintiff filed the present legal malpractice action in May
2013. He argues that principles of equitable tolling justify
extending the statute of limitations to the time when he had reason
to know that his former attorney had caused him harm. He contends
that, as a minimum, the matter should be remanded to the trial
court for a Lopez hearing. Id. at 275. Plaintiff also appeals
1
We have been advised in correspondence from plaintiff's counsel
that the compensation case resulted in an award of temporary
benefits of $123,200, subject to a lien of $117,916.65.
3 A-5009-15T4
the trial court's denial of his cross-motion for leave to amend
his complaint to assert allegations of fraud, based on materials
supplied in discovery.
Popper counters that no such hearing is needed, and that
plaintiff's cause of action accrued as a matter of law in October
2005 when he agreed to settle the civil action and signed a
release. With respect to plaintiff's claim of being prejudiced
by the court's exclusion of two potential medical experts, Popper
asserts that he had not strategically planned to have those two
particular doctors, who had examined plaintiff in the compensation
case, testify. Instead, Popper contends that he had obtained a
report from a separate medical expert, who was prepared to testify
if the case had not settled. Popper further contends that
plaintiff's cross-motion to amend the complaint was properly
denied as untimely and unfounded by evidence.
The Supreme Court in Lopez set forth the seminal principles
of equitable tolling of a statute of limitations, sometimes
referred to as the "discovery rule." Id. at 272-76. "The doctrine
. . . provides that in an appropriate case a cause of action will
be held not to accrue until the injured party discovers, or by an
exercise of reasonable diligence and intelligence should have
discovered that he has a basis for an actionable claim." Id. at
272. A plaintiff has the burden of proof in establishing the
4 A-5009-15T4
equitable grounds for the indulgence of the discovery rule. Id.
at 276.
The Court has extended these equitable tolling principles to
the specific context of legal malpractice cases. Ordinarily, a
six-year statute of limitations applies to such claims. Vastano
v. Algeier, 178 N.J. 230, 236 (2003).2 A cause of action for legal
malpractice generally accrues "when an attorney's breach of
professional duty proximately causes a plaintiff's damages."
Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993). However, under
"special circumstances and in the interest of justice," the
discovery rule may be applied "to postpone the accrual of a cause
of action when a plaintiff does not know and cannot know the facts
that constitute an actionable claim." Ibid. Given the fiduciary
relationship between a lawyer and a client, the Court has
instructed that the discovery rule applies in legal malpractice
cases, such that "the statute of limitations begins to run only
when the client suffers actual damage and discovers, or through
2
We are aware that efforts have been pursued (and opposed) to
persuade the Legislature to shorten this period and make the
statute of limitations for legal malpractice claims co-extensive
with medical malpractice claims. Even so, no such legislative
reform has taken place. We provide no commentary on the subject
other than our recognition of the ongoing policy debate.
5 A-5009-15T4
the use of reasonable diligence should discover, the facts
essential to the malpractice claim." Id. at 494 (emphasis added).
Here, the critical date for evaluating the level of
plaintiff's knowledge of such "essential" facts to support a legal
malpractice claim is May 30, 2007, i.e., six years before he filed
his complaint. The key issue is whether, by that date, plaintiff
knew or had sufficient reason to know that he had been harmed by
the alleged negligent actions and inactions of Popper, his former
attorney.
The trial court determined that plaintiff knew or should have
known in October 2005, when he reluctantly agreed to accept a
settlement that he regarded as a "joke," that he had a perceived
basis for a legal malpractice claim against Popper. To be sure,
the record is clear that plaintiff at that time was dissatisfied
with the amount of the settlement. However, the present record
is incomplete and murky as to when plaintiff possessed sufficient
knowledge of the "essential" information to have reason to know
that Popper was negligent and that his negligence caused plaintiff
to be offered a disappointing settlement.
For instance, the record is unclear if plaintiff knew by May
30, 2007 that his medical bills would not be covered fully in the
compensation case, assuming that such limitation on recovery is
actually correct. A memorandum to the file from plaintiff's
6 A-5009-15T4
successor compensation attorney dated June 30, 2010 spotlights
this medical reimbursement problem, but is unclear as to when
plaintiff was first alerted to it. In addition, it is also unclear
when plaintiff was first alerted about the motion to exclude two
potential experts, or of Popper's position that their testimony
was unnecessary to the case.
Given these and other uncertainties, we conclude that the
most appropriate course of action is to remand the matter for an
evidentiary hearing under Lopez. As the Court noted in Lopez,
such a hearing is not always necessary, but "[g]enerally the
[knowledge] issue will not be resolved on affidavits or depositions
since demeanor may be an important factor where credibility is
significant." Lopez, supra, 62 N.J. at 275. Although we have
been supplied in the record with various excerpts of deposition
testimony, we discern that credibility remains an issue that is
best explored at an evidentiary hearing.
We also are mindful of the relatively short period of time
between the filing of Popper's motion to be relieved in March 2007
and the pivotal six-year "trigger" date of May 30, 2007. The
record is unclear as to what Popper or another attorney might have
told plaintiff before the motion to be relieved was granted, or
7 A-5009-15T4
before May 30, 2007.3 Plaintiff's claim to amend the complaint
should be reconsidered by the trial court, depending on the outcome
of the Lopez hearing.
Summary judgment is therefore vacated without prejudice, and
the matter is remanded for an evidentiary hearing. We do not
retain jurisdiction. Any aggrieved party may pursue a timely
appeal, or motion for leave to appeal as the case may be, from the
outcome of the remand hearing.
3
We hasten to make clear that we are not determining that
plaintiff's allegations regarding substance, as well as, the
timing of his knowledge, are credible. Nor are we determining
that Popper acted negligently or harmed plaintiff in any way. We
are simply affording plaintiff, as we must, all reasonable
inferences from the existing summary judgment record. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
8 A-5009-15T4