On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4540-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically May 27, 2011 -Decided
Before Judges Payne, Baxter and Koblitz.
Defendant Grace Kay retained plaintiff, the law firm of Aslanian & Khorozian, L.L.C. (Aslanian) to represent her in litigation with her former husband. Plaintiff eventually sued defendant for unpaid legal fees, and defendant counterclaimed for malpractice. After a jury trial, plaintiff prevailed, obtaining $30,420 in counsel fees incurred in its collection action, in addition to $15,262 in unpaid counsel fees. Defendant appeals the court's (1) refusal to extend discovery again to allow her to submit an expert report; (2) dismissal of her malpractice counterclaim based on a rejection of the common knowledge exception to required expert testimony; (3) refusal to instruct the jury and supply interrogatories on malpractice and on an attorney's ethical obligation to act with reasonable diligence and promptness; and (4) award of counsel fees. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant and her ex-husband, George, continued to dispute property and alimony obligations after their divorce in New York in 1999. In July 2006, defendant retained plaintiff to represent her in a dispute over title to a condominium that George had conveyed to their son, James, and James had conveyed to defendant. Around the same time, defendant filed a post-judgment matrimonial motion in New York seeking to hold George in contempt of court for failure to comply with the divorce decree.
On May 15, 2007, the New York court granted defendant's motion. It fined George and ordered him to make certain payments to defendant. George could purge the contempt if he met certain conditions, one of which was to produce proof that he had obtained a $700,000 life insurance policy naming defendant as irrevocable beneficiary, as required by the divorce decree.
Thereafter, the parties mediated the condominium dispute pending before Judge Robert P. Contillo in the Chancery Division. The mediator urged the parties to settle all matters, including those relating to George's contempt of court for violating the New York divorce decree. The parties heeded that advice and began settlement discussions.
According to Antranig Aslanian, who represented defendant during the discussions, he relied on defendant's New York divorce attorney, Joseph Brettschneider, to handle the insurance issue. In a September 17, 2007 letter to Aslanian, George's New York attorney, Thomas Wacht, stated that as part of the proposed settlement George agreed to provide "confirmation of $700,000 life insurance" with defendant as the primary insured. Wacht attached a September 14, 2007 letter to Brettschneider, purporting to provide "documentation of life insurance coverage of $700,000 with Grace Kay listed as primary beneficiary." In that letter to Brettschneider, Wacht listed the New York Life policy numbers for coverages of $500,000 and $200,000 and attached a May 18, 2007 financial activity summary for the greater and an undated face page and coverage summary for the lesser policy.
The parties finalized the terms of the settlement and placed them on the record on October 15, 2007. As part of that settlement, George agreed to maintain the two life insurance policies with defendant as the beneficiary. He agreed to maintain the $500,000 life insurance policy through May 18, 2009, and the $200,000 life insurance policy through 2011. At the end of those terms, defendant had the option of owning the policies, and paying the premiums. Wacht, George's New York attorney, represented to Judge Contillo on the record at this hearing that these policies were in effect.
On November 7, 2007, defendant retained counsel to challenge the settlement on the ground that she had been coerced to settle by her counsel, plaintiff in this matter. After a two-day plenary hearing in February 2008, Judge Contillo found that defendant had willingly agreed to the terms of the settlement. Defendant appealed that decision, and we affirmed. Kay v. Kay, No. A-5212-07 (App. Div. Apr. 21, 2009).
On June 16, 2008, plaintiff filed a complaint to recover unpaid counsel fees plus interest and costs. In February 2009, defendant filed an answer and counterclaim alleging plaintiff had "misrepresented key facts, withheld critical information and exerted undue pressure on [her] in order to force her to settle her claims against her will."
On June 9, 2009, defendant filed an order to show cause in the Chancery Division to vacate the October 2007 settlement. She alleged that in May 2009, she found out that George had failed to maintain the premiums on the life insurance policies, and both had lapsed. The $200,000 policy lapsed in 1989 after payment of only one premium. The $500,000 policy lapsed in June 2008, although the cash value on this policy was used to extend it to June 2009, a date after the agreed-upon date for defendant to take over this policy.
On July 17, 2009, Judge John J. Langan Jr., the trial judge in the present matter, granted defendant's motion to extend discovery for ...