BRIAN COLLINS VS. PJW SERVICES, LLC (L-2766-17, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-1437-19
BRIAN COLLINS and
BARBARA COLLINS, husband
and wife,
Plaintiffs-Appellants/
Cross-Respondents,
v.
PJW SERVICES, LLC, a/k/a
P.J. WARD AND SONS,
Defendant,
and
THOMAS B. WAGNER
ARCHITECT, and THOMAS B.
WAGNER, individually and as a
representative of THOMAS B.
WAGNER ARCHITECT,
Defendants-Respondents/
Cross-Appellants.
___________________________
Argued May 26, 2021 – Decided July 26, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-2766-17.
Katherine A. Hopkins argued the cause for
appellants/cross-respondents (Wilentz, Goldman &
Spitzer, PA, attorneys; Daniel S. Bernheim, III,
(Wilentz, Goldman & Spitzer, PA) of the Pennsylvania
Bar, admitted pro hac vice, of counsel and on the briefs;
Katherine A. Hopkins, on the briefs).
John H. Osorio argued the cause for respondents/cross-
appellants (Marshall, Dennehey, Warner, Coleman &
Goggin, attorneys; Tracy L. Burnley, on the briefs).
PER CURIAM
Plaintiffs Brian and Barbara Collins appeal from the February 6, 2019
order that: (1) dismissed with prejudice all claims as to defendants Thomas B.
Wagner and Thomas B. Wagner Architect (collectively, Wagner); and (2) denied
plaintiffs' motion to file a second amended complaint. Defendant Wagner cross-
appeals the February 16, 2018 and August 17, 2018 orders denying without
prejudice Wagner's motion to dismiss plaintiffs' first amended complaint based
on failure to file an Affidavit of Merit (AOM). Although the parties dispute
whether Wagner acted in his professional capacity as an architect, the threshold
issue in this case is whether plaintiffs' claims are barred by a six-year statute of
limitations. For the following reasons, we reverse the February 6, 2019 order
and remand for proceedings consistent with this decision.
A-1437-19
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On January 4, 2010, plaintiffs entered into a contract (the Agreement) with
Wagner for "architectural services for home improvement work on" their
residence in Haddonfield. Plaintiffs sought to convert their existing garage into
a kitchen and family room with a second story and to build a second-floor deck
on top of a new two-car garage.
The Agreement divided Wagner's services into three phases: (1)
"Schematic Design," (2) "Construction Drawings," and (3) "Construction
Administration." Phase Three of the Agreement promised to "either bid the
project to several builders or contract with a builder early on in the process who
will provide estimates for construction based on the schemes" proposed. It
further provided that Wagner would act as plaintiffs' agent and "oversee the
contractors' performance, monitor the progress of work, [and] respond to
questions from contractors, inspectors, and building code officials." In addition,
Wagner would report to "the jobsite as required to ensure the work [was] done
in conformance to the contract documents."
A-1437-19
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In August 2010, plaintiffs entered into a contract with PJW Services, LLC
(PJW),1 for the construction work on their home. Plaintiffs agreed to pay PJW
$195,400 based on the architectural drawings submitted by Wagner. The work
commenced around October 2010 and ended around April or May 2011.
Plaintiffs experienced multiple issues during construction.
On July 11, 2017, plaintiffs filed an eight-count complaint against PJW
and Wagner, alleging: violations of the Consumer Fraud Act (CFA), N.J.S.A.
56:8-1 to -20 (counts one through three); violations of N.J.A.C. 13:45A-16.2
(counts four through six); breach of contract (count seven); and breach of
express warranty (count eight). Plaintiffs alleged that, "due to a deficient design
and/or construction defect, water did not properly drain from the roof causing
puddles of water to collect on the roof and/or water intrusion." In addition, "the
deficient drainage system caused a significant growth of mold." Plaintiffs
asserted that PJW failed to use the building materials described in the plans,
namely a specific sheet rubber roof material with a useful life of forty to fifty
1
PJW is not involved in this appeal. After the court dismissed plaintiffs' claims
against Wagner, PJW entered into a settlement with plaintiffs, and the court
entered a judgment by stipulation against PJW in the amount of $143,725.50.
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years. Instead, the material used by PJW had a useful life of only ten to fifteen
years.
Plaintiffs allegedly informed PJW of this leaking roof issue on or about
December 12, 2010, and in 2011, 2014, and 2016. They discovered the first
signs of mold damage in 2014 and advised PJW about the need for mold
remediation in 2016. Plaintiffs claimed that PJW was unresponsive. Plaintiffs
supposedly contacted Wagner in 2017 regarding the defective construction, but
Wagner responded that he did "not know how the roofing was installed and how
it was lapped and the location of the seams" even though he had agreed to act as
plaintiffs' agent and be present during construction.
Counts one through six of the complaint alleged that defendants violated
the CFA through affirmative acts and acts of omission and that defendants
violated N.J.A.C. 13:45A-16.2, which regulates home improvement practices.
Plaintiffs claimed PJW violated the CFA by failing to use the agreed upon
construction materials, to properly install decking, and to construct a proper
drainage system on the garage roof. Plaintiffs claimed that Wagner also violated
the CFA by failing to ensure proper construction as promised under the
Agreement.
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Under counts seven and eight, plaintiffs alleged breach of contract and
breach of express warranty claims against PJW for failing to properly install
decking, to construct a proper drainage system on the roof of the garage, and to
use the materials specified in the contract. Plaintiffs also asserted breach of
contract and breach of warranty claims against Wagner for failing to ensure
construction was completed in accordance with the Agreement.
On August 17, 2017, plaintiffs filed a first amended complaint, adding
negligence claims against Wagner and PJW. Under count ten, plaintiffs claimed
that Wagner "owed a duty to [p]laintiffs to professionally and competently
render construction management services with respect to the construction on
[plaintiffs'] home." In addition, plaintiffs claimed that Wagner "owed a duty to
professionally and competently monitor the ongoing work at [plaintiffs'] home"
by overseeing the contractor's performance, the progress of the work, and
"respond[ing] to questions from contractors[,] inspectors, and building code
officials." Plaintiffs alleged that Wagner had a duty to "be present on the jobsite
as required to ensure the work is done in conformance to the contract
documents." Plaintiffs claimed that Wagner "breached this duty, as evidenced
by the defective work performed" on the home. They claimed Wagner admitted
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he breached his duty when he stated, "I do not know how the roofing was
installed and how it was lapped and the location of the seams."
On September 26, 2017, Wagner filed an answer to the first amended
complaint that asserted a statute of limitations affirmative defense. On January
31, 2018, Wagner filed a motion to dismiss plaintiffs' complaint for failure to
file an AOM, pursuant to N.J.S.A. 2A:53A-27. In response, plaintiffs argued
they were not required to file an AOM because they were not alleging
architectural negligence as to Wagner.
On February 16, 2018, the trial court heard oral argument and issued an
order and oral decision denying Wagner's motion to dismiss without prejudice.
The court stayed all discovery except discovery related to whether the filing of
an AOM was required. During the hearing, the court explained it was unfamiliar
with the terms of art related to construction administration and that it needed
additional information to determine whether the construction administration
services contemplated within the contract should be classified as architectural
services. Thus, the court allowed limited discovery to determine "whether or
not [Wagner] acted 100 percent of the time as an architect" during the
construction project.
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The court scheduled a Ferreira2 hearing, but plaintiffs requested a
conference with the court before the hearing to discuss information gathered
during the AOM discovery. Plaintiffs explained that after inspecting the home
and reviewing the architectural drawings for the project with an expert and a
third-party contractor, they discovered that the contractor failed to follow
Wagner's specifications for the structural joists. Plaintiffs asserted that this
failure to install the specified structural joists and joist hangers caused the "j oists
to fail once they became wet both during construction and ongoing as a result of
the leaking roof (original[ly] the subject of plaintiff[s'] complaint and amended
complaint)." Plaintiffs further noted that the structural joists used "were not
engineered for the structural load and deflection as defined by [plaintiffs']
intended use of the roof deck as a family and guests entertainment venue and
were a substitution from the joists architect Wagner specified."
In a letter to the court, plaintiffs alleged Wagner had a duty, pursuant to
the project specifications and Building Code Section 107.3.4, to review
submittals from the contractor and his suppliers. In addition, plaintiffs noted
that the project specifications required "the contractor to submit engineering
data [concerning] the structural joists" and advise plaintiffs about any
2
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
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substitutions. Plaintiffs alleged that both Wagner and PJW were "jointly
responsible for the failure of the roof membrane and the failure of the substituted
structural joists supporting the failed roof." Plaintiffs reiterated that their expert
and third-party contractor found that "Wagner failed to abide by the building
code and his own specifications and is therefore professionally liable for this
failure." Notably, plaintiffs explained they "were unaware that the damages to
[their] property were indeed [caused] by [Wagner's] professional malpractice
and negligence" and they only discovered this negligence upon physical review
and inspection of the property by an expert.
Plaintiffs' architectural expert, James Rappoport, performed the
destructive examination of the affected area, which revealed that Wagner's
specifications for the structural joists were not followed. This examination
required the removal of finishings to reveal structural joists and framing.
Rappoport "removed certain mold and [mildew] infected ceiling materials to
allow [him] to visualize the mold and [mildew] infected structural joists
supporting the structurally failed and leaking roof deck above." After inspecting
the framing and reviewing the contract specifications, Rappoport opined that
Wagner's work "fell outside the acceptable professional standards of care of a
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New Jersey architect tasked with preparing plans and specifications and
providing construction and contract administration services . . . ."
On July 10, 2018, plaintiffs moved for leave to file a second amended
complaint "to add a professional negligence claim[] and allow for service of an"
AOM upon Wagner. Wagner cross-moved to dismiss plaintiffs' first amended
complaint based on failure to file an AOM. Shortly thereafter, plaintiffs served
an AOM prepared by their expert.
On August 17, 2018, the court issued two orders and an oral decision
denying plaintiffs' motion to file a second amended complaint and denying
Wagner's cross-motion to dismiss without prejudice. Because Wagner raised a
statute of limitations defense during oral argument, the court scheduled a Lopez3
hearing to determine when plaintiffs' cause of action accrued.
The court conducted the Lopez hearing on November 16, 2018 and
February 6, 2019. After considering the language in the complaint and the
testimony presented, the court determined that plaintiffs' cause of action against
Wagner accrued no later than December 12, 2010, when plaintiffs realized "there
was some issue" during construction. The court explained that on that date,
plaintiffs "knew something was wrong" and "complained about it." The court
3
Lopez v. Swyer, 62 N.J. 267 (1973).
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then emphasized the following language in plaintiffs' complaint: "Beginning on
or about December 12th, 2010, due to a deficient design and/or construction
defect, water did not properly drain from the roof causing puddles of water to
collect on the roof and/or water intrusion." The court noted that water intrusion
and "water not properly draining from the roof [were] a concern at that point in
time."
The court explained that after plaintiffs complained about the leaking roof
in 2010, PJW took care of the problem. It emphasized that plaintiffs could have
sued Wagner starting December 2010 up until December 2016. The court noted
that six years was a long time to investigate and that plaintiffs "should have at
least filed by the end of 2016 . . . ." Although plaintiffs argued that the defects
in question were hidden, the court explained that "once you know you have a
cause of action against somebody, anybody, the law requires you to investigate
to make sure that everybody is included" in the action. The court explained:
Now, the investigation in this case was
particularly difficult since it invariably would have
required physically damaging the structure, tearing
down drywall. That's a concern to the [c]ourt, too. But
I'm not aware of a single case that says that we're going
to keep tolling the Statute of Limitations until you
finally decide to tear down the drywall, until you decide
to, in essence, structurally interfere with a building in
order to determine exactly who did what.
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The law . . . requires that once you know that
there's something amiss, there's something wrong, you
have six years to make your determination. And if it
requires you to tear down some drywall or do that type
of thing, that's what it requires. If it were otherwise,
then the Statute of Limitations could be 100 years.
At the end of the hearing, the court found that all of plaintiffs' claims
against Wagner were barred by the statute of limitations. The court explained
that once it determined any cause of action "accrued no later than December[]
2010, then none of [plaintiffs'] other causes of action, whether it's ordinary
negligence, fraud, whatever it is, have a Statute of Limitations better . . . than
six years. So[,] for all those causes of actions, the deadline would have been
December[] 2016." Since it found that plaintiffs' claims against Wagner were
all time-barred, the court denied plaintiffs' motion to file a second amended
complaint. Accordingly, the court issued a February 6, 2019 order dismissing
plaintiffs' claims against Wagner with prejudice and denying plaintiffs' motion
to file a second amended complaint. 4 This appeal followed.
On appeal, plaintiffs argue:
4
We agree with the parties that the court mistakenly listed N.J.S.A. 2A:53A-27
in the February 6, 2019 order as the reason for dismissing plaintiffs' claims
against Wagner. The court based its ruling exclusively on the six-year statute
of limitations applicable to contract, negligence, and CFA claims—not for lack
of an AOM.
A-1437-19
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I. THE TRIAL COURT ERRED IN HOLDING THAT
PLAINTIFFS' CAUSES OF ACTION ACCRUED IN
DECEMBER 2010.
II. THE TRIAL COURT ERRED IN DENYING
PLAINTIFF'S MOTION FOR LEAVE TO FILE A
SECOND AMENDED COMPLAINT ADDING A
CLAIM FOR PROFESSIONAL NEGLIGENCE
AGAINST WAGNER.
A. THE TRIAL COURT'S DENIAL OF
PLAINTIFFS' MOTION TO AMEND WAS
BASED ON AN ERROR OF LAW.
B. WAGNER WOULD HAVE SUFFERED NO
UNDUE PREJUDICE HAD THE MOTION TO
AMEND BEEN GRANTED.
C. THE TRIAL COURT COULD NOT
REASONABLY CONCLUDE ON THE
RECORD BELOW THAT PLAINTIFFS'
PROFESSIONAL NEGLIGENCE CLAIM WAS
FUTILE.
III. FAILURE TO FILE AN AFFIDAVIT OF MERIT
IN SUPPORT OF THE FIRST AMENDED
COMPLAINT DID NOT REQUIRE DISMISSAL OF
THE FIRST AMENDED COMPLAINT AND DID
NOT SUPPORT DENIAL OF PLAINTIFFS' MOTION
TO AMEND.
A. NO AFFIDAVIT OF MERIT WAS
REQUIRED TO ESTABLISH PLAINTIFFS'
GENERAL NEGLIGENCE CLAIM AGAINST
WAGNER AS ASSERTED IN THE FIRST
AMENDED COMPLAINT.
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B. PLAINTIFFS' FAILURE TO FILE AN
AFFIDAVIT OF MERIT PRIOR TO SEEKING
LEAVE TO AMEND DID NOT RENDER THE
PROPOSED AMENDMENT FUTILE AND DID
NOT WARRANT DENIAL OF PLAINTIFFS'
MOTION TO AMEND.
IV. THE TRIAL COURT ERRED IN DISMISSING
WITH PREJUDCE PLAINTIFFS' CONTRACTUAL
CLAIMS AGAINST WAGNER.
A. PLAINTIFFS HAVE A VALID BREACH OF
CONTRACT CLAIM AGAINST WAGNER
SEPARATE AND APART FROM ANY
PROFESSIONAL MALPRACTICE AND/OR
NEGLIGENCE CLAIMS.
B. PLAINTIFFS' BREACH OF CONTRACT
CLAIM DID NOT ACCRUE UNTIL THE TIME
THE INJURY WAS DISCOVERED, AND
THEREFORE, WAS TIMELY ASSERTED.
C. AN AFFIDAVIT OF MERIT WAS NOT
REQUIRED IN SUPPORT OF PLAINTIFFS'
BREACH OF CONTRACT CLAIM.
In their cross-appeal, Wagner argues:
I. PLAINTIFFS' AMENDED COMPLAINT
ALLEGED NEGLIGENCE ON THE PART OF A
LICENSED ARCHITECT AND REQUIRED THE
FILING OF AN AFFIDAVIT OF MERIT.
II. PLAINTIFFS FAILED TO ESTABLISH ANY
BASIS TO RELIEVE THEM FROM THE
REQUIREMENT TO TIMELY FILE AND SERVE AN
AFFIDAVIT OF MERIT.
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III. PLAINTIFFS' FILING OF AN AFFIDAVIT
AFTER DEFENDANTS FILED TWO SEPARATE
MOTIONS TO DISMISS DID NOT EXCUSE THEIR
FAILURE TO DO SO PURSUANT TO THE
STATUTE OR CASE LAW.
I.
Plaintiffs argue that trial court erred in finding that their cause of action
accrued in December 2010. We agree.
"[W]hen analyzing pure questions of law raised in a dismissal motion,
such as the application of a statute of limitations, we undertake a de novo
review." Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div. 2017). "A trial
court's interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The statute of limitations for claims alleging negligent construction,
breach of contract, and consumer fraud is six years. N.J.S.A. 2A:14-1. Under
the discovery rule, however, "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 may have a basis for an actionable
claim." Lopez, 62 N.J. at 272. However, "not every delayed discovery will
A-1437-19
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justify the application of the rule." Cnty. of Morris v. Fauver, 153 N.J. 80, 109
(1998) (citing Lopez, 62 N.J. at 274-75).
The discovery rule is often applied in negligence cases where damages are
likely to be "self-concealing or undiscoverable," ibid., including property-tort
cases arising from construction defects, Russo Farms, Inc. v. Vineland Bd. of
Educ., 144 N.J. 84, 115 (1996). The rule also applies in professional malpractice
actions and in actions asserting fraud. Cnty. of Morris, 153 N.J. at 109-10(citations omitted). See also Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J.
Super. 52, 82 (App. Div. 2013) (applying the six-year statute of limitation set
forth in N.J.S.A. 2A:14-1 to CFA claims).
Generally, the discovery rule does not apply in contract cases because
"most contract actions presume that the parties to a contract know the terms of
their agreement and a breach is generally obvious and detectable with any
reasonable diligence." Cnty. of Morris, 153 N.J. at 110. "[T]he discovery rule
imposes on plaintiffs an affirmative duty to use reasonable diligence to
investigate a potential cause of action . . . ." Ibid."Whether the discovery rule applies depends on 'whether the facts
presented would alert a reasonable person, exercising ordinary diligence, that he
or she was injured due to the fault of another.'" Ben Elazar v. Macrietta
A-1437-19
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Cleaners, Inc., 230 N.J. 123, 134 (2017) (quoting Caravaggio v. D'Agostini, 166
N.J. 237, 246 (2001)). "The standard is basically an objective one—whether
plaintiff 'knew or should have known' of sufficient facts to start the statute of
limitations running." Ibid. Therefore, "the discovery rule centers upon an
injured party's knowledge concerning the origin and existence of his injuries as
related to the conduct of another person." Lynch v. Rubacky, 85 N.J. 65, 70
(1981). See also Palisades at Fort Lee Condo. Ass'n v. 100 Old Palisade, LLC,
230 N.J. 427, 447 (2017) ("[A]ccrual occurs when a plaintiff knows or, through
the exercise of reasonable diligence, should know of the basis for a cause of
action against an identifiable defendant.").
"[I]t is not necessary that the injured party have knowledge of the extent
of injury before the statute begins to run." Russo Farms, 144 N.J. at 115 (quoting
P.T. & L Constr. Co. v. Madigan & Hyland, Inc., 245 N.J. Super. 201, 207 (App.
Div. 1991)). "[L]egal and medical certainty are not required for a claim to
accrue." Kendall v. Hoffman-La Roche, Inc., 209 N.J. 173, 193 (2012).
Determination of the date of accrual "is highly fact-sensitive" and varies from
case to case. Catena v. Raytheon Co., 447 N.J. Super. 43, 54 (App. Div. 2016)
(quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 434 (1987)).
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Here, the construction on the home commenced in October 2010 and
finished around May 2011. The court determined that plaintiffs' cause of action
against Wagner accrued no later than December 12, 2010, when plaintiffs first
realized "there was some issue" during construction. The court, however,
incorrectly concluded that plaintiffs could have sued Wagner in 2010 while
construction was still under way.
"[T]he statute of limitations on an action for deficiencies in design or
construction commences to run upon substantial completion of the structure."
Mahony-Troast Constr. Co. v. Supermarkets Gen. Corp., 189 N.J. Super. 325,
329 (App. Div. 1983). "A cause of action could not accrue under this type of
contract at an earlier date because a civil action for a defect or a deficiency prior
to substantial completion would, of necessity, be dismissed as premature"
because a "builder is entitled to the entire period prior to substantial completion
to rectify any defects in the design or construction before being" sued. Id. at
330 (citations omitted). The construction had not been substantially completed
by December 2010. (3T10:15-19).
During the Lopez hearing, Brian Collins testified that he observed leaking
water and but did not recall that the joists were wet in December 2010.
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However, wood framing above the window was wet. When Brian5 first observed
water intrusion in the garage, construction had been underway for about two
months and the roof "was all open," meaning that the wood framing and joists
were still exposed. When Brian complained to PJW, they informed him that
"construction was still underway[,] that it hadn't been sealed up at [that] point,"
and that it "wouldn't be an issue" moving forward. As noted by the court,
plaintiffs knew something went wrong during construction, but PJW assured it
would take care of the problem.
Plaintiffs became aware of an actionable claim in 2014 when Brian
noticed that "the wall [of the garage] was starting to discolor" and appeared wet.
During the Lopez hearing, Barbara Collins confirmed that there were no
"problems with regard to any water intrusion at all" until 2014. (4T74:1-6).
There were no issues or complaints concerning water intrusion between Spring
2011 and 2014. So, as noted by the judge, it was not until "some later date" that
plaintiffs determined that the water observed during construction in December
2010 was due to a deficient design or construction defect. Indeed, plaintiffs
"reasonably could not have known that the architect may have screwed up in
2010 or 2011."
5
We use plaintiffs' first names for reading ease and mean no disrespect.
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In sum, plaintiffs' claims were not barred by the six-year statute of
limitations because the cause of action accrued in 2014.
II.
Plaintiffs also argue that an AOM was not required for their general
negligence claim against Wagner as asserted in the first amended complaint.
Wagner argues that plaintiffs needed to file an AOM because their first amended
complaint alleged negligence by a licensed architect.
N.J.S.A. 2A:53A-27 "applies to all actions for damages based on
professional malpractice." Hill Int'l, Inc. v. Atl. City Bd. of Educ., 438 N.J.
Super. 562, 572 (App. Div. 2014) (quoting Ryan v. Renny, 203 N.J. 37, 50-51
(2010)). "[T]he plaintiff pursuing such a malpractice case must file an affidavit
from an 'appropriate licensed person,' stating with 'reasonable probability' that
the defendant's conduct 'fell outside acceptable professional or occupational
standards or treatment practices.'" Ibid. (quoting N.J.S.A. 2A:53A-27).
This requirement serves the dual purpose of "weed[ing] out frivolous
lawsuits early in the litigation while, at the same time, ensuring that plaintiffs
with meritorious claims will have their day in court." Ferreira, 178 N.J. at 150(quoting Hubbard v. Reed, 168 N.J. 387, 395 (2001)). "The legislative purpose
was not to 'create a minefield of hyper-technicalities in order to doom innocent
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litigants possessing meritorious claims.'" Id. at 151 (quoting Mayfield v. Cmty.
Med. Assocs., P.A., 335 N.J. Super. 198, 209 (App. Div. 2000)).
"[W]hen asserting a claim against a professional covered by the [N.J.S.A.
2A:53A-27], whether in contract or in tort, a claimant should determine if the
underlying factual allegations of the claim require proof of a deviation from the
professional standard of care for that specific profession." Couri v. Gardner,
173 N.J. 328, 341 (2002). If such proof is required, then the claimant must
provide an AOM. Ibid. The Court explained:
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 specified in the statute, 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. . . .
That analysis will ensure that breach of contract claims
that depend on proof of a deviation from a professional
standard of care and that are of a frivolous nature will
not be brought. Moreover, it also will ensure that tort
claims brought against licensed professionals that
allege ordinary negligence, but not malpractice, will
not be subject to the statute. Stated differently, by
asking whether a claim's underlying factual allegations
require proof of a deviation from a professional
standard of care, courts can assure that claims against
licensed professionals acting in a professional capacity
that require proof of ordinary negligence but not of a
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deviation from professional standards are not
encompassed by the statute.
[Id. at 339-41.]
To the extent plaintiffs assert claims related to Wagner's exercise of his
functions as a licensed architect, plaintiffs cannot prevail against Wagner
without an AOM. Murphy v. New Rd. Const., 378 N.J. Super. 238, 241 (App.
Div. 2005). The question of Wagner's status with respect to the allegations at
the heart of plaintiffs' claims is an issue of fact that must be resolved before the
court addresses plaintiffs' ordinary negligence cause of action. Id. at 242.
Notably, this issue also goes to the heart of plaintiffs' breach of contract claim
because the allegations against Wagner stem from Wagner's failure to "oversee
the contractor's performance" to "ensure that the work was done in conformance
with the contract documents"—a term the parties agreed upon. See Couri, 173
N.J. at 334-41 (noting that breach of contract claims may not require an AOM).
Here, the court never reached the merits of the AOM issue, and a Ferreira
hearing never took place. Whether the activities performed by Wagner were
part of his responsibilities as an architect in connection with the construction
project or whether they were a separate function of his responsibility to simply
manage the worksite "is manifestly a question of fact." Murphy, 378 N.J. Super.
at 242-43. "This question may require expert testimony to enable the finder of
A-1437-19
22
fact to make a fair and thorough assessment of [Wagner's] role" based on
"standards and practices that prevail in the profession of architecture." Id. at
243. On remand, the court shall address the AOM issue after conducting a
Ferreira hearing in accordance with Rule 4:5B-4. The parties shall be afforded
a full opportunity to reargue whether an AOM is required, considering the
allegations raised by plaintiffs in their second amended complaint.
III.
Plaintiffs argue that the court erred in denying their motion for leave to
file a second amended complaint adding a professional negligence claim. We
agree. "Motions to amend pleadings are left to the trial judge's sound discretion
and are to 'be granted liberally.'" Liberty Mut. Ins. Co. v. Garden State Surgical
Ctr., L.L.C., 413 N.J. Super. 513, 522 (App. Div. 2010) (quoting Kernan v. One
Washington Park Urb. Renewal Assocs., 154 N.J. 437, 456-57 (1998)). "The
trial judge's 'exercise of discretion requires a two-step process: whether the non-
moving party will be prejudiced, and whether granting the amendment would
nonetheless be futile.'" Ibid. (quoting Notte v. Merchants Mut. Ins. Co., 185
N.J. 490, 501 (2006)). Motions to amend "should generally be granted even if
the ultimate merits of the amendment are uncertain." G&W, Inc. v. East
Rutherford Bor., 280 N.J. Super. 507, 516 (App. Div. 1995).
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Because plaintiffs' cause of action accrued in 2014, plaintiffs may have a
valid cause of action predicated upon the professional negligence claim included
in the proposed second amended complaint. Plaintiffs should at least be allowed
to assert their professional negligence claim against Wagner. We therefore
reverse the denial of plaintiffs' motion for leave to file a second amended
complaint.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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