On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9211-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Chambers.
Plaintiff, Ann K. Yablonski, retained defendant, Alan G. Trembulak, to prosecute a cause of action against her late husband's accounting firm and its partners. In this suit, plaintiff sought to recover the value of her husband's partnership interest in the firm. Plaintiff ultimately settled her claims against the accounting firm for $18,000. She subsequently filed a legal malpractice action against defendant and his firm, claiming Trembulak failed to adequately investigate her claims against the accounting firm through discovery, and pressured her into settling the case.
Plaintiff sought to use the trial testimony of her expert from the underlying case against her husband's accounting firm to prove her damages in the legal malpractice action against Trembulak, because the expert had since died. Trembulak objected, claiming that plaintiff had not informed him of her intention to use the expert's trial testimony until the day of the trial.
Trembulak filed two in limine motions: the first motion sought to bar plaintiff from using the expert's trial testimony; the second motion, predicated on the success of the first one, sought to dismiss the legal malpractice case for lack of competent evidence as to damages. The trial court granted both motions.
Plaintiff now appeals from these rulings. We affirm. We will discuss the issues raised in the context of the facts developed by the parties before the trial court.
In this legal malpractice action, plaintiff is required to establish defendant's alleged deviation from the standard of conduct expected of a reasonably competent attorney, in the context of his performance in an earlier case. This so-called "suit within a suit" approach necessitates that we describe, in some detail, that earlier matter. See Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358 (2004).
In 1972, Allan Jacobs, Harold Siegal, Harry B. Jacobs, Morton R. Weinberg, and Frederick J. Bastien signed a written partnership agreement and formed an accounting partnership called Jacobs, Siegal & Company. The agreement provided that if any partner died, the surviving partners would purchase his entire interest. The agreement further specified, that the deceased partner's interest "shall be deemed to consist solely of the deceased partner's capital account and his share of work in process both of which shall be determined and paid as follows. . ."
Alan J. Yablonski (the husband of Ann K. Yablonski, the plaintiff in the legal malpractice action), served as an associate of Jacobs, Siegal & Company for approximately ten years. In late 1985, he accepted an offer to become a partner, effective January 1, 1986. Toward this end, the partners drafted an amendment to the partnership agreement specifying that Mr. Yablonski would receive a fifteen percent interest, while the other partners held interests close to twenty percent. The amendment also provided that, except as amended, the signing parties ratified and confirmed the original partnership agreement. According to one of the firm's partners, Mr. Yablonski read the agreement and agreed to its terms. However, Mr. Yablonski never signed the amendment or the original agreement.
In 1987, one of the original partners, Harry Jacobs, died; the partnership purchased his interest. The accounting firm calculated his death benefit according to the terms of the original partnership agreement. One of the partners, Morton Weinberg, testified that he discussed with Mr. Yablonski how Mr. Jacob's interest would be calculated.
On April 3, 1996, Alan Yablonski committed suicide. At the time of his death, Mr. Yablonski's partnership share in the accounting firm had increased to twenty-three percent. In July of that same year, Ms. Yablonski retained Trembulak and his firm to pursue a claim against her late husband's partners and their accounting firm, to recover her husband's partnership interest in the firm. Ms. Yablonski paid Trembulak an initial retainer of $9000; she later on agreed to a contingency fee arrangement.
At some point during that same year, Ms. Yablonski began to think there might be a conflict of interest between Trembulak and the accounting firm because Trembulak was a friend of one of the accounting firm's new partners. Trembulak assured her, however, there was no problem, and he continued to represent her in the suit. By way of settlement, the partnership offered to purchase Mr. Yablonski's share, in accordance with the partnership agreement; this amounted to $45,432. Both parties agree that this amount was in accordance with the partnership agreement's buyout provision.
Ms. Yablonski took the position, however, that because her late husband had not signed the original partnership agreement, nor the amendment to that agreement, she was not barred from arguing that his partnership interest was worth substantially more than $45,432. She thus claimed that, in determining the value of her late husband's interest, the good will of the accounting partnership had to be taken into account, despite the fact that the agreement excluded good will. Despite this argument, Ms. Yablonski, acting as the Administratix of her late husband's estate, accepted the $45,432 offer, reserving her rights to pursue the good will issue through litigation.
In 1998, Trembulak commenced an action on behalf of the estate of Alan J. Yablonski in the Union County Superior Court, Chancery Division. According to Trembulak, in preparation for trial, he had completed document discovery, including reviewing the partnership agreement, the amendment to the agreement, and all of the tax documents for the partnership. He also retained certified public accountant Stephen F. Mannuzza to calculate the value of Mr. Yablonski's share of the partnership. He did not, however, conduct any depositions.
The trial began on October 29, 1998. The accounting firm argued that the late Alan Yablonski had agreed orally to the terms of the written partnership agreement. Under this oral contract, the accounting firm had acted properly by compensating his estate under the explicit terms of the partnership agreement. On behalf of the estate, Trembulak argued that the partnership was ...