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Cole, Schotz, Meisel, Forman & Leonard, P.A. v. Kleiman

July 16, 2008

COLE, SCHOTZ, MEISEL, FORMAN & LEONARD, P.A., PLAINTIFF-RESPONDENT,
v.
BRIAN KLEIMAN AND RIVKA CHAYA KLEIMAN, HUSBAND AND WIFE, STEVEN KLEIMAN AND RIVKA BASYA KLEIMAN, HUSBAND AND WIFE, HD MANAGEMENT HEALTHCARE, L.L.C., HAPPY DAYS ADULT HEALTHCARE, L.L.C., AND NEW HORIZONS BEHAVIORAL HEALTHCARE CENTER, L.L.C., DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-1745-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 23, 2008

Before Judges Cuff, Lihotz and Simonelli.

Defendants appeal from two Law Division orders. The first, entered on May 11, 2007, granted plaintiff partial summary judgment and dismissed defendants' answer, separate defenses and counterclaim with prejudice. The second, entered August 3, 2007, granted plaintiff summary judgment and entered final judgment against defendants in the amount of $123,387.31. We affirm that part of the May 11, 2007 order dismissing defendants' counterclaim with prejudice; we reverse that part of the May 11, 2007 order dismissing defendants' answer and separate defenses with prejudice; and we reverse the August 3, 2007 order entering final judgment.

Plaintiff claims defendants hired it to represent them in a complex commercial matter entitled, 300 Broadway Healthcare Center, L.L.C. v. Happy Days Adult Healthcare, L.L.C., filed in the Superior Court of New Jersey, Chancery Division, Essex County (the Chancery action). The plaintiffs in the Chancery action sought to remove defendant, Happy Days Adult Healthcare, L.L.C. (Happy Days), as manager of a nursing home located in Newark. Defendants, Brian Kleiman, Rivka Chaya Kleiman, Steven Kleiman and Rivka Basya Kleiman were managers of Happy Days and the nursing home.

Plaintiff did not obtain a signed retainer agreement from any of the defendants in the Chancery action. Nonetheless, plaintiff performed legal services, and claimed that defendants owed it $123,387.31. Defendants refused to pay, claiming that the individual defendants did not retain plaintiff, that plaintiff over-billed, and that plaintiff committed malpractice.

Plaintiff filed a complaint for payment. Defendants filed an answer, separate defenses, and a counterclaim alleging malpractice stemming from plaintiff's failure to file a motion to recuse the judge in the Chancery action, who had allegedly expressed bias against them;*fn1 to follow defendants' directions; to adequately represent them; and to provide them with a minimum standard of care. Defendants also filed an affidavit of merit.

Following the close of discovery, plaintiff filed a summary judgment motion to dismiss defendants' counterclaim for failure to provide an expert report. Plaintiff did not request dismissal of defendants' answer and separate defenses. The motion judge granted the motion, but in addition to dismissing defendants' counterclaim, he dismissed defendants' answer and separate defenses.

Defendants sought reconsideration and to re-open discovery, contending that the judge exceeded his authority by dismissing their answer and separate defenses. They attached an expert report to their motion papers. The judge denied the motion without explaining why he dismissed defendants' answer and separate defenses.

Plaintiff had also filed a motion for summary judgment on its claim for payment of counsel fees. The judge granted the motion based upon oral argument presented at plaintiff's first summary judgment motion. The judge did not make any written or oral findings of facts and conclusions of law, and entered judgment in the amount of $123,387.31. This appeal followed.

Defendants contend the motion judge erred in granting summary judgment dismissing their counterclaim based upon their failure to provide an expert report. Defendants argue that an expert report is not necessary because the malpractice and damages were "so obvious that the trier of fact [could] resolve the issue as a matter of common knowledge." Defendants also argue that the judge erred by failing to request a copy of the expert's report when advised of its existence, and by not permitting defendants to submit an expert report beyond the discovery deadline. We disagree.

"To establish legal malpractice, a plaintiff must show '(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation.'" Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 14 (App. Div.) (quoting Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996)), certif. denied, 188 N.J. 489 (2006). In a professional negligence action, an expert is not required if "the average layperson could apply his or her general understanding and knowledge to find that the defendant" breached a duty of care. Hubbard v. Reed, 168 N.J. 387, 396 (2001). However, "[b]ecause the duties a lawyer owes to his client are not known by the average juror, a plaintiff will usually have to present expert testimony defining the duty and explaining the breach." Stoeckel, supra, 387 N.J. Super. at 14 (citing Sommers v. McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996)); Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78 (App. Div. 2007). It is only in rare cases that expert testimony is not required in legal malpractice actions. Sommers, supra, 287 N.J. Super. at 10.

Here, the allegations in defendants' counterclaim involve an attorney's relationship with a client and the attorney's performance in a complex commercial matter. We agree with the motion judge that an expert is required to prove defendant's malpractice claim. Thus, ...


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