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Paul G. Sklodowsky v. John F. Lushis

February 2, 2011

PAUL G. SKLODOWSKY, PLAINTIFF-APPELLANT,
v.
JOHN F. LUSHIS, JR., ESQ., AND TALLMAN, HUDDERS & SORRENTINO,
A PROFESSIONAL CORPORATION, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-649-09.

The opinion of the court was delivered by: Yannotti, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 7, 2010

Before Judges Parrillo, Yannotti and Skillman.

The opinion of the court was delivered by YANNOTTI, J.A.D.

Plaintiff Paul G. Sklodowsky appeals from an order entered by the Law Division on March 19, 2010, which dismissed his claims against defendants John F. Lushis, Jr. (Lushis) and Tallman, Hudders and Sorrentino, P.C. (THS) with prejudice. For the reasons that follow, we reverse.

Plaintiff is a New Jersey resident. Lushis is an attorney admitted to practice in Pennsylvania. He was a member of THS, a professional corporation based in Pennsylvania. In 2003, plaintiff retained Lushis to provide him with legal advice regarding the sale of certain real property in Kingwood Township, New Jersey.

Plaintiff allegedly told Lushis that he was the sole record owner of the property, and that he wanted to transfer title to the property without the consent of his wife, Joanne Sklodowsky (Joanne), with whom he was having marital difficulties. Plaintiff claims that Lushis advised him that he could transfer title without Joanne's consent, but she would have an interest in the proceeds of the sale.

Allegedly based on this advice, plaintiff entered into a contract to sell the property to American Developers of New Jersey, Inc. (ADNJ). It appears that, during the ensuing due diligence period, ADNJ learned that the plaintiff's marital residence was located on the property, and Joanne had refused to consent to the sale. Consequently, the sale of the property was not consummated.

On October 7, 2004, plaintiff filed a lawsuit against ADNJ, and sought a judgment permitting him to retain as liquidated damages the $85,000 that ADNJ had deposited pursuant to the sales agreement. Plaintiff alleges that he instituted that lawsuit on the advice of Lushis and another attorney, Joseph T. Nanovic (Nanovic). Daniel J. Baurkot (Baurkot) represented Sklodowsky in that case.

ADNJ filed a counterclaim against plaintiff for fraud and collusion by failing to disclose his marital status and Joanne's interest in the property. ADNJ also filed a third-party complaint against Lushis and THS, in which it alleged that Lushis violated a duty of good faith and THS was vicariously liable for Lushis's actions.

In February 2007, plaintiff discharged Lushis and Baurkot because he "suspected" that they "were not looking out for his best interests." Meanwhile, Lushis and THS filed a motion seeking summary judgment on ADNJ's third-party complaint. Lushis and THS argued that they never made any representations or misrepresentations that induced reliance on the part of ADNJ. The trial court entered an order dated March 10, 2007, granting defendants' motion. In an unpublished opinion, we affirmed the trial court's order. Sklodowsky v. Am. Developers of N.J., No. A-5085-06 (App. Div. July 16, 2008).

On October 22, 2007, plaintiff filed a complaint against Lushis, THS, Nanovic and Baurkot in the Law Division. In that action, Sklodowsky asserted claims of professional negligence, breach of contract, and breach of fiduciary duty. It is undisputed that the defendants were never served with the complaint. Accordingly, in May 2008, ...


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