                                NOT FOR PUBLICATION WITHOUT THE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-4475-17T4

ANTONIO CHAPARRO NIEVES,
a/k/a ANTHONY CHAPARRO,

           Plaintiff-Respondent,

v.

OFFICE OF THE PUBLIC DEFENDER
and PETER S. ADOLF, ESQ.,

           Defendants-Appellants.


                    Argued September 26, 2018 – Decided November 28, 2018

                    Before Judges Alvarez, Nugent, and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Docket No. L-0435-16.

                    Christopher Riggs, Deputy Attorney General, argued
                    the cause for appellants (Gurbir S. Grewal, Attorney
                    General, attorney; Melissa H. Raksa, Assistant
                    Attorney General, of counsel; Robert J. McGuire, and
                    Daniel M. Vannella, Deputy Attorneys General, on the
                    briefs).

                    Thomas D. Flinn argued the cause for respondent
                    (Garrity, Graham, Murphy, Garofalo & Flinn, PC,
               attorneys; Thomas D. Flinn, of counsel and on the
               brief).

PER CURIAM

         Plaintiff Antonio Chapparo Nieves sued defendants Office of the Public

Defender (OPD) and Peter S. Adolf, Esquire, alleging legal malpractice and

breach of the New Jersey Rules of Professional Conduct. On January 5, 2018,

a Law Division judge granted defendants' motion for summary judgment as to

the Rules of Professional Conduct, but denied the application as to the legal

malpractice claim. The judge also denied defendants' motion for reconsideration

on February 20, 2018.        The Supreme Court remanded the matter for our

consideration after defendants' unsuccessful application for leave to appeal. We

now reverse.

         The factual background can be briefly explained.        Plaintiff was

incarcerated for twelve years on serious charges, including first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3). He was eventually released

and the charges dismissed on his petition for post-conviction relief. He has

already recovered under the Mistaken Imprisonment Act, N.J.S.A. 52:4C-1

to -7.

         Defendants raise the following points on appeal:



                                                                        A-4475-17T4
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            POINT I
            THE TRIAL COURT ERRED IN HOLDING THAT
            THE STATE'S OPD AND PUBLIC DEFENDERS
            ARE NOT A "PUBLIC ENTITY" AND "PUBLIC
            EMPLOYEES" SUBJECT TO ALL OF THE TCA's
            IMMUNITIES AND DEFENSES.

            POINT II
            THE TRIAL COURT ERRED IN HOLDING THAT
            PLAINTIFF'S SUBJECTIVE TESTIMONY OF
            EMOTIONAL DISTRESS, ALONE, IS SUFFICIENT
            TO PRESENT TO A JURY, NOTWITHSTANDING
            THE TCA'S THRESHOLD REQUIREMENTS.

      We review a trial court's decision on a motion for summary judgment de

novo, Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010), and apply

the same standard employed by the trial court, Rowe v. Mazel Thirty, LLC, 209

N.J. 35, 41 (2012). Summary judgment should be granted where there is no

genuine issue of material fact, viewing the evidence in the light most favorable

to the non-moving party, and the moving party "is entitled to judgment as a

matter of law." Id. at 41 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 529 (1995)); R. 4:46-2(c).

      The heart of this appeal is whether, given the significant consequences

when a public defender does not properly represent a criminal client, the

procedural requirements of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3,

should nonetheless apply. The Supreme Court has spoken on the issue.


                                                                          A-4475-17T4
                                        3
      The TCA requires that a claimant file a timely notice of claim as a

condition of suit, N.J.S.A. 59:8-8. If not filed within ninety days of the cause

of action's accrual, a claimant may, within one year of accrual, seek leave of

court to file a late claim notice. N.J.S.A. 59:8-9. In Rogers v. Cape May Office

of the Public Defender, 208 N.J. 414 (2011), the Court considered whether for

purposes of filing a late notice of claim in a legal malpractice action against the

OPD, the plaintiff's exoneration date in the criminal matter—the accrual date for

the malpractice action—was the decision date of a successful appeal or the later

indictment dismissal date. Id. at 417. In Rogers' case, the two choices had

significantly different consequences.

      If the earlier date applied, Rogers would be barred from pursuing his cause

of action by the TCA's one-year limitation for filing a notice of claim. Ibid. If

the dismissal date applied, Rogers was not barred from filing a motion for leave

to file a late claim notice. Ibid.; N.J.S.A. 59:8-9. The Court held the date the

indictment was dismissed was the date defendant was exonerated. Rogers, 298

N.J. at 417. In so holding, the Court expressly stated, "Claims for damages

against defendants—a public entity and a public employee—are subject to the

provisions of the Tort Claims Act. See N.J.S.A. 59:1-1 to 12-3." Id. at 420.




                                                                           A-4475-17T4
                                        4
      The Court has also addressed the issue of whether the TCA's limitation on

recovery for pain and suffering, N.J.S.A. 59:9-2(d)—sometimes referred to as

the TCA's verbal threshold, though it includes a threshold for medical

expenses—applies to false imprisonment claims.         It does.   In DelaCruz v.

Borough of Hillsdale, 183 N.J. 149, 153 (2005), the plaintiff sought

compensation because of alleged common law false arrest and false

imprisonment. By way of dictum, the Court said:

            the effect of the verbal threshold is limited to pain and
            suffering claims . . . [and] the need to vault the verbal
            threshold is not limited to false arrest or false
            imprisonment claims; the Act makes no such
            distinctions and, instead, treats all torts similarly. The
            clear terms of the [TCA] require that all claims—
            including those for false arrest and false
            imprisonment—must vault the verbal threshold in order
            to be cognizable.

            [Id. at 164-65 (emphasis added).]

Because plaintiff had not met the TCA's verbal threshold, his otherwise

meritorious claims were dismissed. Id. at 162. Although the court's observation

that the TCA "treats all torts similarly"—and that all claimants "must vault the

verbal threshold"—was dictum, it is still binding on us. See State v. Sorensen,

439 N.J. Super. 471, 488 (App. Div. 2015).




                                                                         A-4475-17T4
                                        5
      In Toto v. Ensuar, 196 N.J. 134, 147 (2008), the Court clarified that the

DelaCruz statement regarding the applicability of the verbal threshold to all

causes of action did not affect the exceptions enumerated in N.J.S.A. 59:3-14.

Unfortunately for Nieves, the conduct he alleges does not fall within any of

those exceptions.

      It is clear from the cited Supreme Court precedent the OPD is a public

entity and public defenders are public employees that come within the TCA's

immunities and defenses.     It therefore follows that in order to withstand

summary judgment, and in order for defendant to pursue non-economic

damages, he too must meet the procedural requirements of the TCA. Claims of

negligence, such as for legal malpractice, are included within the TCA's scope.

See N.J.S.A. 59:1-2; 59:2-1; 59:3-1. The cited decisions should have informed

the Law Division judge's ruling. The record includes no medical or psychiatric

expenses that can be counted towards the verbal threshold.       See N.J.S.A.

59:9-2(d). Thus, Nieves has failed to meet that requirement.

      In addition to incurring the threshold for medical expenses, $3600,

N.J.S.A. 59:9-2(d), Nieves was required to establish, by objective medical

evidence, permanent injury and the permanent loss of a bodily function that is

substantial. See Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329


                                                                       A-4475-17T4
                                      6
(2003); Gilhooley v. Cty. of Union, 164 N.J. 533, 540-41 (2000). No such

evidence exists in this record. No expert was retained. That TCA requirement

was not met either.

      The issue is not, as cast by the Law Division judge, whether a defendant

is entitled to the same level of competency when represented by a public attorney

as when represented by private counsel. The same level of competency is

absolutely expected from both. The issue is whether, as a matter of law, plaintiff

has satisfied the statutory baseline requirements under the TCA, which applies

to the OPD and its attorneys. He has not.

      Reversed.




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