Opinion
DOCKET NO. A-1631-13T1
03-11-2015
MELISSA GIORDANO, Plaintiff-Appellant, v. BOGART, KEANE, RYAN & HAMILL, L.L.C., JOHN F. HAMILL, ESQ., MARC KEANE, ESQ., Defendants-Respondents.
The Law Office of Edward R. Grossi, L.L.C., attorneys for appellant (Edward R. Grossi, on the brief). Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P. and Hardin Kundla McKeon & Poletto, attorneys for respondents (Thomas Quinn, Joanna Piorek and Daniel J. Garry, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10044-10. The Law Office of Edward R. Grossi, L.L.C., attorneys for appellant (Edward R. Grossi, on the brief). Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P. and Hardin Kundla McKeon & Poletto, attorneys for respondents (Thomas Quinn, Joanna Piorek and Daniel J. Garry, on the brief). PER CURIAM
Plaintiff Melissa Giordano retained defendants John F. Hamill, Esq., and Marc Keane, Esq., of Bogart, Keane, Ryan & Hamill, LLC, to represent her in the sale of real estate. In this legal malpractice action, plaintiff claims she sustained damages when, as a result of defendants' negligence, the sale was not timely consummated. Plaintiff appeals from the trial court's November 8, 2013 order granting summary judgment and dismissing her complaint. We affirm.
I
Plaintiff is the only child of Beverly Giordano. On July 1, 2004, Beverly, now deceased, executed a power of attorney appointing plaintiff as her attorney-in-fact. At the time, Beverly was in her seventies and legally blind. On July 8, 2004, Beverly allegedly signed a deed transferring her home to plaintiff.
Because plaintiff and Beverly Giordano share the same surname, we refer to the latter by her first name to distinguish her from plaintiff. No disrespect is intended.
On April 25, 2007, plaintiff signed a contract of sale in which Roton Developers, LLC agreed to buy the home for $1,350,000. The sales contract was later assigned to Galaga Developers, LLC (buyer). In the contract documents, plaintiff agreed to deliver title that was "good, marketable and insurable at regular rates." Further, the contract was not subject to any tenancies and, thus, the premises were to be vacant by the time of closing. In August 2007, Beverly learned of the impending sale. Believing plaintiff did not have the authority to sell the house, Beverly hired an attorney, Mark Brancato, Esq., to enjoin the sale.
On August 15, 2007, Brancato sent a letter to Keane advising that Beverly did not wish to sell "her" home and that Beverly was revoking the power of attorney. There is evidence Beverly believed the power of attorney was confined to permitting plaintiff to pay bills and conduct some limited banking on her behalf. Brancato also requested that Keane provide him with the name of the buyer so he could alert it of Beverly's position. On August 30, 2007, Brancato sent another letter to Keane advising that Beverly was challenging the validity of the deed. On September 25, 2007, Brancato sent a third letter to Keane asserting that Beverly "did not knowingly execute a deed to anyone," and would be filing an order to show cause seeking to enjoin the sale from going forward.
The power of attorney is not in the record and thus we were unable to examine the scope of the attorney-in-fact's authority.
On October 1, 2007, Keane responded to Brancato and suggested they meet to try and resolve the matter, but Beverly rebuffed plaintiff's invitation. By letter dated October 1, 2007, the buyer's attorney advised Keane that he had received Brancato's letter of September 25, 2007, and was aware there was an adverse claim against the title. The buyer's attorney noted that his client had incurred substantial expenses in anticipation of closing, then scheduled for October 11, 2007, and demanded:
adequate proof and assurance that said claim has been resolved, prior to closing. Further, although there may have been discussion about the current occupant's remaining in the premises for some time following closing, under the circumstances, we will require that the property be vacant at the time of closing.The buyer's attorney also declared that the closing scheduled for October 11, 2007, was "time of the essence."
The closing did not go forward on October 11, 2007. Beverly's legal stance created a cloud on the title of the property and precluded plaintiff from conveying marketable title. Under these circumstances, the buyer refused to proceed with the purchase. At the end of October 2007, Beverly filed a verified complaint against plaintiff in which she sought to enjoin the sale and to compel the return of the property to her. On October 25, 2007, the buyer filed a complaint against plaintiff and Beverly seeking a declaratory judgment that plaintiff held valid title to the property free and clear of any claims. The buyer also sought a judgment requiring plaintiff to convey clear title to it; compensatory damages against plaintiff for her failure to close on October 11, 2007; and compensatory damages against Beverly for interfering with a prospective economic advantage by alleging plaintiff did not hold valid title to the property. Both the buyer's and Beverly's complaints were subsequently consolidated.
We do not have a copy of the filed complaint and the record does not indicate the precise date the complaint was filed.
Following a conference with the court on June 12, 2008, plaintiff, Beverly, and the buyer settled their disputes. The principal terms of the agreement included an acknowledgement that plaintiff held valid title to the property, the sale price would remain at $1,350,000, and Beverly would vacate the premises no later than November 30, 2008. A proposed consent judgment was circulated among the parties. However, Beverly refused to sign the consent judgment because she was determined to stay in her home.
By September 2008, the agreement unraveled and the buyer refused to go through with the sale. On October 6, 2008, a consent order was signed by the court, Beverly, plaintiff, and the buyer that appointed a "special fiscal agent." A full copy of the consent order is not in the record but other documents indicate the consent order permitted the agent to sell the property, buy a new home for Beverly, and create a special needs trust for her to use for her support.
In November 2008, plaintiff received an offer to buy the property for $999,999, as well as pay the realtor's commission. On plaintiff's behalf, defendant Hamill contacted the buyer and asked if it wished to match the offer. The buyer offered to buy the property for $999,999 and waive its claims against plaintiff and Beverly; at that time, the buyer was asserting $200,000 in damages against both of them. Plaintiff accepted the offer.
In March 2009, plaintiff discharged defendants and hired new counsel. The property eventually closed July 2, 2009. However, before closing, the buyer had to obtain a court order to compel Beverly to leave the property. The court ordered her to vacate the house by May 1, 2009, and the closing to take place thereafter. Although Beverly initially refused to leave by this date, she eventually moved out; the delay in closing was caused by her intransigence over vacating the premises.
In December 2010, plaintiff filed a complaint against defendants alleging legal malpractice. Specifically, plaintiff alleged defendants negligently caused plaintiff to lose the contract of sale for $1,350,000. The damages plaintiff sought were the difference between the sale prices of the two contracts.
Plaintiff's expert, Anthony P. Ambrosio, Esq., authored a report in which he opined that defendants were negligent because they: (1) failed to advise the buyer that Beverly had filed a lawsuit to enjoin the closing scheduled for "October 25, 2007"; (2) caused plaintiff to breach the sales contract by advising against closing in October 2007 when, as the person named on the deed, she had the authority to sell the property; (3) failed to take any action before the closing in October 2007 to settle Beverly's dispute by either offering to complete the sale and putting the proceeds into escrow, or seeking the court's intervention "to protect the interests of both mother and daughter to avoid the breach of contract . . . rather . . . than [allow plaintiff] to default on a time of the essence closing date; (4) failed to protect the contract after Beverly filed suit and expedite the litigation; and (5) failed to ensure the house sold given there were no resources to maintain the property.
It is undisputed the date of the closing was scheduled for October 11, 2007.
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After the conclusion of discovery, defendants filed a motion for summary judgment contending that Ambrosio's opinions were inadmissible because they were net opinions, see Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). Defendants further argued that without admissible expert testimony, plaintiff could not establish a legal malpractice cause of action against them as a matter of law, requiring the dismissal of plaintiff's complaint with prejudice. After extensive oral argument, the trial court found, among other things, that Ambrosio's opinions pertaining to proximate causation were merely net opinions, fatally affecting plaintiff's ability to make out a prima facie case; therefore, the court dismissed plaintiff's complaint with prejudice.
As evidenced by the letter dated October 1, 2007, the trial court found the buyer was aware as of September 25, 2007, that Beverly was challenging the validity of the deed that gave plaintiff title to the property. Therefore, there were no facts to support the expert's premise that defendant's failure to advise the buyer of Beverly's claim before the scheduled closing was a substantial factor in causing plaintiff damages. The buyer knew of the claim before October 11, 2007.
As for the claim defendants deviated by not permitting plaintiff to close on October 11, 2007, the trial court noted that not only was plaintiff precluded from conveying clear title because of Beverly's claim, there was also undisputed evidence the buyer was not going to close as long as Beverly's claim loomed over the property's title. Ambrosio's assertion that plaintiff could have offered to sell the property and put the proceeds in escrow was mere speculation, untethered to any competent evidence that the buyer would have been willing to go through with the sale. Beverly's allegations were facially reasonable and very serious; under these circumstances, the buyer was understandably reluctant to go through with the closing. Thus, even if defendants and plaintiff appeared at the closing and were willing to proceed, the buyer was not willing to go forward with this cloud upon the title of the property.
As for enlisting the court's aid to "protect the interests of the mother and the daughter to avoid the breach of the contract," the trial court noted the absence of any law giving a court authority to force the closing on October 11, 2007, especially given Beverly's allegations. At the least, the buyer had a right to refuse to go forward in light of Beverly's claim. Therefore, there was no factual basis for the expert's legally untenable assertion that had defendants sought the court's assistance, the closing would have occurred on October 11, 2007.
With respect to the claim defendants failed to "expedite" Beverly's lawsuit to protect the contract after she filed suit, the trial court pointed out that, first, no one knew the real estate market was going to decline toward the end of 2008 and, thus, it cannot be said defendants knew or should have known litigation had to be hastened to preserve the contract of sale for $1,350,000. Second, a party has little control over the pace of litigation; it is unpredictable when discovery will conclude and a case will reach trial. Third, and more to the point, the parties reached a settlement eight months after the complaint was filed and at that time, the buyer was still willing to pay $1,350,000. Although the settlement agreement did fall apart in September 2008, its demise was due to Beverly's unwillingness to leave the property and not due to her lawsuit alleging plaintiff failed to hold valid title to the property. In the final analysis, Beverly's suit was not a substantial factor in causing plaintiff's alleged damages.
The trial court did not address the expert's opinion that defendants failed to ensure the sale of the house because of the lack of financial resources to maintain the property. However, we note no foreclosure complaint had been filed by the time the house was sold.
II
To establish a claim for legal malpractice, a claimant must show "'(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation.'" Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996) (quoting Lovett v. Estate of Lovett, 250 N.J. Super. 79, 87 (Ch. Div. 1991)). "To establish the requisite causal connection between a defendant's negligence and plaintiff's harm, plaintiff must present evidence to support a finding that defendant's negligent conduct was a 'substantial factor' in bringing about plaintiff's injury, even though there may be other concurrent causes of the harm." Froom v. Perel, 377 N.J. Super. 298, 313 (App. Div.) (quoting Conklin, supra, 145 N.J. at 419), certif. denied, 185 N.J. 267 (2005).
When reviewing an order granting summary judgment, we apply the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Summary judgment is proper when "'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
If there is no factual dispute and only a legal issue to resolve, the standard of review is de novo and the trial court rulings "are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). However, we review a trial court's decision regarding the admissibility of expert evidence for an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008). The abuse-of-discretion standard applies to evidentiary rulings preliminary to determinations of motions for summary judgment. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010).
The net opinion rule renders inadmissible any opinions that are unsupported by factual evidence. Buckelew, supra, 87 N.J. at 524. "An expert's conclusion is considered to be a 'net opinion,' and thereby inadmissible, when it is a bare conclusion unsupported by factual evidence." Creanga v. Jardal, 185 N.J. 345, 360 (2005) (citing Buckelew, supra, 87 N.J. at 524). The net opinion rule has been defined as "'a prohibition against speculative testimony.'" Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 525 (App. Div. 2007) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)), certif. denied, 194 N.J. 272 (2008).
Applying these standards, we are satisfied the trial court properly exercised its discretion when it concluded Ambrosio's opinions lacked the requisite causal connection between the alleged legal malpractice and the damages plaintiff claimed, and thus were inadmissible net opinions. Without expert testimony, plaintiff cannot establish a prima facie case of legal malpractice against defendants. Accordingly, we affirm essentially for the reasons expressed by Judge Sebastian P. Lombardi in his oral opinion.
Plaintiff's arguments for reversal are insufficient to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION