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John D. Sims v. Budd Larner

October 5, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-509-09.

Per curiam.


Argued September 24, 2012


Before Judges Fasciale and Maven.

In this legal malpractice case, plaintiff John D. Sims appeals from an order dismissing his complaint and granting summary judgment to Budd Larner, P.C. (defendant). Plaintiff contends that defendant failed to timely advance his claims or advise him about any limitations period. We affirm.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewed most favorably to plaintiff, the summary judgment record established the following facts.

In December 1997, plaintiff and Kathleen Healy Rienau (Kathleen)*fn1 divorced each other pursuant to the terms of a property settlement agreement (PSA). Under the PSA, the couple agreed to (1) jointly own property in Martha's Vineyard (the property) as tenants by the entirety;*fn2 (2) "equally share in the payment of the mortgage, taxes, insurance and utilities attendant to that property"; and (3) reimburse whoever paid more than his or her equal share. The PSA reflected that they would maintain their joint ownership of the property until both parties agreed to sell it or one bought out the other's interests.

Between 1998 and 2000, plaintiff allegedly loaned Kathleen money and made certain monthly mortgage payments for the property on Kathleen's behalf.*fn3 Plaintiff did not produce any documents to substantiate the alleged loans. In correspondence to plaintiff dated September 19, 2005, Kathleen restated her desire to sell the property so as to stop incurring expenses, but plaintiff was unwilling; instead, he "thought it would be nice to retire there." Kathleen informed plaintiff that if he was unwilling to sell the property, she would cease making payments and he would be fully responsible for the mortgage and carrying costs. Plaintiff then wrote Kathleen that he made payments towards her "share of the mortgage" and that "whoever incurs the expenses for the other will be reimbursed out of the closing proceeds." (Emphasis added). As a result, plaintiff admitted that he would be made whole from the sale of the property, rather than from direct payment from Kathleen.

In July 2004, plaintiff retained defendant to provide legal services for "a pending post-judgment matter." The retainer agreement does not mention any loans or advancements regarding the property. Defendant immediately requested from plaintiff back-up documentation for the "post-judgment enforcement matter." Plaintiff failed to respond. As a result, defendant followed up in writing on several occasions*fn4 and, having heard no response from plaintiff, informed plaintiff that it would close its file on September 20, 2006. Again, plaintiff failed to respond. Plaintiff later informed defendant that he did not intend to seek reimbursement from Kathleen while she was ill, and he did not "want to sue her . . . while she [was] in the hospital."

In October 2006, Kathleen's husband (the husband) administered her estate, represented that Kathleen died without a will, and certified that the estate's assets did not exceed $20,000. Thereafter, plaintiff re-contacted defendant and requested legal representation. On June 15, 2007, defendant filed a notice of claim with the Surrogate's Office seeking repayment of the loans and mortgage payments plaintiff made. In September 2007, the husband objected to plaintiff's claims. The husband then asserted that the estate held a fifty percent ownership in the property.*fn5

In February 2008, the husband filed a verified complaint seeking to probate a will he located, which was purportedly signed by Kathleen. In July 2008, defendant filed an order to show cause and verified complaint in the probate action seeking an adjudication that plaintiff owned the property in full. Thereafter, the husband settled the probate dispute with plaintiff and the husband admitted that full ownership interest in the property passed to plaintiff after Kathleen died. Plaintiff, therefore, received 100% interest in the property and released any claims that he had against the estate. We conclude that receiving the interest in the property enabled plaintiff to reimburse himself money that he loaned or advanced Kathleen.

In January 2009, plaintiff filed his complaint against defendant seeking reimbursement of the loans and mortgage payments. He alleged that defendant committed legal malpractice by failing to "initiate a legal proceeding . . . within the time prescribed by statute." In August 2011, defendant moved for summary judgment and contended that (1) the statute of limitations did not commence until the sale of the property, (2) plaintiff failed to establish by clear and convincing evidence that he loaned or advanced money to Kathleen, and (3) that plaintiff had not been damaged because plaintiff retained 100% interest in the property by operation of law.

In September 2011, the judge granted defendant's motion without oral argument or issuing her statement of reasons. Plaintiff then moved for reconsideration. The judge conducted oral argument and listened to the parties' contentions on the merits of defendant's summary judgment motion. She rendered ...

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