LUIS PEREZ VS. ZAGAMI, LLC, ETC., AND NASH LAW FIRM, LLC, ET AL. A-3268-14T2

LUIS PEREZ VS. ZAGAMI, LLC, ETC., AND NASH LAW FIRM, LLC, ET AL. 

A-3268-14T2 

This case of first impression presents the question of whether an affidavit of merit is required to support a malicious use of process claim when an advice of counsel affirmative defense is asserted in a SLAPP-back suit. The court concludes it is not. 

After a defamation case (SLAPP suit) brought by defendants was dismissed, plaintiff filed a complaint for malicious use of process (SLAPP-back suit). Defendants asserted an advice of counsel affirmative defense in their responsive pleading. Plaintiff moved to amend his complaint to add the law firm and individual attorneys as defendants. The law firm then moved to dismiss the action contending that plaintiff was required to file an affidavit of merit to support his claims. 

The court upholds the trial judge's denial of the motion to dismiss. The court finds that a malicious use of process action is an intentional tort requiring proof of malice and not a deviation from a standard of care and therefore no affidavit of merit is needed to support the claim. 

MANAHAWKIN CONVALESCENT VS. FRANCES O'NEILL AND FRANCES O'NEILL, ETC., VS. BROADWAY HEALTH CARE MANAGEMENT, LLC, ET AL. A-0841-11T4

MANAHAWKIN CONVALESCENT VS. FRANCES O'NEILL AND

FRANCES O'NEILL, ETC., VS. BROADWAY HEALTH CARE

MANAGEMENT, LLC, ET AL.

 A-0841-11T4

The complaint captioned Manahawkin Convalescent v. Frances O'Neill was dismissed.  This appeal pertains to the third-party action filed by Frances O'Neill, in her capacity as Executrix of the Estate of Elise Hopkins v. Broadway Health Care Management, LLC, et al.

The issue presented in this appeal is whether the Rehabilitation and Nursing Home Admission Agreement required to be signed prior to plaintiff's mother Elise Hopkins' admission to Manahawkin Convalescent Center violated the Nursing Home Act,

N.J.S.A. 30:13-1 to -17, the Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14 to -18, and the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20.  The narrower issue is whether the nursing home's lawsuit filed against the

plaintiff as the responsible party, to collect the outstanding debt owed for services rendered for her mother's care, violates the Consumer Fraud Act.

We recognized the long-standing "learned professional" exception to the Consumer Fraud Act that proscribes consumer protection actions against certain types of professionals or

industries that are regulated by separate state or federal agencies, where such regulation could conflict with regulation under the CFA. The Supreme Court held in certain instances separate agencies with concurrent regulatory jurisdiction and control may create conflicting determinations, rulings and regulations affecting the identical subject matter.  

Hospital billing activities have been found to be within the learned professional exception due to state and federal regulations associated with the receipt of Medicaid and Medicare

funding.  Applying that rule of law here, we determine that defendant's nursing home is similarly regulated and as such, their billing services fall within the "learned professional"  exception of the CFA. 5-31-12

Sheila Aronberg, etc., et al. v. Wendell Tolbert, et al. (A-9-10; 066414)

When an uninsured motorist’s cause of action is barred by N.J.S.A. 39:6A-4.5(a), an heir has no right of recovery under the Wrongful Death Act, N.J.S.A. 2A:31- 1 to -6.