September 9, 2010
WILLIAM V. CONNELLY AND MARYAM CONNELLY, PLAINTIFFS-APPELLANTS,
FROHLING, HUDAK AND MCCARTHY, P.C., N/K/A FROHLING AND HUDAK LLC, JOHN B. FROHLING, LINDA PELLEGRINO-MCCARTHY AND BRIAN K. KAISER, DEFENDANTS, AND JOHN HUDAK, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County, Docket No. L-2988-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 3, 2010
Before Judges Stern, Graves and J. N. Harris.
Plaintiffs appeal from an order of June 19, 2008, dismissing their legal malpractice action, pursuant to Rule 4:37-2(b) at the end of their case, against all defendants. Only defendant Hudak responds. Plaintiffs argue that the trial judge improperly dismissed their case, and in not submitting it to the jury, for failure to prove damages notwithstanding their expert testimony, and that the trial judge's "pre-trial refusal to disclose... prior legal malpractice claims [filed against him in an unrelated matter or matters] precluded plaintiffs from assessing the trial judge's bias and their right to move to recuse the trial judge."
The principal question before us is whether plaintiffs introduced enough evidence to present a jury question in a "case within a case," that is whether plaintiffs demonstrated both that they would have prevailed in the underlying action but did not do so because of defendant's malpractice.
Plaintiffs are correct that, for purposes of this action, we must accept the facts to the extent they legitimately and reasonably support their position. Godfrey v. Princeton Seminary, 196 N.J. 178, 183 (2008).
Plaintiffs' house suffered damages, including destruction of the roof and a resulting mold infestation in 1992 and 1993. Apparently, the roof was to be reconstructed by their insurance carrier after the first storm in 1992, but not after the second and third storms in 1993. Plaintiffs, pro se, sued their insurance carrier, Prudential Insurance Company of America (Prudential), for not paying their claims after the second and third storms, but the action was dismissed for failure to provide a more definitive statement pursuant to Rule 4:6-4(a). Plaintiffs then went to defendants for representation regarding the dismissal and the needed reinstatement within the year time frame.*fn2 Despite plaintiffs' claims that the defendant firm had agreed to take the case on contingency and file a motion to amend the complaint or vacate dismissal, more than a year went by without a retainer being executed or any action taken by the firm, and plaintiffs brought this malpractice action which required plaintiffs to prove both the malpractice and that they were injured by the malpractice. See Grunwald v. Bronkesh, 131 N.J. 483 (1993). The trial judge dismissed the complaint at the end of plaintiffs' case because the proofs on damages were lacking and did not permit the jury to find that plaintiffs had suffered any damages caused by defendants.
As plaintiffs state, there was a bill for $3,200 for roof repairs paid to Creative Home Improvements on April 25, 1993, so there were some ascertainable damages proven and under plaintiffs' case there had to be some monetary loss. Accordingly, we reverse the dismissal of the complaint. However, we find no basis on which to reverse the trial judge as to the admissibility of the 1997 and 1998 reports of the Heat Energy Loss Prevention (HELP) Engineering Group and the testimony of its lead engineer, Thomas Masucci, as to the impact of the consequential losses attributable to Prudential's failure to pay the earlier claims and the resulting lack of repair and deterioration of the house.
On April 27, 1989, plaintiff William Connelly purchased a home in a bankruptcy auction for $376,000. The property was located in Holmdel, New Jersey. After purchasing the house, plaintiff procured homeowner's insurance from Prudential.
The policy covered "physical loss to property," including that caused by "[w]indstorm or hail" and "[a]ccidental discharge or overflow of water," unless excluded by the section dealing with "[e]xclusions."
The relevant portions of the policy's exclusions included "[w]ater [d]amage" which was defined as including, "water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure."*fn3 Additionally, the policy had an exclusion for "[n]eglect," which required the "insured to use all reasonable means to save and preserve [the] property at and after the time of a loss." Finally, there was an exclusion for damage caused by
Faulty, inadequate or defective:
(1) planning, zoning, development, surveying siting;
(2) design, specifications, workmanship, repair construction, renovation, remodeling, grading compaction;
(3) materials used in repair, construction, renovation or remodeling; or
(4) maintenance; of part or all of any property whether on or off the residence premises.
Plaintiffs' home was ravaged by three storms. The first of these storms occurred in December 1992. The storm caused substantial damage to plaintiffs' home. Additionally, as a result of that storm, the house became "flooded." Plaintiffs made a claim to Prudential to receive coverage for the damage to the house. According to Connelly, Prudential provided coverage for the damage caused by that storm.*fn4
Thereafter, on March 4, 1993, the house was hit again by another storm. According to Connelly, the house became flooded again, "the shingles were all over again," and "had blown off the house," the "windows were smashed," and "the doors had blown in again." Consequently, plaintiffs made another claim to Prudential for coverage of the damage. In the interim, to prevent more water from coming into the house, plaintiff had "tarpons" placed on the roof. Subsequently, on March 13 or 14, 1993, plaintiffs' house was hit by a hurricane, which Connelly called "[a] great blizzard of the century." As a result of this third storm, the "tarpons" which had been placed on the roof of the house were blown off. Thereafter, Connelly, once again, tried to prevent more water from entering the house by creating "an aqueduct from the attic running through the property." Connelly created the aqueduct by stapling "heavy clear plastic tarpons... to the roof joists" and "[running] it on angles down the house."*fn5
According to Connelly, despite his claims, Prudential did not provide an official notice denying plaintiffs' claim for coverage, but it never provided coverage for anything but the damage from the first storm.
Thereafter, Connelly did not make further attempts to repair the damage because the estimates totaled about $90,000. Thus, between 1994 and 1997, plaintiffs did not make any additional repairs to the house. Consequently, "[t]he house fell into a state of poor condition due to the moisture damage, the property damage... [and] mold infestation." By mid 1994, there was a substantial growth of mold in the house such that the house was declared "uninhabitable" in August 1994.
Despite plaintiff's testimony relating to three storms, his brief speaks of only two. Undoubtedly, because he focuses on the malpractice action, his brief states that "the home sustained additional substantial damage when the roof partially blew off the premises" in March 1993, whereas his testimony refers to two separate storms in March 1993 after the December 1992 storm. We find these differences to be immaterial, as all the damages sustained in March were apparently embodied in the second claim to Prudential.
As a result of Prudential's failure to provide coverage, in August 1996, plaintiffs filed a pro se complaint against Prudential and other entities seeking reimbursement and other remedies. However, plaintiffs' complaint against Prudential and the other defendants was dismissed for failure to provide a more definite statement.*fn6 According to Connelly, plaintiffs were given a year to file a motion to vacate the dismissal. This was not done.
According to Connelly, his first contact with the defendant law firm about the pending lawsuit was in the latter part of November or December 1996. Connelly met John Frohling at a political campaign in Jersey City.*fn7 After Connelly discussed the case with Frohling, the latter suggested that Connelly come to his office in Jersey City so that they could discuss the case in detail.*fn8 Subsequently, Connelly went to Frohling's office to discuss the then-pending claim against Prudential and the other defendants. During that meeting, Connelly asserts that he gave Frohling "an overview" of the case. Connelly testified that Frohling said "it was an interesting case" and stated that plaintiffs had "a very strong case against Prudential." Additionally, Connelly maintains that at that initial meeting with Frohling, the latter indicated that "he would be willing to help... with the matter."
In the interim, although Connelly was consulting Frohling pertaining to plaintiffs' lawsuit, plaintiff was still "trying to find other attorneys" "to help... [him] move th[e] matter." However, sometime in December 1996, Frohling allegedly told Connelly that he had spoken to Pellegrino,*fn9 and that the law firm "might be willing to take the case."
According to Connelly, he met with Frohling and Pellegrino during the first week of January 1997. At that meeting, Connelly, Frohling, and Pellegrino watched a videotape of a Channel 9 news report regarding "the problems that were happening" with Connelly's house. He testified that after watching the videotape, Frohling and Pellegrino told him "that they were willing to accept the case on a contingency basis," and thus plaintiffs "didn't have to pay any money up front." However, Frohling and Pellegrino allegedly cautioned that the three had to talk "with the third partner," John Hudak, because "all the partners had to agree that it would be on a contingency basis" "[b]ecause they were expending the firm's resources." Additionally, Frohling allegedly told Connelly that he was going to get in contact with Prudential's lawyer and that "he [Frohling] would handle all of that for... [Connelly] at that point in time."
Connelly's next meeting with anyone from the law firm was allegedly at the Roseland office at the end of February or the beginning of March 1997. Connelly maintains that Frohling, Hudak, and associate Brian Kaiser attended that meeting, and that Frohling "explained the overall picture" to Hudak, who later made copies for himself, of the documents Connelly had given Frohling. Connelly testified that both Frohling and Hudak "looked [over] the documents" he had brought. Furthermore, Connelly maintains that Hudak thereafter stated that "as far as he was concerned there was no problem, [and] the firm would accept the case on a contingency basis."
Plaintiffs met again with Frohling, Hudak and Pellegrino at "a fund raiser" party after the Saint Patrick's Day parade around March 17, 1997, in Jersey City. There, Connelly and his wife allegedly "thanked" the three partners for deciding to represent them.
Around April 1997, Kaiser allegedly contacted Connelly and told him that the law firm needed more documents relevant to the case in order to go forward with its representation. Some of the documents Kaiser allegedly requested included plaintiffs' insurance policy, proofs of payment, medical records and maps of the property. In that same month, Connelly allegedly went to the Roseland office to give Kaiser the documents he had requested. When Connelly arrived, Hudak was there with Kaiser because Kaiser was an associate and he "was not allowed to meet" with Connelly without one of the partners being present. At that meeting, Hudak allegedly took the documents Connelly had brought and "looked [them] over."
After the April 1997 meeting, Connelly asserts that plaintiffs did not have contact with anyone from the firm for several weeks. During this time, plaintiffs were becoming worried because they had not heard from anyone from the firm.
Therefore, Connelly called the Roseland and Jersey City offices several times but his calls were not returned.
Subsequently, Connelly went to see Pellegrino at the mayoral campaign headquarters to inquire about the status of plaintiffs' case. In response to Connelly's inquiry, Pellegrino informed Connelly that she was not working in the Roseland office and, therefore, she was not "up to date," but he could wait for Frohling if he wanted an update. When Frohling arrived, he allegedly told Connelly and his wife that he was busy because of the mayoral election in May, and reassured plaintiffs that they should not worry because "everything [was] fine." Frohling assured Connelly that their complaint would be filed as soon as the mayoral campaign was over.
Plaintiffs met with Frohling again during the first week of June to ask if the complaint had been filed. Frohling responded that because the mayoral elections had ended in a "run off," he and Pellegrino "were busier than ever." However, plaintiffs were allegedly assured that the complaint would be filed "[a]fter the run off."
Connelly further alleges that it became difficult to get in contact with Frohling after their meeting in June 1997. According to Connelly, he called the Roseland office several times to speak to Frohling but was unable to get in contact with him. Thus, plaintiff resorted to going to Frohling's residence in Jersey City to look for him. According to Connelly, he would leave notes in the door and on Frohling's car window for Frohling to call him. Connelly also maintains that he went to Pellegrino's house several times to inquire about the case because he was not getting a response from Frohling. Pellegrino allegedly told Connelly that "she would get [Frohling] on it."
According to Connelly, in July or August 1997, he saw Frohling as the latter was coming out of his residence. Connelly confronted Frohling about the status of plaintiffs' suit and Frohling, once again, told Connelly that the complaint would be filed, that "everything [was] going to be fine," and "[w]e're going to be calling you shortly."
Connelly maintains that on December 3 or 4, 1997, he went to see Pellegrino, again, about getting the complaint filed because Frohling was "not responding at all anymore." According to plaintiff, Frohling called him the next day and told him to come to the Roseland office so that they could finish the complaint and file it "immediately." When Connelly arrived at Frohling's office, on December 4, 1997, he was given a retainer agreement. According to Connelly, that was the first time a retainer agreement had been given to plaintiffs.
However, Connelly testified that the terms of the retainer agreement did not mirror the terms he had previously discussed with Frohling. The retainer agreement required plaintiffs to pay a $10,000 retainer fee "for services rendered" to be "credited against" the "final bill," and to pay "the actual expenses." Although the terms differed from those previously agreed to, Connelly signed the retainer agreement that day because of the deadlines he faced.
In addition to the retainer agreement, the law firm, through Frohling and John Whipple, an employee of the firm, prepared a certification for plaintiffs to sign. The certification had to be signed in order for the amended complaint to be filed. According to Connelly, neither he nor his wife signed the certification because it contained some materially inaccurate statements pertaining to the delay in retaining counsel and his medical condition. Thus, Connelly made the corrections to the certification and took it back to the Roseland office.
During this time, Connelly alleges that he "was calling" Frohling "almost everyday" but his calls were not being returned. Finally, Frohling called Connelly and told him that the certification had to be corrected and agreed to a meeting with plaintiffs and Pellegrino. However, that meeting never occurred.
Consequently, on January 6, 1998, Connelly sent a letter to Frohling's office in Jersey City imploring Frohling to file the amended complaint. In response to that letter Frohling called plaintiffs and assured them that the law firm was going to file their complaint and that he intended to arrange a meeting with them in the Roseland office. Frohling allegedly never arranged the meeting with plaintiffs.
Subsequently plaintiffs received a letter at their Jersey City address dated March 9, 1998, from Frohling stating that neither he nor the law firm represented plaintiffs in their suit against Prudential. Frohling asked plaintiffs to pick up their documents from the law firm, which Connelly did. Frohling "withdr[ew]" the letter of engagement "presented to you in December 97 signed by Mr. Connelly but never by Mrs. Connelly, as requested."
On May 13, 1998, plaintiffs filed the motion to vacate the order of dismissal. However, on July 24, 1998, plaintiffs' motion was denied.*fn10
On June 22, 1998, plaintiffs filed a notice of legal malpractice claim against defendants. At trial, plaintiffs offered the testimony of Bennett Wasserman as "an expert in the field of attorney-client relationships [and]... attorney malpractice." He testified that, based on his review of the documents he received from plaintiffs, there was an attorney-client relationship between plaintiffs, Frohling, Pellegrino and Hudak as of April 4, 1997. Furthermore, Wasserman testified that plaintiffs had a meritorious claim against Prudential, that defendants breached their duty to pursue plaintiffs' claims diligently or to advise of the non-representation expeditiously, and, therefore, plaintiffs lost "the opportunity to reinstate" their "meritorious" action against Prudential. Wasserman also criticized the firm's failure to communicate with and respond to plaintiffs.
During trial, plaintiffs also presented Masucci as an expert "in the field of mold remediation and construction cost estimation" to help determine the extent of the damages in plaintiffs' house. Masucci worked for HELP, a firm which had been contacted by the bank holding plaintiff's mortgage to determine how to proceed with the house. However, Masucci admitted that during the time he inspected plaintiffs' home the bulk of his work was in asbestos contamination.
Masucci conducted his investigation of plaintiffs' home in 1997 and 1998, and issued a final report dated March 27, 1998. Although there was mold in plaintiffs' home at the time of Masucci's investigation, he acknowledged that sheet rock and carpeting had to be removed and "the building cleared for re-entry" before "a more accurate assessment [could] be made concerning moisture damage, with regard" to the "structural integrity" of the house. At trial, Masucci could not say for how long the mold had existed and indicated the longer it took to remediate the worse the problem would become. Nor could he say how much it would have cost "if anything at all," to "decontaminate th[e] house back in 1993 or 1994" when the "second roof blew off."
Masucci also attributed some of the damages to structural problems with the house. He testified that the house was poorly constructed and he could not "make an informed decision as to what may have been caused by the roof blowing off." Masucci testified that while the mold was a result of the roof being blown off, the roof was blown off because "there were defects in the initial construction." In fact, the written report indicated that the water damage to plaintiffs' house was caused by the "flashing not being installed properly in locations where the roof intersect[ed] [with] the walls" and "[t]he shingles were also constructed only to the edge of the fascia boards." Other construction defects noted in the report included "poor brick tie construction materials; workmanship or some settlement and undermining due to poor grading and water runoff." Further, the "brick veneer" was separated from the plywood sheeting and was "not a structural load bearing wall." Moreover, "metal joist hangers were not installed in some locations where joists are supported by beams," and "[w]eep holes were not found along the brick veneer" to "permit moisture to escape the wall cavity." Other defects such as poor grading of the property, "excessive erosion along the gravel driveway," and the location of the septic disposal field all contributed to the "flaws in the construction."
According to Masucci's testimony, the total cost of decontaminating and repairing plaintiffs' home would be $492,000. Masucci derived that amount by using the Dodge Reports and the Thomas Register, which were acceptable means of cost analysis in the industry at the time of the investigation. However, Masucci admitted that at the time of his analysis his firm did not have a remediation guideline for mold. Since there were no guidelines for mold removal and HELP did not have extensive knowledge about mold and how to remove it, Masucci used the figures he would normally use for asbestos decontamination in making his conclusions. Furthermore, Masucci stated that he could not testify as to the condition of plaintiffs' house after the 1993 storm because neither he nor HELP had made an inspection before 1997.*fn11
Plaintiffs argue that the trial court erred in dismissing their complaint and not submitting the case to the jury on the issue of damages.
Rule 4:37-2(b) states:
At Trial-Generally. After having completed the presentation of evidence on all matters other than the matter of damages (if that is an issue), the plaintiff shall so announce to the court, and thereupon the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.
In Dolson v. Anastasia, 55 N.J. 2, 5 (1969), the Court noted that the trial court's function with an involuntary dismissal is "quite a mechanical one." According to the Court, with such a motion, the reviewing "court is not concerned with the worth, nature, or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. Id. at 5-6. See also Brill v. The Guardian Ins. Co. of Am., 142 N.J. 520, 540 (1994).
Thus, here, in order to determine whether the trial court erred in granting defendants' motion, it has to be established whether plaintiffs had a meritorious legal malpractice claim against defendants. "The elements of a cause of action for legal malpractice are '(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff.'" Kranz v. Tiger, 390 N.J. Super. 135, 147 (App. Div.), certif. denied, 192 N.J. 294 (2007) (quoting McGrogan v. Till, 167 N.J. 414, 425 (2001)). Additionally, the plaintiff has to prove by a preponderance of the evidence that "(1) he would have recovered a judgment in the action against the main defendant, (2) the amount of that judgment, and (3) the degree of collectibility of such judgment." Hoppe v. Ranzini, 158 N.J. Super. 158, 165 (App. Div. 1978).
Here, plaintiff presented more than adequate evidence to demonstrate defendants' negligence in not moving to vacate the dismissal in a timely manner and in failing to advise plaintiffs that the firm would not represent them. But, with one exception, there was insufficient evidence to prove any damages. Masucci was called by plaintiffs, but had performed his work for their mortgagee bank. In any event, he admittedly had no knowledge of the condition of plaintiffs' home in 1993 or 1994 because he did not perform his investigation as to its condition and its causes until 1997. Therefore, his estimation of how much damage plaintiffs suffered would not be an accurate reflection of plaintiffs' damages because his investigation was done over four years after the 1993 storm.*fn12
Stated differently, as the trial court noted, plaintiffs presented insufficient evidence to relate their losses to the 1993 storms. We find no basis for holding otherwise based on Masucci's report. In other words, we agree with the judge's assessment in entering the directed verdict:
[I]s the Masucci report adequate proof as it currently stands? I believe it is not. I believe that there's a fundamental defect in the plaintiff's proofs on damages.
This is especially true because Mr. Masucci, very candidly, very honestly and very directly testified that he could not make any estimate whatsoever as to the condition of the house prior to the time that he saw it. Whether that was 1997, in August or later in March of 1998. He wasn't retained for that purpose. He cannot assess what the condition of the house was in March of '93, 4, 5, 6, up until August of 1997.
Now, plaintiff argues that he doesn't have to. That it is the burden on the defendants to raise this subject as an affirmative defense as it would be the burden of the insurance company to do this likewise in the underlying case, arguing mitigation is an affirmative defense.
Well, certainly, I agree mitigation is an affirmative defense. But I think that argument begs the ultimate issue, and that is whether these proofs in the first instance meet the minimal level of requirements to establish the causal connection.
Certainly, if Mr. Masucci had testified that based upon what he saw and his personal expertise he could progress back even in some reasonable way, albeit, not absolutely scientifically or precisely certain that these damages would have a value as of a reasonable time from the date of the loss, even 6, 8, 12 months, even 18 months, 2 years, any time, five years. That arguably would be allowed. It would become a question for the jury. Maybe they believe him, maybe they don't. But he didn't even attempt it. It was not his role. The defect is trying to use an apple to prove an orange. The existence of an apple to prove the facts of an orange. It may be a bad metaphor.
Mr. Masucci was never retained to assess an insurance loss. He came in an arbitrary time. He assessed this particular property just because some banker decided to have it assessed at a given point in time.
Whether it was assessed earlier or later it didn't matter to Mr. Masucci, he was told to assess it, and he did. The problem with that assessment is it doesn't meet, in the eyes of this Court, the necessary elements of damages as I expressed them.
We disagree with the trial judge in one respect, however. Plaintiffs introduced an exhibit reflecting an April 25, 1993 proposal, accepted by plaintiffs, to repair the roof for $3,200. Connelly testified that this was a bill for "the roof that was damaged in March of 1993." Plaintiffs also implied that the carrier approved this work by suggesting that they "wait until the weather [was] a little warmer because the shingles need[ed] a certain degree of heat to actually seal..." We conclude that plaintiffs presented enough to show that this work was performed as a result of the second or third storm.
It may well be that this damage was the result of some other defect referred to in Masucci's report, but that is a jury question. Not only did Connelly expressly relate the proposal to a storm which occurred just over a month earlier, but the proposal was to make "[w]indstorm roof repairs."
It may be that all the damages or the condition of the house as assessed by Masucci could be attributed to the carrier's lack of repairs. However, that theory of damages would necessarily flow from a covered event, and given the defects in the construction as reported by Masucci, plaintiffs did not present enough on that issue to survive the motion.
In light of our disposition, we need not examine in detail Hudak's claim that plaintiffs had a duty to mitigate.*fn13 It is well-settled that parties injured by a breach of contract have a common-law obligation "to take reasonable steps to mitigate [their] damages." McDonald v. Mianecki, 79 N.J. 275, 299 (1979). We note, however, in light of Masucci's report that had plaintiffs repaired their home after the third storm, there may well have been no deterioration of the premises as a result of Prudential's failure to cover the loss.
We find that no other contention warrants comment. R. 2:11-3(e)(1)(E). We add only the following.
We know of no obligation of a trial judge to provide a list of malpractice claims filed against him or the firm with whom he practiced merely because it is requested without any additional contention or assertion warranting such a disclosure.
A jury question is presented as to whether Hudak individually, and independent of his responsibility as a named partner or shareholder, is liable for the $3,200 claim. The judgment is reversed insofar as dismissal of the $3,200 claim is concerned, and the matter is remanded for a retrial on that claim only. Otherwise, the judgment is affirmed.