August 10, 2012
ATUL SHAH, PLAINTIFF-APPELLANT,
CHRISTOPHER A. ERRANTE, ESQ., AND CHRISTOPHER A. ERRANTE, ESQ., L.L.C., DEFENDANTS-RESPONDENTS
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012
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 kind. The proofs are lacking with regard to that, and I say these things to explain my decision, not to fault anybody.
So I don't know what was given to the defendant, other than the fact that it consumed [the] space of thirty trailers. I assume all the trailers are the same size.
We don't have any . . . testimony about that. Absent that information, it's not possible for the plaintiff to prove by a preponderance of the evidence that the amount of goods that were returned were less than the amount of goods that were delivered. Without those specifications, there's no way to establish that. There's nothing in the documentary proof and nothing in the oral testimony which quantifies it, other than the plaintiff's mental calculations, which were recited to me by counsel in closing.
Further, the judge held that Shah had failed to prove that Wayne Transport proximately caused his loss. Notably, at trial Shah's counsel proffered handwritten inventory notes by Shah regarding the contents of each trailer, and bills of lading or customs forms. However, the judge found those proofs inadequate, because the handwritten notes lacked specificity and the bills of lading did not establish what was placed in and removed from the trailers.
At the conclusion of the trial, the Judge entered a judgment in favor of Wayne Transport in the total amount of $5,232.86, consisting of $8,508.58 for the redelivery of the goods plus $749.25 for storage costs between October 23 and November 3, 2004, minus an overpayment by Shah of $4,025. Shah appealed, but we affirmed. Shah v. Wayne Transport, Inc., No. A-2187-06 (App. Div. March 27, 2008).
Shah then brought this legal malpractice case against his attorney, Errante, who, following discovery and an exchange of expert's reports, successfully sought summary judgment.
It was Shah's theory that Errante did not introduce at trial documents that would have permitted him to win his claim for lost goods. The documents at issue consisted of Shah's handwritten inventories of the contents of each trailer, together with hash-mark summaries of what was returned; customs forms for various merchandise imported in the period from 1995 to 1999 that did not encompass the merchandise at issue; Shah's calculations, using those customs forms, of average weights and values for merchandise; a sheet listing trailers that were "unloaded, "replaced" and "loaded"; typed computer entries concerning the delivery of trailers to Shah; a chart showing hours worked, a billing rate, and the amount billed for the work; and a handwritten document concerning the delivery of trailers by Wayne Transport.
In granting summary judgment, Judge Rothstadt found, in a lengthy written opinion, that, even if Judge Graziano had the documents that Shah now proffered, it would not have made a difference because, even with them, the evidence was insufficient to prove Shah's case. According to Judge Rothstadt: "These documents did not establish any proof of exactly what was put into the trailer at the time of loading and what exactly came off the other trailers; nor did they establish the actual costs for any of the goods actually lost, if any."
Following entry of the order of summary judgment, Shah appealed.
In deciding this appeal, we utilize the same standard, set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), as did Judge Rothstadt. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). As the Court stated in Brill, "a determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. (citation omitted).
In the present matter, in order for Shah to establish that Errante committed legal malpractice, he had to be able to demonstrate by a preponderance of the evidence: (1) the existence of an attorney-client relationship creating a duty of care; (2) Errante's breach of that duty; and (3) a proximate relationship of that breach to Shah's damages - i.e., his loss at trial. Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996) (citing Lovett v. Estate of Lovett, 250 N.J. Super. 79, 87 (Ch. Div. 1991)); Gautam v. De Luca, 215 N.J. Super. 388, 397 (App. Div.) (holding that proximate causation is established by proof that the client has suffered damage as a proximate consequence of attorney negligence), certif. denied, 109 N.J. 39 (1987).
In the present matter, it has been clearly established by Shah that an attorney-client relationship existed between him and Errante, and an issue of fact exists as to whether Errante was negligent in failing to introduce the documents that Shah has identified. However, we agree with Judge Rothstadt that Shah did not produce, in opposition to Errante's motion, prima facie proof that would establish a proximate causal connection between Errante's alleged acts of negligence and Shah's damages.
This is so because, as Judge Rothstadt found, the documents proffered by Shah do not provide an evidentiary foundation for his damages claim. As a consequence, we affirm summary judgment substantially on the basis of the judge's comprehensive written opinion.
We add only the following: In our appellate review of this matter, we have independently reviewed the documents that Shah claims support his damages claim, and we are satisfied that they fail to do so. Shah has offered, as Exhibit Z, handwritten "inventories" of the contents of each trailer, most of which bear hash marks that can be interpreted as establishing the number of pallets of merchandise that were stored in each trailer, their content, and the number of pallets that were returned to Shah following storage. However, the "inventory" applicable to trailer 41248 does not bear any hash marks at all, so it is not possible to determine from the document how much merchandise was initially placed in the trailer. Moreover, the description of the contents, "W-B Dask," is insufficient to convey any understanding of the nature of the merchandise that was stored.
Shah has also offered as part of Exhibit Z a series of customs forms relating to the period from 1995 to 1999. However, he has admitted that none related to the merchandise stored in 2003. Shah has sought to use those customs forms to establish the weight and value of the allegedly lost merchandise. However, an examination of the forms and the tabulation made by Shah from the forms, demonstrates that the merchandise was not uniform in weight or value, and for that reason, averages drawn from this historical data are incompetent to establish the weight and value of the stored goods. For all we know, those weights and values could all have been at the bottom of the figures upon which Shah relies, or they could have varied in a manner different from earlier purchases. Furthermore, there is no evidence in the record of current market value, a figure that cannot reliably be derived from the information that Shah has presented.
Shah has offered as Exhibit AA a document purportedly created by Wayne Transport that allegedly establishes that it replaced or consolidated some of the trailers in which Shah's goods were stored. The document identifies trailer 41248 as having been unloaded in November 2003.*fn1 However, it does not in any fashion describe the contents of that trailer, let alone establish that it ever contained twenty skids of jewelry and beads, and it does not establish where any of the goods were relocated. Thus, it is not possible to trace whether the contents of trailer 41248 were mingled with other merchandise being stored by Wayne Transport. The only thing the evidence suggests is that, in November 2003, trailer 41248 was emptied, and that is insufficient to prove Shah's case.
Exhibit CC is comprised of computer entries from October 19, 2004 to November 3, 2004 that appear to constitute a Wayne Transport diary of deliveries of trailers to Shah. However, there is no reference to trailer 41248. Similarly, handwritten records relating to that period, apparently written by Shah and contained in Exhibit EE, lack any reference to trailer 41248. The relevance of Exhibit DD, a chart of hours worked, a billing rate, and the amount billed, is not discussed by Shah and is unknown.
In summary, the documents do not establish that Shah stored anything in trailer 41248, and if he did, what was stored there and its value. As a consequence, if this case were to have been retried, the factfinder would still have had insufficient evidence to render a verdict in Shah's favor.
We have considered Shah's remaining arguments on appeal and find none of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).