Opinion
DOCKET NO. A-5568-11T3
08-01-2014
JOSEPH M. GUIDO and TERESA GUIDO, Plaintiffs-Appellants, v. DUANE MORRIS, LLP, FRANK A. LUCHAK, ESQ., and PATRICIA KANE WILLIAMS, ESQ., Defendants-Respondents.
Donald P. Fedderly argued the cause for appellants. Joseph P. La Sala argued the cause for respondents (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. La Sala and William F. O'Connor, Jr., of counsel and on the brief; James J. Di Giulio, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Waugh, and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0677-07. Donald P. Fedderly argued the cause for appellants. Joseph P. La Sala argued the cause for respondents (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. La Sala and William F. O'Connor, Jr., of counsel and on the brief; James J. Di Giulio, on the brief). PER CURIAM
Plaintiffs Joseph M. Guido and Teresa Guido appeal the Law Division's March 23, 2012 order granting summary judgment in favor of defendants Duane Morris, LLP (Duane Morris), Frank A. Luchak, and Patricia Kane Williams. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Joseph M. Guido was the 56.1% majority shareholder of Allstates WorldCargo, Inc. (Allstates), the stock of which is registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended. See 15 U.S.C.A. §§ 78a-78pp. Guido was the president and chief executive officer of Allstates from 1961 until 1999. He has served as the chairman of Allstates' four person board of directors since 1999.
On August 16, 2004, Guido delivered to Allstates: (1) an executed written consent in lieu of a special meeting of the stockholders; (2) amended and restated bylaws for Allstates to be adopted pursuant to the written consent; and (3) a draft information statement as required by the Securities Exchange Act of 1934. See 17 C.F.R. § 240.14c-101 (2014).
Through those documents, Guido sought to amend Allstates' bylaws to increase the size of the board of directors from four to seven members and to appoint three independent persons, meaning non-employees, to fill the new seats. Guido understood that N.J.S.A. 14A:5-6 and Allstates' bylaws authorized him, as majority shareholder, to increase the size of the board. Allstates' management declined to notify all of the shareholders of the written consent or otherwise to process Guido's submissions.
On October 12, 2004, Guido received notice that there would be a meeting of the board of directors on October 18. Because the issue of the written consent was not included in the meeting's proposed agenda, Guido and his wife retained Duane Morris to represent them. That firm filed a verified complaint and sought an order to show cause with temporary restraints in the General Equity Part on October 14, 2004. The two-count complaint named Allstates and the three other members of the board of directors - Sam DiGiralomo, Barton C. Theile, and Craig D. Stratton - as defendants (Allstates defendants).
In count one, Guido requested injunctive relief, arguing that the Allstates defendants had unlawfully failed to act on his written consent as required by N.J.S.A. 14A:5-6(2)(b). In the second count, Guido alleged a breach of fiduciary duty and the duty of loyalty based on those defendants' refusal to act in accordance with his written consent and other documents.
The General Equity judge held a hearing on October 18 to address the request for temporary restraints. He denied the request for immediate injunctive relief, ordered discovery, and sent the case to mediation.
Immediately following the hearing, Guido spoke with DiGiralomo, without any counsel present, about a possible settlement. After DiGiralomo and Guido reached their agreement, the Allstates board held a special board meeting at the courthouse. The Duane Morris attorneys, including Williams, were present at the meeting. According to Williams, DiGiralomo described the terms of the proposed settlement, which included restrictions on the transfer of Allstates shares owned by the directors. He also stated "that there would be a voting agreement that would include these provisions, and that the stock certificates would be legended, that is a statement would be inserted on the stock certificates."
DiGiralomo informed the judge that they had decided to discharge their attorneys. James Ferrelli of Duane Morris informed the General Equity judge that DiGiralomo had prevented him from having private discussions with his client while the settlement was being negotiated. Ferrelli warned the judge: "I'm very concerned that there's been an instance of duress and overreaching. He is an elderly gentlemen. He has had some health problems." The General Equity judge scheduled a case management conference to assess whether the settlement was entered into freely and voluntarily by the parties, particularly Guido.
Ferrelli, who is a partner at Duane Morris, has not been named as a defendant in this action.
On October 27, Ferrelli explained to the Guidos the ramifications of the terms Guido had negotiated. Guido testified at his deposition that he did not recall what occurred on October 18, during his private meeting with DiGiralomo or his subsequent meetings with the Duane Morris attorneys. Teresa Guido similarly had no recollection of those events.
In an October 27 letter to Guido, Ferrelli memorialized their earlier discussion concerning the proposed settlement. Ferrelli wrote:
As we discussed this afternoon, we advise against any agreement with Sam [DiGiralomo] and the defendants that includes as a term any limitation on your rights as a majority shareholder of Allstates, whether to change the composition of the Board of Directors, otherwise amend the By-Laws, or take other action. In essence, by requesting that you agree to such terms, Sam is taking away your ability to control the company, which substantially undermines your majority ownership.
If the case is not dismissed or settled on the record, the Court will order mediation. If mediation were to proceed, an impartial mediator would be appointed to help the parties reach an agreement. This would be one way for you to obtain a better settlement with Sam, one that protects your
interests and does not diminish the value of your stock.
We understand that Sam is talking about extending your employment agreement for five (5) years and increasing your salary. He also wants you to enter into an agreement not to vote your stock in any[]way that would increase the Board without the consent of all Board members.
A binding agreement limiting how you vote your stock severely diminishes the value of your stock, which we understand is your primary asset. Sam is not offering to pay you for this. Rather, in return for an agreement which will reduce and possibly destroy the value of your stock, Sam is offering a five (5) year employment contract and a to-be-determined raise.
On October 28, the General Equity judge held the conference with counsel and the parties in chambers. Just before the conference, Ferrelli reviewed the contents of the October 27 letter with the Guidos. According to his deposition, he specifically discussed the share restrictions and his advice that they should not agree to those terms. The Guidos could not recall the substance of that conversation.
The conference resulted in the essential terms of the settlement agreement being placed on the record by the General Equity judge:
One, that the Board would not be expanded except by unanimous consent.Although the settlement documents had not been finalized, Guido filed a voluntary dismissal without prejudice that day.
Two, there would be a shareholders agreement whereby each side would agree to vote for the other.
Three, that there would be a new
employment agreement [for Guido] to be
entered into by the parties. The precise terms have yet to be agreed upon.
There would be a general release executed by all parties, cross releases releasing all sides from any liability with regard to the subject litigation.
That once an employment agreement is entered into and the precise terms are put to paper, that the entire agreement will be submitted to corporate counsel to confirm
that the agreement did not run afoul of any State or Federal law. And if it was determined that it did run afoul in any aspect with regard to Federal or State law, then in that event the parties could refile and come back to Court.
In a letter to Guido dated November 3, Ferrelli memorialized the recent events involving the settlement proposals. With respect to the events on October 28, Ferrelli wrote: "When I arrived [at court], you advised that you had not seen my October 27, 2004 letter regarding the settlement proposal. I had a copy and we reviewed it together. I reiterated my concerns regarding the proposed settlement with the defendants." Additionally, Ferrelli wrote: "while we recommended against accepting the defendants' settlement terms, the ultimate decision was, of course, yours."
Counsel for Allstates defendants forwarded the proposed documents to Duane Morris. The settlement documents included a voting agreement. Paragraph 4(a) of the voting agreement provided that the signatories could not sell, transfer, or otherwise dispose of their shares "without the prior written consent" of the other signatories to the agreement. Paragraph 12 required that those restrictions be reflected on shares owned by the parties to the voting agreement in the form of a legend.
The documents were forwarded to the Guidos. They met with the Duane Morris attorneys on January 20, 2005, to go over the documents. The attorneys told the Guidos that the settlement would adversely affect their ability to sell their stock, but that the judge would probably enforce the settlement. The Guidos recalled the meeting, but not the substance of the discussion.
Because Guido was no longer content with the settlement, Duane Morris filed a second complaint on February 10. The second complaint reiterated the two counts contained in the first complaint. The Allstates defendants responded with a counterclaim alleging nine counts against Guido and his wife: (1) conspiracy to commit racketeering; (2) lack of authority to amend the bylaws; (3) breach of duty by engaging in self-dealing; (4) breach of fiduciary duty to minority shareholders; (5) breach of duty of loyalty as the majority shareholder; (6) breach of duty of loyalty as a director; (7) breach of the duties of care and disclosure as a director; (8) fraudulent concealment by a fiduciary; and (9) retaliation. They also filed a motion to enforce the October 28 settlement.
The General Equity judge ordered the parties to mediation. The parties engaged retired Judge James M. Havey to resolve their dispute, including the motion to enforce, through mediation.
Prior to mediation, Duane Morris provided the Guidos with a copy of their confidential, twenty-six page mediation statement, which had been submitted to Judge Havey. It asserted that the draft documents provided by counsel for the Allstates defendants "did not represent [Guido's] understanding of crucial terms." The memorandum included assertions that (1) the extension of the voting agreement's "restrictions to all transferees of stock, effectively destroyed the value of [Guido's] holdings in the Company, his most important asset," and (2) the voting agreement and proposed employment agreement "effectively destroyed any possibility of selling the Company to a third party."
According to defendants, Judge Havey advised them during the mediation that the Allstates defendants took the position that the voting agreement was non-negotiable. DiGiralomo testified to that effect during discovery. The Guidos did not recall the issues discussed during the mediation session.
Another proposed settlement was reached during a lengthy mediation session with Judge Havey. Counsel, the parties, and Judge Havey appeared before the General Equity judge on April 5 to put the settlement on the record. The settlement proposal had some of the same terms as the one reached in October 2004. However, the revised settlement called for the board of directors to be increased to seven members, with the General Equity judge, rather than Guido, to appoint the new members. It also required that the parties enter into a voting agreement that was substantially the same as the one previously proposed, including the provisions on the transfer of stock.
The proposed voting agreement required that any future modification of the board of directors, any modification of the bylaws, and any decision to sell or transfer capital stock would require unanimous consent of all four of the then existing directors. The restrictions on the stock were to be binding on all subsequent owners of stock, because any transfer of stock would be made subject to the restrictions.
The Guidos were placed under oath and the following exchange took place:
[THE COURT:] Mr. and Mrs. Guido, you've had an opportunity to come to court on two or three occasions. You've also had settlement discussions on your own, and you've also had the assistance of Judge Havey in mediating this and bring[ing] closure in accordance with the terms that were described in court. Did you understand the terms?
MR. GUIDO: Yes, sir.
MR. GUIDO: Yes.
THE COURT: You do. Is there any question you have?
MR. GUIDO: No, sir.
MR. GUIDO: No.
THE COURT: And you agree to be bound by those terms?
MR. GUIDO: Yes, sir.
THE COURT: And you're both in reasonably good health, there's nothing that would impact your ability to understand the terms and accept responsibility for the terms, as well as the fruits of this agreement, is that acceptable to you?
MR. GUIDO: Yes, sir.
THE COURT: Mrs. Guido?
MR. GUIDO: Yes.
On May 27, because the parties were having difficulty agreeing on the exact form of the settlement documents, the General Equity judge entered an order enforcing the settlement agreement "in accordance with the terms read into the record in open Court on April 5, 2005," and noted that it "is deemed to be binding on all parties notwithstanding the lack of signatures." On the record, later that same day, Guido's counsel and Judge Havey noted that disagreements had arisen as to the meaning of certain terms of the settlement.
Consequently, the matter came before the General Equity judge again on June 6. He afforded the parties the opportunity to discuss their understanding of, or disagreement with, the language in the proposed settlement documents. Where the parties could not agree on the language, the General Equity judge provided the language. In an order dated the same day, the judge confirmed the enforcement of the previously agreed upon settlement and then initialed each page of the settlement agreement and Guido's employment contract.
Almost two years later, on February 15, 2007, the Guidos filed their complaint against Duane Morris, Luchak, and Williams, alleging legal malpractice. The Guidos specifically alleged that the defendants' ineffective representation resulted in Guido being "stripped of his power" as majority shareholder and that "Guido's holdings in [Allstates] were rendered worthless because of the restrictions placed thereon pursuant to the Voting Agreement." Defendants answered and counterclaimed for unpaid legal fees. The parties then began discovery.
On April 11, 2008, defendants moved for summary judgment, arguing that the Guidos' malpractice claim was legally barred. The motion was argued on June 6. After noting that there was "a genuine issue of material fact as to whether or not the defendants adequately advised plaintiffs of the impact the voting agreement would have on the value of their shares" and whether such a failure would constitute malpractice, the motion judge nevertheless granted summary judgment and dismissed plaintiffs' complaint with prejudice in a written opinion dated June 11. The motion judge relied primarily on Puder v. Buechel, 183 N.J. 428 (2005), in which the Supreme Court precluded a malpractice claim by a litigant who had accepted a settlement in the underlying action after clearly stating her satisfaction with its resolution on the record. The Court noted that the litigant made no attempt to set the settlement aside prior to filing the malpractice claim, id. at 442-43, unlike the litigant in Ziegelheim v. Apollo, 128 N.J. 250, 257-58 (1992).
The Guidos moved for reconsideration. At the hearing on that motion on August 1, the motion judge was initially inclined to deny the motion for reconsideration. However, after plaintiffs' counsel raised our then recent decision in Hernandez v. Baugh, 401 N.J. Super. 539 (App. Div. 2008), he reserved decision on the motion. In Hernandez, we found that a plaintiff bringing a legal malpractice claim is not precluded from proceeding on the claim if the litigant agrees that a settlement is fair and reasonable in light of "legal hurdles" as an "apparent weakness[] in his case," where those "legal hurdles" were created by the defendant-attorney's negligent representation. Id. at 542-43. On September 16, the motion judge issued a written opinion granting the Guidos' motion for reconsideration and vacating his prior order of summary judgment.
We granted the defendants' motion for leave to appeal. Defendants argued on appeal that the motion judge erred in granting the Guidos' motion for reconsideration and then mistakenly concluded that Puder did not bar their malpractice claims. For reasons explained at length in our earlier opinion in this case, Guido V. Duane Morris, LLP., No. A-1162-08 (July 15, 2009) (slip op. at 12-13), we concluded that the motion judge properly reconsidered his earlier decision granting summary judgment. We also concluded that the Court's decision in Puder was not applicable to the situation before us and, consequently, did not bar the Guidos' claims against defendants. Id. (slip op. at 22-27).
Defendants sought and received leave to appeal to the Supreme Court. Guido v. Duane Morris, LLP, 200 N.J. 468 (2009). The Court affirmed:
The facts in this case mandate that we reject defendants' and amici's blanket invitation. Here, as the Appellate Division aptly concluded, "plaintiffs had no reasonable expectation of success on a motion to set aside the General Equity settlement, and consequently had no obligation to make such an application" (citing [Prospect Rehab. Servs., Inc. v. Squitieri, 392 N.J. Super. 157, 163-64 (App. Div.), certif. denied, 192 N.J. 293 (2007)]; Covino v. Peck, 233 N.J. Super. 612, 619 (App. Div. 1989)). Because "'the law does not compel one to do a useless act[,]'" United States v. Scurry, 193 N.J. 492, 506 (2008) (quoting Albert v. Ford Motor Co., 112 N.J.L. 597, 603 (E. & A. 1934)), requiring that a malpractice plaintiff first engage in what may well be the barren exercise of seeking to vacate a settlement is both wasteful and unnecessary. No doubt, there may be circumstances in which a malpractice plaintiff's failure to mitigate his or her damages by seeking to vacate the settlement that gives rise to the malpractice claim may be relevant. However, because that action logically cannot be a prerequisite for all malpractice claims based on a settlement, it also cannot rise to the level of a condition precedent to a malpractice suit. In that respect, the reasoning that informs the Appellate Division's decisions in Hernandez, supra, and Squitieri, supra, is most persuasive: the absence of efforts to set aside a settlement does not serve as an automaticThe Court "remanded to the trial court for further proceedings consistent with the principles to which we have adverted." Id. at 97.
bar to a later claim that the settlement was procured through an attorney's malpractice.
We repeat that the standard in respect of whether a malpractice plaintiff may maintain a suit based on a settlement remains as set forth in Ziegelheim, and that Puder represents but an equitable exception to Ziegelheim's overarching rule. Because the equitable considerations that animated our decision in Puder are absent here, we apply Ziegelheim's rule without exception and conclude--without intimating any view as to the merits of plaintiffs' substantive claim--that the trial court and the Appellate Division correctly held that plaintiffs' malpractice claim is not barred as a matter of law.
[Guido v. Duane Morris, LLP, 202 N.J. 79, 96-97 (2010) (second alteration in original).]
For the purposes of this appeal, it is important to note that the issue previously on appeal before us and the Supreme Court was the applicability of Puder and not whether there were genuine issues of material fact precluding summary judgment. The motion judge had addressed the legal issue of whether Puder was applicable in the context of his determination that, based on the record then before him, there were genuine issues of material fact. We did the same, and so did the Supreme Court. The presence or absence of genuine issues of material was not a contested issue on the appeal.
In February 2011, following the remand from the Supreme Court, the Guidos filed an amended complaint with respect to their malpractice claims against defendants. Defendants responded and additional discovery, including depositions, followed.
Defendants again moved for summary judgment. On March 23, 2012, the second motion judge granted defendant's summary judgment motion and dismissed plaintiffs' complaint in its entirety. On March 29, we denied the Guidos' motion for leave to appeal. On June 13, the parties reached a settlement with respect to defendants' counterclaim for attorney fees. A consent judgment was entered, which was to be enforced regardless of outcome, but not "until and unless the Appellate Division has ruled on plaintiff Guidos' appeal." This appeal followed.
II.
On appeal, the Guidos contend that the second motion judge erred in determining that there was no genuine issue of material fact with respect to whether defendants adequately warned them that the restriction on the sale of their stock would significantly decrease its value. They base their argument on statements in the Supreme Court's decision reflecting that both the first motion judge and this court had determined that, at the time of the 2008 summary judgment motion, there were such genuine issues of material fact. Guido, supra, 202 N.J. at 86, 88, 95. The essence of the Guidos argument is that the Supreme Court's decision, as well as ours, became the law of the case and the second motion judge did not have the authority to determine that there were no such genuine issues of material fact at the time of the second motion for summary judgment. They similarly argue that the second motion judge was bound by the Supreme Court's determination that the settlement put on the record in October 2004 was not enforceable. Finally they argue that, in any event, the issue of whether defendants adequately advised them was a question for a jury, not susceptible to summary judgment.
A.
The "law of the case" doctrine embodies "the principle that where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit." Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993) (citations and internal quotation marks omitted). The rule is based on the policy that, when an issue is litigated and decided in a case, that decision should be the end of that issue. Ibid. The doctrine does not apply, however, when there is evidence substantially different from that available at the time of the prior decision or when the issue has not, in fact, been litigated. Sisler v. Gannett Co. , 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988).
Contrary to the Guidos' argument, the law of the case doctrine is not applicable here. First, as already noted, the interlocutory appeal that resulted in our and the Supreme Court's decisions was about the applicability of Puder and not whether there were genuine issues of material fact. Second, the record before the second motion judge reflected the additional discovery that had taken place following the remand. That a large number of documents were produced prior to the first motion does not alter the fact that additional discovery, particularly including depositions, took place between the remand from the Supreme Court and the filing of the second summary judgment motion. Consequently, the second motion judge was free to make her own determination as to whether, on the expanded motion record, there were genuine issues of material fact.
The same issue arises with respect to the validity of the oral settlement put on the record in October 2004. In our first opinion, we stated that "[t]here was no effort by any party to enforce the most recent settlement proposal." Guido, supra, No. A-1162-08 (slip op. at 7). The Supreme Court's opinion stated that "Allstates 'withdr[e]w [its] settlement proposal and elect[ed] to proceed with the litigation of this matter.'" Guido, supra, 202 N.J. at 84 (alterations in original). In fact, the Guidos dismissed their first complaint while the October 2004 settlement language was being worked out. When they became dissatisfied with the settlement, Duane Morris filed the second complaint on their behalf. In addition to filing a counterclaim, the Allstates defendants also filed a motion to enforce the settlement. That motion was adjourned pending the mediation and eventually resolved as part of the settlement reached in April 2005. That settlement was itself the subject of a successful motion for enforcement brought by Allstates and the other defendants.
"Where the parties agree upon the essential terms of a settlement, so that the mechanics can be 'fleshed out' in a writing to be thereafter executed, the settlement will be enforced notwithstanding the fact that the writing does not materialize because a party later reneges." Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div.), certif. denied, 134 N.J. 477 (1993) (quoting Bistricer v. Bistricer, 231 N.J. Super. 143, 144-45 (Ch. Div. 1987)). New Jersey law allows parties to create enforceable settlement agreements orally or by informal memorandum, even if there is later intent to memorialize the agreement via execution of a formal document. United States v. Lightman, 988 F. Supp. 448, 459 (D.N.J. 1997). Settlements need not even be entirely on the record to be enforceable. Berberian v. Lynn, 355 N.J. Super. 210, 216 (App. Div. 2002), aff'd in part and modified in part on other grounds, 179 N.J. 290 (2004) (finding that settlement agreements are not required to be on the record to be enforceable as the record must only contain a sufficient factual basis for judicial enforcement of the settlement).
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We reject the Guidos' assertions that there was any judicial determination that the first settlement was unenforceable. Those issues were not the subject of the appeals to this court or the Supreme Court. Instead, any discrepancy between the facts outlined in the prior opinions and the facts on which the second motion judge relied in reaching her decision was the result of the additional discovery taken following the remand and the difficulty of unravelling what the Supreme Court referred to as "the rather tortured factual history" and "the needlessly complicated procedural background presented in this appeal." Guido, supra, 202 N.J. at 82, 92. Indeed, the Supreme Court made it abundantly clear that it was affirming our reversal and remand "without intimating any view as to the merits of plaintiffs' substantive claim." Id. at 97.
B.
The Guidos also argue that the second motion judge erred in determining, even on the enhanced record before her and without regard to their arguments about the binding effect of certain language in the Supreme Court's opinion, that defendants had adequately warned them that the restriction on the sale of their stock would significantly decrease its value.
We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to a [finder of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A. , 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
It is well-established that, in an action for legal malpractice, the burden is on the plaintiff to demonstrate "'(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'" of the client's damages. 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)). With respect to the first element, there is no dispute that defendants represented the Guidos. With respect to the second element, a lawyer must fully inform his clients of the essential terms of any settlement offer, but it is the client who determines whether to ultimately accept or reject the offer. R.P.C. 1.2(a); Edwards v. Born, Inc., 792 F.2d 387, 391 (3d Cir. 1986). Rule 1.4 of the Rules of Professional Conduct fully defines the duty of communication as follows:
(b) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.Finally, with respect to the third element, in order to establish a breach of professional duty in a malpractice action, actual damages have to occur as a result of the breach. Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983).
(c) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Having reviewed the record in light of the applicable law, we affirm substantially for the reasons set forth by Judge Rochelle Gizinski in her thorough and thoughtful written opinion. We add only the following.
In their second motion for summary judgment and on this appeal, defendants rely on their assertion, supported by statements under oath and documents, that on at least thirteen occasions they explained the ramifications of the stock restriction or advised against the settlement proposals because the value of the Guidos' stock would be diminished. In response, the Guidos argue that they do not remember the discussions at issue and never saw the documents, or did not have sufficient time to digest and consider any documents they may have seen. Although they do not remember the substance of numerous conversations, the Guidos are adamant that they were never told about the risks inherent in the stock restrictions and never understood that settlement term. That is despite the fact that, on April 5, 2005, they both told the General Equity judge, under oath, that they understood the terms, had no questions, and intended to be bound by the settlement.
It is well established that "'conclusory and self-serving assertions' in certifications without explanatory or supporting facts will not defeat a meritorious motion for summary judgment." Hoffman v. Asseenontv.com , Inc., 4 04 N.J. Super. 415, 425-26 (App. Div. 2009) (quoting Puder, supra, 183 N.J. at 440); see also Pressler & Verniero, Current N.J. Court Rules, comment 2.2 on R. 4:46-2 (2014) (citing Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011); Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999); Fargas v. Gorham, 276 N.J. Super. 135, 139-41 (Law Div. 1994) ("[S]elf-serving assertions alone will not create a question of material fact sufficient to defeat a summary judgment motion.")).
We agree with Judge Gizinski that, in light of the Guidos' inability to recall the specifics of their several lengthy discussions with defendants concerning the settlement terms and their ramifications, their statements under oath in August 2005 that they understood and had no questions about the settlement, and the documentary evidence that they were advised against settlement because of the diminution of the value of their stock, the Guidos' general denials were insufficient to warrant denial of the defendants' detailed and well-supported motion for summary judgment.
The remaining issues raised by the Guidos on appeal do not 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