Opinion
DOCKET NO. A-5513-12T3
07-23-2014
CARL R. WHISLER, DEBORAH WHISLER, HUSBAND AND WIFE, GUARDIAN AD LITEM FOR BRITTANY WHISLER, Plaintiffs-Appellants, v. LUNDY FLITTER BELDECOS & BERGER and ERIC MILBY, ESQ., Defendants-Respondents.
Peter A. Ouda, attorney for appellants. Swartz Campbell, LLC, attorneys for respondents (Jeffrey B. McCarron and Josh J.T. Byrne, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Harris and Fasciale. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5523-10. Peter A. Ouda, attorney for appellants. Swartz Campbell, LLC, attorneys for respondents (Jeffrey B. McCarron and Josh J.T. Byrne, on the brief). PER CURIAM
Plaintiffs appeal from the June 7, 2013 summary judgment dismissal of their legal malpractice action against defendants. We affirm.
I.
Because this motion was decided under Rule 4:46-1, we recite the facts presented by plaintiffs, the non-moving parties. Robinson v. Vivirito, 217 N.J. 199, 203 (2014) ("We derive the facts viewed in the light most favorable to plaintiff[s] from the record submitted in support of and in opposition to defendants' motion for summary judgment.").
Plaintiffs purchased a dwelling in 2002 for approximately $150,000. In 2008, a mold infestation was discovered in the house, which plaintiffs alleged was the result of defective construction. They further claimed that the mold caused economic damages and personal injuries. A civil action (Docket No. L-6294-07) against Drialo Construction, LLC (and others) was filed on February 13, 2008, seeking remedies for plaintiffs' harms.
The initial complaint asserted six theories of liability, including a single count alleging that Brittany Whisler "experienced personal injury" caused by those involved in the construction of the house. No claim was then advanced on behalf of Deborah Whisler's putative personal injuries.
Several months later, plaintiffs decided to change their attorney. In July 2008, plaintiffs signed an "Agreement to Provide Legal Services for a Contingent Fee in a Consumer Fraud Case" with defendant Lundy, Flitter, Beldecos & Berger, P.A. The attorney assigned to the case was defendant Eric C. Milby, Esq.
On April 28, 2009, Milby filed a motion (with a supporting certification and brief) to amend the complaint in Docket No. L-6294-07 because "[i]mportantly, the original [c]omplaint does not include a claim for the personal injuries of Plaintiff Deborah Whisler." The motion was filed only after Milby had unsuccessfully sought to obtain a stipulation of all defendants consenting to the amendment.
On May 14, 2009, a Law Division judge denied the motion to amend the complaint. The order recited, "No Opposition Filed," and "Reasons Set Forth on Record." We have not been provided with either a transcript of that judge's rationale or a written statement of reasons for denying the motion. Nor have we been provided with Milby's reconsideration motion, which the parties agree was filed, and was likewise unopposed. Plaintiffs settled their construction-defect case for $140,000 in December 2009, before the reconsideration motion was decided. The present dispute revolves around whether Deborah Whisler's personal injury claims were properly handled by Milby.
Plaintiffs commenced the present malpractice action on November 4, 2010, alleging that Milby (and his law firm) "abandoned the personal injury claims of Deborah Whisler, for which there was no justification." At the conclusion of discovery, defendants moved for summary judgment, arguing that plaintiffs presented no evidence of Deborah Whisler's damages, and that they failed to demonstrate a breach of duty on the Milby's part.
In response, plaintiffs argued that the summary judgment motion was defective insofar as it failed to properly set forth a statement of material facts in separately numbered paragraphs pursuant to Rule 4:46-2(a). Plaintiffs further presented a four-page report from their expert witness, which distilled the malpractice claim into the following:
Mr. Milby should have filed a motion to amend immediately upon retention and had he done so, the motion to amend would have beenThe report did not explore the reasons why the tardy motion to amend was actually denied, and provided no details as to why an earlier-filed motion would have been granted.
granted.
. . . .
A claim that is not asserted cannot be settled and the fact is that Milby has offered nothing from the defendants in the underlying case that they settled her claim that was not asserted. The fact is that Ms. Whisler's personal injury claim was not asserted and therefore was not settled.
The motion judge dismissed the malpractice complaint, finding the following:
[T]here has been no showing whatsoever of what damages the plaintiff has suffered. The damages, I assume, are in the form of some medical bills or medical conditions that are not set forth in any of the papers I have in front of me, that would suffice or raise issues of fact to me as to the damages claimed. I don't think it has to be an exact amount, but there has been nothing submitted to me to say she's suffered an injury, she lost money, . . . in this application. So I assume — well, I'm not assuming anything. It's just not there.This appeal followed.
And with regard to the expert's opinion, I have a problem with the underlying foundation, that is, that the motion [to amend the complaint], had it been filed immediately, . . . in the expert's opinion, would have been granted, and that the claim would have been preserved. I don't know how an expert can say that without looking at the transcript [of the motion judge's decision]. The transcript, it seems to me, would have to say it was not granted. The [c]ourt's under that obligation to set forth the basis for its decision on the record.
As far as I know, . . . I think this was heard in [2009]. The record would still be available. So . . . take out that foundation block from his . . . opinion, then you don't have very much left. And what he's done is just based his opinion on pure conjecture, which, to me, makes it a net opinion. Without that opinion . . . the liability aspect of this would, in essence, die. So the motion will be granted for the reasons set forth.
II.
"In reviewing a grant of summary judgment, we apply the same standard as the motion judge." Fedor v. Nissan of N. Am., Inc., 432 N.J. Super. 303, 311 (App. Div. 2013) (citing EMC Mortg. Corp. v. Chaudhri, 4 00 N.J. Super. 126, 136 (App. Div. 2008)); see also Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We first ascertain whether the moving party has demonstrated that no genuine dispute regarding material facts existed in the matter. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)), certif. denied, 189 N.J. 104 (2006). Pursuant to Rule 4:46, we then "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Finally, we then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. When undertaking this analytical step, we afford no deference to the motion judge's conclusions on legal issues, which receive plenary review. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The party opposing summary judgment "'must do more than simply show that there is some metaphysical doubt as to the material facts[,]'" Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993)), as "[c]ompetent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 4 04 N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005), appeal dismissed, (Jan. 3, 2006)).
To establish legal malpractice plaintiffs were
required to show that competent, credible evidence existed to support each of the elements of that negligence action, i.e., "1) the existence of an attorney-client relationship creating a duty of care upon the attorney; 2) that the attorney breached the duty owed; 3) that the breach was the proximate cause of any damages sustained; and 4) that actual damages were incurred."The motion judge found that factors two, three, and four were absent in plaintiffs' case. We agree.
[Cortez v. Gindhart, ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 9) (quoting Sommers v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996)).]
Plaintiffs rely upon their expert to establish a breach of duty. That breach was described as failing to timely move to amend the construction-defect complaint, which, if filed earlier, would have been granted and then would have (presumably) increased the settlement value of that case because it would have included Deborah Whisler's personal injury assertions. We fully subscribe to the motion judge's analysis that without knowing why that first Law Division judge denied Milby's motion to amend, it is impossible, without rank speculation, to opine that an earlier-filed motion would have been granted.
An expert's bare conclusions, unsupported by factual evidence, are inadmissible pursuant to the net opinion rule. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011) (citing Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). "The rule requires an expert 'to give the why and wherefore' of his or her opinion, rather than a mere conclusion." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (quoting Jimenez v. GNOC , Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)). We agree with defendants that plaintiffs' proffered expert supplied only an impermissible net opinion and the motion judge rightly disregarded it.
In addition, we concur with the motion judge's view concerning the lack of evidence of proximate cause and actual damages. "Actual damages . . . are real and substantial as opposed to speculative." Grunwald v. Bronkesh, 131 N.J. 483, 495 (1993). "[A]n attorney is only responsible for a client's loss if that loss is proximately caused by the attorney's legal malpractice[,]" that is, "the negligent conduct is a substantial contributing factor in causing the loss." 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 487 (App. Div.), certif. denied, 137 N.J. 311 (1994). Therefore, plaintiffs bear the burden of showing, by a preponderance of the competent, credible evidence, "what injuries were suffered as a proximate consequence of the attorney's breach of duty." Id. at 488. The burden is not satisfied by mere "'conjecture, surmise or suspicion.'" Ibid. (quoting Long v. Landy, 35 N.J. 44, 54 (1961)). Ordinarily, the measure of damages is what result the client would have obtained in the absence of attorney negligence. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358 (2004). Thus, to prove such injury, "the client must demonstrate that he or she would have prevailed, or would have won materially more . . . but for the alleged substandard performance." Lerner v. Laufer, 359 N.J. Super. 201, 221 (App. Div.), certif. denied, 177 N.J. 223 (2003).
Here, plaintiffs have provided no evidence that if Deborah Whisler's personal injury claims had been made part of the construction-defect litigation plaintiffs would have fared better in the settlement. The record is utterly barren of evidence that would bear upon the monetary equivalent of Deborah Whisler's harm, and there is nothing to suggest, other than hope in the unseen, that if Milby had earlier moved to amend the complaint, and the motion had been successful, plaintiffs would have received a more generous settlement.
We reject plaintiffs' meritless claim that the summary judgment motion should have been denied because defendants failed to perfectly adhere to the numbered paragraph requirement of Rule 4:46-2(a). See R. 2:11-3(e)(1)(E). Plaintiffs were not prejudiced by this inconsequential deficiency, and the failure neither impeded the parties' abilities to present all issues nor eroded the motion court's capacity to properly decide the summary judgment motion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION