Paragon Contractors, Inc. v. Peachtree Condominium Ass'n

Justice RIVERA-SOTO,

concurring.

Because the source of the confusion surrounding the obligation of defendant/third party plaintiff Peachtree Condominium Association to comply with the requirements of the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, may lie squarely at this Court’s own doorstep, I am required to concur with the reasoning and conclusions thoughtfully expressed in Justice Long’s opinion, cautioning again, as the majority does, that “reliance on the scheduling of a Ferreira[v. Rancocas Orthopedic Associates, 178 N.J. 144 , 836 A.2d 779 (2003) ] conference to avoid the strictures of the Affidavit of Merit statute is entirely unwarranted and will not serve to toll the statutory time frames.” Ante at 426, 997 A.2d at 988.

I write separately for two reasons. First, it is deeply troubling that, as a result of the relief today ordered, third-party defendant Key Engineers, Inc. effectively will be denied the specific right granted to it by law: its statutory entitlement to either the receipt of a timely and proper Affidavit of Merit or the dismissal of the claims against it. Although that dilemma must be acknowledged, *427 candor also requires that we acknowledge that the confusion generated was of this Court’s own making. That confession of error leads to my second reason.

The imposition of the Ferreira conference obligation is yet another example of well-intentioned but fundamentally misguided judicial tinkering. The source of the confusion that animates the relief today granted to yet another lawyer unable to comply with elementary statutory requirements—Ferreira itself—has condoned a continuing, albeit somewhat quelled stream of lawyer disregard for the mandates of the Affidavit of Merit statute. In each instance, those coddled few, who seek to excuse their basic inability to comply with a glaringly clear and straightforward legislative mandate, thrash wildly about, seeking to lay blame everywhere but where it properly belongs: in the hands of the non-complying lawyer. 1 As Ferreira itself concedes, we established Ferreira conferences in order to address a specific evil: “a tide of litigation and a [then] new area of jurisprudence [addressing] the derelictions of plaintiffs’ counsel, who ... have neglected to file technically correct or timely affidavits.” Ferreira, supra, 178 N.J. at 146 , 836 A.2d 779 . Now, fifteen years after the Affidavit of Merit statute was enacted and seven years after Ferreira , that tide should have abated and the judicial need to protect a handful of lawyers from their own professional shortcomings should come to a well-deserved end.

There is a parallel, institutional reason that commands that we jettison Ferreira’s mandate. Ferreira requires that our courts schedule a prophylactic case management conference to identify and correct the failure of counsel to comply with the simple *428 requirements of the Affidavit of Merit statute. Id. at 154-55 , 836 A.2d 779 . Although the parties have not addressed the point, anecdotal evidence strongly supports the view that the obligation to schedule and conduct Ferreira conferences is observed only in its breach: the vast majority of lawyers understand their professional obligations; it is only the wayward few who seem stubbornly unable to comply with this simple task; and, as a practical matter, our trial courts cannot, and as a consequence do not, pander to the few at the expense of the many. 2 Yet, Ferreira imposes a system-wide obligation, designed solely to protect the less-than-eompetent from what may be a well-earned malpractice claim.

It is, at its very least, pathetic that our judicial system must cater to the lowest-common-denominator practitioners. The goals of a properly constructed judicial system must be practical, but they also should be hortatory, seeking that all aspire to practice at a level greater than at minimum requirements. In that spirit, the time has come to conclude that the mandatory Ferreira conference has outlived whatever usefulness it may have had, and thus that the requirement should be voided. That result avoids any future “confusion” and places all lawyers on fair notice of what should be intuitively obvious: that they must comply with the clear dictates of law or suffer the consequences. In the final analysis, our citizenry is entitled to a continually improving system of justice, and not some ersatz construct where judges are diverted from their duties to baby-sit and spoon-feed those either too lazy or too unwilling to comply with their clearly defined obligations.

*429 For reversal and remandment—Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS—7.

Opposed—None.

For proof of that proposition, one need look no further than this case, where counsel for defendant/third-party plaintiff sought to shift the blame for his failure to file a correct Case Information Statement, see R. 4:5-l(a); App. XII-B1—one that should have identified the third-party complaint as one pleading professional malpractice—to generic advices purportedly received from court personnel, an assertion the majority very politely discards as "unavailing.” Ante at 420 n. 1, 997 A.2d at 984 n. 1.

Admittedly, the parties have not squarely sought the relief I deem appropriate here: the elimination of Ferreira conferences. However, it is self-evident that the remedy best suited to cure the confusion this Court itself created is to jettison the source of that confusion. Also, the facts here—together with the unbroken stream of Affidavit of Merit cases that clog our dockets—convincingly prove the futility of the judicially mandated Ferreira conferences. Even the most glancing look at the litigation landscape conclusively demonstrates the folly of failing to demand strict adherence to a simple and straightforward legislative command and, instead, creating a safety net wayward lawyers still ignore.