September 19, 2011
SCHEPISI & MCLAUGHLIN, PLAINTIFFS-RESPONDENTS,
ANNA MANOS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3817-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2010
Before Judges A. A. Rodriguez, C. L. Miniman and LeWinn.
Defendant, Anna Manos, appeals from the January 7, 2010 summary judgment dismissing her legal malpractice action against her former attorneys Schepisi & McLaughlin (Schepisi); and denying her motion for summary judgment against Schepisi. We affirm the denial of Manos' motion for summary judgment and the grant of Schepisi's cross-motion. However, we reverse the sua sponte entry of a judgment for $31,733.94 in Schepisi's favor.
The legal malpractice action arose out of Schepisi's representation of Manos in litigation brought against her in the Chancery Division by her neighbors Eugene Takhtovich and Natalya Takhtovich, the owners of a contiguous property. The Takhtovichs alleged willful breach of an easement agreement.
Manos initially retained Robert M. Jacobs, Esq. of the law firm of Winne Banta to represent her. After a period of discovery, both parties moved for summary judgment. Judge Robert P. Contillo denied both motions. Manos became dissatisfied with Jacob's representation. She terminated him and retained Schepisi to represent her.
Schepisi and Aline Grossman, Esq., prepared extensively for trial of the matter. On November 17, 2008, the day set for trial, the attorneys for both parties conducted a settlement conference with Judge Contillo. Then counsel discussed the details of a proposed settlement with their respective clients. The parties agreed to the proposed terms of the settlement. When the settlement was placed on the record in the presence of all parties, the following exchange occurred:
MR. SCHEPISI: And Mrs. Manos is here. Mrs. Manos, is this acceptable to you?
MRS. MANOS: Absolutely.
Judge Contillo entered an order on the same day, dismissing the matter pursuant to the settlement. Manos never appealed that order.
Two days later, Schepisi sent Manos a draft of the settlement agreement. He asked Manos to "please review the Agreement and send us your comments." Manos did not respond and did not sign the Agreement. Two months later, Schepisi sent Manos the bill for his services. She did not respond.
In February 2009, Schepisi filed this action against Manos for payment of outstanding legal fees in the amount of $31,733.94. Six and a half months later, in July 2009, Manos answered and counterclaimed, alleging legal malpractice. In paragraphs 1 to 17, she set out her version of the facts, procedural history and allegedly deficient representation by Jacobs, although she did not name Jacobs as a party. In paragraphs 18 to 42, Manos set out her malpractice allegation against Schepisi. Most of those allegations were based either on her view of how the attorney should have proceeded, or the fact that Schepisi did not do certain things that she directed him to do, i.e., make applications to the court or take a certain strategic course of action in the litigation.
Manos filed the required affidavit of merit, from a legal expert, which stated:
Based upon my understanding of the facts involved in the underlying case, it is my opinion that there exists a reasonable probability that the skill or knowledge exercised or exhibited in the practice or work that is the subject of the within action fell outside acceptable professional standards as they apply to the law firm of Schepisi & McLaughlin, P.A.
I have no financial interest in the outcome of this case.
Manos filed a motion for summary judgment. Schepisi cross-moved for summary judgment. Manos opposed Schepisi's cross-motion, but did not raise as an objection that it was premature because discovery was not complete.
The judge granted Schepisi's cross-motion for summary judgment and denied Manos' motion. He issued a written opinion noting that: Manos had never moved in the underlying suit to set aside the settlement; and Manos' answer and counterclaim did "not refer to actions of [Schepisi], but refer to action of the previous attorney." The judge also found, relying on Guido v. Duane Morris, LLP, 202 N.J. 79 (2010), that because the underlying suit had been settled, the settlement barred any suit for legal malpractice.
On appeal, Manos contends that "there should be no fee for legal services negligently performed." In essence she argues that Schepisi committed legal malpractice. We find no merit in this contention.
At the outset, we note in Guido, the Supreme Court was very clear that a malpractice claim is not barred by the settlement of an underlying lawsuit unless the client told the judge that the settlement was "fair" and "adequate." Guido, supra, 202 N.J. at 95. That did not occur here.
It is well settled that "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.) (quoting McGrogan v. Till, 167 N.J. 414, 425, (2001), certif. denied, 192 N.J. 294 (2007). Whether an attorney owes a duty to the client is a question of law to be decided by the court. DeAngelis v. Rose, 320 N.J. Super. 263, 274 (App. Div. 1999). A lawyer "is required to exercise that 'degree of reasonable knowledge and skill that lawyers of ordinary ability and skill possess and exercise.'" Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001) (quoting St. Pius X House of Retreats, Salvatorian Fathers v. Diocese of Camden, 88 N.J. 571, 588, (1982)).
In short, the legal malpractice claimant has to establish the standard of conduct and then a deviation from that standard. The standard of conduct is established by "expert testimony that establishes the standard of care against which the attorney's actions are to be measured." Ibid. The claimant must also prove that the conduct of an attorney deviated from the standard of care required of the profession. Sommers v. McKinney, 287 N.J. Super. 1, 10-11 (App. Div. 1996); Brizak v. Needle, 239 N.J. Super. 415, 432 (App. Div.), certif. denied, 122 N.J. 164 (1990).
Here, viewing all proofs presented to the trial judge, viewed in the light most favorable to Manos as required by Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1985); Rule 4:46-2, we conclude that her proofs fail to establish all of the elements of legal malpractice. She has only established the attorney/client relationship and the concomitant duty. That is all. But, a deviation from the duty, measured against the applicable standard, has not been shown.
Here, Manos appears to set herself up as the expert on legal malpractice because many of her allegations center around Schepisi not doing what she ordered with respect to the conduct of the litigation. Such attorney-client disagreements are not legal malpractice as defined by our case law. Schepisi may have deviated from Manos' instructions on legal strategy. But he was not bound to follow a non-lawyer's strategy plan. Moreover, Manos has not articulated how she was prejudiced by Schepisi's disregard of her instructions, other than her dissatisfaction. In fact, it could be an act of malpractice if a lawyer follows a client's strategy if doing so will cause the lawyer to deviate from the standard of care required of the lawyer.
Thus, reviewing the legal determination de novo, pursuant to Brill (follow-up), we conclude, as a matter of law, that Manos did not establish a necessary element of the claim, i.e., a deviation.
Manos' also contends that: (1) she did not agree to the settlement placed on the record by Schepisi; and (2) the easement settlement "does not comport with New Jersey cases - of direct party examination by court on the record on each clause of settlement agreement." These are issues that could, and should have been resolved in the easement lawsuit. Manos cannot vacate the easement settlement in a legal malpractice action against her lawyer. A challenge to a settlement entered on the record by necessity affects the rights of the Takhtovichs. They are not party to this lawsuit. Moreover, Manos has lost the right to appeal from the judgment in the easement litigation because the time for appeal has expired. She is bound by that judgment.
We also reject Manos' contention that "granting judgment to plaintiff and dismissing [her] counterclaim effectively denied discovery to her]." We note that she moved for summary judgment before Schepisi did. She did not allege that discovery was incomplete at any time. Moreover, as we have stated above, it is undisputed that she did not present an expert report, nor object to the Schepisi's cross-motion for summary judgment on the grounds that discovery was incomplete.
With respect to the entry of judgment for a sum certain, we reverse. Schepisi did not seek that relief in his motion for summary judgment. He submitted no affidavits to support the amount due, or the reasonableness of the fees. The motion judge simply did this sua sponte based on the allegation in the complaint.
The order granting summary judgment to Schepisi and denying it to Manos are affirmed. The judgment awarding damages to Schepisi in the amount of $31,733.94 is reversed and remanded to the Law Division for further proceedings. We do not retain jurisdiction.
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