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Phung v. Summerville

June 12, 2008

HOA DAO PHUNG, PLAINTIFF-APPELLANT,
v.
ERIC A. SUMMERVILLE, ATTORNEY AT LAW; SUMMERVILLE, RADDING & CAMPBELL, ATTORNEYS AT LAW; ANTHONY P. AMBROSIO, ATTORNEY AT LAW; AND AMBROSIO, KYREAKAKIS, ATTORNEYS AT LAW, DEFENDANTS-RESPONDENTS, AND ALLAN H. ROGERS, ATTORNEY AT LAW, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4489-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 27, 2008

Before Judges Lintner, Sabatino and Alvarez.

Plaintiff Hoa Dao Phung, pro se, appeals judgments the Law Division entered against her in this legal malpractice case she brought against defendants, Eric A. Summerville ("Summerville"), Summerville's law firm, Anthony P. Ambrosio ("Ambrosio"), and Ambrosio's law firm.

The present action is, in essence, the second tier of alleged legal malpractice arising out of two real estate matters in the early 1990s. In those real estate matters, plaintiff was represented by another lawyer, Antonio Espinosa, whom she claims injured her through his alleged deviations from the standards of care.

Briefly stated, plaintiff owned a twelve-unit apartment building in Elizabeth. She decided to sell the property. In April 1993, plaintiff signed a contract to convey the premises to two contractors, Mario and Miguel Rodriguez, with plaintiff taking back a mortgage from the buyers. She retained Espinosa to represent her in the sale. The Rodriguez closing never occurred, because the buyers refused to agree to plaintiff's belated demand for a twenty percent pre-payment penalty on the mortgage. The property went back on the market.

In October 1994, plaintiff entered into a sales contract with two other purchasers, Melba and Lazaro Abreu. Once again, plaintiff was represented by Espinosa. At the time the realty taxes on the building were about $40,000 in arrears. Although the Abreu contract did not specify that the buyers were to pay the outstanding taxes, plaintiff insisted that they do so and refused to close. The Abreus balked at that demand, and sued plaintiff for specific performance in the Chancery Division in Union County. Plaintiff, no longer represented at this point by Espinosa, did not respond to the summons, and default was entered against her. After a proof hearing at which plaintiff appeared pro se, the Chancery judge granted specific performance to the Abreus.

During the course of his ruling, the Chancery judge rejected as incredible plaintiff's assertion that she never had notice of the lawsuit. The judge also found that the Abreus had never agreed in the contract negotiations to pay the taxes. The forced sale took place in March 1995, and the outstanding taxes were deducted from plaintiff's sale proceeds.

Plaintiff claimed that Espinosa committed legal malpractice in his handling of both the Rodriguez and Abreu matters. Espinosa denied any deviation from the standards of care. He contended that both matters ended unfavorably for plaintiff because of her own statements and actions. His account of the events diverged substantially from plaintiff's.

Plaintiff initially retained Ambrosio to sue Espinosa for legal malpractice. Ambrosio brought such a lawsuit on plaintiff's behalf in September 1996 in the Law Division in Union County. As the case progressed, plaintiff had disagreements with Ambrosio. The disagreements led Ambrosio to withdraw from plaintiff's representation and to disclaim any fee. Ambrosio arranged, with plaintiff's assent, to have Summerville substitute for him as her counsel in the litigation. At the time of the substitution, the discovery period had not yet elapsed.

Plaintiff then had disagreements with Summerville. One of their disputes concerned her firing of a real estate expert, William Ard, who Summerville had arranged to prepare a valuation of the subject property. The purpose of Ard's valuation was to attempt to show that plaintiff had suffered damages in the real estate transactions that Espinosa handled. Four months after succeeding Ambrosio, Summerville moved to withdraw as plaintiff's counsel, but the court denied his application.

Prior to the scheduled trial in Union County in the fall of 1998, the Law Division granted Espinosa's motion to dismiss plaintiff's legal malpractice case against him, with prejudice.

Among other things, the dismissal was based on plaintiff's failure to have an expert who could demonstrate at trial that any alleged malpractice by Espinosa had caused her actual damage in the forced sale of the premises. The dismissal was also predicated on the court's application of principles of collateral estoppel against plaintiff, stemming from the Chancery judge's express findings in 1995 that (1) plaintiff had proper notice of the Abreus' specific performance ...


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