Opinion
DOCKET NO. A-3572-10T1
10-15-2012
MARINA VASQUEZ, Plaintiff-Appellant, v. MARC MACRI, ESQ., SOKOLICH & MACRI, WILFREDO BORGES, and LIUBA M. ALVAREZ-BORGES, Defendants-Respondents, and MARC MACRI, ESQ., and SOKOLICH & MACRI, Third-Party Plaintiffs, v. ADOLFO LOPEZ, ESQ., and LEDESMA DIAZ, LOPEZ & NORIS Third-Party Defendants, and NORMA COSTA and ACTION AGENCY, Third-Party Defendants/Respondents. WILFREDO BORGES, Plaintiff, v. ADOLFO LOPEZ, Attorney at Law, Defendant.
Henry G. Klein argued the cause for appellant (Klein & Radol, attorneys; Mr. Klein, on the brief). Antranig Aslanian, Jr., argued the cause for respondents Marc Macri, Sokolich & Macri, Wilfredo Borges, and Liuba M. Alvarez-Borges (Aslanian & Khorozian, attorneys; Mr. Aslanian, on the brief). Paul J. Soderman argued the cause for respondents Norma Costa and Action Agency (Zucker, Facher & Zucker, attorneys; Mr. Soderman, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4812-08.
Henry G. Klein argued the cause for appellant (Klein & Radol, attorneys; Mr. Klein, on the brief).
Antranig Aslanian, Jr., argued the cause for respondents Marc Macri, Sokolich & Macri, Wilfredo Borges, and Liuba M. Alvarez-Borges (Aslanian & Khorozian, attorneys; Mr. Aslanian, on the brief).
Paul J. Soderman argued the cause for respondents Norma Costa and Action Agency (Zucker, Facher & Zucker, attorneys; Mr. Soderman, on the brief). PER CURIAM
In this legal malpractice action, plaintiff Marina Vasquez appeals from the order of the Law Division dismissing her complaint against her former attorney Marc Macri and the law firm of Sokolich & Macri. The court granted defendants' motion to dismiss plaintiff's complaint based on her failure to produce expert opinion articulating the standard of professional care applicable to defendants in the course of representing plaintiff in the purchase of her home. The court also rejected plaintiff's invocation of the common knowledge doctrine as a substitute for expert testimony, finding that a reasonable lay juror was not capable of determining what an attorney's responsibilities are in connection with representing a buyer of residential property.
We reverse. While, as a general proposition, the nature and scope of an attorney's professional responsibilities to a client in a real estate closing may be outside the ken and experience of the average lay juror, Macri's deposition testimony has rendered this issue moot. The discrete claim asserted by plaintiff in this litigation concerns Macri's failure to ensure that the seller delivered to her, at or before the closing of title, a Certificate of Continued Occupancy (CCO) indicating that the property is in compliance with local zoning and construction codes. The CCO is issued by the municipality where the property is located, in this case the Borough of Fairview (the Borough).
The trial court defined a CCO as "a document that ensures that the property had been inspected for very basic safety requirements such as having working smoke detectors, and that the basement was not being illegally rented as an apartment." According to the court, a CCO "is required by the Borough in order for a purchaser to legally take ownership of the property."
In the course of his deposition, Macri conceded that it was his responsibility, as the buyer's attorney, to ensure that the seller obtain and deliver, at or before the closing of title, a valid CCO issued by the Borough. Macri further conceded that at the time of closing, the seller's real estate agent provided him with a Certificate of Occupancy (CO). Although, according to Macri, a CO is a document that indicates that the property passed a more stringent inspection, a CO is not a substitute for the required CCO. Macri accepted the CO under the mistaken belief that it was in fact a CCO. Macri then proceeded to close title under this admittedly factually mistaken -- and, from plaintiff's perspective, legally significant -- belief that he had done all that was required of him for his client to receive clear title to the property.
In the course of his deposition, Macri testified that at the time this closing occurred in November 2006, more than fifty percent of his practice was related to real estate residential transactions in northern Hudson County and southern Bergen County area. Because the particular zoning and occupancy requirements varied from municipality to municipality, Macri was asked at his deposition how he knew what the particular requirements were for any given municipality. This prompted the following colloquy.
MACRI: Take the Lawyers Manual, you flip to the page of the town, tell you one or two-family requires CCO -- sometimes they're required. Or they'll tell you multiple family, not required.
Q. The Lawyers Diary we call it -- the red book.
MACRI: Right.
Q. I looked in it for Fairview and it said only C of O required -- CO, not CCO.
Is that what you looked at?
MACRI: I don't know if I looked at it for this closing.
Q. Okay. But that's how you would have gotten this knowledge before the closing for other properties by looking at that book?
MACRI: Right.
The closing of title occurred on November 30, 2006. Sometime thereafter, plaintiff became aware that the Borough had not issued a CCO in connection with the sale of the property. The record as to how plaintiff discovered this fact is unclear. In her answers to interrogatories, plaintiff indicated that she was "made aware that there was no Certificate of Continued Occupancy several weeks after [she] moved in when the seller appeared at [her] door with an application for a CCO." According to Macri, sometime in 2007, his secretary told him that a representative from the Fairview Building Department had telephoned the office advising them that a CCO had not been issued in connection with the purchase of plaintiff's property. Macri's secretary said that the Fairview official wanted plaintiff to "sign off on the application."
Macri testified that Fairview requires that both seller and purchaser sign a document acknowledging that the basement area cannot be rented "as an illegal apartment."
Although not conclusively established, Macri believed that the problem arose when the Borough issued a summons against the seller, Wilfredo Borges, for transferring title to the property without first securing a CCO. Macri testified that when his office informed plaintiff that her signature was required on the post-closing application for the CCO, plaintiff refused to sign it, fearing that it might implicate her or otherwise make her liable for sanctions imposed by the municipality for failing to secure the document prior to the closing of title.
Plaintiff filed her legal malpractice complaint against Macri and his firm in June 2008. After joinder of issue, the case proceeded to discovery, including motion practice that lead to the dismissal of certain parties. The question of whether plaintiff is required to present expert testimony to prove her case against Macri was presented to the trial court for adjudication on February 15, 2011, the day the case was scheduled for trial.
We cannot ascertain from this record whether permitting this type of dispositive motion to be argued on the day of trial was an aberration or a regular practice. We emphasize, however, that Rule 4:46-1 requires that dispositive motions "be returnable no later than 30 days before the scheduled trial date, unless the court otherwise orders for good cause shown."
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Relying on Kranz v. Tiger, 390 N.J. Super. 135, 147 (App. Div.), certif. denied, 192 N.J. 294 (2007), plaintiff argued before the trial court, as she does before us here, that she does not need to present expert testimony because defendant's professional carelessness here "is readily apparent to anyone of average intelligence and ordinary experience." Specific to the facts of this case, plaintiff argued that "[o]btaining a CCO to transfer title properly in the town [sic] of Fairview is not esoteric. It wasn't complex. It's the most basic step an attorney has to do to assure that the property purchased is done properly under law."
Macri's counsel argued that plaintiff needed an expert to explain to the jury "that the standard of care for any lawyer is whatever is delivered to him he would have to look at that and determine whether that complied with the local requirements in that particular town." Respondents Norma Costa and Action Agency elaborated on this basic point in their brief before us by emphasizing that "[a]bsent expert testimony, it [is] impossible for a fact-finder to understand whether or not the certificate of occupancy [is] the functional equivalent or more of the 'certificate of continued occupancy.'"
The trial judge accepted Macri's argument and dismissed plaintiff's case. The court distinguished the cases cited by plaintiff, specifically noting the section of Kranz which set forth the primary claim of negligence in that case:
Plaintiff's primary claim of negligence was that his attorneys and the doctor selected by them failed to communicate adequately on the doctor's appearance at the trial. He also claimed breach of contract by the doctor. More specifically, he claimed that as a result of the miscommunication, the attorneys wrongly assumed that the doctor was not available to testify when he in fact was available, and the doctor contributed to that assumption by failing to reasonably and accurately communicate with the attorneys personally or through his office staff.
[Kranz, supra, 390 N.J. Super. at 148.]
On these facts, we held that a reasonable jury could determine the question of negligence against the professional defendants without expert testimony. Id. at 149. The trial judge found that the facts here require an expert to "testify as to whether the attorney complied with the local town ordinance or not." We disagree.
Legal malpractice is a claim of "negligence relating to an attorney's representation of a client." Sommers v. McKinney, 287 N.J. Super. 1, 9 (App. Div. 1996). To establish a prima facie case of legal malpractice, a plaintiff must demonstrate: "'(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.'" Kranz, supra, 390 N.J. Super. at 147 (quoting McGrogan v. Till, 167 N.J. 414, 425 (2001)).
"Generally speaking, a lawyer is required to exercise that 'degree of reasonable knowledge and skill that lawyers of ordinary ability and skill possess and exercise.'" Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001) (quoting St. Pius X House of Retreats, Salvatorian Fathers v. Diocese of Camden, 88 N.J. 571, 588 (1982)). Expert testimony is required "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, supra, 287 N.J. Super. at 10. The expert must articulate a standard of professional care applicable to any ordinary member of the profession. So informed, the jury must then determine whether the defendant's conduct fell below that standard. Id. at 10-11; Brizak v. Needle, 239 N.J. Super. 415, 432 (App. Div.), certif. denied, 122 N.J. 164 (1990).
Expert testimony is not required, however, in cases where "the duty of care to a client is so basic that it may be determined by a court as a matter of law," Sommers, supra, 287 N.J. Super. at 10 (citing Brizak, supra, 239 N.J. Super. at 429), and "where the questioned conduct presents . . . an obvious breach of an equally obvious professional norm." Brach, supra, 345 N.J. Super. at 12. Moreover, "expert testimony may not be necessary to establish proximate cause . . . where the causal relationship between the attorney's legal malpractice and the client's loss is so obvious that the trier of fact can resolve the issue as a matter of common knowledge." Sommers, supra, 287 N.J. Super. at 11 (citing 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 490 (App. Div. 1994)).
In such cases, "'jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the 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)). The common knowledge doctrine is usually applied "in cases where attorneys have failed to fulfill the most basic obligations." Brach, supra, 345 N.J. Super. at 12.
Here, the viability of plaintiff's claim is not dependent upon establishing Macri's negligence, because Macri's deposition testimony is both clear and dispositive on this issue. Macri conceded that: (1) the Borough requires a CCO upon the transfer of title; (2) as attorney for the buyer, he was responsible for ensuring that plaintiff obtained clear title to the property; and (3) he mistakenly believed the seller's agent obtained and delivered to him a CCO at the time of closing. Based on these undisputed facts, lay jurors can determine whether Macri should be held liable for any monetary damages incurred by plaintiff as a proximate cause of his failure to deliver clear title.
Contrary to Macri's assertion, plaintiff's claim of negligence is not based on Macri's failure to appreciate the legal distinctions between a CO and a CCO. Macri conceded that a CCO was required and that he mistakenly believed the seller's agent had given him a CCO at the time of closing. Macri may assert, as an affirmative defense, that a CO should be viewed here as the functional equivalent of a CCO or arguably as a superior form of documenting the property's compliance with municipal requirements. However, disproving this affirmative defense is not an element of plaintiff's prima facie case of legal malpractice.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION