On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-2994-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2007
Before Judges Payne and Sapp-Peterson.
Plaintiffs,*fn1 Richard Adelman and Alan Meltzer, appeal from the judgment*fn2 of the Law Division dismissing their legal malpractice complaint against defendants, Arthur Shanker, Kenneth D. Mackler, and the law firm of Goldenberg, Mackler & Sayegh (jointly "the firm"). On appeal, plaintiffs contend the trial court erred in denying their pretrial motion for a change of venue and thereafter abused its discretion when it barred plaintiffs from introducing evidence of Shanker's sleep apnea. We affirm.
We briefly outline the facts of the matter. In 1993, plaintiffs retained the firm to defend them against claims brought by Howard and Jill Slotoroff and Joseph and Rita DeStefano (DeStefanos/Slotoroffs) in a complaint filed November 16, 1993, seeking damages against them for negligence, negligent misrepresentation, and breach of contract arising out of a failed business relationship, DeStefano, et al. v. Adelman, et al., Docket Number ATL-L-4643-93. Adelman and Mackler had been friends for many years, and Adelman was familiar with Mackler's reputation as a lawyer. The firm initially assigned Frederick L. Shenkman to handle the matter. Plaintiffs understood, however, that Mackler would supervise Shenkman's work. Shenkman handled all the pretrial discovery proceedings until Shanker later took over the case.
In February 1995, the matter was referred to an Early Settlement Panel (E.S.P). The panel apportioned liability against plaintiffs at sixty percent and recommended a non-binding settlement figure of $52,000. According to plaintiffs' complaint, this recommendation was never communicated to them by Shenkman or any other member of the firm prior to trial or subsequent to trial, and had it been communicated, they would have pursued settlement negotiations.
In June 1995, Mackler introduced plaintiffs to Shanker, who Mackler advised would be taking over their representation. Based upon Mackler's statement that Shanker was "able to go toe to toe with Tom Vesper[,]" Adelman came to the conclusion that "Shanker's abilities" were "great." Unbeknownst to plaintiffs, at the time they met Shanker, he already suffered from sleep apnea. He had undergone surgery in May 1993, which had not provided him with any relief. His sleep apnea caused sleeplessness, difficulty focusing, anxiety, and fatigue.
Also in June 1995, plaintiffs received correspondence from defendants which, among other matters, advised plaintiffs that the DeStefanos/Slotoroffs had renewed their Offer of Judgment, originally made in 1994, to accept $80,000 to settle the case. Plaintiffs rejected that offer and continued to do so throughout the litigation, only agreeing to settle the case for the $10,000 Offer of Judgment they had extended to the DeStefanos/Slotoroffs. The matter proceeded to trial as a bench trial.
On September 10, 1996, Shanker requested a continuance of the trial due to his medical condition. He advised the court, in camera, that he was both physically and emotionally unable to proceed and that, in his view, it was not in the best interests of his clients to proceed that day. He referenced the surgery he was scheduled to undergo three days later and advised that he expected an extended hospitalization and recovery period. Trial was adjourned and continued the following month, and concluded the next month. A year later, on November 6, 1997, the court entered final judgment in favor of the DeStefanos/Slotoroffs and awarded each couple $50,000, plus interest, attorney fees and costs, bringing the total award to $207,523.69. Subsequently, the parties settled the matter for $200,000.
On September 6, 2002, plaintiffs filed the present complaint against defendants alleging legal malpractice. Nearly two years later, plaintiffs filed a motion for a change of venue pursuant to Rule 4:3-3(a)(2). They argued,
[I]n light of the fact that [defendants practiced in Atlantic County] on a regular basis, are often before the courts, and when it comes to determinations of credibility, no matter how much a judge might try to be completely unbiased, there's a concern in the back of the plaintiffs' minds that the judge might be familiar with the lawyer and might take matters outside of the context of the case into consideration regarding credibility.
The judge denied the motion finding,
Well, I've handled numerous cases involving medical . . . malpractice against doctors in the county and legal malpractice against lawyers in the county, and other cases against other professionals in the county, some of whom . . . I knew of or heard of or had spent some time with. If I, or any other judge in the county, felt that they couldn't be completely unbiased, then obviously we'd recuse ourselves. I don't feel that way in this case. I feel that I can be unbiased, ...