On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2603-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Hayden.
Plaintiff, Atul Shah, appeals from an order of summary judgment entered on June 18, 2010 by Judge Garry S. Rothstadt on Shah's claim of legal malpractice by his former attorney, defendant, Christopher A. Errante.
Errante represented Shah at trial in underlying litigation by Shah against defendants Wayne Transport, Inc., Wayne Yonnone, individually, and DLM Rental Company. Evidence in that case disclosed that, on June 12, 2003, Shah, an importer of various goods from India, contracted with Wayne Transport for temporary storage in trailers at its storage lot in Newark of various items of merchandise, pending the purchase by Shah of a new warehouse. Wayne specified a moving cost for storage of the goods, and a fee of $3,000 per month for storage in thirty trailers. Once loaded, the trailers were all locked by Shah, who kept possession of the keys.
Although storage was initially envisioned for a period of two weeks, matters dragged on. In March 2004, Wayne Transport emptied two refrigerated trailers, which had proven to be expensive to maintain, and consolidated the merchandise contained in those trailers into the remaining trailers, leaving a total of twenty-eight. The consolidation occurred under the supervision of "William," an employee of Shah.
In August 2003, Wayne Transport notified Shah of an increase in its rates, effective September 1, 2003. At that point, Shah began to be late in his storage payments. In July 2004, Wayne Transport's attorney wrote to Shah, threatening that the goods would be discarded if not removed from Wayne Transport's property. Shah responded by filing a verified complaint and order to show cause, seeking a restraining order against any action by Wayne Transport. Although that relief was initially granted, on August 13, 2004, the court dissolved the restraints and converted the matter into a breach of contract action. Additionally, the court ordered that Shah select a location for delivery of the goods by August 25, 2004. The deadline was later extended to October 22, 2004, and the court ruled that, if the deadline were missed, Wayne Transport would be entitled to a per diem storage fee at an amount to be determined. Shah finally accepted delivery of the goods at intervals between October 16 and November 22, 2004.
Upon delivery, Shah claimed that contents of twenty skids, stored in trailer 41248, were missing. Additionally, he claimed that three additional skids and miscellaneous musical instruments were missing from trailer 40972. Shah claimed that Wayne Transport was responsible for the loss of merchandise, and he sought damages. Wayne Transport, in turn, claimed the loss of storage payments in the approximate amount of $166,500.
A bench trial in the matter occurred before Judge Anthony Graziano, commencing on June 19, 2006. At trial, Shah testified to the loss of the twenty skids or pallets of merchandise, described as "W-B Dask," which referred to either white or wide boxes of fashion jewelry and beads from a particular area of India. Shah stated that each skid held 168 boxes for a total of 3,360 boxes, each with an average weight of 5.29 pounds per box and with an average value of $7.36 per pound for a total of $130,820. Shah claimed that an additional three skids were missing from another trailer, as well as miscellaneous musical instruments. However, Shah only sought compensation for the twenty skids allegedly stored in trailer 41248.
However, Shah lacked specific proof of what was initially contained in each trailer, and what was recovered. Additionally, he could not reliably establish the identity or value of the merchandise that he claimed to be missing. At the conclusion of the trial, Judge Graziano ruled against Shah, stating the nature of Shah's claim, but then holding:
Unfortunately, what I don't have in support of the plaintiff's case is any indication of exactly how many goods, by whatever measure we have, were deposited with the defendant. We know that they were placed in 30 trailers, that's all I know.
It does not appear that we have any identity as to the individual types of goods. I know that there were several different types; musical instruments were spoken of, beads of [a] certain kind were spoken of. It wasn't fungible items where everything was the same or entirely different items. I don't know what they were. I don't have a quantity in terms of the number of items, or a total weight, or a total number of boxes. I have an indefinable amount of goods of some ...