In a published opinion, the Appellate Division reversed and remanded, holding that the trial court erred in dismissing Mrs. Buechel's malpractice counterclaim. Puder v. Buechel, 362 N.J.Super. 479, 484, 828 A.2d 957 (2003). First, the panel concluded that our holding in Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298 (1992), "plainly allows a former client to bring a legal malpractice action against an attorney for professional negligence in divorce litigation where a settlement ensued."
Ibid. Hudson's reliance on Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298 (1992), and Puder v. Buechel, 362 N.J.Super. 479, 828 A.2d 957 (App.Div. 2003), certif. granted, 180 N.J. 147, 849 A.2d 181 (2004), in support of her argument that the equitable doctrine of judicial estoppel was improperly invoked by the Law Division judge, is misplaced.
PETITIONS FOR CERTIFICATION Lower CourtTitleDateDispositionCitation 363 N.J. Super. 485 833 A.2d 666 363 N.J. Super. 419 833 A.2d 626 364 N.J. Super. 68 834 A.2d 459 362 N.J. Super. 479 828 A.2d 957 J. Roberts and Son, Inc. v. Hillcrest Memorial Company 02/03/2004 Denied , Jameson v. Great Atlantic and Pacific Tea Company 02/03/2004 Denied , New Jersey Division of Youth and Family Services v. P.M.
However, the doctrine of judicial estoppel is "an extraordinary remedy that should be invoked only when a party's assertion of a contrary position will result in a miscarriage of justice and only in those circumstances where invocation of the doctrine will serve its stated purpose." WVDOT v. Robertson, 618 S.E.2d at 514 (quoting Puder v. Buechel, 828 A.2d 957, 965 (N.J. 2003)). The policies underlying the doctrine of judicial estoppel include preventing internal inconsistency, precluding litigants from playing fast and loose with the courts, and prohibiting parties from deliberately changing positions to serve their various interests when different issues arise during litigation.Id. at 514 n. 19.
Mrs. Buechel appealed, and the Appellate Division reversed, concluding that under this Court's decision in Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298 (1992), “a former client [may] bring a legal malpractice action against an attorney for professional negligence in divorce litigation where a settlement ensued.” Puder v. Buechel, 362 N.J.Super. 479, 485, 828 A.2d 957 (App.Div.2003). This Court thereafter granted Puder's petition for certification, 180 N.J. 147, 849 A.2d 181 (2004), and reversed the Appellate Division, holding that:
"Judicial estoppel is an extraordinary remedy that should be invoked only when a party's assertion of a contrary position will result in a miscarriage of justice and only in those circumstances where invocation of the doctrine will serve its stated purpose[.]" Puder v. Buechel, 362 N.J.Super. 479, 828 A.2d 957, 965 (2003). See also Cothran v. Brown, 357 S.C. 210, 592 S.E.2d 629, 632 (2004) ("The application of judicial estoppel must be determined on a case-by-case basis, and must not be applied to impede the truth-seeking function of the court.").
"Judicial estoppel is an extraordinary remedy that should be invoked only when a party's assertion of a contrary position will result in a miscarriage of justice and only in those circumstances where invocation of the doctrine will serve its stated purpose[.]" Puder v. Buechel, 362 N.J.Super. 479, 828 A.2d 957, 965 (2003). See also Cothran v. Brown, 357 S.C. 210, 592 S.E.2d 629, 632 (2004) ("The application of judicial estoppel must be determined on a case-by-case basis, and must not be applied to impede the truth-seeking function of the court.").
April 26, 2004Prior Report: 362 N.J. Super. 479, 828 A.2d 957. ORDERED that the motion for reconsideration and the petition for certification is granted.
The public policy in favor of settlement is especially strong in family disputes. Puder v. Buechel, 362 N.J. Super. 479, 488 (App. Div. 2003) (citations omitted), rev'd on other grounds, 183 N.J. 428 (2005). There is often nothing more destructive to the personal resolution of the complex aspects of family dissolution than a trial, where relationships become further polarized.
Id. at 434-35, 874 A.2d 534. The plaintiff's subsequent motion for summary judgment on the legal malpractice counterclaim was granted by the trial judge, but we reversed on appeal in a reported decision, Puder v. Buechel, 362 N.J.Super. 479, 484, 828 A.2d 957 (App.Div. 2003). Before the Supreme Court, both sides sought "to resolve th[e] matter on the basis of causation," Puder, supra, 183 N.J. at 437, 874 A.2d 534, with the plaintiff arguing that the defendant's subsequent agreement to voluntarily settle her matrimonial action cut off any proximately-caused injury from the alleged malpractice, and with the defendant arguing that she should be entitled to mitigate her damages caused by the malpractice by settling the case.