Opinion
DOCKET NO. A-3940-11T3
02-06-2014
FERNANDO A. PORTES, Plaintiff-Appellant, v. HERBERT TAN, HERBERT TAN LLC, ELDRIDGE HAWKINS, Defendants-Respondents.
Fernando A. Portes, appellant, argued the cause pro se. Eldridge Hawkins, respondent, argued the cause pro se. Herbert Tan and Herbert Tan LLC, respondents, have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Ostrer and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1519-10.
Fernando A. Portes, appellant, argued the cause pro se.
Eldridge Hawkins, respondent, argued the cause pro se.
Herbert Tan and Herbert Tan LLC, respondents, have not filed a brief. PER CURIAM
Plaintiff Fernando A. Portes appeals from summary judgment dismissal by the Law Division of his complaint alleging legal malpractice and related claims against defendants Herbert Tan and Herbert Tan, LLC (collectively Tan) and Eldridge Hawkins. Plaintiff argues, among other things, that the trial court erred in ruling that all of his causes of action essentially sounded in legal malpractice, that expert opinion was necessary to establish them, that plaintiff's legal malpractice expert provided only an inadmissible net opinion, and that dismissal of his claims was therefore required. Having reviewed plaintiff's arguments in light of the facts and applicable law, we affirm.
I.
We begin by briefly recounting the underlying litigation that gave rise to plaintiff's malpractice action. Plaintiff was a managerial employee at Johnson & Johnson (J & J). He had unsuccessfully sought numerous other positions within the company, and was subsequently terminated. In November 2004, he brought suit against J & J, claiming discrimination on the basis of ethnicity, hostile work environment, failure to hire, and retaliatory discharge for having filed internal discrimination complaints and a complaint with the United States Equal Employment Opportunity Commission (EEOC), all in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), as well as wrongful discharge in violation of public policy, common law retaliatory discharge, breach of employment contract, and intentional and negligent infliction of emotional distress.
Plaintiff was represented by various other attorneys until he retained Tan in November 2007. At that point, prior counsel had engaged in extensive discovery and secured expert reports.
On January 7, 2008, the court denied plaintiff's motion to extend discovery. The court noted that the case already had 1013 days of discovery with seven extensions, and ruled that plaintiff's retention of new counsel, i.e., Tan, "is not a good faith basis to extend discovery." On January 30, 2008, plaintiff moved to suppress J & J's answer for failure to comply with discovery. On March 5, 2008, the court denied the motion.
J & J moved for summary judgment, in response to which Tan submitted a seventy-two page brief. Tan's brief discussed why plaintiff was more qualified than the other successful candidates, but for only three of the twenty-nine positions that he had applied for. At the April 11, 2008, summary judgment hearing, Tan confirmed that plaintiff was conceding the twenty-six other positions, and that he was relying only on the remaining three.
In his April 17, 2008, oral decision, Judge John A. O'Shaughnessy noted that plaintiff had also conceded his claims for wrongful discharge in violation of public policy, common law retaliatory discharge, breach of employment contract, and intentional and negligent infliction of emotional distress. The court's April 25, 2008 order memorialized those concessions and dismissed those claims on summary judgment, leaving surviving only the LAD claims of failure to hire for the three remaining positions, discriminatory discharge based on ethnicity, retaliatory discharge for filing an EEOC complaint, and hostile work environment.
Prior to trial, J & J made a settlement offer that the court in the malpractice action would later characterize as "substantial." Plaintiff declined to accept it, and opted to proceed to trial.
Plaintiff's retainer agreement authorized Tan to bring in outside counsel and, at some point before trial, Tan brought in Hawkins to try the case. The retainer agreement also contained a handwritten notation that stated "zero chance of settlement." On June 25, 2008, after the close of evidence at trial, the court dismissed the failure to hire claim for the remaining three positions as untimely under the LAD. On July 21, 2008, the jury returned a verdict for J & J on plaintiff's other LAD claims. Plaintiff appealed, and we affirmed. Portes v. Johnson & Johnson, Docket No. A-6025-07 (App. Div. Oct. 3, 2011) (slip op. at 2).
II.
On March 5, 2010, while his appeal of the underlying action was still pending, plaintiff commenced this malpractice action against Tan and Hawkins. Plaintiff's main claim was defendants' negligence in disregarding the information he had provided them concerning the twenty-six conceded positions. He alleged common law fraud (count one) on the ground that defendants never intended to provide the "minimum acceptable legal representation," which he understood required them to prepare for trial by studying and exploiting all the evidence that he had submitted to them, including his assessments of all twenty-nine positions for which he had unsuccessfully applied at J & J. He also pled breach of contract (count two), legal malpractice (count three), consumer fraud (count four), negligence (count five), and conspiracy to commit fraud and consumer fraud (count six). Like count one, counts two, three, four and five similarly alleged that defendants failed to provide the "legal work" and the "legal representation expected [from] or [of] New Jersey attorneys."
On October 12, 2010, plaintiff moved for discovery of Tan's and Hawkins's tax returns and bank statements for 2008 and 2009. He contended that their gross derelictions justified suspicions that J & J had paid them to undermine his underlying case against the company. On October 29, 2010, the court denied the motion.
On March 7, 2011, plaintiff moved to compel Tan to immediately return $2402.24 of his retainer as Tan had allegedly promised, which represented the fee of plaintiff's damages expert for an updated report. On April 1, 2011, the court denied the motion on the ground that plaintiff had not provided evidence of a "written agreement" for Tan to refund portions of his retainer.
To establish his allegations against defendants, plaintiff submitted the January 24, 2011 report of William Michelson, Esq., his legal malpractice expert. Michelson opined that an associate of Tan had mishandled the motion to extend discovery, by making easily avoidable ministerial mistakes and omissions. He stated that J & J had failed to produce "evidence of the handling of other people's job applications," which he did not name or characterize, and of plaintiff's EEOC grievance, "as its own rules required to be done." Further discovery would have yielded such information to bolster plaintiff's case, or revealed the destruction of such information to support a spoliation claim. Alternatively, a discovery extension would have at least bought extra time before plaintiff had to respond to J & J's summary judgment motion.
Michelson deemed Tan's brief in opposition to J & J's summary judgment motion substantively sound, except that it addressed only three of the twenty-nine positions for which plaintiff had unsuccessfully applied. Michelson did not see a substantive reason for Tan to concede the large majority of those positions, given plaintiff's belief that he could have established his superiority for at least twelve of them.
Michelson stated that plaintiff's claim of failure to hire required him to establish four elements: that the plaintiff belonged to a protected class, he applied for a position for which he "was qualified," and was rejected "despite adequate qualifications," while the employer continued to seek applicants who were not more qualified. He explained that plaintiff was a member of a protected class and had suffered the adverse employment action of being denied numerous positions, which plainly established two of the required elements. He believed that plaintiff presented evidence at trial to satisfy a third element, which was that he performed to his employer's expectations, until the stress of the mistreatment from his supervisor began to impede his work.
However, the fourth element, that employees outside the plaintiff's protected class did not suffer similar adverse employment actions, was "lost" when Tan chose not to contest twenty-six of the denied promotions. Michelson opined that the sheer number of denials for positions for which plaintiff had adequate qualifications could have affected the result: "Had the [twenty-six] missing applications each come before the jury, it would have been instructed to apply these tests, and I think the sheer multiplicity of these instances would have worked to [p]laintiff's benefit."
On June 13, 2011, following his deposition, Michelson issued a "clarification," which the trial judge later deemed to be a supplemental report. It elaborated on his prior opinion that Hawkins spent insufficient time preparing for trial and reviewing the available information, that Hawkins's decisions on what evidence to use reflected his lack of preparation rather than a deliberate choice based on strategy and client consultation, and that preparing for and conducting a trial in such a manner was negligent. Michelson suggested that Hawkins could not be responsible for any failures that had occurred before he agreed to handle the case, but in the alternative, he proposed that Tan and Hawkins were joint venturers and therefore fully responsible for each other's negligence.
Prior to trial, defendants moved to bar Michelson's expert opinions as net opinions, and to dismiss plaintiff's complaint on that basis. The trial judge held a hearing, during which Michelson provided voir dire testimony about his reports. He explained that he "didn't have any criticism of [Hawkins] in terms of the actual handling of the trial," and that Hawkins "lived up to ordinary care in the handling of a trial." Rather, he faulted the inadequate preparation that eliminated certain evidence before the trial began. Michelson was asked to identify any report or evidence that plaintiff had provided as to which Hawkins had "breached the duty of care by not accepting it and moving it into evidence." Michelson's response was that "I haven't been through those one by one. It would have been an enormous task." He opined that Hawkins's liability would arise solely from being "in a joint venture with" Tan and other prior counsel who "gave you a booby trapped case that had already sustained a lot of damage before it went to trial."
Michelson testified that Tan briefed the case well and that "he understood the law on point." His criticism was that Tan failed to address twenty-six of the positions for which plaintiff had applied, but Michelson himself was unable to say whether plaintiff had a valid cause of action for any of them. Michelson nonetheless believed that "the loss of those issues was a substantial contributing factor in weakening the case as a whole," and that Tan did not have "the right" to make a discretionary decision not to pursue them without the client's approval. When asked specifically whether, "after consultation with a client, a lawyer has to pursue causes of action that he knows are inappropriate, invalid and have no support," Michelson agreed that it was not categorically required, although the problem here was that Tan could not have performed such an assessment of plaintiff's case against J & J due to the incompleteness of discovery.
At the February 22, 2012, motion hearing, the court granted defendants' motion to bar the opinion of plaintiff's legal malpractice expert for being a net opinion. The court accordingly dismissed the legal malpractice claim. It ruled that the remaining claims amounted to legal malpractice claims and dismissed them on the same ground, while also ruling that consumer fraud was unavailable because attorneys were members of a regulated profession. At the April 2, 2012, hearing, the court denied plaintiff's motion for reconsideration. Plaintiff appealed, and on April 10, 2012, Judge Christine Farrington issued a comprehensive thirteen-page letter decision, pursuant to Rule 2:5-1(b), in which she cogently summarized the basis for her prior rulings. The judge explained:
Mr. Michelson makes no analysis of Judge O'Shaughnessy's decision nor gives an opinion why the Judge's decision was correct. Mr. Michelson fails to note that based upon Mr. Tan's brief, plaintiff survived the summary judgment motion but he did not win at trial. There is no analysis of what the merits were, if any, of the 26 conceded applications. There is no specific example of any action or inaction on the part of Hawkins during the trial which failed to meet the standard of care other
than in the amended report, which states that it was negligent for Mr. Hawkins not to meet with plaintiff "thoroughly and extensively;" and, if Hawkins had not read most of the material ". . . his lack of readiness for trial was negligent;" and his failure to object about points of fact from plaintiff's subsequent employment was negligent, and a failure "to introduce a self-assessment report from J & J Director of Diversity to the jury" was negligent. Michelson Supplement Report of June 13, 2011, pp. 1-2. All of the foregoing without reference to the trial transcript, without quoting the self-assessment report, and without analysis as to how Hawkins' lack of readiness for trial was demonstrated by the trial transcript.
. . .
There is no finding based upon specific facts in either the fifteen page report dated January 24, 2011, or its three page supplement dated June 13, 2011[,] . . . that Hawkins or Tan failed to exercise that degree of skill, care and diligence commonly exercised by an ordinary member of the legal community and the client incurred damages as a direct result of the attorney[s'] actions. There is not a single transcript reference to the summary judgment motion for which Tan is faulted, or the lengthy underlying trial to demonstrate malpractice on the part of Hawkins.
The [c]ourt finds the Michelson reports to be net opinions, and therefore inadmissible. Because the [c]ourt had previously determined that an expert opinion was necessary for plaintiff to prove what is in essence a complaint for malpractice against the defendants stated in multiple counts, the [c]ourt dismisses those counts. The [c]ourt found that the consumer fraud
count does not apply to attorneys, and therefore dismissed that count also.
III.
Attorneys owe a duty to their clients to provide their services with reasonable knowledge, skill, and diligence. St. Pius X House of Retreats, Salvatorian Fathers v. Diocese of Camden, 88 N.J. 571, 588 (1982). The Supreme Court has consistently recited that command in broad terms, for lawyers' duties in specific cases vary with the circumstances. Ziegelheim v. Apollo, 128 N.J. 250, 260 (1992). Accordingly, "[w]hat constitutes a reasonable degree of care is not to be considered in a vacuum but with reference to the type of service the attorney undertakes to perform." St. Pius, supra, 88 N.J. at 588.
Included within this duty is the obligation to take "any steps reasonably necessary in the proper handling of the case." Passanante v. Yormark, 138 N.J. Super. 233, 239 (App. Div. 1975), certif. denied, 70 N.J. 144 (1976). Those steps will include, among other things, a careful investigation of the facts of the matter, the formulation of a legal strategy, the filing of appropriate papers, and the maintenance of communication with the client. Id. at 238-39.
To present a prima facie legal malpractice claim, a plaintiff must establish the following elements: "(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." Jerista v. Murray, 185 N.J. 175, 190- 91 (2005) (internal quotation omitted). In the context of a failure to assert a claim in an underlying action, a breach of duty is established by showing an ability to prevail on the unasserted claim. Id. at 191. The "ultimate issue in the legal malpractice action is whether the defendant-lawyers' decision to omit [a claim or party] was a reasonable exercise of professional judgment." Prince v. Garruto, Galex & Cantor, 346 N.J. Super. 180, 189 (App. Div. 2001). The proximate causation prong is satisfied when the attorney's negligent conduct is a substantial contributing factor in causing the client's loss. Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983).
A plaintiff in a legal malpractice case has an affirmative duty to present expert testimony, when required, on the issue of breach. Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 14 (App. Div.), certif. denied, 188 N.J. 489 (2006). "Expert testimony is required in cases of professional malpractice where the matter to be addressed is so esoteric that the average juror could not form a valid judgment as to whether the conduct of the professional was reasonable." Sommers v. McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996). Where "the adequacy of an investigation or the soundness of an opinion is the issue, a jury will usually require the assistance of an expert opinion." Id. at 11. However, expert testimony is not 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." Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001). Strategic decisions tend to be an area where expert testimony is required. See Prince, supra, 346 N.J. Super. at 190 (App. Div. 2001) (using expert testimony to determine whether strategic decision not to join additional defendant was professionally negligent). Distinguishing the cases where expert testimony is required from those where it is not is whether they "require[] the trier of fact to evaluate an attorney's legal judgment concerning a complex legal issue." Brach, supra, 345 N.J. Super. at 13.
We first address plaintiff's arguments that the trial court erred by excluding Michelson's reports as net opinions or, alternatively, that expert testimony was required to prove his legal malpractice claim.
Experts must base their opinions on "factual evidence," Buckelew v. Grossbard, 87 N.J. 512, 524 (1981), which may be "facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). See also N.J.R.E. 703. They may rely on their "knowledge, skill, experience, training, or education," N.J.R.E. 702, but they may not give a "net opinion," which is one unsupported by any factual evidence or data. In re Yaccarino, 117 N.J. 175, 196 (1989); Buckelew, supra, 87 N.J. at 524; Rosenberg, supra, 352 N.J. Super. at 401. The expert must give "the why and wherefore of his expert opinion, not just a mere conclusion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). "Supporting data and facts are vital" to an expert opinion that "'is seeking to establish a cause and effect relationship.'" Myrlak v. Port Auth. of N.Y. & N.J., 302 N.J. Super. 1, 9 (App. Div. 1997) (quoting Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 49 (App. Div. 1990), aff'd as mod. on other grounds, 125 N.J. 421 (1991)), rev'd in part and remanded on other grounds, 157 N.J. 84 (1999).
As noted, plaintiff's claims against J & J in the underlying action included failure to hire and other conduct in violation of the LAD. Under the LAD, it is unlawful "[f]or an employer, because of the race, . . . national origin, ancestry, [or] age . . . of any individual, . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.J.S.A. 10:5-12(a). When the LAD claim is a discriminatory failure to hire, plaintiffs must present a prima facie case that has four prongs: (1) they were members of a class that the LAD protects; (2) they were objectively qualified for the desired positions; (3) they were denied the positions; and (4) the employer gave the positions to persons outside the plaintiffs' class with similar or lower qualifications. Dixon v. Rutgers, State University, 110 N.J. 432, 443 (1998); Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492-93 (1982). Employees do not have to show that the prohibited reason was the employer's sole reason, but rather just that it was one of the employer's but-for reasons. Slohoda v. United Parcel Serv., Inc., 207 N.J. Super. 145, 155 (App. Div.), certif. denied, 104 N.J. 400 (1986).
To rebut the prima facie case, an employer only needs to articulate "some legitimate, nondiscriminatory reason for the employee's rejection," Andersen, supra, 89 N.J. at 493, such as the successful candidates' superior qualifications. At that point all presumptions disappear, and plaintiffs have the burden "of persuading the trier of fact that the defendant intentionally discriminated against" them, ibid., such as by demonstrating that the employer's articulated reason was contrary to the evidence or otherwise pretextual.
In the present case, the harm that plaintiff claims from defendants' alleged malpractice was the loss of his opportunity to proffer and argue the twenty-six positions that Tan had conceded. To prevail in the underlying action, plaintiff would have needed to convince the jury that discrimination in violation of the LAD was a substantial reason for J & J's failure to hire him for those positions, to which he was equally or better qualified. We agree with the trial court that Michelson's reports did not contain an opinion based on the facts or allegations in the record to establish such malpractice. While Michelson named standards of care, he never addressed the nature of the twenty-six positions in question. He did not name the qualifications that J & J required for them, let alone discuss whether the requirements were legitimate, and he did not discuss whether plaintiff was as qualified as the successful candidates in terms of the nominal requirements, or in terms of any alternatives that might arguably have been less discriminatory to him. He conceded in his voir dire testimony that he could not state whether plaintiff had a valid cause of action as to any of those twenty-six conceded positions. Instead, Michelson limited himself to the empty generality that "the sheer multiplicity of" twenty-nine claims would have impressed the jury, whether or not plaintiff's qualification for them was actually demonstrated.
Michelson also failed to identify other evidence that defendants could have presented to support an inference of discrimination, and that they accordingly should have tried to develop through further discovery. Additionally, he did not acknowledge the extensive discovery that plaintiff's prior counsel had conducted, much less suggest that prior counsel had deviated from the standard of care or that defendants should not have trusted the adequacy of their work for other reasons. Speculative claims about the utility of further discovery are insufficient to prevent summary judgment, Auster v. Kinoian, 153 N.J. Super. 52, 55-56 (App. Div. 1977), and thus the trial court was correct in excluding Michelson's opinions concerning discovery failures and their effects as equally speculative.
In short, Judge Farrington properly reasoned that Michelson's reports lacked explanations to support their conclusions that plaintiff would have prevailed on his failure to hire claim if defendants had not deviated from the standard of care, and hence properly excluded them as net opinions.
In the alternative, plaintiff claims that the court erred in finding that an expert was required to establish whether defendants had committed legal malpractice. He argues that defendants' failure to develop the record through further discovery, and the concession of twenty-six of the twenty-nine positions in question, were sufficiently obvious for a jury to assess on the basis of their ordinary knowledge and experience. We disagree.
The common knowledge doctrine applies "where 'jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without a benefit of the specialized knowledge of experts.'" Hubbard v. Reed, 168 N.J. 387, 394 (2001) (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999) ).
We have held the common knowledge doctrine applies when an attorney has failed to communicate with an expert to assure his attendance at trial, and the expert's testimony was essential to prove the plaintiff's injuries were caused by the accident on defendant's property. Kranz v. Tiger, 390 N.J. Super. 135, 148 (App. Div.), certif. denied, 192 N.J. 294 (2007). Expert testimony was not required where the plaintiff alleged the attorney failed to brief an issue, misrepresented the case's status, and failed to accurately report a settlement discussion. Sommers, supra, 287 N.J. Super. at 12. Also, an expert is not needed to establish negligence where an attorney fails to record a mortgage. Stewart v. Sbarro, 142 N.J. Super. 581, 591-92 (App. Div.), certif. denied, 72 N.J. 459 (1976).
To generalize, experts are not needed in "that category of cases that are so straightforward in nature that expert testimony is not required." Brach, supra, 345 N.J. Super. at 12. "A common thread runs through these cases, namely none of them required the trier of fact to evaluate an attorney's legal judgment concerning a complex legal issue." Id. at 13; see Ronald E. Mallen & Jeffrey M. Smith, 4 Legal Malpractice § 37:23 at 1659 (2013 ed.) ("The situations in which expert testimony was not required have typically involved egregious and extreme instances of negligence.").
Where an attorney has conducted some investigation of a client's claim, but the malpractice plaintiff asserts it was insufficient, the standard of care is unlikely to fall within a jury's common knowledge.
Although expert opinion is not necessary to establish the negligence of a personal injury attorney who fails to conduct any investigation of his client's claim, whereIn Aldrich v. Hawrylo, 281 N.J. Super. 201, 214 (App. Div. 1995), appeal dismissed, 146 N.J. 493 (1996), we reversed the trial court's determination that expert testimony was unnecessary. We stated, "A jury would not be able to evaluate the adequacy of the investigation or the opinion without the aid of expert legal testimony." See also Sommers, supra, 287 N.J. Super. at 12 (citing Aldrich, supra, for principle that adequacy of investigation generally requires expert testimony).
the attorney has undertaken some investigation, a jury will rarely be able to evaluate its adequacy without the aid of expert legal opinion.
[Brizak v. Needle, 239 N.J. Super. 415, 432 (App. Div.), certif denied, 122 N.J. 164 (1990).]
Applying these principles, we agree with the trial court's assessment that plaintiff's malpractice claim was not subject to the common knowledge exception, and that an expert was especially important in assessing defendants' strategic decisions. Here, it would have been necessary for the jury to assess the adequacy of the record in the underlying case to establish the required elements of the LAD failure to hire claim, the efforts that defendants made to generate an adequate record and present it at trial, the standard of care for attorneys in handling such LAD claims, defendants' adherence to or deviation from that standard, and the effect of any deviation on the trial result. We agree with the trial court that such matters were not "'readily apparent to anyone of average intelligence and ordinary experience.'" Estate of Chin, supra, 160 N.J. at 469-70 (quoting Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)); accord Brach, supra, 345 N.J. Super. at 14-15.
We also find no merit in plaintiff's argument that the court erred in dismissing his claims for fraud, consumer fraud, breach of contract, and conspiracy. He contends that such claims can coexist with a legal malpractice claim, and that such claims do not require expert testimony merely because a legal malpractice claim that may require it is also present. Similar to his malpractice claim, he argues that all of these additional claims were proven by defendants' unjustifiable concession of twenty-six of the twenty-nine positions without his consent, their failure to pursue further discovery and adequately prepare for trial, and their reliance on the prospect of settlement contrary to the terms of the retainer agreement.
Count one of plaintiff's complaint described defendants' alleged fraud as their failure to advise him that they had no intention of performing the work that was necessary. That work was to study the information he prepared for them, and to perform within the standard of care by seeking to extend discovery or pursue a spoliation claim in the underlying action, by avoiding concession of the failure to hire claim for twenty-six of the positions for which he was not hired, and by avoiding dismissal as to the remaining three positions.
Count two, in one paragraph, summarized defendants' alleged breach of contract as the failure to satisfy their contractual obligations, with reference to all the allegations in the complaint that preceded this count. Count three used the same language as count two to summarize defendants' alleged legal malpractice. Count six, conspiracy to commit fraud and consumer fraud, also used the same language as count two, while adding references to plaintiff's allegations about defendants' inadequate performance before and at trial.
The court found that all of plaintiff's counts sounded as legal malpractice claims, and that the Consumer Fraud Act did not apply to legal malpractice claims. We agree.
The sufficiency of a complaint in pleading a particular cause of action is a question of law. See In re the Trust Under the Will of Maxwell, 306 N.J. Super. 563, 586 (App. Div. 1997), certif. denied, 153 N.J. 214 (1998); see also Scheck v. Houdaille Constr. Materials, Inc., 121 N.J. Super. 335, 344 (Law. Div. 1972). It is therefore subject to de novo review without deference to a lower court's assessment. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The court was correct to dismiss the consumer fraud claim. The Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, does not apply to services performed by members of a learned profession that is subject to its own strong regulatory regime. Suarez v. E. Int'l Coll., 428 N.J. Super. 10, 38 (App. Div. 2012), certif. denied, 213 N.J. 57 (2013).
Ordinary fraud requires a material factual misrepresentation, knowledge of the falsity, an intent to induce reliance on it, and actual reliance that results in monetary damages. Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J. 619, 624 (1981). Accord Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). Fraud must be pled with particularity, In re Contest of Nov. 8, 2005 Gen. Election for Mayor of Parsippany-Troy Hills, 192 N.J. 546, 567 (2007), although the element of "[m]alice, intent, knowledge, and other condition of mind of a person may be alleged generally." R. 4:5-8(a); State, Dep't of Treasury, Div. of Inv. ex rel. McCormac v. Qwest Commc'ns Int'l, Inc., 387 N.J. Super. 469, 484 (App. Div. 2006).
The general allegations in the complaint did not mention intent or any other condition of mind that could establish fraud. They contain only a listing of defendants' failures to perform and the unfavorable results that defendants achieved. The fraud count simply referenced those allegations, without adding any explanation how they could establish or lead to evidence of the necessary intentionality. If a plaintiff bases his or her fraud claim on the same allegations as the malpractice claim, "merely adding the label 'fraud' to" them without alleging the elements of legal or equitable fraud, then it may not be treated as a separate and distinguishable claim. Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312, 315, 318 (App. Div. 1999).
The elements of civil conspiracy are the "'combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or an injury upon another, and an overt act that results in damage.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 (App. Div. 1993) (citation omitted), certif. denied, 135 N.J. 468 (1994)). Accord LoBiondo v. Schwartz, 199 N.J. 62, 102 (2009). Civil conspiracy is not a cause of action by itself, but rather an additional claim that requires an underlying "overt act" that caused the harm in question. Here, the trial court was correct to dismiss the conspiracy count in the absence of a claim for an underlying tort, which in this case were the fraud and consumer fraud claims that plaintiff inadequately pleaded and was unable to sustain.
Breach of contract requires the plaintiff "to show that the parties entered into a valid contract, that the defendant failed to perform his obligations under the contract and that the plaintiff sustained damages as a result." Murphy v. Implicito, 392 N.J. Super. 245, 265 (App. Div. 2007). When the "essential factual allegations upon which [a plaintiff's claim] rests" are that the defendants' performance of the professional work for which the plaintiff retained them fell short of the skill that an average member of the defendants' profession ordinarily possesses, and of the care that an average member ordinarily exhibits in similar circumstances, the claim is one for professional malpractice, even if the plaintiff denominates it as a claim for breach of contract. Charles A. Manganaro Consulting Eng'rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J. Super. 343, 349 (App. Div. 2001).
However, a claim that an attorney violated the express terms of the retainer agreement may be distinguished from the malpractice claim if the breach does not require "expert evaluation of professional standards applicable in the circumstances." Levinson, supra, 320 N.J. Super. at 317. In Levinson, the plaintiff alleged that his counsel's settlement of his case violated the provision in the retainer agreement that prohibited settlement without his approval. Id. at 316. We found that claim to be separable, and reinstated it even while affirming the dismissal of the malpractice claim for want of the statutorily required affidavit of merit. Id. at 316-17.
In this case, the "zero chance of settlement" provision in Tan's retainer agreement did not recite any kind of instruction. It simply observed the unlikelihood of settlement. More important, Tan did not settle the case, so he did not violate any conceivable implication of the provision other than an implicit admonition to perform to the best of his ability, which is to say, not to fall short of the standard of care. Under these facts, we agree with the trial court that plaintiff's claim for breach of contract also was not separable from the malpractice claim in the manner that Levinson described.
Finally, plaintiff argues that the court erred by denying (1) his motion to compel defendants to provide their bank statements and tax filings for 2008 and 2009; and (2) a partial refund of his retainer that Tan had allegedly agreed to pay. He further requests, without any supporting authority, that our opinion in this matter remain confidential. We reject these arguments as lacking sufficient merit to warrant 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