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NJ: Settle and Sue – Without an Affidavit of Merit

Chen v. LaRocca, Superior Court of New Jersey, Appellate Division, April 28, 2010

Facts:  Plaintiff was represented by the Defendant attorney in her underlying divorce action.  Prior to trial, Plaintiff and her husband entered into a settlement agreement that was incorporated in their dual final judgment of divorce.

After entering into the settlement, Plaintiff filed suit against her former attorney alleging that he failed to uncover her ex-husband income and pension resulting in a less than favorable settlement. 

The Defendant attorney moved to dismiss for failure to state a claim.  He later supplemented his motion with a letter advising the Court that Plaintiff had failed to submit the required affidavit of merit against him. 

The trial court dismissed Plaintiff’s complaint for failure to state a claim and on the additional ground that Plaintiff had not complied with New Jersey’s Affidavit of Merit Statute.  Plaintiff appealed. 

Issue:  Can Plaintiff agree to settle her claims and subsequently file suit against her attorney claiming that her settlement was inadequate?  Is her failure to timely submit an affidavit of merit excusable? 

Ruling:  Yes.

The appellate division held that the trial court erred by dismissing this complaint with prejudice for failure to comply with the affidavit of merit statute:

Because LaRocca did not seek dismissal on that ground in his moving papers and raised the issue only by way of letter to the judge submitted after plaintiff filed her opposition to the motion, plaintiff had insufficient notice and no reasonable opportunity to demonstrate either substantial compliance or other circumstances excusing non-compliance. In this circumstance, a dismissal with prejudice for failure to comply with the statute effectively deprived plaintiff of the process due under our Rules of Court.

With regard to whether or not Plaintiff’s complaint stated a cause of action against her former attorney, the court noted that Plaintiff’s allegation that LaRocca had information about her former husband’s income that he did not share with her prior to her acceptance of the settlement agreement, suggests a breach of the attorney’s duty.  Surprisingly, the Court’s opinion did not address whether Plaintiff had represented, either in the settlement itself or in Court, that she was entering into the settlement knowingly and voluntarily. 

Lesson:  In instances where an attorney does not timely bring critical information to his client’s attention, the client may be able to sue for professional negligence even after entering into a settlement of the underlying matter.  The attorney may not be able to dismiss the action for failure to file an affidavit of merit within the statutory time frame without formal motion practice.

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Posted in: Affidavit/Certificate of Merit