Simon Coull v. Jamie Von Ellen, A-3858-21

Background

Coull retained attorney Jamie Von Ellen in December 2013 to pursue a Family Part post‑judgment modification; the case required accounting experts because Coull was self‑employed.
Experts for the parties disagreed about Coull’s income; mediation failed and trial was scheduled for October 2015.
Shortly before trial Coull signed a consent order (October and a revised December 2015 version); he later alleged Von Ellen threatened him into signing.
Coull filed suit against Von Ellen in October 2021 alleging undue influence, threats, breach of fiduciary duty, witness tampering, emotional/physical injury and lost income.
The trial court granted leave to amend but Coull failed to serve an affidavit of merit; the court dismissed his complaint with prejudice under the Affidavit of Merit statute (N.J.S.A. 2A:53A‑26 to ‑29).
On appeal the court affirmed dismissal of any legal‑malpractice claims for failure to provide an affidavit of merit, vacated dismissal of the separate threat/intentional‑tort allegation, and remanded for Coull to file a clarified second amended complaint.

Issues

Issue	Coull's Argument	Von Ellen's Argument	Held
Whether an affidavit of merit is required	Coull: claim alleges a personal threat outside professional services, not malpractice, so affidavit is unnecessary	Von Ellen: claims arise from attorney‑client relationship and professional duties, so affidavit of merit statute applies	Court: affidavit required for any professional‑negligence claims; those claims dismissed for failure to file affidavit
Whether the common‑knowledge exception applies	Coull: jurors can assess what constitutes a threat without expert testimony	Von Ellen: issues involve professional standards and require expert proof	Court: common‑knowledge exception applies to negligence, not intentional torts; does not save malpractice claims here
Whether the alleged threat claim requires an affidavit of merit	Coull: threat was personal and separate from legal services	Von Ellen: threat allegation is intertwined with professional duties and practice	Court: threat allegation, as pleaded, appears separable from malpractice and does not require an affidavit of merit; dismissal of that aspect vacated and remanded
Pleading sufficiency and next steps	Coull: (pro se) alleged threats and harms but did not clearly plead a civil cause of action	Von Ellen: entitled to notice of precise claims and may seek dismissal if statute of limitations or other defenses apply	Court: remand — Coull must file a second amended complaint within 30 days specifying the civil cause(s) of action; trial court may then decide further motion practice or proceed to discovery

Key Cases Cited

Cowley v. Virtua Health Sys., 242 N.J. 1 (N.J. 2020) (failure to provide affidavit of merit mandates dismissal)
Mortgage Grader, Inc. v. Ward & Olivo, L.L.P., 225 N.J. 423 (N.J. 2016) (affidavit required when proof requires deviation from professional standard)
Hubbard v. Reed, 168 N.J. 387 (N.J. 2001) (common‑knowledge exception applies where lay jurors can determine negligence without experts)
Conklin v. Hannoch Weisman, 145 N.J. 395 (N.J. 1996) (elements of legal malpractice)
Stoeckel v. Township of Knowlton, 387 N.J. Super. 1 (App. Div. 2006) (expert testimony generally required to establish an attorney’s duty and breach)
Printing Mart‑Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (N.J. 1989) (standard for Rule 4:6‑2 motions — accept allegations and reasonable inferences)
A.T. v. Cohen, 231 N.J. 337 (N.J. 2017) (statute construed to require dismissal with prejudice for noncompliance)