On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Michels, Deighan and R. S. Cohen. The opinion of the court was delivered by Michels, P.J.A.D.
[239 NJSuper Page 363] Plaintiffs Urmila Gautam and Narinder Gautam appeal from a post-judgment order of the Law Division that vacated a judgment against defendant Dominick P. Conte, Esq. (Conte) in this legal malpractice action. The pivotal issue raised by this appeal is whether Conte is entitled to the benefit of the judgment entered in favor of his codefendant Samuel R. De Luca, Esq (De Luca) in Gautam v. De Luca, 215 N.J. Super. 388, 521 A.2d 1343 (App.Div.1987), even though he was not a party to the appeal.
The resolution of this issue is best understood in light of the procedural history and the underlying facts giving rise to this appeal. Sometime prior to 1977, plaintiffs retained Conte to represent them in a medical malpractice claim against Dr. Gerry Brown, The New Jersey Medical Center and the City of Jersey City (the Brown suit). At that time, Conte was a sole practitioner. Shortly thereafter, however, he joined the law firm of De Luca and, as De Luca's associate, filed a medical malpractice action on plaintiffs' behalf. Conte was extremely dilatory in complying with the trial court's discovery orders and in December, 1979, after lengthy delays and repeated motions, plaintiffs' complaint was dismissed for failure to answer interrogatories and comply with a court order. Despite plaintiffs' numerous requests for information, Conte never apprised them of the dismissal and in October, 1980 they learned of it from the trial court.
In April, 1983, plaintiffs instituted a legal malpractice action against Conte and De Luca. Plaintiffs charged that as a result of the legal malpractice of Conte and De Luca the Brown suit was dismissed. In addition, plaintiffs charged that Conte and De Luca, acting deliberately or with reckless indifference to the consequences, failed to advise them that the Brown suit had been dismissed. They sought both compensatory and punitive damages.
After issue was joined, the matter was tried before a jury, which awarded plaintiffs both compensatory and punitive damages against Conte and De Luca. The trial court denied motions by Conte and De Luca for a new trial and for a remittitur of damages. However, the trial court stayed execution of the judgment pending appeal, conditioned upon Conte and De Luca posting a supersedeas bond. In addition, the trial court stayed the trial of the cross-claims between Conte and De Luca pending appeal. Conte had cross-claimed against De Luca for indemnification, claiming that De Luca had agreed to provide legal malpractice insurance coverage for him as a condition of his employment.
In June, 1985, De Luca appealed. Conte did not file a notice of appeal. Instead, he filed what he captioned a "Notice of Joining Appeal," which he apparently based on R. 2:3-3. This pleading was not a proper notice of appeal and did not transform De Luca's appeal into a joint appeal with Conte within the purview of R. 2:3-3. Moreover, Conte did not file a brief; he did not join in De Luca's brief; and he did not participate in the argument of the appeal. In fact, by letter dated November 23, 1986, Conte advised the Appellate Division Clerk's office that he would "not be an active participant in the above appeal, but that [he was] of course interested in the outcome of the same." Conte, therefore, was not an appellant in that matter.
In March, 1987, we reversed the judgment, holding that the trial court's instructions to the jury were "materially deficient," in that the jury was not apprised of the essential elements of a legal malpractice cause of action. We decided not to remand the matter for a new trial as to De Luca because we found that the evidence was wholly insufficient to support a recovery of either compensatory or punitive damages against him. Plaintiffs had not offered any medical evidence to show that they had a medical malpractice claim upon which they would have been entitled to recover or which would have had a settlement value if De Luca had not been negligent. We also held with respect to De Luca that emotional distress damages should not be awarded in legal malpractice cases at least in the absence of egregious or extraordinary circumstances and even if such damages were reasonable, they would be impermissible in the absence of medical evidence establishing substantial bodily injury or severe and demonstrable psychiatric sequelae proximately caused by the tortfeasor's conduct. Finally, we held that the evidence against De Luca was not sufficient to warrant an award of punitive damages. See Gautam v. De Luca, supra. In April, 1987, we amended our opinion on plaintiffs' motion for clarification to hold that the judgment of the Law Division is reversed "as to defendant De Luca."
Conte did not make an application to obtain the benefit of the reversal of the judgment against De Luca in the Appellate Division nor did he move in the trial court to be relieved from the judgment pursuant to R. 4:50-1. Rather, Conte responded to plaintiffs' motion to settle the form of the judgment in November, 1987, by filing a certification in which he claimed that he was entitled to a reversal of the judgment under the principles discussed in E & K Agency v. Van Dyke, 60 N.J. 160, 286 A.2d 706 (1972).
In December, 1987, Judge O'Donnell in the Law Division, held that the reversal of the judgment against De Luca by the Appellate Division on the ground that the jury instructions were erroneous also applied to Conte, and, therefore, vacated the judgment against him. In reaching this conclusion, the trial court, in part, reasoned that:
E & K Agency stands for the proposition that where the reversal of judgment eliminates all basis for recovery against a nonappealing party, as well as against the party who appealed, the benefit of the judgment of reversal will be made available to all alike, ...