On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. WRNL-358-98.
The opinion of the court was delivered by: Miniman, J.S.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Motion for reconsideration granted.
Before Judges Stern, Parker and Miniman.
Plaintiff Eric Stoeckel appeals from summary judgment orders entered on February 4, 2000, June 10, 2002, July 16, 2003, and February 6, 2004, which disposed of all claims as to all parties.*fn1 Defendant Ira Cohen cross-appeals from denial of his motion to strike the opinion of plaintiff's expert as an inadmissible net opinion.
This is an action against the Township of Knowlton for inverse condemnation and violations of 42 U.S.C. § 1983. Plaintiff also alleges claims of legal malpractice,*fn2 as well as negligence and misrepresentation,*fn3 against the remaining defendants, all of whom are attorneys. We affirm the dismissal of all claims except for those against defendants Ira Cohen and Norman Chidiac. Because the claims against the professionals were dismissed on summary judgment, we view the facts in the light most favorable to plaintiff and draw all reasonable inferences in his favor. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).*fn4
We set forth only the facts relevant to the claims of plaintiff Eric Stoeckel ("plaintiff"). In 1989 Eric Stoeckel, Jacqueline Stoeckel, Thomas Esposito, and Karen Esposito purchased two building lots in an approved subdivision in the Township of Knowlton. Defendant Ira Cohen represented the Stoeckels when they purchased a building lot on Bridge Lane in the Courtland Estates subdivision. Plaintiff intended to build a house on the lot. At the time of the closing, the road had not been built and the utilities had not been installed. Plaintiff knew the developer had been given a year to complete the road, but he was not aware that the security supplied by the builder to the township was a letter of credit that would expire at the end of a year.
While under the belief that a bond secured completion of the road, plaintiff received many and various assurances from the township over the years that Bridge Lane would be completed. For example, some time shortly after August 1990, plaintiff asked Jessie Thompson, a member of the planning board and the zoning subcommittee, about the completion of Bridge Lane. Plaintiff was told that the developer had been given a one-year extension, which Thompson later claimed was an assumption on his part. The letter of credit had already expired in July 1990. Plaintiff, believing that the one-year extension would continue through July 1991, contacted Thompson and demanded that the township take the bond and complete the road. Nothing happened.
Toward the end of 1991, plaintiff contacted Thompson again and was advised that the township had lost the bond. Plaintiff was not yet alarmed because he believed that the bond money was still available and that the township was obligated to complete the road.
Plaintiff attended a planning board meeting in January 1992 to see what the problem was. He related what Thompson had told him to the board and asked why Bridge Lane was not being built. He was advised that they were having a problem with the developer, and that they did not know where the bond money was. Township attorney Charles O'Connell was present at this meeting. Although he knew that there was no bond and that the letter of credit had expired, he did not correct the information that was supplied to plaintiff. Plaintiff was still not alarmed because he believed that the township was obligated to build the road even if it lost the bond money. A month or two later, plaintiff called Thompson again and was told that Bridge Lane would be built in the summer, but they had to do work on another road in Courtland Estates first.
Toward the end of 1992, plaintiff once again called Thompson and was told that the township could not complete Bridge Lane yet because there was no money in the budget. In the meantime, the other Courtland Estates roadwork was completed by the township. Thompson told plaintiff that he could contact the electric company to get electricity extended to the lot and that Thompson would give plaintiff a special permit to start building. Expecting the township to pay for the installation of electricity, he got a price and relayed it to Thompson. Thompson replied that the township did not have the money in the 1992 budget, and that plaintiff would have to wait until 1993.
Frustrated with the township's delay, plaintiff consulted with Cohen in March of 1993. Relating the above history and complaining that he could still not build his house, plaintiff asked Cohen about the bond. Cohen promised to investigate and get back to him. A few weeks later Cohen sent plaintiff a letter telling him that he could not force the township to build the road. The following month, plaintiff sought a second opinion from defendant Norman Chidiac. Chidiac opined that plaintiff could sue Cohen, but he did not know if there was a basis to sue the township. Plaintiff instructed Chidiac to sue whomever he could to get the road constructed. By the end of 1994, Chidiac still had taken no action.
Late in 1994 plaintiff spoke with the township's deputy mayor, who said that the township was going to get the developer's bank to build the road. He suggested that plaintiff agree to let the township switch his lot for one on Poppies Lane, a road that had been completed in Courtland Estates, which by that time was held by the developer's bank in foreclosure. Plaintiff turned to yet another attorney, Richard Fifield, at the beginning of 1995 for advice on his options. It was not until September 1995 that Fifield advised plaintiff that his best option was to switch properties, as the deputy mayor had suggested. Plaintiff immediately selected a lot on Poppies Lane. Unfortunately, a dispute between the developer's bank and the township over unpaid taxes derailed this resolution, but not until more time elapsed.
Dissatisfied with Fifield, plaintiff returned to Chidiac in February 1996. Chidiac promptly advised plaintiff that the developer's bank would not agree to the property swap. Plaintiff again pressed Chidiac to sue, but Chidiac continued to attempt an amicable resolution. Early in 1997 plaintiff approached the township again to inquire about the status of the property swap, but he was told by the new township attorney that he knew nothing about it. This led plaintiff in June 1997 to go to the township offices to review its records. It was then that plaintiff learned for the first time that there had only been a letter of credit and that the township had let it expire in July 1990. He returned to Chidiac, who advised plaintiff that he had a damages claim against the township. Plaintiff instructed him to sue. Chidiac again took no action, and plaintiff retrieved his file in February or March 1998 and brought it to his current attorneys, who filed this action in July 1998.
The initial complaint was against only the Township of Knowlton, which removed the action to federal court in light of the § 1983 claims.*fn5 Plaintiff then amended the complaint to allege claims of malpractice against Cohen, Chidiac and Fifield. The township filed a motion for summary judgment. The federal judge dismissed the claims against the Township of Knowlton, finding that the property's value had not been sufficiently diminished to support an inverse condemnation claim. She also found that the statute of limitations barred the § 1983 claims. An order of dismissal was entered as to Knowlton on July 13, 1999. The remaining claims were remanded to state court because federal question jurisdiction no longer existed; the parties consented to the remand.
First Cohen and then Chidiac sought and were granted summary judgment. Cohen filed a summary judgment motion in August 2001 in which he argued that the Stoeckels failed to establish any duty that Cohen breached in representing them in 1989 because their expert's opinion violated the net opinion rule, relying on Kaplan v. Skoloff & Wolff, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001). He further argued that they could not prove their "case within a case" with respect to the March 1993 representation because the federal district court found that the township had not violated any of the Stoeckels' constitutional rights and, even if they had such a viable claim, Chidiac's negligence superseded that of Cohen because the statute of limitations did not become a bar until well after 1993.
Cohen's motion was denied on November 14, 2001, on the ground that material issues of fact precluded summary judgment, that a Lopez hearing*fn6 was required, that the expert opinion was not net, and that the federal district court decision did not preclude a finding that there were viable § 1983 and tort claims against the township. A subsequent motion for reconsideration was heard by another judge in May of 2002. He affirmed the earlier ruling on the net opinion issue, but concluded that the Stoeckels had no viable claims against the township in 1993 when they consulted Cohen. In signing the order ...