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Viglione v. Farrington

August 14, 2007

DIANNE VIGLIONE, PLAINTIFF-APPELLANT,
v.
CHRISTINE FARRINGTON, ESQ., INDIVIDUALLY AND AS HER INTERESTS MAY APPEAR IN A LAW FIRM FORMERLY KNOWN AS BIAGIOTTI, MARINO, MONTECALLO & FARRINGTON, ESQS.; ROBERT M. BIAGIOTTI, ESQ., INDIVIDUALLY AND AS HIS INTERESTS MAY APPEAR IN A LAW FIRM FORMERLY KNOWN AS BIAGIOTTI, MARINO, MONTECALLO & FARRINGTON, ESQS.; PAUL F. MARINO, ESQ., INDIVIDUALLY AND AS HIS INTERESTS MAY APPEAR IN A LAW FIRM FORMERLY KNOWN AS BIAGIOTTI, MARINO, MONTECALLO & FARRINGTON, ESQS.; ROBERT MONTCALLO, ESQ., INDIVIDUALLY AND AS HIS INTERESTS MAY APPEAR IN A LAW FIRM FORMERLY KNOWN AS BIAGIOTTI, MARINO, MONTECALLO & FARRINGTON, ESQS.; AND BIAGIOTTI, MARINO, MONTECALLO & FARRINGTON, ESQS.,*FN1 DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9652-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2007

Before Judges Kestin, Weissbard and Lihotz.

In this matter, we are asked to determine whether, in the circumstances, a matrimonial litigant's acknowledged dissatisfaction with the result of a divorce settlement incorporated into a final judgment constitutes sufficient notice to commence the period for claiming a cause of action for legal malpractice, and the running of the statute of limitations. Plaintiff Diane Viglione alleged that defendant Christine Farrington, Esq. improperly represented her in a matrimonial action in which a dual final judgment of divorce (DFJOD) was entered on October 18, 1995. Plaintiff also asserted vicarious liability for Farrington's actions against the law firm in which she was a partner, defendant Biagiotti, Marino, Montecallo & Farrington, P.C. (Firm). Plaintiff appeals from summary judgment and the dismissal of her complaint as time-barred because she "knew of the essential facts" supporting a malpractice claim against Farrington upon entry of the DFJOD. We reverse and remand.

Plaintiff and her former husband, Peter Viglione, were married on June 9, 1973. The parties separated in April 1991. Peter filed for divorce in July 1993. Plaintiff retained the Firm, generally, and its partner Farrington, specifically, to represent her in the divorce proceedings.

The Vigliones had acquired substantial assets, which were evaluated by plaintiff's forensic accountant, James C. Ruitenberg. In his expert report dated June 26, 1995, Ruitenberg concluded that the Vigliones' net worth was $4,085,462 and Peter's average gross income from the years 1989 to 1994 was $399,149. The negotiated Property Settlement Agreement (PSA), executed on October 2, 1995, was incorporated into the DFJOD, filed October 18, 1995. The PSA provided that plaintiff would receive rehabilitative alimony in the amount of $40,000 per year for a period of eight years, and approximately $544,000 as her equitable share of the accumulated assets.

Plaintiff also entered into a post-divorce retainer agreement with Farrington on November 7, 1995, as a result of which, Farrington "successfully represented plaintiff" in post-judgment enforcement applications regarding life insurance, account transfers, and real estate tax issues.

On December 17, 1998, plaintiff retained the services of Robert T. Corcoran, Esq. to advise her of the likely success of modifying the alimony award. Corcoran told plaintiff, early in 1999, that "Farrington had committed legal malpractice." In April 1999, plaintiff filed a post-judgment application to "modify and restructure the alimony award" from rehabilitative to permanent alimony. Judge Humphreys, after trial, granted plaintiff's request and ordered that Peter pay plaintiff permanent alimony in the amount of $20,000 per year and attorneys fees and costs. We affirmed that decision in an unpublished opinion, Viglione v. Viglione, No. A-4096-03 (App. Div. March 1, 2006).

Plaintiff filed the present legal malpractice lawsuit on March 23, 2004, alleging Farrington negligently represented her in connection with the divorce proceeding. On November 4, 2005, Farrington and the Firm filed motions for summary judgment based upon the applicable six-year statute of limitations, N.J.S.A. 2A:14-1, and the doctrines of waiver and judicial estoppel.

Plaintiff opposed the motions and asserted she "had absolutely no conception that [] Farrington had committed legal malpractice until sometime in early 1999 when [] Corcoran . . . told [her] so." Plaintiff also cross-moved for leave to file an amended complaint based upon Farrington's alleged violations of the Rules of Professional Conduct (RPC) 1.7 and 1.8.

"In legal malpractice cases, as in other cases, summary disposition is appropriate only when there is no genuine dispute of material fact." Ziegelheim v. Apollo, 128 N.J. 250, 261-62 (1992) (citing Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 74 (1954)). Summary judgment must be granted only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a [factfinder] can draw from the evidence . . . ." Id. at 535. To make the determination, the judge must accept as true all evidence that supports the position of the party defending against the motion and accord him or her the benefit of all legitimate inferences which can be deduced therefrom. Ruvolo v. Am. Cas. Co., 39 N.J. 490, 499 (1963). If reasonable minds could differ, the motion must be denied.

A legal malpractice action is based on negligence. Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993). A cause of action for malpractice usually "accrues when an attorney's breach of professional duty proximately causes a plaintiff's damages." Ibid. This occurs when a plaintiff "detrimentally relies on the negligent advice of an attorney." Id. at 495.

The timeliness of a complaint for legal malpractice is governed by N.J.S.A. 2A:14-1; McGrogan v. Till, 167 N.J. 414, 417 (2001). The statute requires that a legal malpractice action commence within six years from the accrual of the ...


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