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Donald Finley and Shirley Finley, H/W v. Lee Zimmerman

March 27, 2012

DONALD FINLEY AND SHIRLEY FINLEY, H/W, PLAINTIFFS-RESPONDENTS,
v.
LEE ZIMMERMAN, KATHY ZIMMERMAN, DEFENDANTS-RESPONDENTS, AND SEAN L. MOORE AND MOORE & GOODMAN, P.A., DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-315-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 14, 2012

Before Judges J. N. Harris and Haas.

By leave granted, we review the Law Division's refusal, on jurisdictional grounds, to dismiss a legal malpractice case against Florida defendants Sean L. Moore, Esq. and Moore & Goodman, P.A., for lack of in personam jurisdiction. The lawsuit involves Moore's representation of New Jersey plaintiffs Donald Finley and Shirley Finley in the acquisition of a fifty percent interest in Florida realty. Because we are satisfied that there are insufficient minimum contacts with New Jersey presented in the record to justify the fair exercise of this State's jurisdiction over Moore and his law firm, we reverse the Law Division's orders and dismiss the complaint against Moore and Moore & Goodman, P.A., without prejudice.*fn1

I.

Although no jurisdictional discovery was conducted in this case and the record consequently is not exhaustive, the following facts and circumstances bearing upon our analysis are gleaned from the parties' pleadings and motion submissions.

Plaintiffs and co-defendant Lee Zimmerman had been friends since 1998 when Zimmerman proposed, in 2005, that they jointly acquire improved realty in Fort Lauderdale, Florida for a total purchase price of $400,000. Zimmerman suggested a fifty-fifty ownership interest, although he would reside in the house and pay for its expenses and taxes.

Zimmerman also recommended that the Florida transaction be handled by the law firm of Moore & Goodman, P.A. Specifically, Sean Moore was tasked to represent the parties. According to plaintiffs' complaint, Moore "represented that he would protect plaintiffs' interest and partnership ownership position in the property at the time of purchase." On June 20, 2005, at the direction of Zimmerman and Moore, plaintiffs paid $200,000 into Moore & Goodman's trust account. This sum represented plaintiffs' capital investment in the Florida real property.

On July 21, 2005, Moore served as the settlement agent for the transfer of the real estate. The funds to pay for the realty came from plaintiffs ($200,000), Zimmerman ($40,000), and the balance was a bank loan, presumably in Zimmerman's name only ($160,000). Because a partnership agreement had not been prepared, title was held exclusively by Zimmerman. According to plaintiffs, Moore promised to ensure that their interest in the realty was protected in writing, but the lawyer did nothing except give them empty promises, excuses, and diversions for more than three years.

In February 2007, Zimmerman allegedly refinanced the realty without notice to plaintiffs with a $460,000 mortgage, thereby recouping at plaintiffs' expense his $40,000 investment and reaping approximately $260,000 after paying off the purchase money mortgage of $160,000. Plaintiffs still had nothing concrete evidencing their supposed fifty percent ownership interest in the real property. In 2010, Zimmerman filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Florida, Fort Lauderdale Division.

The malpractice action in New Jersey was commenced in January 2010. In it, plaintiffs seek remedies against Moore and his law firm for what the fourth count describes as "gross malpractice." In other counts targeting Zimmerman and his wife, Kathy Zimmerman, plaintiffs' complaint alleges that the law firm failed to protect plaintiffs "from the pillaging by their client Lee Zimmerman." Plaintiffs accuse Moore of having divided loyalties, which facilitated Zimmerman's alleged fraudulent conduct causing plaintiffs' detriment.*fn2

In May 2011, Moore and his law firm moved to dismiss the complaint for want of in personam jurisdiction. The lag between the filing of the complaint and the motion is attributable to the bankruptcy action's automatic stay.

Moore submitted a certification in support of the motion. In it, he stated that he was admitted to the Florida bar in 1978, and practiced as an attorney exclusively in that state since that time. He claimed never to have been a member of ...


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