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Make-Up Bar, LLC v. Cooper

May 21, 2008

THE MAKE-UP BAR, LLC, PLAINTIFF-APPELLANT,
v.
COOPER, LEVENSON, APRIL, NIEDELMAN & WAGENHEIM, P.A.,*FN1 AND ROBERT E. SALAD, ESQ., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-867-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 30, 2008

Before Judges Cuff and Lihotz.

This is a legal malpractice case. The case has its genesis in the eight-month tenure of a hair stylist at plaintiff salon. The stylist left plaintiff's employ to start his own business and four persons employed by plaintiff soon followed the departed stylist. Plaintiff alleged that defendant law firm failed to protect its interests in spite of a specific request to do so and assurances by defendant firm that the agreement drafted by it met plaintiff's needs. Plaintiff appeals from the order granting summary judgment in favor of defendant. We affirm.

This is the second time this matter is before this court. In our prior opinion, A-3842-04T2 (App. Div. Feb. 22, 2006), we reversed an order granting summary judgment in favor of defendants Cooper, Levenson, April, Niedelman & Wagenheim, P.A. and Robert E. Salad, because the order was entered prematurely and because there were material issues of fact affecting proximate cause. Following further discovery, defendants renewed their motion for summary judgment. The motion judge held that plaintiff's damages were speculative and insufficient to submit to a jury.

The facts are largely uncontested. We adopt the factual statement from our prior opinion pertaining to the formation of the employment relationship between Lisa Severino, the owner and operator of plaintiff The Make Up Bar, and Vincent Scerati; Severino's relationship with defendant law firm; and Severino's attempt to enforce the agreement drafted by defendant law firm and executed by Scerati.

Severino, a hairdresser, claims that she retained attorney Salad to draft a "no-hire" agreement for execution by Scerati, a hairdresser whom she had agreed to employ for a short period until his own salon, Blink Spa, was opened. Instead, she claims Salad drafted a "non-solicitation" agreement, which proved effectively unenforceable when, in an injunctive action filed by The Make-up Bar against Scerati in the Chancery Division after four of The Make-up Bar's employees had found employment at Scerati's salon, each certified that he or she had not been solicited by Scerati. Scerati corroborated the employees' position in his own certification, and he stated additionally that he would not have signed a no-hire agreement if it had been presented to him. The action filed against Scerati was dismissed without prejudice with Severino's consent.

Plaintiff filed its complaint for legal malpractice on February 13, 2004. Following the reversal of the first summary judgment and remand to the trial court, defendants renewed their motion for summary judgment after additional discovery. As in its first motion for summary judgment, defendants conceded for purposes of the motion that they failed to prepare the agreement that Severino requested. In support of their motion, Scerati certified that he would not have signed a more restrictive agreement. Plaintiff produced a handwritten document as evidence that the departure of the four employees caused it to lose in excess of $600,000 in revenue. Defendants argued that the information supplied by plaintiff concerning damages was legally insufficient to prove that any error by it caused any damage to plaintiff.

During discovery, plaintiff prepared and submitted calculations of her losses sustained by the departure of the four employees allegedly solicited by Scerati to leave plaintiff's employ. Severino testified that the $600,000 loss contemplates that each departed employee would have stayed in plaintiff's employ for three years. Plaintiff also submitted a list of all employees who had worked at plaintiff salon from 2001 through 2006. Of the seventy-four employees, two were fired. Five employees on the list included Scerati and the four employees who left to join his salon. Of the remaining sixty-eight employees, only four stayed in plaintiff's employ more than a year; none remained in plaintiff's employ for three years; many remained in plaintiff's employ for only several months; some stayed a matter of weeks.

This court employs the same standard that governs trial courts in reviewing summary judgment orders. Prudential Prop. & Cas. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App Div.), certif. denied, 154 N.J. 608 (1998). Pursuant to Rule 4:46-2(c), the trial court shall grant a motion for summary judgment 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."

In considering a motion for summary judgment, the trial court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954); R. 4:46-2(c).

A plaintiff in a legal malpractice action must establish (1) the existence of an attorney-client relationship creating a duty of care upon the attorney, (2) a breach of that duty, and (3) damages proximately caused by the attorney's breach. McGrogan v. Till, 167 N.J. 414, 425 (2001) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996)). Further, the burden is on the plaintiff to show, by a preponderance of the evidence, what specific damages were suffered as a result of those actions. Albee Assocs. v. Orloff, Lowenbach, Stifelman & Siegel, P.A., 317 N.J. Super. 211, 222 (App. Div.) (citing Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 342 (1980)), certif. denied, 161 N.J. 147 (1999)).

In this case, Judge Fernandez-Vina suggested that the evidence raised material issues of fact with regard to what information and assurances were supplied to plaintiff by defendants, and Severino's resulting conduct if she had been informed of the facts as defendants and Scerati claim those facts to have existed. Accordingly, the judge appropriately declined to rule that summary judgment should be granted on the basis of a lack of proximate cause. Instead, the judge granted defendants' motion for summary ...


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