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Heathcote v. Gidding

August 11, 2010


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1673-04.

Per curiam.


Argued: October 21, 2009

Before Judges Cuff, Payne, and C.L. Miniman.

Plaintiff appeals from an order granting defendant Robert Gidding's motion for summary judgment. Defendant represented plaintiff in his divorce proceeding. Plaintiff filed a complaint seeking compensatory damages alleging that defendant provided negligent legal services to him during the divorce litigation causing him to enter an improvident settlement. Relying on Puder v. Buechel, 183 N.J. 428 (2005), and the absence of an expert to support some of plaintiff's claims, the motion judge granted defendant's motion and dismissed the complaint. We affirm.

Plaintiff retained defendant Gidding to represent him in his matrimonial proceeding. The parties contested custody of the children, and the entirety of the proceedings can charitably be called acrimonious. Eventually, Gidding sued plaintiff for unpaid legal fees in the Special Civil Part. Plaintiff responded with a legal negligence action filed in the Superior Court, Law Division. The matters were eventually consolidated in the Law Division; the parties settled the fee dispute in August 2007.

Plaintiff and his former wife, Joanne, entered a property settlement agreement (PSA), the terms of which were placed on the record over two days in March 2004. Judge Rubin, the matrimonial judge, questioned plaintiff closely on the various terms of the PSA to determine whether plaintiff understood and agreed to them. At the time the parties had agreed to all issues except parenting time, the resolution of which would heavily influence the child support obligation. A judgment of divorce was entered on March 10, 2004, and amended on May 10, 2004, to reflect the resolution of the parenting time dispute and the child support issue.

Post-judgment litigation commenced almost immediately. On October 12, 2004, Judge Bartlett entered an order reforming plaintiff's child support obligation from $270 to $250. During the post-judgment litigation, defendant filed his complaint in the Special Civil Part for unpaid fees.

Plaintiff asserts a variety of instances in which defendant deviated from accepted standards of professional representation. He asserts that defendant should have ensured that both parties agreed to the amount of income earned by his former wife for child support purposes. Plaintiff also contends that defendant failed to attach the Child Support Guidelines Worksheet to the Judgment of Divorce, and failed to discuss with plaintiff the ramifications of failing to attach the worksheet to the judgment.

Plaintiff argues that defendant failed to seek equitable distribution of a bonus paid to his former wife after the filing of the complaint for work performed during the marriage. He also alleges that defendant failed to recover $9000 from his wife for costs associated with refinancing the marital home one month before the complaint for divorce was filed. Plaintiff characterizes his former wife's action as dissipation of marital assets.

Plaintiff contends that defendant failed to conduct discovery that would have identified an account containing thousands of dollars and the proceeds from a loan from his wife's 401K fund. He also asserts that defendant failed to advise plaintiff of the ramifications of a joint custody agreement. Finally, plaintiff complains that defendant did not inform him that he had excused their retained custody expert before trial.

The course of the legal negligence action was marked by failure to respond to discovery requests and missed deadlines. Plaintiff's complaint was dismissed for failure to respond to discovery on September 9, 2005, and not reinstated until January 24, 2006. A May 17, 2006 scheduling order required plaintiff to serve his expert report by June 16, 2006. When plaintiff missed this deadline, the judge extended discovery and plaintiff was required to submit his expert report by January 15, 2007, which was later extended to May 4, 2007.

Meanwhile defendant filed a motion for summary judgment. The court granted plaintiff a further extension until July 6, 2007, to file his expert report. Plaintiff never produced an expert report to support his various claims of professional negligence. He did offer a "stipulation" by which the judge would recognize that neither party had presented an expert report, and if they had done so, each report would likely conflict. Therefore, the motion judge should proceed on the understanding that any expert submitted by plaintiff would support his claims of negligence and any expert submitted by defendant would rebut that opinion. The judge declined to accept this purported stipulation.

The motion judge, relying primarily on Puder, granted defendant's motion for summary judgment principally because the matrimonial proceeding had been settled, the record of that proceeding demonstrated that plaintiff understood the terms of the settlement, freely and voluntarily agreed to each term, and readily stated he believed the settlement was fair to both parties under all of the circumstances. The motion ...

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