Opinion
DOCKET NO. A-5982-12T1 DOCKET NO. A-1811-13T1
05-06-2015
ROBERT MOTTRAM, Plaintiff-Respondent/Cross-Appellant, v. WILLIAM H. BUCKMAN, ESQ., Defendant, and JOEL I. RACHMIEL, ESQ., Defendant-Appellant/Cross-Respondent. ROBERT MOTTRAM, Plaintiff-Appellant, v. WILLIAM H. BUCKMAN, ESQ., Defendant-Respondent, and JOEL I. RACHMIEL, ESQ., Defendant.
Joel I. Rachmiel, appellant/cross-respondent in A-5982-12, argued the cause pro se. Brian M. Dratch argued the cause for respondent/cross-appellant in A-5982-12 and appellant in A-1811-13 (Franzblau Dratch, attorneys; Mr. Dratch, on the brief). Peter S. Bejsiuk argued the cause for respondent William H. Buckman in A-1811-13 (Capehart & Scatchard, P.A., attorneys; Matthew R. Litt, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2883-13 in A-5982-12, and Burlington County, Docket No. L-1744-13 in A-1811-13. Joel I. Rachmiel, appellant/cross-respondent in A-5982-12, argued the cause pro se. Brian M. Dratch argued the cause for respondent/cross-appellant in A-5982-12 and appellant in A-1811-13 (Franzblau Dratch, attorneys; Mr. Dratch, on the brief). Peter S. Bejsiuk argued the cause for respondent William H. Buckman in A-1811-13 (Capehart & Scatchard, P.A., attorneys; Matthew R. Litt, on the brief). PER CURIAM
These two appeals arise from a legal malpractice action brought by plaintiff Robert Mottram against defendants, attorneys William Buckman and Joel Rachmiel. The Law Division dismissed plaintiff's complaint against defendants as a matter of law on summary judgment. The trial court also denied Rachmiel's motion seeking frivolous litigation sanctions against plaintiff pursuant to Rule 1:4-8. Plaintiff appeals the court's decision to dismiss his legal malpractice case against defendants. Rachmiel appeals the court's decision to deny his application for sanctions against plaintiff. We affirm both of the trial courts' decisions.
Because the trial courts dismissed plaintiff's complaints against defendants as a matter of law, we will recite the relevant facts, including any rational inferences that can be drawn therefrom, in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).
I
Plaintiff's Legal Malpractice Case Against Buckman
In 1996, an Essex County Grand Jury returned Indictment No. 96-02-0331, charging plaintiff with certain theft related offenses. On March 28, 2003, plaintiff was accepted into the Pre-Trial Intervention (PTI) program. In November 2004, the Criminal Part issued a bench warrant for plaintiff's arrest after he allegedly failed to comply with the terms governing his admission into the PTI program. However, on May 27, 2006, plaintiff successfully completed the terms of his admission into the PTI program. By order dated July 25, 2006, the then Presiding Judge of the Criminal Part in the Essex vicinage dismissed all of the charges against plaintiff and discharged him from any further participation in the PTI program.
In his brief before this court, plaintiff states the charges against him were filed in March 2003. However, in the legal malpractice complaint against attorney Buckman, plaintiff states the Essex County Indictment was issued "[i]n or about 1996[.]" We have thus decided to use 1996 as the year these charges were filed against plaintiff because the indictment bears docket number 96-02-0331. The number "96" corresponds to the year the Essex County Grand Jury returned this indictment.
PTI is "a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior. PTI is intended to augment the criminal justice system when prosecution would be ineffective, counterproductive, or unnecessary." State v. Nwobu, 139 N.J. 236, 240-41 (1995). See also R. 3:28.
The July 25, 2006 order dismissing all of the charges against plaintiff was not thereafter entered into the criminal justice system database. Consequently, the November 2004 bench warrant erroneously remained active and subject to execution. On November 26, 2007, a Florida police officer stopped plaintiff on a motor vehicle infraction. The officer arrested plaintiff after discovering the outstanding 2004 New Jersey bench warrant. According to plaintiff, the arresting officer "told [him] the outstanding warrant was out of Essex County, [New Jersey] and that the Essex County Sheriff's Department confirmed it was still active."
In the course of oral argument, plaintiff's counsel represented to the motion judge that the July 25, 2006 order "was stuck in the prosecutor's file. The prosecutor forgot to give the original order to the clerk's office to have it stamped. So it was never entered into the computer and, therefore, the warrant was never vacated."
Plaintiff was transported to Saint Lucie County Jail and subsequently extradited to New Jersey. On January 25, 2008, plaintiff, represented by New Jersey counsel, appeared before an Essex County Superior Court Judge. By that time, he had been incarcerated for a total of sixty-two days. The Assistant Prosecutor representing the State consented to plaintiff's release on his own recognizance and indicated that the Essex County Prosecutor's Office intended to move to dismiss the charges against plaintiff "once [she] [was] able to retrieve the file[.]" By letter dated April 17, 2008, a supervisor from the Office of the Essex County Criminal Division Manager formally notified plaintiff that "on 7/25/2006 the . . . charges [against him] were: DISMISSED-PTI COMPLETION" by order of the Presiding Judge of the Criminal Part.
Although not entirely clear, we infer that plaintiff first consulted with Buckman about commencing legal action against those responsible for his wrongful detention on June 30, 2008. We reach this conclusion based on the following evidence. The records shows plaintiff gave Buckman a $200 check dated June 30, 2008. On the section of the check that contains the word "For," followed by a blank line, plaintiff wrote: "Initial Consultation." Buckman thereafter deposited the check in his attorney business account, and the check cleared on July 7, 2008.
Thereafter, both plaintiff and Buckman agree that they had a telephone conversation about this legal matter on July 8, 2008. Buckman also acknowledged plaintiff gave him pertinent documents concerning his wrongful detention. Plaintiff alleges that during this time period Buckman "never advised [him] of his obligation to serve a Tort Claims Notice under New Jersey Law in order to protect his right to sue public entities who may be responsible for plaintiff's false arrest and imprisonment." By letter dated January 9, 2009 (193 days after plaintiff's June 30, 2008 initial consultation), Buckman informed plaintiff that he had reviewed the materials, but "[u]unfortunately, given my present time schedule and case load, I am unable to take on your matter. I am returning to you those materials. I wish you the best of luck."
In his malpractice complaint, plaintiff claims Buckman had "a duty . . . to advise plaintiff of his right and obligation to serve a claim under the Tort Claims Act in order to protect his rights for suing public entities in the State of New Jersey." Plaintiff seeks compensatory damages and counsel fees.
II
Plaintiff's Legal Malpractice Case Against Rachmiel
By letter dated November 24, 2009, Rachmiel formally confirmed his agreement to represent plaintiff "with regard to your false arrest in Florida on November 26, 2007, and the resultant 62 days you were held in unlawful custody based upon a New Jersey bench warrant that was never vacated nor rescinded due to the negligence of the authorities in this state." Rachmiel described in this letter the contingent fee arrangement that would govern the compensation for his professional services, plaintiff's agreement to advance all costs involved as they arose, and the possibility that Rachmiel's legal fees will be paid by the "opposing party" if plaintiff were to prevail in an action grounded on a state or federal statute that includes fee-shifting provisions.
In this same letter, Rachmiel acknowledged having had earlier "phone conversations" with plaintiff concerning his case and attached a "copy of the Complaint and Jury Demand [which] I have this date filed in the Superior Court of New Jersey, Essex County." We thus infer that Rachmiel's prior discussions with plaintiff about the case were sufficiently comprehensive to enable him to ascertain the relevant material facts to include in the complaint, distill from those facts a legal theory of liability, tentatively identify the potentially responsible parties, and determine the scope and measure of damages. We specifically note that Rachmiel informed plaintiff in this letter that he had decided not to name as defendants any of the individuals from Florida who were involved in plaintiff's arrest. Rachmiel also apprised plaintiff of the potential preclusive effect this may have based on New Jersey's Entire Controversy Doctrine.
See R. 4:30A.
As he indicated in his letter, Rachmiel filed a two-count complaint in Essex County Superior Court, Law Division on November 24, 2009, naming as defendants the Essex County Sheriff's Office, the Essex County Sheriff, an Essex County Sheriff's Officer, a detective in the Essex County Sheriff's Department, the Essex County Prosecutor's Office, the Essex County Prosecutor, the Essex Vicinage Probation Division, the Superior Court in the Essex County Vicinage, the Criminal Division Manager of the Essex County Vicinage, and unknown parties fictitiously identified as John Doe defendants. The complaint alleged various state and federal constitutional violations, 42 U.S.C.A. § 1983 violations, and New Jersey Civil Rights Act violations, N.J.S.A. 10:6-1 to -2, and demanded both compensatory and punitive damages. The complaint was thereafter amended to correct a minor misstatement of fact and re-filed on December 3, 2009.
On October 25, 2011, Rachmiel deposed the person who served as the Essex County Criminal Division Manager in 2006, the year the Presiding Judge of the Criminal Part entered the order dismissing the charges against plaintiff. The Criminal Division Manager confirmed that in the course of investigating why plaintiff had been detained in Florida, a supervisor in the Criminal Division Manager's Office discovered that the order dismissing the charges was not in plaintiff's file. According to the Criminal Division Manager:
Normally it would be the original order would be in the case file. She went . . . to the Prosecutor's Office to check to see if a copy was in their case file because if the court clerk had received an order dismissing the case, the court clerk would have made copies for both probation and for the Prosecutor's Office. She checked with both probation and Prosecutor's Office. Probation did not have a copy either, but the Prosecutor's Office had the original.
. . . .
Q. So it would be [the supervisor] who would have the information as to how she found the original order in the Prosecutor's file?
A. Yes.
Q. Do you know who prepared that original order?
A. That would have been the Prosecutor's Office.
Q. And it was signed by [the Presiding Judge of Criminal]?
A. Yes.
Q. So in the normal course of things, the Prosecutor's Office would prepare it, present it to the judge, the judge would sign it?
A. Yes.
Q. And then what, in the best of all worlds, would happen after the judge signs it?
A. Well, after [the Presiding Judge of Criminal] signed it, what generally happened with the bench warrant dismissals that we spoke of before would be that it would be given from that assistant prosecutor to the court staff, to [the Presiding Judge of Criminal]'s court staff, either his secretary, his law clerk or his court clerk, so that it would get to his court clerk so that his court clerk could enter the dismissal order and make sure that any outstanding bench warrants were vacated.
[(Emphasis added).]
On July 25, 2012, Rachmiel amended the complaint for a second time to add as defendants the individuals responsible to perform, on a timely basis, the clerical tasks necessary to ensure the criminal record system reflected the court's dispositional order dismissing the charges against plaintiff. However, in his legal malpractice complaint against Rachmiel, plaintiff alleged Rachmiel "never served a Notice of Tort Claim to protect plaintiff's rights once he discovered that the [sic] Essex County could be sued under the Tort Claims Act on October 25, 2011."
By order dated October 12, 2012, the Law Division granted Rachmiel's motion to be relieved as counsel for plaintiff in the suit against these public actors and permitted plaintiff to represent himself. The court also gave plaintiff thirty days to retain substitute counsel. According to Rachmiel, the Essex County Sheriff's Department settled with plaintiff for $5000. On February 22, 2013, the court granted the remaining defendants' motions for summary judgment.
III
Disposition of the Legal Malpractice Action
On April 12, 2013, plaintiff filed this legal malpractice action against both Buckman and Rachmiel in the Essex County vicinage. In count one, plaintiff alleges Buckman deviated from the standard of professional competence expected from an attorney in this State by failing to comply with his "duty to . . . advise plaintiff of his right and obligation to serve a claim under the Tort Claims Act in order to protect his rights for suing public entities in the State of New Jersey." In count two, plaintiff alleges Rachmiel negligently failed to serve a notice of a tort claim "once he discovered that the [sic] Essex County could be sued under the Tort Claims Act on October 25, 2011." Although, chronologically, plaintiff's case against Buckman comes first, we will start our analysis by addressing Rachmiel's case because that was the approach employed by the trial court.
The parties do not dispute plaintiff had an attorney-client relationship with defendants during the relevant time periods. See McGrogan v. Till, 167 N.J. 414, 425 (2001).
In lieu of filing an answer to plaintiff's complaint, Rachmiel filed a pro se motion to dismiss the count against him pursuant to Rule 4:6-2 for failure to state a claim upon which relief could be granted. Rachmiel also included a notice of his intent to seek sanctions against plaintiff's counsel under Rule 1:4-8(b) for filing a frivolous complaint against him and for refusing to dismiss the complaint with prejudice.
By letter dated April 20, 2013, Rachmiel informed plaintiff's counsel that plaintiff did not retain him "until November 2009, some 19 months after the latest possible accrual date of his cause of action, and well beyond the one-year time limit set by N.J.S.A. 59:8-9." Under these circumstances, Rachmiel told plaintiff's counsel that he considered the suit against him "constitute[s] frivolous litigation." Pursuant to Rule 1:4-8(b)(1), Rachmiel apprised counsel that if the suit against him was not dismissed with prejudice within twenty-eight days of the date of his letter, he would seek "frivolous litigation sanctions to include costs, attorney's fees, and other relief."
--------
We review de novo the trial court's decision to dismiss a complaint as a matter of law under Rule 4:6-2(e). Teamsters Local 97 v. State, 434 N.J. Super. 393, 413 (App. Div. 2014). Unlike factual findings, we do not owe any deference to the trial court's conclusions of law. Rezem Family Assocs., L.P. v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011). The standard under Rule 4:6-2(e) is "whether a cause of action is 'suggested' by the facts." Teamsters, supra, 434 N.J. Super. at 412 (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). In reviewing the complaint, we assume the allegations made by the party resisting the motion to dismiss are true. We will thus give that party the benefit of all reasonable inferences. NCP Litig. Trust v. KPMG, L.L.P., 187 N.J. 353, 365 (2006) (citing Smith v. SBC Commc'ns, Inc., 178 N.J. 265, 282 (2004)).
Finally, a motion to dismiss a complaint may not be denied merely "based on the possibility that discovery may establish the requisite claim; rather, the legal requisites for plaintiffs' claim must be apparent from the complaint itself." Teamsters, supra, 434 N.J. Super. at 413 (citations omitted). See also Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005) (finding the complaint must be dismissed if it fails to "articulate a legal basis entitling plaintiff to relief"). Mindful of these standards, we will now review the trial court's decision to dismiss plaintiff's complaint.
The matter came before the Law Division in Essex County on June 12, 2013. After considering the submissions of the parties and oral argument, the trial judge dismissed plaintiff's complaint against Rachmiel as a matter of law. The motion judge found Rachmiel acted reasonably in not pursuing a claim against any of the public actors that would require compliance with the notice provisions of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3. As the judge noted:
Even granting [plaintiff's counsel] every benefit of the doubt and saying that there are . . . situations, one court called them unique, in which the discovery rule could be applied, I truly believe that this is not one of them because he knew that he was a person who had gone through PTI, there should not be a bench warrant for his arrest and there was. At that point I think he had a duty to file in 90 days, and he did spend some time in New Jersey when he came up, or at least made an application in the ensuing year.
I . . . think there's a good argument . . . about November 26, 2007 being the date. I think there's a secondary argument which I might accept of sometime in January 2008, and that's being as lenient as you could be, but Mr. Rachmiel was not contacted until June 2009. I think he made a reasoned decision not to file a Notice of Tort Claim about that cause of action or to sue for that tort and he should not be sued for malpractice.
We agree with the motion judge. The TCA requires a claimant to serve a public entity with notice of a claim "not later than the 90th day after accrual of the cause of action." N.J.S.A. 59:8-8. According to the TCA, "[a]ccrual shall mean the date on which the claim accrued and shall not be affected by the notice provisions contained herein." N.J.S.A. 59:8-1. A claimant is barred from recovery if he or she fails to file the notice within the requisite time period, unless he or she can show exceptional circumstances in accordance with N.J.S.A. 59:8-9. N.J.S.A. 59:8-8.
Claims based upon a false arrest "arise[] at the time the incident occurs, i.e., the time of arrest." Bayer v. Twp. of Union, 414 N.J. Super. 238, 258 (App. Div. 2010) (quoting Bauer v. Borough of Cliffside Park, 225 N.J. Super. 38, 47 (App. Div.), certif. denied, 113 N.J. 330 (1988)). "[A] requirement that the criminal proceeding has terminated in plaintiff's favor is not a prerequisite for institution of an action for false arrest[.]" Ibid. (internal citation omitted).
The accrual date may be tolled where "the victim either is unaware that he has been injured or, although aware of an injury, does not know that a third party is responsible." Beauchamp v. Amedio, 164 N.J. 111, 117 (2000) (citations omitted). To take advantage of this discovery rule, however, a claimant must have failed to discover the injury or the responsibility of a third party despite having exercised "reasonable diligence." See Iaconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294, 297 (App. Div. 1989) (finding the discovery rule inapplicable because "[u]nder the facts, counsel for plaintiffs knew, 'or by an exercise of reasonable diligence and intelligence should have discovered that [plaintiffs] may have a basis for an actionable claim' against the [public entity] before [the requisite notice period ended]").
When plaintiff was arrested in Florida on November 26, 2007, the arresting officer told him he was being arrested because of a warrant issued out of Essex County. Plaintiff was released on his own recognizance on January 25, 2008, after the Essex County Assistant Prosecutor indicated on the record that the charges against him were going to be dismissed. Under these circumstances, it is entirely reasonable to conclude plaintiff became aware on November 26, 2007, or at the very latest January 25, 2008, that his deprivation of liberty was caused by a negligent, legally unwarranted act or omission by someone associated with the criminal justice system in Essex County.
N.J.S.A. 59:8-9 confers upon the trial court the discretion to allow a notice of claim to be filed beyond the ninety-day window established in N.J.S.A. 59:8-8 if the claimant can show "sufficient reasons constituting extraordinary circumstance." The extraordinary circumstances standard was implemented in 1994 and designed to be a "more demanding" standard than the previously applicable "fairly permissive standard[.]" See D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 148 (2013).
The determination of what constitutes extraordinary circumstances is made on a case-by-case basis. Ibid. When a court engages in this analysis, its "focus must be directed to the evidence that relates to plaintiff's circumstances as they were during the ninety-day time period[.]" Id. at 151. We have previously determined that "[i]gnorance of the [ninety]-day statutory requirement, ignorance of one's rights or mere ambivalence by the claimant have never been found to be sufficient reasons on their own to allow late filing." Bayer, supra, 414 N.J. Super. at 259 (quoting Escalante v. Twp. of Cinnaminson, 283 N.J. Super. 244, 250 (App. Div. 1995)).
By the time plaintiff first consulted with Rachmiel in November 2009, any claims requiring compliance with the TCA notice requirements were procedurally barred. Thus, the motion judge correctly concluded that Rachmiel did not deviate from the standard of professional competence expected from an attorney in this State when he decided not to pursue any claims that required compliance with the notice requirements in the TCA.
We will now address plaintiff's case against Buckman. By mutual consent, venue of this case was transferred to Burlington County. Plaintiff argues the ninety-day window to serve notice of his claim against these public actors provided in N.J.S.A. 59:8-8 did not begin until April 25, 2008, the day on which he purportedly received notice that his indictment had been dismissed two years earlier. He argues the court should have tolled the accrual date until he received the letter in April 2008 informing him of the warrant. As such, plaintiff contends he was still legally capable of pursuing claims against the Essex County defendants when he consulted Buckman on July 8, 2008, rendering Buckman negligent for failing to file the TCA notice and/or inform plaintiff about the TCA's notice requirements. We reject this argument for the reasons expressed during our analysis of the cases that have construed the TCA notice requirements under N.J.S.A. 59:8-8 and N.J.S.A. 59:8-9.
IV
Rachmiel's Appeal
A trial court's "determinations on the availability and amount of fees and costs for frivolous litigation are reviewable for 'abuse of discretion.'" Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div.), certif. denied, 200 N.J. 502 (2009). "Reversal is warranted when 'the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment.'" Ibid.
In his appeal challenging the court's denial of his motion for frivolous litigation sanctions against plaintiff's counsel, Rachmiel argues plaintiff's claim accrued at the latest on January 25, 2008, the date he was released on his own recognizance in Essex County. In this light, Rachmiel characterizes as "disingenuous" plaintiff's argument that the discovery rule tolled the accrual date of his claim until October 25, 2011. Rachmiel argues plaintiff has not cited any case law in which a court accepted as legally viable a TCA claims notice served upon a public employee four years after the claim's accrual date. Under these circumstances, Rachmiel urges us to find that frivolous sanctions are warranted.
Plaintiff argues that Rachmiel is prohibited from obtaining counsel fees as a sanction because he is representing himself pro se in this case. Furthermore, even if Rachmiel was eligible to receive an award of counsel fees, plaintiff's counsel argues he presented to the trial court a theory of attorney negligence that was not frivolous on its face. Plaintiff's counsel emphasizes that Rachmiel spent "three years 'litigating' a case . . . that provided governmental entities with absolute immunity[,]" instead of amending the complaint once he learned in October 2011 that the prosecutor's office had been negligent in failing to file the judge's 2006 order dismissing the charges against plaintiff.
As our Supreme Court noted in Segal v. Lynch, 211 N.J. 230, 261-62 (2012), this court has not consistently denied an award of counsel fees to a pro se attorney. In Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 15 (App. Div. 2001), we were asked to determine whether a pro se law firm could recover fees under Rule 4:58-2. After noting the absence of precedent directly on point, we examined two Law Division cases that diverged on the issue of whether a pro se attorney could recover fees under N.J.S.A. 2A:15-59.1(c). Id. at 16-18. Our colleagues in Brach ultimately held that the pro se firm could recover fees under Rule 4:58-2, expressing their agreement with the sentiment expressed by the Law Division Judge in Deutch & Shur, P.C. v. Roth, 284 N.J. Super. 133 (Law Div. 1995), that an attorney's "[t]ime is money" and the time spent "defending a frivolous claim could have been spent working on a matter for a paying client." Id. at 18-19 (quoting Deutch, supra, 284 N.J. Super. at 141-42).
By contrast, in Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510 (App. Div. 2009), certif. denied, 203 N.J. 93 (2010), our colleagues in that panel determined "that an attorney appearing pro se is not entitled to fees unless they are actually incurred as opposed to imputed." Id. at 547. Writing for this court in Alpert, Judge Lyons reasoned that Rule 1:4-8 does not permit a party to recoup the income he or she lost while defending against a frivolous litigation. Id. at 545. To hold otherwise would unfairly "confer on the attorney a special status over that of other litigants who may also be subject to frivolous claims and are appearing pro se." Id. at 546.
We infer from the Supreme Court's discussion in Segal, supra, 211 N.J. at 264, a clear signal favoring the reasoning expressed by those precedents that have rejected counsel fee awards to attorneys who represent themselves. However, we need not take sides in this debate because we are satisfied the trial judge did not abuse his discretion in denying Rachmiel's motion for the imposition of sanctions against plaintiff's counsel under Rule 1:4-8(b)(1). Ordinarily, a trial judge abuses his or her discretion when the decision is without a rational explanation, departs from established policy, or is otherwise predicated on an impermissible legal basis. United States ex rel. U.S. Dep't of Agric. v. Scurry, 193 N.J. 492, 504 (2008). Given the highly unusual facts of this case, we cannot conclude the trial judge abused his discretion in denying relief under Rule 1:4-8.
Plaintiff's counsel in this legal malpractice case argued for an expansion of what constitutes "extraordinary circumstances" within the meaning of N.J.S.A. 59:8-9. As the Supreme Court noted in D.D. v. Univ. of Med. & Dentistry of N.J., supra, 213 N.J. at 148, courts make this determination on a case-by-case basis. Although the facts of this case do not constitute extraordinary circumstances, plaintiff's arguments seeking this relief were not facially frivolous.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION