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Rhea Almeida v. Julie M. Marino

December 23, 2010

RHEA ALMEIDA, PLAINTIFF-APPELLANT,
v.
JULIE M. MARINO, ESQ. AND MARINO & MAURICE, P.C., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4590-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 30, 2010 - Decided Before Judges Baxter, Koblitz and Newman.

In this legal malpractice action, plaintiff Rhea Almeida appeals from a January 15, 2010 Law Division order granting the summary judgment motion of defendants, Julie M. Marino and Marino & Maurice, P.C., the firm in which she was a partner.*fn1 We agree with the trial judge's conclusion that even if, as plaintiff claims, plaintiff accepted and executed the matrimonial property settlement agreement (PSA) only because defendant promised to subsequently attempt to obtain further discovery and negotiate for additional terms not contained within the PSA, principles of judicial estoppel preclude plaintiff from bringing a malpractice claim against her attorney and the attorney's firm. We affirm.

I.

In May 1999, plaintiff retained defendant to represent her in her divorce, which had been pending since June 1998. After participating in the matrimonial early settlement program, Rule 5:5-5, as well as mediation on the economic issues, plaintiff and her then-husband, Richard Ginsberg, settled the terms of their divorce on April 16, 2001. Their settlement was memorialized in a twenty-eight page PSA, which resolved the issues of custody, parenting time, child support, alimony, life insurance, and equitable distribution.

On April 17, 2001, Almeida and Marino reviewed the PSA and numerous handwritten changes for approximately an hour and one-half prior to appearing before Judge Paul W. Armstrong. The judge questioned both Almeida and Ginsberg concerning their acceptance of the terms of the PSA and their respective requests that the PSA be incorporated in the Judgment of Divorce. Under oath, on the record, Almeida assured Judge Armstrong that: she signed and understood the PSA; it was the product of lengthy negotiations; numerous changes were made to the PSA and she had initialed each and every one of those changes; no one coerced her or forced her to settle the terms of her divorce or enter into the PSA; she entered into the PSA voluntarily and freely; she was not under any undue influence, nor was she impaired by drugs or alcohol; she was fully satisfied with the legal representation Marino had provided; she had had sufficient time to consider the PSA and its provisions; and she understood she would be bound by the Judgment of Divorce, which would incorporate the PSA.

After Ginsberg provided similar assurances, Judge Armstrong found that Almeida and Ginsberg each understood the terms of the PSA, had been afforded sufficient time to consider its terms, had entered into it freely and voluntarily, and that each believed the agreement was a "fair and equitable resolution of the differences between them."

Notably, the PSA contained three sections that have a bearing upon the malpractice action Almeida filed against Marino. First, Almeida agreed that she had read the agreement and entered into its terms freely and voluntarily without any duress or undue influence:

[T]he parties respectively fully understand the terms, conditions and provisions of this Agreement and believe same to be fair, just, adequate and reasonable, and, accordingly, both the Husband and the Wife, after mature consideration, freely and voluntarily, and without any coercion, duress or undue influence accept such terms, conditions and provisions.

Second, the PSA specified that the document was the entire understanding between the parties and there were no representations other than those expressed in the PSA:

The parties acknowledge that the provisions of this Agreement and its legal effect have been fully explained to each of them by independent counsel of their own choosing. The parties further acknowledge that they have read this Agreement and understand its provisions, and that this Agreement contains the entire understanding between the parties, and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein.

Third, Almeida acknowledged that even though Marino had not yet propounded interrogatories on Ginsberg, or taken Ginsberg's deposition, and Marino consequently might not be in a position "to fully advise" Almeida relative to all assets subject to equitable distribution, Almeida was nonetheless desirous of settling of her divorce and entering into the PSA:

The Husband and Wife expressly acknowledge and agree one to the other as well as acknowledging for the benefit of their respective counsel that the within Agreement has been negotiated by the parties with the help of their attorneys. However, the parties expressly acknowledge that they are aware that neither party has answered Interrogatories nor have depositions been taken. The parties and each of them have expressly acknowledged that they have ...


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