Luis Perez v. Zagami, LLC, Etc., and Nash Law Firm, LLC

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3268-14T2
LUIS PEREZ,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 12, 2016
v.
APPELLATE DIVISION
ZAGAMI, LLC, d/b/a THE LANDMARK
AMERICANA TAP AND GRILL, d/b/a
LANDMARK LIQUORS, d/b/a THE SPOT,
Defendant,
and
NASH LAW FIRM, LLC, WILLIAM A.
NASH, ESQ., and ALAN A. REUTER,
ESQ.,
Defendants-Appellants.
_________________________________
Argued December 1, 2015 – Decided January 12, 2016
Before Judges Fisher, Espinosa, and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Docket No. L-1248-10.
John L. Slimm argued the cause for
appellants (Marshall, Dennehey, Warner,
Coleman & Goggin, attorneys; Mr. Slimm,
Arthur F. Wheeler, Jeremy J. Zacharias, and
Dante C. Rohr, on the briefs).
Wesley G. Hanna argued the cause for
respondent (Law Office of Sander D.
Friedman, attorneys; Mr. Hanna, on the
brief).
The opinion of the court was delivered by
CURRIER, J.S.C. (temporarily assigned).
After the successful dismissal of a defamation case which
had been brought against plaintiff Luis Perez by the Zagami1
defendants, Perez filed a complaint for malicious use of process
against Zagami and their attorneys. The Nash2 defendants moved
to dismiss the complaint, arguing that Perez required an
affidavit of merit to sustain his claim against them. We
granted leave to appeal after the trial judge denied the motion.
Because we find that a malicious use of process action is an
intentional tort requiring proof of malice and not a deviation
from a standard of care, Perez does not need an affidavit of
merit to support the claim. We, therefore, affirm.
Perez and Zagami have a long history of litigation between
them. The backdrop for the current dispute and the relationship
between the parties has been described in a reported decision.
See Zagami, LLC v. Cottrell, 403 N.J. Super. 98 (App. Div.
1
Zagami LLC operates a restaurant, bar and grill, liquor store
and night club under the names The Landmark Americana Tap and
Grill and Landmark Liquors. We will refer to these entities
collectively as Zagami.
2
William A. Nash and Alan A. Reuter are attorneys at the Nash
Law Firm, LLC. We will refer to them collectively as Nash.
2 A-3268-14T2
2008), certif. denied, 189 N.J. 309 (2009). We set forth these
additional facts necessary for our consideration of this appeal.
After Perez voiced his objections to the renewal of
Zagami's liquor license during a public hearing on the matter,3
Zagami retained the Nash firm to file a Strategic Lawsuit
Against Public Participation (SLAPP) suit, alleging defamation
and the related torts of commercial disparagement, trade libel,
interference with business relations and civil conspiracy. Id.
at 101-03. We affirmed the dismissal of that suit, finding
Perez's statements at the municipal hearing to be protected by
the litigation privilege and therefore non-actionable. Id. at
112.
Following our decision, Perez filed a SLAPP-back suit
against Zagami for malicious use of process, alleging that the
defamation complaint: (1) lacked probable cause, (2) was
actuated by malice, (3) had concluded in Perez's favor, (4)
caused Perez to incur substantial attorney's fees, and (5) had
the effect of discouraging Perez from participating in future
public proceedings. Zagami moved to dismiss the complaint,
stating that Perez had failed to state a cause of action under
Rule 4:6-2(e) in that the defamation allegations were privileged
3
Zagami ultimately prevailed on its application when the
municipal council renewed its liquor license.
3 A-3268-14T2
as they were based on the advice of counsel. Perez, thereafter,
moved for leave to amend his complaint to name Nash and the
individual attorneys as defendants. The trial judge granted
Zagami's motion to dismiss, finding that Perez had failed to
meet the required element that Zagami's defamation complaint
lacked probable cause and denied Perez's cross-motion to amend
the complaint.
We reversed both decisions in Perez v. Zagami, No. A-3296-
10 (App. Div. July 12, 2012) (slip op. at 18), rev'd in part,
218 N.J. 202 (2014). In addressing the failure to meet the
required elements of the malicious use of process, we noted:
"Glassboro's liquor license renewal procedures, and Perez's
participation in those procedures, more than meet the long-
established test for quasi-judicial proceedings, and no
reasonable person would have believed otherwise at the time
Zagami filed its defamation complaint." Id. at 13. Perez,
therefore, had met his burden on the motion to dismiss.
As to Perez's request to name the Nash attorneys as
additional parties in the SLAPP-back suit, we stated: "when the
advice-of-counsel defense is asserted, the party seeking relief
may then pursue a cause of action against the attorney claimed
to have been the source of that advice as well." Id. at 18
(quoting LoBiondo v. Schwartz, 199 N.J. 62, 73 (2009)). We
4 A-3268-14T2
found that Perez was entitled to pursue his claim against the
Nash firm.
On remand, Nash moved to dismiss the case, alleging that
plaintiff had failed to provide an affidavit of merit pursuant
to N.J.S.A. 2A:53A-27, thus requiring dismissal. After the
denial of the motion, we granted defendants' leave to appeal.
The issue before us is one of first impression as we are
asked to determine if an affidavit of merit is required to
support Perez's malicious use of process claim against the
attorneys who provided counsel to his adversary — their clients.
We conclude it is not.
Preliminarily, we note the long-standing reluctance in
permitting a nonclient to sue an adversary's attorney. The
Court addressed this in LoBiondo stating:
Our reluctance to permit nonclients to
institute litigation against attorneys who
are performing their duties is grounded on
our concern that such a cause of action will
not serve its legitimate purpose of creating
a remedy for a nonclient who has been
wrongfully pursued, but instead will become
a weapon used to chill the entirely
appropriate zealous advocacy on which our
system of justice depends.
[LoBiondo, supra, 199 N.J. at 100-01.]
As there is no direct relationship between an attorney and a
nonclient, there is no traditional duty owed. A SLAPP-back
suit, as discussed in LoBiondo, affords a very limited
5 A-3268-14T2
circumstance in which a nonclient can file suit against
another's attorney. Id. at 100-03. Therefore, each element of
the tort must be satisfied in order to preserve an attorney's
ability to independently and zealously represent his client.
Id. at 103-05.
Nash contends that Perez cannot meet his burden of
supporting his claims without the appropriate expert testimony.
They argue that the drafting and filing of a defamation
complaint in connection with their representation of Zagami is
providing a professional service, and therefore Perez is
required to establish through expert testimony the applicable
standard of care and the deviations from it. Nash argues that
Perez has failed to comply with the legislative requirement of
serving an affidavit of merit, applicable to any action against
a licensed professional, and as a result his claim must fail.
We turn then to the affidavit of merit statute. N.J.S.A.
2A:53A-27 provides in pertinent 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
6 A-3268-14T2
work that is the subject of the complaint,
fell outside acceptable professional or
occupational standards or treatment
practices.
The "purpose of the statute is 'to require plaintiffs in
malpractice cases to make a threshold showing that their claim
is meritorious, in order that meritless lawsuits readily could
be identified at an early stage of litigation.'" Cornblatt v.
Barow, 153 N.J. 218, 242 (1998) (quoting In re Hall, 147 N.J.
379, 391 (1997)). Failure to provide an affidavit results in a
dismissal of the complaint.
Perez contends that his complaint against Nash is neither
founded in negligence nor malpractice, but rather lies in the
intentional actions and malice on the part of the attorneys,
thus rendering the statute inapplicable. In response, Nash
argues that Perez is "disguising" a professional negligence
claim under another label and that calling it an intentional
tort does not relieve the necessity of providing an affidavit of
merit. That concern was addressed in Couri v. Gardner, 173 N.J.
328 (2002). In that case, the plaintiff husband was involved in
divorce proceedings and retained a psychiatrist to serve as his
expert witness. Id. at 331. The expert prepared a preliminary
report and distributed it to plaintiff's wife without the
husband's knowledge or consent. Ibid. After the husband filed
a complaint against the psychiatrist alleging breach of
7 A-3268-14T2
contract, the psychiatrist moved to dismiss the case arguing
that it sounded in professional malpractice, for which an
affidavit of merit was required. Id. at 331-32. Plaintiff
argued that he did not have to file an affidavit of merit
because his claim was based in contract. Id. at 332. In
addressing the issue, the Court stated:
It is not the label placed on the
action that is pivotal but the nature of the
legal inquiry. Accordingly, when presented
with a tort or contract claim asserted
against a professional . . . rather than
focusing on whether the claim is denominated
as tort or contract, attorneys and courts
should determine if the claim's underlying
factual allegations require proof of a
deviation from the professional standard of
care applicable to that specific profession.
If such proof is required, an affidavit of
merit is required for that claim.
[Id. at 340.]
In concluding the claim did not require an affidavit of
merit, the Court determined that "[p]laintiff is not claiming
that defendant erred in respect of the conclusions that he drew
concerning psychiatric/medical matters or that defendant acted
improperly from a psychiatric/medical standpoint," but rather
that defendant acted improperly in his duty as an expert
witness. Id. at 342.
In using the Couri test, we do not find that Perez has
styled his complaint as something other than a negligence or
8 A-3268-14T2
malpractice suit, for which the statute was meant to apply. He
brings this SLAPP-back suit following the dismissal of the
defamation action. Malicious use of process requires a
plaintiff to prove five elements:
(1) a[n] . . . action was instituted by this
defendant against this plaintiff; (2) the
action was motivated by malice; (3) there
was an absence of probable cause to
prosecute; . . . (4) the action was
terminated favorably to the plaintiff.
. . . [and (5)] that the plaintiff has
suffered a special grievance caused by the
institution of the underlying civil claim.
[LoBiondo, supra, 199 N.J. at 90.]
The element at issue here is the requirement that the
defamation action be motivated by malice. 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. 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.
"[T]he evaluation of this essential element of proof requires an
inquiry into the attorney's motive for filing the litigation."
Id. at 109. Perez must prove Nash was motivated by malice in
filing the claim against him. The nature of the legal inquiry
is not whether Nash performed their work in accordance with the
9 A-3268-14T2
applicable standard of care, but whether Nash provided advice
and filed the claim with a malicious intent.
[I]n order to demonstrate that the
attorney's actions were "actuated by
malice," the nonclient must demonstrate that
the attorney's primary purpose was an
improper one. In that analysis, the purpose
may be the attorney's entirely separate one,
or it may be one that is shared with the
client, but it must be the primary purpose
for filing the matter and it must be a
purpose of the attorney rather than simply
the purpose of the client.
[Id. at 113 (citing Restatement (Third) of
the Law Governing Lawyers § 57 comment d
(2000)).]
We find that the determination of that purpose in the
present circumstances does not require an affidavit of merit.
The attorney's intent and purpose for the filing of the SLAPP
suit can be discovered through interrogatories and depositions.
When those facts are uncovered, the parties will be able to
discern the propriety of the SLAPP suit.
In rejecting Nash's argument that the SLAPP-back suit
required an affidavit of merit, and in further support of our
conclusion, we are compelled to note the impracticalities
surrounding a plaintiff's ability to obtain one in this
situation. In the normal course of a professional malpractice
claim, information such as medical reports or construction
documents are provided to a potential expert to analyze and
10 A-3268-14T2
provide an opinion as to whether there was a deviation from the
accepted standard of care. A plaintiff in a SLAPP-back suit
only learns of an advice of counsel defense upon the filing of a
responsive pleading. Plaintiff has no knowledge as to the basis
for this defense. It stems from a relationship between an
attorney and client to which plaintiff is not privy. There are
no facts for a plaintiff to provide to a potential expert for
his review and opinion. The only basis for a bad advice claim
against Nash comes from their client Zagami; it is not Perez's
claim. Therefore, Perez does not have any information to
provide in an affidavit of merit.
We conclude that the analysis of the motive of the attorney
in the client's assertion of an advice of counsel defense to a
SLAPP-back suit does not depend on proof of a deviation from a
standard of care. The claim, therefore, lies beyond the purview
of the affidavit of merit statute. As we find Perez was not
required to file an affidavit of merit, we affirm the ruling of
the trial judge.4
Affirmed.
4
We express 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.
11 A-3268-14T2