Opinion
DOCKET NO. A-0202-15T3
02-01-2017
MICHAEL LIPKA, Plaintiff-Appellant, v. ELMER J. HERRMANN, Jr., Defendant-Respondent.
Carter, Van Rensselaer and Caldwell, attorneys for appellant (William J. Caldwell, on the brief). Tompkins, McGuire, Wachenfeld & Barry, LLP, attorneys for respondent (Sarah A. Ryan, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Accurso and Manahan. On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-38-14. Carter, Van Rensselaer and Caldwell, attorneys for appellant (William J. Caldwell, on the brief). Tompkins, McGuire, Wachenfeld & Barry, LLP, attorneys for respondent (Sarah A. Ryan, of counsel and on the brief). PER CURIAM
Plaintiff Michael Lipka appeals from the entry of summary judgment dismissing his complaint for legal malpractice by his former lawyer, defendant Elmer J. Herrmann, Jr. Because we agree with the trial court that plaintiff could not succeed on his malpractice claim without expert testimony, we affirm.
The parties agree that defendant had represented plaintiff in two residential real estate deals and drafted his Will when plaintiff came to see him about a prenuptial agreement in 2002. Defendant obtained a form agreement from another lawyer in his office and used it to prepare an agreement for plaintiff and the woman he intended to marry. Plaintiff maintains he visited defendant's office twice in connection with the agreement, the first time when he provided the necessary information to defendant and the next when he picked up the document several weeks later. Plaintiff also contends he paid defendant $200 for the agreement.
Defendant contends the two met only once and talked "informally." He claims plaintiff said he was only considering marriage, and that the document he drafted, for which he did not charge plaintiff, was only a "rough outline draft" of a prenuptial agreement. He says he told plaintiff to have his intended take the agreement to her lawyer, instructed plaintiff that there needed to be disclosure of assets, and explained the agreement needed to be signed and notarized. Defendant claims he did not hear from plaintiff for the next eleven years until plaintiff contacted him in the midst of his divorce in 2013. Defendant claims he only then learned that the prenuptial agreement he had prepared for plaintiff had been signed.
Plaintiff agrees that defendant told him to give the agreement to his future wife to review with her attorney and that the agreement needed to be signed and notarized, but denies it was a "draft" or that defendant told him he needed to prepare and attach an asset list.
When plaintiff attempted to rely on the agreement in his divorce, the Family Part judge ruled it unenforceable. Although noting that plaintiff's wife claimed she never saw the entire agreement as plaintiff only presented her with the signature page after they were already married, and that she would not have been able to understand it even if she had seen it as she was not fluent in English at the time, the judge did not make any findings on those allegations. Instead, he ruled the agreement unenforceable as a matter of law because it lacked an itemized list of the parties' assets as required under the law in effect at the time of the document's execution, see N.J.S.A. 37:2-33, and did not otherwise constitute full and complete disclosure of the assets plaintiff was seeking to shield from his wife in the divorce.
Plaintiff contends that as a result of the unenforceability of the prenuptial agreement defendant drafted, he was forced to settle his divorce by paying his wife of ten years over $100,000 in equitable distribution and $60,000 in limited duration alimony. Following settlement of his divorce action, plaintiff instituted this action by filing a complaint and an affidavit of merit by a certified matrimonial law attorney.
Plaintiff did not, however, serve defendant with an expert report. Instead, as discovery was ending, plaintiff moved for partial summary judgment on liability contending no expert was necessary to establish defendant's breach of duty in light of the Family judge's opinion that the agreement was unenforceable as a matter of law.
Defendant opposed the motion and cross-moved for summary judgment. He contended the unenforceability of the agreement was not per se evidence of a breach of duty, and that expert testimony was required because the error, if there was one, was not one that a layperson could be expected to comprehend. Defendant also contended, relying on Puder v. Buechel, 183 N.J. 428, 443 (2005), that plaintiff's knowing and voluntary acceptance of a settlement in his divorce meant his damages could not be proximately related to defendant's alleged legal malpractice as a matter of law.
The judge denied plaintiff's motion and granted defendant's cross-motion dismissing the malpractice complaint. After reviewing the decision of the Family Part judge, the Law Division judge concluded that court "struck the agreement because it failed to include a statement of assets." The judge wrote:
It is stipulated by both parties to this action that [defendant] advised plaintiff that the agreement was required to list the respective assets of [plaintiff and his wife]. For whatever reason, [plaintiff] failed to heed his attorney's advice. There is no evidence of negligence here, let alone a breach of a duty so obvious as to obviate expert opinion. No reasonable juror could find in favor of plaintiff.The judge also "incorporat[ed] defendant's arguments with respect to damages."
Plaintiff moved for reconsideration on the basis he had never admitted that defendant told him he needed to append a statement of assets. Because that disagreement represented a genuine dispute over a material fact, plaintiff claimed defendant's cross-motion was improperly granted.
The judge denied the motion, writing that "even recognizing this fact as contested, the [c]ourt remains of the opinion that an obvious breach of a professional duty of care has not occurred, and therefore expert opinion is compulsory to maintaining a cause of action." The judge further noted that plaintiff had not addressed the "second basis" for summary judgment, that being the Puder argument.
Plaintiff appeals, arguing that he did not need an expert to prove defendant's breach of duty, and that the Law Division judge erred in granting summary judgment on disputed facts. We disagree.
We review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). We thus accept plaintiff's version of defendant's conduct as true and give plaintiff the benefit of all reasonable inferences from the facts. Baliko v. Stecker, 275 N.J. Super. 182, 186 (App. Div. 1994). Our task here is to determine, viewing plaintiff's version of the facts as true, whether the motion judge was correct in concluding plaintiff needed expert testimony to establish his malpractice claim against defendant.
"To prevail on a claim of legal malpractice, a plaintiff must prove the existence of an attorney-client relationship that gives rise to a duty of care, the breach of such duty, and proximate causation." Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001). Although no expert is required " where the questioned conduct presents such an obvious breach of an equally obvious professional norm that the fact-finder could resolve the dispute based on its own ordinary knowledge and experience and without resort to technical or esoteric information," ibid., our Supreme Court has acknowledged that plaintiffs need to produce an expert to testify to a lawyer's deviation from the appropriate standard "in nearly all malpractice cases." Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 362 (2004). We do not view this case as one of the rare exceptions.
There was no retainer agreement here spelling out a description of the services defendant proposed to render to plaintiff. Plaintiff needed an expert to explain to the jury how an attorney-client relationship is formed in the absence of a retainer agreement, what investigation of the facts a lawyer of ordinary ability and skill would have undertaken in the circumstances presented, what a reasonable lawyer would have advised in light of the facts and existing law and how defendant's performance both in the advice rendered to plaintiff and the drafting of the agreement deviated from that standard. See St. Pius X House of Retreats v. Diocese of Camden, 88 N.J. 571, 588 (1982). The Family Part order that the agreement was unenforceable does not suffice to establish duty and breach.
Because we agree with the motion judge that plaintiff's case could not proceed without expert testimony, we need not consider whether Puder would otherwise bar plaintiff's claim. But see Gere v. Louis, 209 N.J. 486, 504 (2012) (declining to apply Puder's "equity-based exception" to scenarios materially distinguishable from the one considered in that matter).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION