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Pinto v. McGovern

March 4, 2008

CELESTE GUIA PINTO, PLAINTIFF/APPELLANT CROSS-RESPONDENT,
v.
MCGOVERN, PROVOST & COLRICK, DEFENDANT/THIRD-PARTY PLAINTIFF/RESPONDENT CROSS-APPELLANT,
v.
PAULO A. GUIA, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-1251-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 28, 2007

Before Judges Axelrad and Payne.

Plaintiff Celeste Pinto appeals from summary judgment dismissal of her legal malpractice complaint against her former attorney, Edward Colrick, and his law firm, McGovern, Provost & Colrick (collectively "MPC"). The Law Division dismissed the complaint on the ground that plaintiff's voluntary settlement of the underlying case as found by the Chancery Division barred her malpractice action as a matter of law based on the principles of Puder v. Buechel, 183 N.J. 428 (2005). On appeal, plaintiff argues the motion judge improperly made unsubstantiated observations of her credibility based on his review of the settlement of the underlying action that clouded his judgment and adversely impacted his decision. Plaintiff further contends summary judgment was improperly granted in view of the unrefuted sworn statements presented in opposition to the motion by herself and Jeffrey Rosen, the attorney representing her in the underlying settlement, as to her state of mind at the time of the settlement, which demonstrated she was facing a "litigation catastrophe." Plaintiff seeks reversal of summary judgment and remand to another judge for continuation of her malpractice action.

MPC cross-appeals from the court's May 26, 2006 order denying its motion to dismiss plaintiff's complaint with prejudice because of alleged deficiencies in the affidavit of merit. We are not persuaded that summary judgment was erroneously granted and affirm the court's January 5, 2007 order dismissing plaintiff's legal malpractice complaint. Accordingly, we need not address defendant's cross-appeal, and will not discuss the issue further in this opinion.

Plaintiff is a Portuguese national who has been in the United States since approximately 1988, but apparently is not conversant in English. She had employed the services of MPC in the purchase of five investment properties in Monmouth County in 2000-2001 and subsequently for related services. Because of the assistance of her son Paulo ("Paul") in the management of the properties, she wanted to devise him a 40% interest in her estate and only a 20% interest to each of her three remaining children. According to plaintiff, she told Paul, who is conversant in English, to have an attorney prepare a will for her; he contacted Colrick; and in December 2003, they went to the offices of MPC. Plaintiff contended Paul inaccurately translated Colrick's instructions and advised her in Portuguese that she was executing the will, but she later learned she was executing deeds that transferred the five properties from her sole ownership to herself and Paul as joint tenants.

In order to seek relief for the alleged wrong, plaintiff filed two actions. On March 26, 2004, plaintiff retained Rosen and filed suit against her son in the Chancery Division, alleging she was fraudulently induced into signing the deeds, and requesting the conveyances be set aside. Paul denied the allegations and counterclaimed, arguing he and his mother were business partners; he had contributed effort, labor and capital to the venture; and she had executed the deeds knowingly. On March l8, 2005, plaintiff also retained current counsel and filed a complaint in the Law Division against Colrick and MPC, alleging Colrick had breached his fiduciary duty in failing to advise her to obtain separate legal representation from her son and in failing to retain an independent interpreter for her.

The Chancery Division action was scheduled for trial before Judge Leher on June 6, 2005. Following a conference with counsel in chambers, the parties placed a settlement on the record through interpreters. The transcript reflects a detailed statement of the terms,*fn1 and a lengthy colloquy between the judge and plaintiff regarding her understanding and voluntary acceptance of the settlement, the waiver of her right to proceed to trial, and the potential impact of the settlement on her pending malpractice case, specifically that "someone may argue that because she settled this lawsuit, she does not have any damage." Judge Leher found plaintiff acted voluntarily, believed the settlement was fair, and understood the ramifications the settlement "may or may not have with respect to other litigation and [was] willing to accept those possible ramifications in light of this settlement . . . ." A consent judgment was entered on July 20, 2005, setting forth the specific terms of the agreement, and signed by both parties and their respective counsel. The order further provided that the court "retains jurisdiction to consider the matter further in the event the parties [are] unable to effect the terms of their settlement."

On January 20, 2006, pursuant to a motion filed by plaintiff's son, an order enforcing settlement was entered in the Chancery Division action. Both parties were represented by counsel and individually signed as consenting to the order. The order contained a similar provision to the settlement regarding the Chancery Division's retaining of jurisdiction.

In December 2006, MPC moved for summary judgment on plaintiff's Law Division complaint, arguing the tactical decision to settle the underlying action against her son barred her legal malpractice action based on the Supreme Court's decision in Puder. Plaintiff responded, raising for the first time, eighteen months after settlement, the issue of the voluntariness of the Chancery Division settlement. In opposition to the motion, plaintiff presented her certification and that of her attorney in the Chancery action. Rosen certified that during the settlement conference with Judge Lehrer, Paul's attorney declared his intention to cross-examine plaintiff regarding her use of an illegal social security number when obtaining the mortgages on the properties, to which the judge responded that such testimony at trial would trigger his judicial obligation to report under Sheridan v. Sheridan,*fn2 and urged Rosen to discuss the issue with his client. Rosen further certified he told plaintiff about the conversations and "[i]t was, in part, this fear that resulted in [plaintiff] agreeing to a settlement with her son" and "[w]ithout the Sheridan threat lurking, both I and [plaintiff] were fully prepared to proceed with a plenary hearing to prove her claims that she had been duped by her son, Paulo, into conveying to him an ownership interest in the five properties."

Plaintiff certified about the use of a social security number given to her by her husband when she arrived in the U.S., from that time through 2002, under the belief it was valid, and her disclosure to social security about the number and assignment of a new number following approval of her application for permanent residency status in 2002. She further explained she was prepared to proceed to trial in the Chancery action until Rosen had the post-conference conversation with her, and explained her "state of mind" at that time, in part, as follows:

My agreement to settle was neither voluntary nor without severe duress, believing that I would be arrested, [incarcerated, and possibly having my permanent residency status compromised]. To me this was frightening and chilling because I had through honest physical labor established a foundation for a modest living style in a count[r]y I have come to appreciate. The threat of losing it all was compelling in my decision to settle. . . .

Plaintiff noted her initial comment that the settlement was "not fair, but what else can I do?" during the colloquy with the Chancery judge, and acknowledged the ensuing colloquy in which the judge informed her she could proceed to trial and she agreed to accept the settlement. Plaintiff stated that "with the threat of being arrested, spending time in jail and possibly having [her] ...


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