SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0127-20

STEPHANIE C. HUNNELL,

Plaintiff-Respondent,

v.

ALIDA MCKEON,

Defendant-Appellant.

________________________

Submitted February 2, 2022 – Decided August 11, 2022

Before Judges Gilson, Gooden Brown, and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. L-4179-19.

Lora B. Glick, attorney for appellant.

Hunnell Law Group, LLC, attorneys for respondent 

(Caitlin E. Holland, on the brief).

PER CURIAM

Plaintiff Stephanie Hunnell, a licensed attorney, represented defendant 

Alida McKeon in divorce proceedings which resulted in McKeon receiving a 

NOT FOR PUBLICATION WITHOUT THE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.
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$630,000 settlement in 2008 as her share of equitable distribution. However, 

McKeon's ex-husband failed to comply with the settlement terms, and McKeon

never received the full settlement amount despite Hunnell filing numerous postjudgment enforcement motions on her behalf. Ultimately, the legal 

representation ended, although the parties dispute the termination date. 

Thereafter, Hunnell obtained a $55,352 award from the District Fee 

Arbitration Committee (Fee Committee) for past due legal fees owed by 

McKeon. McKeon never appealed the award. When McKeon failed to pay, on 

November 25, 2019, Hunnell filed a verified complaint in the Law Division 

pursuant to Rule 4:67-1(a) seeking a judgment. In response, McKeon filed a

contesting answer, including affirmative defenses, and a counterclaim alleging 

legal malpractice and other claims. When Hunnell moved to dismiss the 

counterclaim pursuant to Rule 4:6-2(e), McKeon opposed the motion and crossmoved to amend her counterclaim to add a legal malpractice claim based on 

fraudulent billing and stay the arbitration award pending the outcome of her 

malpractice countersuit. 

In two separate orders filed on July 31, 2020, the trial court granted 

Hunnell's Rule 4:6-2(e) motion, dismissed McKeon's counterclaim in its entirety 

with prejudice, entered judgment, and denied McKeon's cross-motions to stay 
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the arbitration award and amend her counterclaim. McKeon now appeals from 

the July 31, 2020 orders.

1

 For the reasons that follow, we affirm in part, reverse 

in part, and remand for further proceedings.

First, we address the dismissal of McKeon's counterclaim. Because this 

appeal comes to us on a Rule 4:6-2(e) motion to dismiss, we accept the facts 

alleged in the counterclaim as true, affording defendant "'every reasonable 

inference of fact.'" Green v. Morgan Props., 215 N.J. 431, 452 (2013) (quoting 

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). 

Thus, we begin with a summary of the facts pled in the counterclaim.

According to the counterclaim, the divorce was finalized in 2008 with the 

entry of an amended judgment of divorce that provided McKeon with a $630,000 

settlement representing her share of the marital assets, to be paid in part from

the proceeds of the sale of certain properties owned by McKeon and her exhusband. Among the properties identified in the divorce judgment were two 

rental properties in Garfield. Under the terms of the settlement, McKeon's exhusband was responsible for preparing the Garfield properties for sale and the

properties were to be listed for sale no later than December 15, 2008.

1

 An amended order correcting clerical errors was entered on August 25, 2020.
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However, as of 2010, the properties remained unsold. Between 2009 and 

2011, Hunnell filed four enforcement motions on McKeon's behalf to address 

McKeon's ex-husband's recalcitrant conduct, all to no avail. The last motion 

was adjudicated by way of an order dated February 7, 2012. On March 15, 2012, 

Hunnell emailed McKeon to explain that she would file an appeal of the

February 7, 2012 order to address equitable distribution payments as soon as she 

returned from vacation. However, Hunnell never filed the appeal.

The counterclaim makes no mention of any further interaction between 

the parties between March 2012 and December 2013. According to the 

counterclaim, the next interaction occurred on December 27, 2013, when 

Hunnell had "a telephone status conference" with McKeon and McKeon's 

second husband and attorney-in-fact, John Conroy. McKeon was "a senior 

citizen, who had been adjudicated totally disabled since 1994." Because 

McKeon "ha[d] been suffering from numerous health problems" since 2013, she 

appointed Conroy "as her authorized legal representative." 

At the end of the December 27, 2013 telephone status conference, Hunnell 

stated that she would "get back to [McKeon] in a couple of weeks." However, 

that telephone meeting was the last time Hunnell spoke to McKeon. In 

December 2014, McKeon emailed Hunnell to discuss her case and clarify 
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whether Hunnell was still representing her. The email mentioned that the 

Garfield properties, which were still unsold, had fallen into disrepair and 

suggested McKeon's ex-husband had intentionally vandalized the properties. In 

the email, McKeon also acknowledged receiving a letter and invoice for 

outstanding legal fees from Hunnell "in the spring of 2014" and insisted she had 

made repeated attempts to contact Hunnell since then. 

Hunnell's letter, which was dated April 22, 2014, and attached to the 

motion to dismiss as an exhibit, outlined a plan to obtain McKeon's ex-husband's 

compliance with the settlement agreement. The letter also stated that Hunnell 

was willing "to resume" representing McKeon "without a new retainer fee" in 

exchange for McKeon agreeing to "an attorney charging lien on the past due fees

when the property sells or equitable distribution is effectuated by some other 

means."

According to the counterclaim, Hunnell never responded to McKeon's 

December 2014 email or any subsequent attempts to "re-establish contact." 

"Sometime in 2015, the Garfield properties were sold in a greatly debilitated 

condition and for a greatly reduced price," resulting in McKeon only receiving

$70,000 from the proceeds. The counterclaim further alleged that in 2016, 2017, 

and 2018, Hunnell refused or ignored requests by McKeon, Conroy, and new
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attorneys acting on McKeon's behalf to provide copies of McKeon's "divorce 

and post-divorce file." It was not "until mid-to-late 2018," that Hunnell

eventually provided the copies after charging McKeon more than $700 in 

copying costs.

McKeon's counterclaim, set forth in an amended answer filed on February 

10, 2020, contained four counts: legal malpractice (count one); violation of the 

Rules of Professional Conduct (RPC) (count two); breach of contractual and 

ethical duties (count three); and discriminatory and predatory action against a 

disabled, elderly and infirm person (count four). On March 3, 2020, McKeon 

filed a second amended answer and counterclaim adding a fifth count for 

fraudulent concealment. 

Over McKeon's objection, on April 15, 2020, Hunnell moved to dismiss 

the counterclaim "in its entirety, with prejudice" pursuant to Rule 4:6-2(e) for 

failure to state a claim upon which relief can be granted. The parties submitted 

numerous documents and certifications in support of and in opposition to the 

motion. Following oral argument conducted on July 10, 2020, the judge entered 

an order on July 31, 2020, granting the motion. In an accompanying written 

statement of reasons, the judge recited the governing legal standard for Rule 4:6-

2(e) motions and stated he would "focus [his] attention solely on the claims in 
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the [counterclaim] and the attached [settlement a]greement and not on proofs 

outside that document." In that regard, in adjudicating the motion, the judge 

analyzed McKeon's second amended answer and counterclaim.2 

The judge explained that there is a six-year statute of limitations for legal 

malpractice claims. Thus, the viability of most of McKeon's claims was 

dependent on "when legal services concluded." The judge determined that

counts one, two, and three of the counterclaim failed because nothing in the 

counterclaim or in McKeon's moving papers suggested McKeon and Hunnell

had an attorney-client relationship after 2012. 

In support of that finding, the judge relied on the opposing certification of 

McKeon's current lawyer in which she asserted that "Hunnell's legal services to 

[McKeon] arguably concluded with her March 18, 2012[3]e-mail to her, after 

the issuance of the February 7, 2012 Superior Court [o]rder" in the postjudgment matrimonial litigation. Accordingly, the judge determined that March 

2

 There is no indication in the record that McKeon obtained the court's 

permission to file the second amended answer and counterclaim. Rule 4:67-4 

provides that in summary actions under Rule 4:67-1, as involved here, "[n]o 

counterclaim . . . shall be asserted without leave of court."

3

 This date appears to be an error as the record shows the email was sent on 

March 15, 2012.
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18, 2018, was the latest date McKeon could have filed a legal malpractice claim, 

rendering her February 10, 2020 counterclaim beyond the statute of limitations. 

Specifically addressing each count, the judge explained:

[T]he [f]irst [c]ount must fail because the statute of 

limitations on such claim leaves no theory of 

actionability. Even when searching with the most 

liberality, discovery would provide no new information 

o[r] facts that legal services have . . . been provided in 

the actionable period.

Likewise, the [s]econd [c]ount, which is a list of 

violations of the Rules of Professional [C]onduct [RPC] 

must also fail. The RPC does not itself give rise to 

actionable causes of action, but rather violations of 

such are used to prove malpractice claims. Therefore, 

like the [f]irst [c]ount, without the legal services being 

rendered during an actionable period of time, there is 

no cause of action . . . . for malpractice . . . . The [t]hird 

[c]ount must fail for similar reasons . . . . 

Further, the judge determined the counterclaim did not allege facts to 

substantiate McKeon's discrimination claim in count four. "Even in the most 

liberal readings," the judge described McKeon's "assertions in the [f]ourth 

[c]ount" as "fantastical based on the facts presented" and found no evidence that 

Hunnell "took advantage of [McKeon's] protected status." The judge noted 

"even if such had happened, [McKeon] is relying on a theory of malpractice 

which has already run the statute of limitations." Likewise, the judge 

determined McKeon's fraudulent concealment claim in count five failed 
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"because there [was] no theory of actionability." According to the judge, the 

counterclaim did not even allege that the $700 photocopy charge was 

"unreasonable." Therefore, the judge dismissed McKeon's entire counterclaim 

with prejudice. 

In this ensuing appeal, McKeon argues the judge misapplied the standard 

for deciding a Rule 4:6-2(e) motion to dismiss. She also maintains her legal 

malpractice claim was not barred by the statute of limitations because in her 

counterclaim, she alleged her attorney-client relationship with Hunnell 

continued until April 2014, rendering her February 10, 2020 counterclaim within 

the actionable period. McKeon also argues that her discrimination claim should 

have survived, as she alleged Hunnell engaged in a "consistent pattern of 

wrongful behavior."

We review de novo the trial court's grant of a motion to dismiss under 

Rule 4:6-2(e) and "owe[] no deference to the trial court's legal conclusions." 

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 

N.J. 91, 108 (2019). Rule 4:6-2(e) provides that a counterclaim may be 

dismissed for "failure to state a claim upon which relief can be granted." "The 

standard traditionally utilized by courts to determine whether to dismiss a 

pleading . . . is a generous one." Green, 215 N.J. at 451. In that regard, "'our 
10 A-0127-20

inquiry is limited to examining the legal sufficiency of the facts alleged on the 

face of the complaint.'" Ibid. (quoting Printing Mart, 116 N.J. at 746). "At this 

preliminary stage of the litigation the [c]ourt is not concerned with the ability of 

plaintiffs to prove the allegation contained in the complaint." Printing Mart, 116 

N.J. at 746.

In interpreting the Rule, our Supreme Court explained in Printing Mart

that "the test for determining the adequacy of a pleading . . . [is] whether a cause 

of action is 'suggested' by the facts." 116 N.J. at 746 (quoting Velantzas v. 

Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). The Court directed judges 

to "'search[] the complaint in depth and with liberality to ascertain whether the 

fundament of a cause of action may be gleaned even from an obscure statement 

of claim" and grant "opportunity . . . to amend if necessary.'" Ibid. (quoting Di 

Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div.

1957)). "Moreover, on a motion to dismiss the entire complaint, the court has 

the discretion to dismiss some of the counts." Pressler & Verniero, Current N.J. 

Court Rules, cmt. 4.1.1 on R. 4:6-2(e) (2022). Nonetheless, "the essential facts 

supporting plaintiff's cause of action must be presented in order for the claim to 

survive; conclusory allegations are insufficient in that regard." Scheidt v. DRS 

Techs., Inc., 424 N.J. Super. 188, 193 (App. Div. 2012).
11 A-0127-20

The Court also stressed that motions to dismiss under Rule 4:6-2(e) 

"should be granted in only the rarest of instances" and generally "without 

prejudice" to the "filing of an amended complaint." Printing Mart, 116 N.J. at 

772; see also Smith v. SBC Commc'ns Inc., 178 N.J. 265, 282 (2004). 

Nevertheless, dismissal with prejudice is appropriate if the claim is barred by an 

"impediment such as a statute of limitations." Printing Mart, 116 N.J. at 772.

Pertinent to this appeal, the elements of a legal malpractice claim are: "(1) 

the existence of an attorney-client relationship creating a duty of care by the 

defendant attorney, (2) the breach of that duty by the defendant, and (3) 

proximate causation of the damages claimed by the plaintiff." Nieves v. Off. of 

the Pub. Def., 241 N.J. 567, 583 (2020) (quoting McGrogan v. Till, 167 N.J. 

414, 425 (2001)). The statute of limitations for a legal malpractice claim is six 

years, N.J.S.A. 2A:14-1, but, under the applicable discovery rule, the cause of 

action accrues when "the client suffers actual damage and discovers, or through 

the use of reasonable diligence should discover, the facts essential to the 

malpractice claim," Rogers v. Cape May Cnty. Off. of the Pub. Def., 208 N.J. 

414, 422 (2011) (quoting Grunwald v. Bronkesh, 131 N.J. 483, 494 (1993)).

To be sure, "the RPCs set forth 'the minimum standard of competence 

governing the [legal] profession.'" Meisels v. Fox Rothschild LLP, 240 N.J. 
12 A-0127-20

286, 299 (2020) (quoting Albright v. Burns, 206 N.J. Super. 625, 634 (App. Div. 

1986)). However, an RPC violation, "standing alone . . . does not create a cause 

of action for damages in favor of a person allegedly aggrieved by that violation." 

Ibid.; see also Sommers v. McKinney, 287 N.J. Super. 1, 13 (App. Div. 1996) 

("Violation of the rules of professional conduct do[es] not per se give rise to a 

cause of action in tort.").

The elements of a fraudulent concealment claim are:

(1) That defendant in the fraudulent concealment action 

had a legal obligation to disclose evidence in 

connection with an existing or pending litigation;

(2) That the evidence was material to the litigation;

(3) That plaintiff could not reasonably have obtained 

access to the evidence from another source;

(4) That defendant intentionally withheld, altered or 

destroyed the evidence with purpose to disrupt the 

litigation; [and]

(5) That plaintiff was damaged in the underlying action 

by having to rely on an evidential record that did not 

contain the evidence defendant concealed.

[Rosenblit v. Zimmerman, 166 N.J. 391, 406-07 

(2001).]

A fraudulent concealment claim must be pled with particularity. See R. 4:5-

8(a).
13 A-0127-20

Here, the judge determined that the attorney-client relationship between 

McKeon and Hunnell ended in 2012 and concluded that McKeon's last 

opportunity to file a legal malpractice claim was in 2018. However, a legal 

malpractice cause of action may accrue after the representation has ended. See

Vastano v. Algeier, 178 N.J. 230, 242 (2003) (concluding the plaintiffs' cause 

of action accrued when they took possession of their case file after firing their 

attorney). 

More significantly for our purposes, in the counterclaim, McKeon alleged

that the parties' attorney-client relationship continued into 2014, at least until 

McKeon received the April 2014 letter from Hunnell. The judge should have 

taken that assertion at face value. See Banco Popular N. Am. v. Gandi, 184 N.J. 

161, 184 (2005) (explaining that the issue on a Rule 4:6-2(e) motion is not 

whether the allegations are true "but only whether they [a]re made"). 

Additionally, in the counterclaim, McKeon alleged that Hunnell's 

negligence in litigating the case led to a greatly reduced sales price for the 

properties in 2015 and a monetary loss for McKeon. Based on McKeon's

allegation that Hunnell's negligent representation was the proximate cause of 

her losses, McKeon averred sufficient facts to state a legal malpractice claim

within the limitations period. Because we are convinced that "a cause of action 
14 A-0127-20

is 'suggested' by the facts," Printing Mart, 116 N.J. at 746 (quoting Velantzas, 

109 N.J. at 192), we agree that the judge misapplied the standard for evaluating 

a Rule 4:6-2(e) motion and erred in dismissing counts one, two, and three, all of 

which were dependent upon the continuing attorney-client relationship. 

On the other hand, we are satisfied the judge correctly dismissed the 

fraudulent concealment claim in count five, as McKeon did not allege that she

was damaged in any existing or pending litigation by not having access to her 

files – she only complained about copying costs. Likewise, the judge correctly 

dismissed the discrimination count (count four) because in the counterclaim, 

McKeon only presented conclusory allegations and did not allege sufficient facts 

to state an unlawful discrimination claim. See N.J.S.A. 10:5-12 (prohibiting 

certain discriminatory practices in employment, public accommodations,

housing, and lending). Indeed, "conclusory allegations are insufficient" to 

withstand a Rule 4:6-2(e) dismissal. Scheidt, 424 N.J. Super. at 193. 

Nonetheless, following the guidance of Printing Mart, these claims should have 

been dismissed without prejudice in case McKeon can discover and plead 

sufficient facts. 116 N.J. at 772.
15 A-0127-20

Next, we turn to the denial of McKeon's cross-motion to amend the 

counterclaim. In a fourth amended answer and counterclaim,

4 McKeon sought 

leave to add another legal malpractice count based on allegations of fraudulent 

billing. According to McKeon, Hunnell submitted billing records with her

motion to dismiss that revealed "duplicative charges, overcharges and [a] failure 

to accurately record and deduct payments received." McKeon also claimed she 

did not receive Hunnell's billing records prior to the fee arbitration hearing

despite the judge's observation that the Fee Committee confirmed in its

statement of reasons that McKeon had received Hunnell's submissions, 

including billing records. 

The judge denied McKeon's motion to amend, reasoning:

The [c]ourt . . . cannot simply ignore the fact that 

[McKeon] and [her new attorney] had their chance to 

attack the alleged corrupted billing practices of 

[Hunnell] during the [f]ee [a]rbitration. Not only did 

the Committee of same find that the billing was 

reasonable, [McKeon], who was represented by [her 

current attorney] had every opportunity to crossexamine [Hunnell] about the billings. This amendment 

is little more than a veiled attempt to improperly appeal 

the [f]ee [a]rbitration [d]etermination, and as such, the 

[c]ourt denies [McKeon's] motion to [a]mend.

4

 There is no reference in the record to a third amended answer and 

counterclaim.
16 A-0127-20

Rule 4:9-1 provides that after the time for amending pleadings as a matter 

of course has passed, "a party may amend a pleading only by written consent of 

the adverse party or by leave of court which shall be freely given in the interest 

of justice." Our Supreme Court explained that courts should liberally grant Rule

4:9-1 motions and that "the granting of a motion to file an amended complaint 

always rests in the court's sound discretion." Notte v. Merchs. Mut. Ins. Co., 

185 N.J. 490, 501 (2006) (quoting Kernan v. One Wash. Park Urb. Renewal 

Assocs., 154 N.J. 437, 457 (1998)). "That exercise of discretion requires a twostep process: whether the non-moving party will be prejudiced, and whether 

granting the amendment would nonetheless be futile." Ibid.

An amendment is futile when the new claim would fail as a matter of law. 

"'In other words, there is no point to permitting the filing of an amended pleading 

when a subsequent motion to dismiss must be granted.'" Ibid. (quoting 

Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 257 (App. Div. 1997)). 

However, courts make that determination "without consideration of the ultimate 

merits of the amendment." Ibid. (quoting Interchange State Bank, 303 N.J. 

Super. at 256). 

Although McKeon could have challenged the accuracy of Hunnell's 

billing records during the fee arbitration hearing, she could not have brought a 
17 A-0127-20

legal malpractice claim before the Fee Committee because "a Fee Committee 

lacks jurisdiction to decide legal malpractice claims." Saffer v. Willoughby, 

143 N.J. 256, 266 (1996). Consequently, even if McKeon had raised the issue 

during arbitration, because the Fee Committee had no jurisdiction to decide the 

issue, McKeon would not have been precluded from later filing a legal 

malpractice claim based on a fraudulent billing allegation. See id. at 267 

(declaring "neither the evidence submitted to a Fee Committee nor the 'decision 

or settlement made in connection with a fee arbitration proceeding shall be 

admissible evidence in a legal malpractice action' in the Superior Court" 

(quoting R. 1:20A-2(c)(2)(B))). Because the judge had no basis for concluding

the fraudulent-billing legal malpractice claim was futile and made no finding of

prejudice to Hunnell, the judge erred in denying McKeon's motion to amend the 

counterclaim given the liberality with which such motions must be considered.

Finally, we address the denial of McKeon's cross-motion to stay the 

arbitration award. In support of the motion, McKeon certified that had she "been 

provided with Hunnell's billing record prior to the [f]ee [a]rbitration hearing,

[she] would have requested that fee arbitration be withdrawn and pursued a legal 

malpractice action." As previously noted, the judge observed that McKeon had 

received Hunnell's billing records based on the Fee Committee's confirmation
18 A-0127-20

that McKeon had the relevant billing records prior to the arbitration hearing. 

Further, the judge pointed out that McKeon had not appealed the arbitration 

award within the applicable timeframe. See R. 1:20A-3 (governing appeal of 

fee arbitration decisions).

Consequently, the judge concluded that McKeon was barred from seeking 

a stay, explaining:

[T]his [c]ourt cannot and will not stay the fee 

arbitration award. Failure to follow the appeal 

procedure . . . within the applicable timelines bars 

[McKeon] from staying such determinations now. 

[McKeon] who initiated the matter, offered testimony, 

and who was given the chance to cross-examine 

[Hunnell] cannot simply stay the unanimous finding by 

an unbiased committee. [Hunnell] met her burden of 

proof to the Committee to prove reasonable fees and as 

such the [c]ourt refuses to stay the fee arbitration 

determination.

We review the denial of a motion to stay an arbitration award for abuse of 

discretion. Granata v. Broderick, 446 N.J. Super. 449, 469 (App. Div. 2016). 

In Saffer, the Court announced that "[i]f the substantial basis for a malpractice 

claim is discovered after a Fee Committee has awarded a fee, a client may seek 

a stay of the award from the Superior Court either before or after the award has 

been confirmed," applying the discovery rule. 143 N.J. at 268. The Court also 
19 A-0127-20

explained that the filing of the legal malpractice action ordinarily "should be a 

precondition to granting a stay of a fee award." Id. at 269.

McKeon relies on Saffer's holding to support her position. However, 

McKeon's reliance is misguided because ample evidence in the record supports

the judge's finding that McKeon obtained the billing records prior to the Fee 

Committee awarding the fee. See Granata, 446 N.J. Super at 467 (deferring to 

the trial judge's findings that are "supported by adequate, substantial, and 

credible evidence"). Because McKeon possessed the billing records prior to the 

determination by the Fee Committee, she did not discover the substantial basis 

for a fraudulent-billing legal malpractice claim after the fee was awarded. 

Additionally, McKeon knew the basis for her other malpractice claims well 

before the arbitration hearing. Therefore, we discern no abuse of discretion in 

the judge's denial of her motion to stay the arbitration award.

In sum, we affirm the judge's denial of McKeon's motion to stay the 

arbitration award and affirm the judge's dismissal of counts four and five of the 

second amended answer and counterclaim, but remand for the entry of an order 

dismissing counts four and five without prejudice. We reverse the judge's 

dismissal of counts one, two, and three of the counterclaim and the denial of 

McKeon's motion to file an amended counterclaim to add a legal malpractice
20 A-0127-20

count based on allegations of fraudulent billing. We remand for further 

proceedings consistent with this opinion. 

Affirmed in part, reversed in part, and remanded for further proceedings. 

We do not retain jurisdiction.