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Sullivan v. Aslanides1/6/2005
wnership as well as calculations allocating expenses based upon Gene Sullivan's patient attribution and Szwed's patient attribution. The trial judge rejected his testimony as confusing and unpersuasive. Judgment was entered, finding that Sullivan had prevailed upon all claims except for $8,828.82 conceded to be due to Szwed. The judgment also awarded Sullivan, in accordance with the employment agreement, $119,500.62 for counsel fees and expenses.
Szwed appealed,and this court reversed, finding that the methodology employed by Gene Sullivan to compute distributive profits was clearly not in accord with 7(e) of the employment agreement. Szwed v. Sullivan, No. A-2859-98 (App. Div. March 17, 2000) (slip op. at 4). In the course of our opinion, we stated:
The methodology prescribed by paragraph 7(e) for determining the remuneration of each stockholder-partner is clear and unequivocal. As that paragraph unambiguously requires, the total gross revenue of the Practice as a whole, that is the aggregate billings of both physicians, must be first ascertained. From that aggregate total, all of the expenses of the Practice, including the $250,000 salary of each physician, must be deducted. The balance remaining after the deduction of total expenses constitutes the"excess profits" referred to by paragraph 7(e). It is to that net sum that the proportionate share of total billings of each doctor - however that proportionate share of billings is ascertained - is to be applied in order to arrive at the remuneration of each.
We noted that the result of Mrs. Sullivan's computation was to charge Dr. Szwed with 50% of the expenses of the practice while only crediting him with only 31% of the billings which, in our view, could not have been the intent of 7(e). We remanded the matter back to the Chancery Division for trial.
Prior to retrial, the parties reached a settlement that they placed upon the record on June 11, 2001. The terms of that settlement called for Dr. Sullivan to pay to Dr. Szwed $600,000, $300,000 of which was allocated to the repurchase of Dr. Szwed's shares in the professional corporation and the balance to his claim of underpayment.
On July 23, 2001, approximately six weeks after that settlement was placed on the record, plaintiff filed the instant complaint, in which he alleged that defendants were negligent in their preparation of the employment agreement. Plaintiff alleged in this complaint that he had instructed defendants that the employment agreement should provide that core expenses of the practice would be divided equally between the shareholders. He maintained that his settlement payment of $600,000 was the result of defendants' failure to draft the employment agreement in the manner he had instructed. After an extensive period of discovery, defendants moved for summary judgment, arguing that the complaint was filed beyond the applicable period of limitations. The trial court agreed and granted defendants' motion for summary judgment.
II.
A claim of legal malpractice is subject to a six-year period of limitations. McGrogen v. Till, 167 N.J. 414, 419 (2001) (noting" or more than twenty-five years, an uncontested principle of New Jersey's decisional law has been that the six-year statute of limitations of N.J.S.A. 2A:14-1 applies to legal malpractice actions"). Plaintiff's malpractice complaint having been filed on July 23, 2001, the critical date for purposes of limitations analysis is July 23, 1995. The trial court here concluded that plaintiff knew, prior to July 23, 1995, that the employment agreement had not been drafted in accordance with the instructions he said he gave to defendants. Knowledge by itself, however, is
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