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Frank J. Nostrame v. Natividad Santiago; Betsy Santiago; and Mazie

June 10, 2011

FRANK J. NOSTRAME, PLAINTIFF-RESPONDENT,
v.
NATIVIDAD SANTIAGO; BETSY SANTIAGO; AND MAZIE, SLATER, KATZ AND FREEMAN, LLC, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-886-10.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 10, 2011

Before Judges Parrillo, Yannotti and Skillman.

The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).

The primary issue presented by this appeal is whether an attorney who is discharged by his client and replaced by a successor attorney may maintain an action for tortious interference with contract against the successor attorney. We conclude that in the absence of any allegation that the successor attorney used wrongful means, such as fraud or defamation, to induce the client to discharge the original attorney, such an action is not maintainable.

I.

Plaintiff Frank Nostrame, a New Jersey attorney, was retained by defendant Natividad Santiago on January 18, 2007, to represent her in connection with a proposed medical malpractice action, apparently under a contingent fee agreement. Plaintiff performed certain preliminary work, and on May 23, 2007, he filed a complaint on her behalf.

On May 31, 2007, Santiago entered into a contingent fee retainer agreement with defendant Mazie, Slater, Katz and Freeman, LLC (Mazie Slater), a New Jersey law firm, to represent her in the medical malpractice action. On that day, Santiago sent a letter to plaintiff discharging him as her attorney and directing him to turn over his file to Mazie Slater.

After retaining experts to support Santiago's malpractice claim and engaging in substantial discovery, Mazie Slater settled the claim on her behalf for a total of $1,200,000. Under Mazie Slater's contingent fee agreement with Santiago, this settlement resulted in an attorney's fee of $358,396.31.

Plaintiff asserted a lien of $11,623.75 on that fee for the legal work he performed in connection with Santiago's malpractice action. The trial court eventually determined that plaintiff was entitled to the full amount of his lien. Mazie Slater has now paid plaintiff that amount, which is not at issue in this appeal.

In addition to asserting a lien against the Mazie Slater contingent fee for the services he performed before his discharge, plaintiff brought this tortious interference with contract action against Mazie Slater. Plaintiff's complaint alleged in pertinent part that "Natividad Santiago was induced to discharge plaintiff and dissolve the contingent fee contract between them by [Mazie Slater]." The complaint named not only Mazie Slater but also Santiago, her daughter Betsy Santiago, and fictitious John Does as defendants. The complaint did not include any specific allegation with respect to Betsy Santiago. However, the complaint alleged that unnamed "John Does without legal justification interfered with the contractual relation between Natividad Santiago and plaintiff [by] contact[ing] the office of [Mazie Slater] for the purpose of creating a contractual relation between [Mazie Slater] and Natividad Santiago and to terminate the contractual relation between Natividad Santiago and plaintiff."

Shortly after the filing of this complaint, Mazie Slater filed a motion to dismiss on its own behalf and on behalf of Natividad and Betsy Santiago. Plaintiff submitted a certification in opposition to the motion, which stated in part:

The Complaint alleges facts that, if proven, would establish that Natividad Santiago was induced by defendant and third persons to discharge me ...


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