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Wilentz, Goldman & Spitzer, P.A v. Linda Pagano

August 14, 2012

WILENTZ, GOLDMAN & SPITZER, P.A., PLAINTIFF-RESPONDENT,
v.
LINDA PAGANO,*FN1 DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
DAVID WILDSTEIN, ESQ. AND ALBERTINA WEBB, ESQ., THIRD-PARTY DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3080-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 30, 2012

Before Judges Payne, Reisner and Simonelli.

Defendant, counterclaimant and third-party plaintiff, Linda Pagano, appeals from an order of the trial court dismissing her counterclaim for legal malpractice against plaintiff, the law firm of Wilentz Goldman & Spitzer, P.A. (Wilentz), and her third-party complaint against the firm's attorneys, David Wildstein and Albertina Webb, as the result of her inability to prove damages. We affirm.

I.

The record reflects that, in November 2005, Pagano retained Wilentz to represent her in connection with matrimonial matters. Thereafter, Pagano's husband, Erich Kurt Berger, represented by James Yudes, filed a complaint for divorce in Ocean County. On June 14, 2006, prior to a case management conference in the matter, Pagano, her sister and Berger met, without the parties' attorneys, for several hours in the cafeteria of the Ocean County Courthouse to discuss a proposed property settlement agreement encompassing alimony, child custody and support, and the parties' marital estate, which included a waterfront marital home; two commercial properties; a condominium in Florida; a number of businesses; seven boats; various motor vehicles including three motorcycles, a two trucks and a Hummer; cash; and investments. They used as the basis for their discussion a counterproposal prepared by Wildstein on June 2, 2006 in response to an initial settlement proposal by Yudes. Among the terms of the counterproposal was one that dealt with the marital home in Brick, New Jersey that provided:

The marital home . . . shall be sold forthwith and the net proceeds shall be divided equally. In the alternative, Mr.

Berger shall have the option to be exercised within 30 days, to buy out [Pagano's] 50% interest for $900,000 less 1/2 of the first and second mortgages. If he exercises this option, he shall close within 60 days and [Pagano] shall vacate 45 days thereafter.

At the time, there was a first mortgage of approximately $164,000 on the property, and a second mortgage of approximately $14,000. Pagano claims that, during the course of their meeting, Pagano and Berger came to an agreement regarding equitable distribution of the marital home, as set forth in a marked-up version of Wildstein's counterproposal. Despite the fact that the parties had not reached an agreement on Pagano's demand for rehabilitative alimony*fn2 or her share of the value of the commercial properties, Pagano claims that, following the cafeteria meeting, the parties were willing to cancel the case management conference, place their settlement on the record, and proceed with an uncontested divorce.

However, upon being informed of their plan, Wildstein convinced Pagano not to proceed that day, advising her not to enter into a settlement until he had obtained answers to a limited number of interrogatories, to be served on Berger, and until he had obtained Berger's case information statement. Thereafter, five drafts of a property settlement agreement were exchanged in the period from July 18, 2006 and August 30, 2006. During this period, on August 6, 2006, Berger sent an e-mail to Yudes regarding a draft agreement that Yudes had circulated. With respect to the marital residence, the e-mail stated:

Also note that item 18 now has an option. This is an option that we are also in agreement with and currently exploring the financing. The reason we have agreed to this option, I would have my house back and Linda would have a guaranteed amount of money rather than chancing the possible sale price. This would also give Linda immediate cash.

The option was based on a sale price of 1.6 million dollars, not the 1.8 million contained in the counterproposal. Pagano was to receive one-half of the net proceeds from the sale price, less the first mortgage and closing costs. It was estimated that ...


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