SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0992-18T4

IN THE MATTER OF THE 

PETITION OF JOHNNIE Q. WADE 

TO PRESERVE AND INSPECT 

EVIDENCE AND COPY 

DOCUMENTS PURSUANT TO 

R. 4:18-1 AND TO PERPETUATE 

THE TESTIMONY OF MEGAN M. 

KWAK, ESQUIRE.

________________________________

Submitted September 25, 2019 –

Decided August 21, 2020

Before Judges Fuentes, Haas and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-2996-18.

Messa & Associates, P.C., attorneys for appellants

Joseph L. Messa, Jr., Megan M. Kwak and Messa & 

Associates, PA (Thomas N. Sweeney, on the briefs).

Ralph R. Kramer, attorney for respondent Johnnie Q. 

Wade.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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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Rule 4:11-1(a) provides that "any person desiring to preserve evidence 

prior to institution of an action may seek such relief by verified petition." State 

v. Saavedra, 222 N.J. 39, 69 (2015) (quoting Gilleski v. Cmty. Med. Ctr., 336 

N.J. Super. 646, 655 (App. Div. 2001)). The holding in Saavedra, however, did

not refute or modify the Court's earlier holding in In re Petition of Hall, 147 N.J. 

379, 391 (1997), which made clear that Rule 4:11-1 "was not intended to 

authorize pre-suit discovery for the sole purpose of assisting a prospective 

plaintiff in acquiring facts necessary to frame a complaint." Notwithstanding

this clear language, the trial court in this case did exactly what the Court in Hall

expressly prohibited—ordered pre-action discovery to enable petitioner to frame 

a potential legal malpractice complaint against his former attorney.

I.

On January 21, 2016, Johnnie Q. Wade was riding his bicycle when he 

was struck from behind by a motor vehicle, causing serious injuries to his body. 

Wade retained attorney Ralph R. Kramer to represent him in a personal injury 

suit against the tortfeasor. The tortfeasor's automobile insurance policy had a 

maximum coverage limit of $100,000. The carrier did not contest liability on 

the tortfeasor's behalf and offered the $100,000 coverage limit. Wade did not 
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accept the settlement offer at the time because his medical expenses far exceeded 

the coverage limit.

On January 31, 2017, Kramer referred Wade to attorney John Mininno, 

who was of counsel to the law firm Messa & Associates, to investigate whether 

there were any potentially viable claims other than common law negligence. 

Wade consulted with Mininno at his law offices on March 8, 2017. Mindful of 

the two-year statute of limitations, N.J.S.A. 2A:14-2, Megan Kwak, an attorney 

at Messa & Associates, sent petitioner a letter on December 19, 2017 explaining 

that the firm did not find any grounds to bring a products liability claim against 

the manufacturer of the helmet Wade was wearing at the time of the accident. 

Kwak urged Wade to accept the $100,000 settlement offered by the tortfeasor's 

insurance carrier because that was the only legally viable means of recovering 

compensation for his injuries.

Kwak attached a release form to her letter and informed Wade that Messa 

& Associates would be required to retain the settlement proceeds until all 

medical liens were satisfied. Kwak again cautioned Wade about the preclusive 

effect of the statute of limitations and emphasized that the release form had to 

be signed before the statute of limitations ran out on January 21, 2018. She sent 

Wade another letter on January 6, 2018 urging him to sign the release form 
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before January 21, 2018. Kwak made clear that if Wade did not respond by 

January 12, 2018, she would file a suit against the tortfeasor to preserve Wade's

right to recover the $100,000 offered by the tortfeasor's insurance carrier. Kwak

sent this final communication to Wade via messenger. Wade signed the release 

and provided his insurance information to assist in the discharge of any medical 

liens. 

Pursuant to N.J.S.A. 30:4D-7.1, Messa & Associates placed the $100,000 

settlement check in the firm's trust account pending the resolution of outstanding 

private and public liens. On June 4, 2018, Kramer notified Messa & Associates 

of his intent to file civil and ethics complaints against the firm if it did not pay 

his referral fee by June 5, 2018. According to Kramer, he conducted a judgment 

search that same day and did not find any outstanding liens against Wade. The 

following day, Wade sent Messa & Associates a letter requesting a copy of his 

file. 

Purportedly acting on Wade's behalf, Kramer discharged Messa & 

Associates on June 13, 2018, and apprised the law firm that he intended to file 

a Rule 4:11-1 petition to prepare to file a legal malpractice complaint against 

the firm for mishandling Wade's personal injury suit. Wade picked up his 

litigation file from the law firm's office on June 19, 2018.
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On September 14, 2018, a Law Division judge in the Camden County 

vicinage granted Kramer's Rule 4:11-1 pre-suit petition against Messa & 

Associates. The judge placed the following statement of reasons on the record 

in support of his ruling:

This is plaintiff's motion to preserve evidence and to 

take pre-trial depositions. Essentially, the plaintiff is 

alleging that his attorney Megan Kwak of Messa &

Associates, may have committed malpractice when she 

advised him of the status of a certain lien that had been 

filed against him and Mr. Wade now is asking for those 

documents that are in the possession of Ms. Kwak as 

well as the permission from the [c]ourt to submit 

interrogatories to her for her to answer.

The [c]ourt has not received any opposition to this 

motion. The petitioner does appear to the [c]ourt to 

have met all of the conditions of [R]ule 4:11-1 and 

accordingly the [c]ourt will grant the motion to 

preserve evidence.

On October 1, 2018, respondent filed a motion for reconsideration of the 

trial court's September 14, 2018 order pursuant to Rule 4:49-2. Petitioner filed 

a timely response opposing the motion. On October 26, 2018, the judge decided 

respondent's motion without oral argument from counsel. The judge noted for 

the record that respondent (whom the judge incorrectly referred to as 

"defendant") claimed it did not oppose petitioner's Rule 4:11-1 petition "because 
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they had been informed by the [c]ourt that petitioner's application was

improperly filed[.]" 

The judge found respondent's explanation for its failure to oppose the 

petition was not supported by the court's electronic record and upheld the 

September 14, 2018 ruling. The court's electronic records showed the petition 

was originally returnable on August 31, 2018. Respondent filed a letter on 

eCourts on August 20, 2018 "asking the [c]ourt to adjourn the motion." The 

judge read the content of the letter into the record: 

"I am a respondent in the above listed matter. This 

matter is currently scheduled for a motion hearing 

before Your Honor on August 31st, 2018. Please accept 

this letter as my request to continue the August 31st, 

2018 hearing on the petition to preserve evidence, copy 

documents, and to perpetuate testimony, which was 

filed by Mr. Johnnie Q. Wade . . . pro se on August 7th, 

2018 and received by respondent on August 15th, 2018.

Respondents request that the August 31st, 2018 petition 

be continued for one motion cycle, as counsel will be 

out of town on a prepaid vacation, which was 

previously scheduled for the last week of August.

Respondent has attempted to reach Mr. Wade by 

telephone to request his consent on respondent's 

continuance request, but I've been unable to reach Mr. 

Wade. Respondent left voicemail for Mr. Wade on 

August 17th, 2018, which explained respondent's 

continuation -- continuance request and requested Mr. 

Wade return the respondent's call, but Mr. Wade has not 

returned the call.
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Thank you for your time and attention to this matter. 

Respectfully submitted, Joseph L. Messa, Jr."

The judge acknowledged that he received the letter and granted 

respondent's request to adjourn the original return date and reschedule the date 

to September 14, 2018. Based on this procedural record, the judge concluded 

respondent did not present any grounds to vacate his original ruling. Over 

petitioner's objection, on November 30, 2018 a different judge granted 

respondent's motion to stay the enforcement of the September 14, 2018 order

pending appeal. On that same day, respondent filed a motion to deposit 

petitioner's settlement proceeds with the court pursuant to Rule 4:57-1 and Rule

4:45-2. Less than a month later, petitioner filed a cross-motion seeking a full 

accounting of the settlement proceeds held in respondent's trust account and 

sought leave from the court to place the financial institution holding these funds 

on notice of its possible exposure to pay prejudgment interest. Respondent 

opposed petitioner's motion. The record does not include the disposition of these 

motions.

II.

We review a trial court's decision to grant or deny a pre-action petition 

pursuant to Rule 4:11 and motion for reconsideration under Rule 4:49-2 under 
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an abuse of discretion standard. An abuse of discretion occurs where the trial 

court's decision is "'made without a rational explanation, inexplicably departed 

from established policies, or rested on an impermissible basis.'" Iliadis v. WalMart Stores, Inc., 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cnty. 

Prosecutor, 171 N.J. 561, 571 (2002)).

However, we do not afford any deference when a trial court makes a 

discretionary decision based on a misconception of the applicable law. Dolson 

v. Anastasia, 55 N.J. 2, 7 (1969). Stated differently, a trial court's "interpretation 

of law and the consequences that flow from established facts are not entitled to 

any special deference." State v. Pomianik, 221 N.J. 66, 80 (2015) (quoting 

Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995)).

Rule 4:11-1(a) authorizes

[a] person who desires to perpetuate . . . testimony of 

another person or preserve any evidence or to inspect 

documents or property or copy documents pursuant to 

[Rule] 4:18-1 may file a verified petition, seeking an 

appropriate order, entitled in the petitioner's name, 

showing: (1) that the petitioner expects to be a party to 

an action cognizable in a court of this State but is 

presently unable to bring it or cause it to be brought; (2) 

the subject matter of such action and the petitioner's 

interest therein; (3) the facts which the petitioner 

desires to establish by the proposed testimony or 

evidence and the reasons for desiring to perpetuate or 

inspect it; (4) the names or a description of the persons 

the petitioner expects will be opposing parties and their 
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addresses so far as known; (5) the names and addresses 

of the persons to be examined and the substance of the 

testimony which the petitioner expects to elicit from 

each; and (6) the names and addresses of the persons 

having control or custody of the documents or property 

to be inspected and a description thereof.

We have sanctioned the invocation of Rule 4:11-1(c) in a case in which

the petitioner sought to preserve the testimony of a witness of advanced age with 

direct knowledge of material facts in a potential case. Strum v. Feifer, 186 N.J. 

Super. 329, 333 (App. Div. 1982). However, the Supreme Court made clear in 

Hall that Rule 4:11-1(a)

was not designed to assist plaintiffs in framing a cause 

of action, but was intended for cases in which there 

existed a genuine risk that testimony would be lost or

evidence destroyed before suit could be filed and in 

which an obstacle beyond the litigant's control prevents 

suit from being filed immediately.

[147 N.J at 385.]

Here, the trial judge who granted this petition abused his discretionary 

authority when he granted this pre-suit petition because the purpose disclosed 

by petitioner directly contravenes the Supreme Court's holding in Hall.

Reversed.