                    NOT FOR PUBLICATION WITHOUT THE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.



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