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Gautam v. De Luca

Decided: March 2, 1987.

URMILA GAUTAM AND NARINDER GAUTAM, PLAINTIFFS-RESPONDENTS,
v.
SAMUEL R. DE LUCA, DEFENDANT-APPELLANT, AND DOMINICK P. CONTE, DEFENDANT



On appeal from Superior Court, Law Division, Mercer County.

Pressler, Baime and Ashbey. The opinion of the court was delivered by Baime, J.A.D.

Baime

[215 NJSuper Page 390] This is an appeal from a judgment of the Superior Court, Law Division, awarding both plaintiffs compensatory and punitive damages based upon the alleged legal malpractice of defendant Samuel De Luca and his associate Dominick Conte. The predicate for plaintiffs' claim was that their former attorneys had negligently represented them in a prior medical malpractice case resulting in the dismissal of their complaint. Plaintiffs made no effort to establish the viability or value of their underlying medical malpractice action. Rather, they sought to

recover damages for the mental anguish and emotional distress allegedly caused by the legal malpractice of defendant and Conte. The novel question presented by this appeal is whether damages for emotional distress are recoverable in a legal malpractice action. Auxiliary questions concern whether the evidence was sufficient to support an award of punitive damages.

The salient facts can be recited briefly. Plaintiffs Narinder and Urmila Guatam filed a two-count complaint in which they alleged that defendant and Conte negligently prosecuted their claim for medical malpractice resulting in the dismissal of their complaint. In the first count, plaintiffs alleged that defendant and Conte were "negligent" in failing to exercise the knowledge, skill and ability possessed by members of the legal profession. They claimed that they "suffered injuries and damages" as a "direct and proximate result" of such negligence. In the second count, plaintiffs alleged that defendant and Conte "deliberately or with reckless indifference" failed to advise them of the fact that their medical malpractice claim had been dismissed. Plaintiffs alleged that such conduct warranted punitive damages.

At trial, plaintiffs testified that sometime prior to 1977 they engaged Conte to represent them in unrelated medical malpractice and workers' compensation actions. It is undisputed that Conte was a sole practitioner at this time. However, it is also uncontradicted that Conte joined defendant's law firm in the position of associate shortly thereafter. Conte filed and signed the medical malpractice complaint under defendant's name. Named as defendants were the Jersey City Medical Center, the City of Jersey City and Mrs. Gautam's treating physician.

Protracted discovery proceedings ensued. It is apparent that Conte was extremely dilatory in complying with the court's discovery orders. After lengthy delays and repeated motions, plaintiffs' complaint was ultimately dismissed on this basis on December 6, 1979. Despite plaintiffs' numerous requests for

information, Conte never apprised them that their complaint had been dismissed.

In October 1980, plaintiffs received a letter from Conte advising them that he had become ill and could no longer serve as their attorney in the workers' compensation action. Because of the ambiguity of the letter, plaintiffs contacted various court officials and at that time first learned that their complaint in the medical malpractice action had been dismissed. Although Conte cooperated fully with plaintiffs' newly retained attorney, their efforts to have the complaint reinstated proved unavailing.

Both plaintiffs testified that they were greatly distressed by this experience. According to plaintiffs, Conte had told them that their case "had a potential value of $5,000,000." Over vigorous objection, plaintiffs' attorney was permitted to admit into evidence a notice of claim filed with the City of Jersey City demanding the sum of $5,000,000 as damages. Both plaintiffs testified that they developed various psychological problems because of their dashed expectations. Mr. Gautam stated that he suffered constant headaches and back pains and that his marriage began to deteriorate. In similar fashion, Mrs. Gautam testified that she developed insomnia and began experiencing bladder control problems.

Both Conte and defendant testified. According to Conte's testimony, he began to suffer severe disabling headaches shortly after he commenced employment with defendant's firm. Eventually, this condition caused him to leave the office for substantial periods of time. Ultimately, Conte found it necessary to instruct many of his clients to retain other attorneys. According to his testimony, he sent a letter to plaintiffs in June 1980, advising them of his condition and suggesting that they engage another lawyer in the medical malpractice case. He testified that he sent plaintiffs another letter in October 1980 instructing them to retain another attorney in the workers' compensation action. Conte testified that he never received the

order dismissing plaintiffs' complaint. When he was apprised of the dismissal, he cooperated fully with plaintiffs' attempt to have the complaint reinstated.

Defendant testified that he was totally unfamiliar with plaintiffs' case. He pointed out that Conte had been retained by plaintiffs prior to his association with his office. Although defendant maintained a "case registry" with appropriate references to all active files, plaintiffs' medical malpractice action had never been listed. With one minor exception, defendant never communicated with the Gautams. It is undisputed that on one occasion defendant answered the telephone and left a message for Conte at plaintiffs' request. Apparently, this was an extremely brief conversation. Plaintiffs' medical malpractice case was not discussed.

Defendant testified that he was aware of Conte's medical problems, but never felt it necessary to review or otherwise supervise his case load. Despite Conte's illness, defendant believed that he was fully able to accord proper attention to his cases. Defendant further testified ...


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