                            NOT FOR PUBLICATION WITHOUT THE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-0992-18T4

IN THE MATTER OF THE
PETITION OF JOHNNIE Q. WADE
TO PRESERVE AND INSPECT
EVIDENCE AND COPY
DOCUMENTS PURSUANT TO
R. 4:18-1 AND TO PERPETUATE
THE TESTIMONY OF MEGAN M.
KWAK, ESQUIRE.
________________________________

                Submitted September 25, 2019 –
                Decided August 21, 2020

                Before Judges Fuentes, Haas and Enright.

                On appeal from the Superior Court of New Jersey, Law
                Division, Camden County, Docket No. L-2996-18.

                Messa & Associates, P.C., attorneys for appellants
                Joseph L. Messa, Jr., Megan M. Kwak and Messa &
                Associates, PA (Thomas N. Sweeney, on the briefs).

                Ralph R. Kramer, attorney for respondent Johnnie Q.
                Wade.

PER CURIAM
      Rule 4:11-1(a) provides that "any person desiring to preserve evidence

prior to institution of an action may seek such relief by verified petitio n." State

v. Saavedra, 222 N.J. 39, 69 (2015) (quoting Gilleski v. Cmty. Med. Ctr., 336

N.J. Super. 646, 655 (App. Div. 2001)). The holding in Saavedra, however, did

not refute or modify the Court's earlier holding in In re Petition of Hall, 147 N.J.

379, 391 (1997), which made clear that Rule 4:11-1 "was not intended to

authorize pre-suit discovery for the sole purpose of assisting a prospective

plaintiff in acquiring facts necessary to frame a complaint." Notwithstanding

this clear language, the trial court in this case did exactly what the Court in Hall

expressly prohibited—ordered pre-action discovery to enable petitioner to frame

a potential legal malpractice complaint against his former attorney.

                                         I.

      On January 21, 2016, Johnnie Q. Wade was riding his bicycle when he

was struck from behind by a motor vehicle, causing serious injuries to his body.

Wade retained attorney Ralph R. Kramer to represent him in a personal injury

suit against the tortfeasor. The tortfeasor's automobile insurance policy had a

maximum coverage limit of $100,000. The carrier did not contest liability on

the tortfeasor's behalf and offered the $100,000 coverage limit. Wade did not




                                                                            A-0992-18T4
                                         2
accept the settlement offer at the time because his medical expenses far exceeded

the coverage limit.

      On January 31, 2017, Kramer referred Wade to attorney John Mininno,

who was of counsel to the law firm Messa & Associates, to investigate whether

there were any potentially viable claims other than common law negligence.

Wade consulted with Mininno at his law offices on March 8, 2017. Mindful of

the two-year statute of limitations, N.J.S.A. 2A:14-2, Megan Kwak, an attorney

at Messa & Associates, sent petitioner a letter on December 19, 2017 explaining

that the firm did not find any grounds to bring a products liability claim against

the manufacturer of the helmet Wade was wearing at the time of the accident.

Kwak urged Wade to accept the $100,000 settlement offered by the tortfeasor's

insurance carrier because that was the only legally viable means of recovering

compensation for his injuries.

      Kwak attached a release form to her letter and informed Wade that Messa

& Associates would be required to retain the settlement proceeds until all

medical liens were satisfied. Kwak again cautioned Wade about the preclusive

effect of the statute of limitations and emphasized that the release form had to

be signed before the statute of limitations ran out on January 21, 2018. She sent

Wade another letter on January 6, 2018 urging him to sign the release form


                                                                          A-0992-18T4
                                        3
before January 21, 2018. Kwak made clear that if Wade did not respond by

January 12, 2018, she would file a suit against the tortfeasor to preserve Wade's

right to recover the $100,000 offered by the tortfeasor's insurance carrier. Kwak

sent this final communication to Wade via messenger. Wade signed the release

and provided his insurance information to assist in the discharge of any medical

liens.

         Pursuant to N.J.S.A. 30:4D-7.1, Messa & Associates placed the $100,000

settlement check in the firm's trust account pending the resolution of outstanding

private and public liens. On June 4, 2018, Kramer notified Messa & Associates

of his intent to file civil and ethics complaints against the firm if it did not pay

his referral fee by June 5, 2018. According to Kramer, he conducted a judgment

search that same day and did not find any outstanding liens against Wade. The

following day, Wade sent Messa & Associates a letter requesting a copy of his

file.

         Purportedly acting on Wade's behalf, Kramer discharged Messa &

Associates on June 13, 2018, and apprised the law firm that he intended to file

a Rule 4:11-1 petition to prepare to file a legal malpractice complaint against

the firm for mishandling Wade's personal injury suit. Wade picked up his

litigation file from the law firm's office on June 19, 2018.


                                                                            A-0992-18T4
                                         4
      On September 14, 2018, a Law Division judge in the Camden County

vicinage granted Kramer's Rule 4:11-1 pre-suit petition against Messa &

Associates. The judge placed the following statement of reasons on the record

in support of his ruling:

            This is plaintiff's motion to preserve evidence and to
            take pre-trial depositions. Essentially, the plaintiff is
            alleging that his attorney Megan Kwak of Messa &
            Associates, may have committed malpractice when she
            advised him of the status of a certain lien that had been
            filed against him and Mr. Wade now is asking for those
            documents that are in the possession of Ms. Kwak as
            well as the permission from the [c]ourt to submit
            interrogatories to her for her to answer.

            The [c]ourt has not received any opposition to this
            motion. The petitioner does appear to the [c]ourt to
            have met all of the conditions of [R]ule 4:11-1 and
            accordingly the [c]ourt will grant the motion to
            preserve evidence.

      On October 1, 2018, respondent filed a motion for reconsideration of the

trial court's September 14, 2018 order pursuant to Rule 4:49-2. Petitioner filed

a timely response opposing the motion. On October 26, 2018, the judge decided

respondent's motion without oral argument from counsel. The judge noted for

the record that respondent (whom the judge incorrectly referred to as

"defendant") claimed it did not oppose petitioner's Rule 4:11-1 petition "because




                                                                         A-0992-18T4
                                       5
they had been informed by the [c]ourt that petitioner's application was

improperly filed[.]"

      The judge found respondent's explanation for its failure to oppose the

petition was not supported by the court's electronic record and upheld the

September 14, 2018 ruling. The court's electronic records showed the petition

was originally returnable on August 31, 2018. Respondent filed a letter on

eCourts on August 20, 2018 "asking the [c]ourt to adjourn the motion." The

judge read the content of the letter into the record:

            "I am a respondent in the above listed matter. This
            matter is currently scheduled for a motion hearing
            before Your Honor on August 31st, 2018. Please accept
            this letter as my request to continue the August 31st,
            2018 hearing on the petition to preserve evidence, copy
            documents, and to perpetuate testimony, which was
            filed by Mr. Johnnie Q. Wade . . . pro se on August 7th,
            2018 and received by respondent on August 15th, 2018.

            Respondents request that the August 31st, 2018 petition
            be continued for one motion cycle, as counsel will be
            out of town on a prepaid vacation, which was
            previously scheduled for the last week of August.

            Respondent has attempted to reach Mr. Wade by
            telephone to request his consent on respondent's
            continuance request, but I've been unable to reach Mr.
            Wade. Respondent left voicemail for Mr. Wade on
            August 17th, 2018, which explained respondent's
            continuation -- continuance request and requested Mr.
            Wade return the respondent's call, but Mr. Wade has not
            returned the call.

                                                                       A-0992-18T4
                                         6
            Thank you for your time and attention to this matter.

            Respectfully submitted, Joseph L. Messa, Jr."

      The judge acknowledged that he received the letter and granted

respondent's request to adjourn the original return date and reschedule the date

to September 14, 2018. Based on this procedural record, the judge concluded

respondent did not present any grounds to vacate his original ruling. Over

petitioner's objection, on November 30, 2018 a different judge granted

respondent's motion to stay the enforcement of the September 14 , 2018 order

pending appeal.    On that same day, respondent filed a motion to deposit

petitioner's settlement proceeds with the court pursuant to Rule 4:57-1 and Rule

4:45-2. Less than a month later, petitioner filed a cross-motion seeking a full

accounting of the settlement proceeds held in respondent's trust account and

sought leave from the court to place the financial institution holding these funds

on notice of its possible exposure to pay prejudgment interest. Respondent

opposed petitioner's motion. The record does not include the disposition of these

motions.

                                       II.

      We review a trial court's decision to grant or deny a pre-action petition

pursuant to Rule 4:11 and motion for reconsideration under Rule 4:49-2 under

                                                                          A-0992-18T4
                                        7
an abuse of discretion standard. An abuse of discretion occurs where the trial

court's decision is "'made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'" Iliadis v. Wal-

Mart Stores, Inc., 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002)).

      However, we do not afford any deference when a trial court makes a

discretionary decision based on a misconception of the applicable law. Dolson

v. Anastasia, 55 N.J. 2, 7 (1969). Stated differently, a trial court's "interpretation

of law and the consequences that flow from established facts are not entitled to

any special deference." State v. Pomianik, 221 N.J. 66, 80 (2015) (quoting

Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995)).

      Rule 4:11-1(a) authorizes

             [a] person who desires to perpetuate . . . testimony of
             another person or preserve any evidence or to inspect
             documents or property or copy documents pursuant to
             [Rule] 4:18-1 may file a verified petition, seeking an
             appropriate order, entitled in the petitioner's name,
             showing: (1) that the petitioner expects to be a party to
             an action cognizable in a court of this State but is
             presently unable to bring it or cause it to be brought; (2)
             the subject matter of such action and the petitioner's
             interest therein; (3) the facts which the petitioner
             desires to establish by the proposed testimony or
             evidence and the reasons for desiring to perpetuate or
             inspect it; (4) the names or a description of the persons
             the petitioner expects will be opposing parties and their

                                                                              A-0992-18T4
                                          8
            addresses so far as known; (5) the names and addresses
            of the persons to be examined and the substance of the
            testimony which the petitioner expects to elicit from
            each; and (6) the names and addresses of the persons
            having control or custody of the documents or property
            to be inspected and a description thereof.

      We have sanctioned the invocation of Rule 4:11-1(c) in a case in which

the petitioner sought to preserve the testimony of a witness of advanced age with

direct knowledge of material facts in a potential case. Strum v. Feifer, 186 N.J.

Super. 329, 333 (App. Div. 1982). However, the Supreme Court made clear in

Hall that Rule 4:11-1(a)

            was not designed to assist plaintiffs in framing a cause
            of action, but was intended for cases in which there
            existed a genuine risk that testimony would be lost or
            evidence destroyed before suit could be filed and in
            which an obstacle beyond the litigant's control prevents
            suit from being filed immediately.

            [147 N.J at 385.]

      Here, the trial judge who granted this petition abused his discretionary

authority when he granted this pre-suit petition because the purpose disclosed

by petitioner directly contravenes the Supreme Court's holding in Hall.

      Reversed.




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                                       9
