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Phung v. Summerville


June 12, 2008


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

Per curiam.


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 case, and (2) the plain meaning of the Abreus' contract did not require them, as buyers, to pay the outstanding realty taxes.

Plaintiff retained a new attorney and appealed the dismissal order. We affirmed the order in a per curiam opinion in July 2000. Phung v. Espinosa, No. A-2884-98 (App. Div. July 27, 2000).

Subsequently, plaintiff filed the present legal malpractice action in the Law Division in Hudson County*fn1 against Ambrosio, Summerville, and their respective law firms. She was represented in the case by another attorney, who was replaced by yet another attorney before trial.

Before trial, the court granted Ambrosio summary judgment for lack of proof of causation, because both Summerville and plaintiff's legal malpractice expert conceded that Summerville had ample time to prepare the case against Espinosa after Ambrosio withdrew. The summary judgment was memorialized in an order dated June 7, 2006.

The case proceeded to trial in Hudson County solely against Summerville and his firm. Plaintiff testified on her own behalf, and also presented testimony from a legal malpractice expert and a real estate broker. Summerville testified for the defense, along with Espinosa, Ard, and a competing legal malpractice expert.

After about thirty minutes of deliberations, the jury returned a verdict for the defendants. On the corresponding verdict sheet, the jury unanimously decided that plaintiff had failed to meet her burden of proving that Espinosa deviated from the standards of care in both the Rodriguez and Abreu matters. Those threshold determinations made it unnecessary for the jury to reach secondary questions on the verdict sheet concerning Summerville's own alleged deviations.

Plaintiff moved for a new trial, alleging that the verdict was against the weight of the evidence. The motion was denied. The trial judge perceived that the jury had simply found the defense witnesses more credible than plaintiff's witnesses. During the course of his oral ruling, the trial judge commented that he himself did not think plaintiff's testimony was credible.

On appeal, plaintiff challenges both the June 2006 order granting summary judgment to Ambrosio and the ensuing final judgment in favor of Summerville entered after trial. As to Ambrosio, she variously argues that (1) the trial judge misconstrued the opinions of her legal malpractice expert; (2) the judge invaded the jury's province to assess Ambrosio's conduct; (3) the judge erred in applying principles of causation; and (4) Ambrosio was not candid and was improperly exonerated by Summerville.

As to Summerville, plaintiff argues that the judge (1) incorrectly applied collateral estoppel and unjustly restricted her ability to present evidence; (2) allowed the defense to present tainted proofs, including redacted letters and an oral reading of a deposition transcript; (3) misquoted her testimony in the jury's presence; (4) intimidated her into making concessions while on the witness stand; (5) improperly took judicial notice of the Chancery judge's 1995 findings; (6) issued an improper charge on proximate cause; (7) unfairly denied her request for a new trial; and (8) improperly reconstructed missing, unrecorded portions of the trial proceedings.*fn2 Plaintiff amplified her arguments in a reply brief.

Having considered all of plaintiff's contentions in light of the applicable law and the record as a whole, we are satisfied that they lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E). We add only some limited observations.

In essence, the jury's verdict against plaintiff stemmed from its unanimous factual determination that the defense witnesses regarding the pivotal real estate matters were more believable than the witnesses presented by plaintiff. As cross-examination revealed, the opinions of plaintiff's legal malpractice expert hinged substantially on the accuracy of plaintiff's personal account of the events. The jury's assessment of the witnesses, and its overall fact-finding, is entitled to deference on appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Moreover, the trial judge's legal determinations, including his application of collateral estoppel principles, were sound. His evidentiary rulings during the trial were also well within the zone of permissible discretion. See Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). The jury charge on proximate causation, which was not objected to by plaintiff, appropriately tracked the model civil charges. See Model Jury Charge (Civil), 6.10, "Proximate Cause - General Charge To Be Given In All Cases" (1998); Model Jury Charge (Civil), 6.11, "Proximate Cause - Routine Tort Case Where No Issues of Concurrent Or Intervening Causes, Or Foreseeability Of Injury Or Harm" (1999).

Because the jury found, as a component of the malpractice "suit within a suit," that Espinosa was not negligent, it is inconsequential that the court granted summary judgment to Ambrosio before the trial. Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 342 (1980); Cellucci v. Bronstein, 277 N.J. Super. 506, 520 (App. Div. 1994), certif. denied, 139 N.J. 441 (1995). Given that predicate finding, the jury had no reason to reach issues concerning the successive handling of the malpractice case in Union County by either Ambrosio or Summerville. If, as the jury found, Espinosa committed no actual wrong, then Ambrosio and Summerville cannot be liable for not obtaining recovery from him, because plaintiff sustained no compensable harm flowing from Espinosa's conduct.

Lastly, we discern no basis to set aside the trial judge's conscientious and reasonable effort to reconstruct the trial transcript, which he accomplished with the benefit of his handwritten bench notes and the input of the parties at a formal hearing.


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