January 5, 2010
LUCIANO CHIMENTO, PLAINTIFF-APPELLANT,
PARSONS, POWELL AND LANE, LLC, SCOTT PARSONS, ESQ. AND MITCHEL TARTER, ESQ., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4752-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2009
Before Judges Fuentes, Gilroy and Simonelli.
In this legal malpractice action, plaintiff Luciano Chimento appeals from the order of the Law Division dismissing, by way of summary judgment, his case against defendants, the law firm of Parsons, Powell and Lane, LLC, and Scott Parsons and Mitchel Tarter individually (collectively Parsons). Plaintiff originally retained Parsons to prosecute a personal injury case on his behalf. Plaintiff's malpractice claim is predicated on Parsons' failure to name, in a timely fashion, a contributing tortfeasor, thus precluding plaintiff from collecting on a default judgment obtained against that tortfeasor.
In granting Parsons' summary judgment motion, the trial court found that plaintiff's inability to collect on the default judgment was legally unrelated to Parsons' alleged failure to timely name the tortfeasor as a defendant in the underlying personal injury case. It is from this ruling that plaintiff now appeals. After reviewing the record before us, we affirm.
These are the salient facts. On June 16, 2001, plaintiff was sitting on a video poker chair at the Trump Plaza Casino in Atlantic City when the chair collapsed, injuring plaintiff's back and shoulders. Plaintiff retained Parsons to represent his interests in a suit arising from this accident. On March 31, 2003, Parsons filed a complaint on plaintiff's behalf against Trump Plaza Casino for negligently maintaining the chair that caused plaintiff's injuries. The complaint did not assert any claims against the manufacturer of the chair.
The two-year statute of limitations to bring a products liability claim against the chair manufacturer expired on June 16, 2003. N.J.S.A. 2A:14-2(a). On August 7, 2003, Trump's counsel informed Parsons that Infanti Chair Manufacturing Corp. was the company that manufactured the chair at issue. For reasons not ascertainable from this record, Parsons did not act immediately on this information or make any efforts to amend plaintiff's complaint to include Infanti Chair as a direct defendant.
On August 29, 2003, Mitchel Tarter, an attorney with Parsons, attempted to file, without a motion, an amended complaint naming Infanti Chair as a defendant. On September 2, 2003, the vicinage civil division manager returned the amended complaint un-filed, advising Parsons that he needed to file a formal motion seeking leave of the court. R. 4:9-1.
By letter dated September 5, 2003, plaintiff notified Parsons that he had retained attorney Frank J. Zazzaro to represent his interest in the ongoing suit. Plaintiff requested that Parsons transmit the complete file to Zazzaro forthwith. In communications regarding the substitution of counsel, Parsons advised plaintiff that, based on the work the firm had performed up to the date it was discharged, it anticipated receiving reasonable compensation from any monetary recovery plaintiff obtained in the case. Toward that end, Scott Parsons wrote to Zazzaro confirming an agreement to split counsel fees on a "60/40" basis, 60% to Zazzaro and 40% to Parsons.
On January 23, 2004, the trial court granted plaintiff's motion (filed by Zazzaro) to amend plaintiff's complaint by naming Infanti Chair as a defendant. The amended pleading was stamped "filed" by the court on February 17, 2004. On August 5, 2004, Zazzaro moved to enter default judgment against Infanti Chair for failure to file a responsive pleading.
By letter dated March 30, 2006, Zazzaro notified Infanti Chair that plaintiff's application for default judgment was scheduled to be heard on May 8, 2006. The president of EKI, LLC, a chair manufacturing company that occupies the former Infanti factory, responded to Zazzaro's notice advising that his company was not legally connected to Infanti Chair Manufacturing or Infanti International. He suggested that any further communication about this suit should be sent to Infanti International's appointed temporary receiver. On May 12, 2006, the trial court denied plaintiff's motion to amend his complaint to name EKI as a successor in interest to Infanti.
On May 22, 2006, plaintiff settled his claims against Trump Plaza Casino for $85,000. On June 6, 2006, the trial court entered default judgment against Infanti Chair Manufacturing for $292,306.16.*fn1 By letter dated October 26, 2006, Parsons asserted its right to compensation from the funds recovered in the settlement. Zazzaro responded by informing Parsons that plaintiff was filing a legal malpractice action against it based on Parsons' failure to name the chair manufacturer in the initial complaint. Plaintiff filed the complaint against Parsons on June 12, 2007.
After joinder of issue, Parsons moved for summary judgment dismissing plaintiff's legal malpractice suit, arguing that the chair manufacturer had ceased to exist as a legal entity before the accident that gave rise to plaintiff's personal injury case. As such, any alleged negligence on Parsons' part in failing to name the chair manufacturer as a defendant in the underlying personal injury case could not form a basis to sustain this malpractice cause of action. The trial court agreed and granted Parsons' motion for summary judgment. In order to assess the soundness of the trial court's ruling, we must first discuss the history of Infanti Chair.
In the 1990's Infanti Chair Manufacturing Corp. and its successor-in-interest Infanti International were in the business of manufacturing chairs for casinos, hotels, and restaurants. Gasser v. Infanti Int'l, Inc., No. 03 CV 6413(ILG), 2008 WL 2876531, at *3 (E.D.N.Y. July 23, 2008). On August 9, 1996, Gasser Chair Company, Inc. "obtained a judgment in excess of $15 million . . . against Infanti and Infanti Chair" for patent infringement. Id. at *1. One month later, Infanti Chair Manufacturing Corp. filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Eastern District of New York. Id. at *2. The Bankruptcy Court found the judgment obtained by Gasser non-dischargeable; by August 1998, Infanti Chair's operations had ceased, and all of its assets were sold. Ibid.
On February 9, 1999, Infanti International filed articles of incorporation "two months prior to the confirmation of Infanti Chair's Chapter 11 plan." Id. at *3. On December 23, 2003, Gasser instituted suit in the Eastern District of New York against Infanti International as successor-in-interest to Infanti Chair, seeking to enforce its $15 million judgment. Id. at *5. The District Court appointed a temporary receiver for Infanti International on January 20, 2004. Ibid. On March 2, 2005, "the Receiver was ordered to sell Infanti International's assets at auction." Ibid.
On April 12, 2005, EKI, LLC purchased all of Infanti International's assets for $200,000. Ibid. The proceeds from the asset sale were retained by the Receiver when Amboy National Bank also asserted a lien on the proceeds as recovery for loans it had advanced Infanti International. Id. at *5. The United States Eastern District of New York found Gasser had a first priority lien over the proceeds and granted these funds to Gasser as partial payment towards its $15 million outstanding judgment. Id. at *9.
As these facts illustrate, Infanti Chair and its successor-in-interest Infanti International had ceased to exist as a financially viable entity after August 1998. The assets purchased by EKI in 2005 were sold by the court-appointed receiver for the benefit of Infanti's creditors.
Against these facts, even assuming that Parsons deviated from the standard of professional competence expected of attorneys in this State by failing to name Infanti as a defendant in plaintiff's underlying cause of action, such a deviation was legally inconsequential because Infanti was not a legally or commercially viable entity at the time of plaintiff's accident. Stated differently, plaintiff cannot prove, as a matter of law, that Parsons' alleged negligence was a proximate cause of any damages sustained by him. As the trial court correctly found, plaintiff's reliance on Albee Associates v. Orloff, Lowenbach, Stifelman and Siegel, P.A., 317 N.J. Super. 211 (App. Div. 1999) is misplaced because, under these facts, plaintiff never had a possibility of recovery against Infanti Chair or its successor.