June 19, 2012
FROOM DEVELOPMENT CORP., AND RONALD J. FROOM, PLAINTIFFS-APPELLANTS,
ANDERSON ST. DENIS & GLENN, ANDERSON GLENN, LLC, ST. DENIS & DAVEY, P.A., BROMAGEN AND RATHET, P.A., GREGORY A. ANDERSON, ESQ., DONALD W. ST. DENIS, ESQ., AND BROOKS C. RATHET, ESQ., DEFENDANTS, AND MARAN & MARAN, JOSEPH MARAN, ESQ., DAVID MARAN, ESQ., E. LEO MILONAS, ESQ., AND PILLSBURY WINTHROP, LLP, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4984-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 12, 2012 --
Before Judges Fisher and Grall.
Plaintiffs Froom Development Corp. and Ronald J. Froom (hereafter collectively "FDC") appeal the summary judgment entered in favor of E. Leo Milonas, Esq., and Pillsbury Winthrop, LLP (hereafter collectively "Milonas"), and the later summary judgment entered in favor of Maran & Maran, Joseph Maran, Esq., and David Maran, Esq. (hereafter collectively "the Maran defendants"). This legal malpractice action and the dispositions in favor of Milonas and the Maran defendants were preceded by an earlier suit, which included a claim of legal malpractice asserted by FDC against other attorneys.
In the prior suit, FDC sued entities that he claimed were obligated to provide him with 50% of the profits of a land development project; he also asserted a claim of legal practice against Wilentz, Goldman & Spitzer, and one of its members (hereafter "the Wilentz defendants"), who FDC alleged had breached an obligation to advocate and vindicate its position in the project. The jury agreed with FDC and rendered a verdict in its favor against the other parties to the transaction and the Wilentz defendants.
In reversing as to the Wilentz defendants, we first recognized that "in cases involving transactional legal malpractice, there must be evidence to establish that the negligence was a substantial factor in bringing about the loss of a gain or benefit from the transaction." Froom v. Perel, 377 N.J. Super. 298, 315 (App. Div.), certif. denied, 185 N.J. 267 (2005). We found the evidence adduced during the course of the trial was insufficient to support a finding by the jury that any negligence on the part of the Wilentz defendants was a proximate cause of FDC's loss of its purported interest in the project. Based on the evidence presented by FDC, a rational jury could not find that, even had the Wilentz defendants acted to protect FDC's interest, the other parties to the transaction would have agreed to give FDC a 50% ownership interest in the project even though FDC made no financial contribution to acquisition of the property or its development. [Id. at 315-16.]
Seizing on our comments about the lack of expert testimony on the issue of causation, FDC commenced this action against professionals he had retained in Froom v. Perel, namely, his lead counsel, Anderson, St. Denis & Glenn and some of its members ("the Anderson defendants"), his expert, Milonas, and his local counsel, the Maran defendants. The Anderson defendants settled. Milonas and the Maran defendants obtained summary judgment dismissing the complaint.
FDC appeals, presenting the following arguments regarding the relief obtained by Milonas and the Maran firm:
I. THE MARAN DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT AS THE UNDISPUTED FACTS AND THE REPORTS OF FDC'S EXPERTS ESTABLISH ALL OF THE ELEMENTS OF A CAUSE OF ACTION FOR LEGAL MALPRACTICE.
II. THE TRIAL COURT BASED ITS DECISION UPON AN INCORRECT STATEMENT OF FDC'S LEGAL THEORY.
III. ON THE FACTS OF THIS CASE, THE MARAN DEFENDANTS HAD A DUTY TO FDC.
IV. AN EXPERT OWES A DUTY TO THE CLIENT AND MAY BE HELD LIABLE FOR A BREACH OF THAT DUTY.
We affirm the summary judgment entered in favor of Milonas substantially for the reasons set forth by Judge Patricia K. Costello in her well-reasoned written opinion. We also affirm the summary judgment entered in favor of the Maran defendants substantially for the reasons set forth by Judge James S. Rothschild, Jr., in his thoughtful oral opinion, adding only the following brief comments.
FDC's claim against the Maran defendants is based on the contention that they had failed to recognize what FDC refers to as the fatal flaw in the earlier claim -- the lack of expert testimony to support the contention that the Wilentz defendants' negligence proximately caused injury to FDC. This assertion, however, is based on a basic misunderstanding of our decision in the earlier litigation. Regardless of the absence or insufficiency of the expert testimony on that point, we held, as quoted above, that there was no evidence to support the contention. An expert cannot be the conduit of the facts underlying an opinion; the facts must come from testimony based on personal knowledge.
Judge Rothschild also correctly observed that the theory that current experts for FDC now urge in support of the claim against the Maran defendants, as well as the other defendants in this action, would require FDC to adopt different and inconsistent factual positions than those taken, with success, in the first suit. Important judicial estoppel principles preclude a party's later pursuit of a different factual position than that taken in an earlier action. See, e.g., Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606-07 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001).
In addition, the Maran defendants assumed the role of local counsel very late in the game. Prior local counsel had pointed out to the Anderson defendants what was perceived to be a problem with the scope or limitations of the proposed expert testimony. Had the Maran defendants provided no advice in this regard, there could be no showing that FDC did not appreciate the alleged problem. Moreover, the Maran defendants provided advice to the Anderson defendants regarding the proposed expert testimony that was similar to prior local counsel. FDC has not demonstrated that the Maran defendants failed to adequately perform their role in this case. In short, because of the limitations of their local-counsel role, the Maran defendants had no greater duty; they gave advice and it was up to lead counsel, the Anderson defendants, or the client, FDC, to take whatever steps they deemed advisable in light of that advice. Cf., Mason v. Levine, 382 N.J. Super. 181, 188-92 (App. Div. 2005). Judge Rothschild properly concluded that no rational jury could find that the Maran defendants were negligent.
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