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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 an eight-page oral opinion and denied reconsideration. This appeal followed.

On appeal, plaintiff argues that the judge erred by (1) concluding the limitations period did not expire, (2) misapplying the Dead Man's Statute,*fn6 and (3) determining that he suffered no damages. Generally, an attorney must "'exercise on his client's behalf the knowledge, skill and ability ordinarily possessed and exercised by members of the legal profession similarly situated and to employ reasonable care and prudence in connection therewith.'" Estate of Fitzgerald v. Linnus, 336 N.J. Super. 458, 467 (App. Div. 2001) (quoting Vort v. Hollander, 257 N.J. Super. 56, 61 (App. Div.), certif. denied, 130 N.J. 599 (1992)). The requisite elements of a legal malpractice claim require a plaintiff to demonstrate: (1) the existence of an attorney-client relationship, which creates a duty of care upon the attorney; (2) breach of the duty by the attorney; and (3) proximate causation of actual damages. Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996); Sommers v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996). Failure to establish an essential element is fatal to the plaintiff's cause of action. See, e.g., 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 491 (App. Div. 1994), certif. denied, 137 N.J. 311 (1994). Viewing the facts in the light most favorable to plaintiff, we conclude that defendant is entitled to judgment as a matter of law.

At the outset, we note that plaintiff's 2004 retainer agreement with defendant did not expressly provide that the scope of representation included seeking reimbursement for loans and advancements. Rather, it stated that the representation involved "a pending post-judgment matter." Defendant's letter requesting certain information from plaintiff did not list any loans or advancements. Similarly, defendant's numerous follow up requests for information did not relate to the loans or mortgage payments. Furthermore, plaintiff mailed a personal letter, dated September 16, 2005, to Kathleen, after having hired defendant, and raised the subject of monies allegedly owed him. He stated that "whoever incurs the expenses for the other will be reimbursed out of the closing proceeds [from the property]," thereby implying that he did not retain defendant to address the loans and advancements. Although we question whether plaintiff retained defendant in 2004 to obtain reimbursement for loans and advancements allegedly made, giving plaintiff the benefit of all reasonable inferences, we treat the 2004 retainer agreement to include seeking reimbursement for unpaid loans and advances.

We begin by addressing plaintiff's contention that the judge erred by concluding the limitations period did not expire.*fn7 Plaintiff argues that defendant missed two deadlines: the six- year statute of limitations provided by N.J.S.A. 2A:14-1; and a thirty-day time frame provided by N.J.S.A. 3B:22-13.*fn8

Plaintiff contends that the six-year statute of limitations commenced on the date he loaned Kathleen money, beginning in 1998. Plaintiff acknowledges that he did not "specify a due date for the repayment" of the loans, and that he knew that he and Kathleen "co-owned the [property], so [he] figured that [she] would eventually pay [him] back one way or the other." Plaintiff concedes that he did not execute any notes or prepare any documents related to the alleged loans. Ordinarily, these types of loans constitute demand-style obligations and any cause of action seeking repayment accrued when the loans were made.*fn9

Under the facts of this case, however, plaintiff's contention that the six-year statute of limitations commenced on the dates when the loans were first made is misguided. Plaintiff concedes that he would be made whole from the closing proceeds, an event that never occurred due to Kathleen's death.

Next, we conclude that the judge properly applied the Dead Man's Statute, which provides:

[W]hen [one] party sues or is sued in a representative capacity, any other party who asserts a claim or an affirmative defense against such . . . representative, supported by oral testimony of a promise, statement or act of the . . . decedent, shall be required to establish the same by clear and convincing proof. [N.J.S.A. 2A:81-2.]

The clear and convincing evidence standard of proof applies "in all cases where the claim against the decedent's estate depends at least in part upon the truth of oral testimony of the promises or acts of decedent, even when written evidence has also been introduced." Moran v. Estate of Pellegrino, 90 N.J. Super. 122, 125 (App. Div. 1966). This standard "'should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting In re Purrazzella, 134 N.J. 228, 240 (1993)), certif. denied, 201 N.J. 498 (2010).

In DeBlanco v. Dooley, 164 N.J. Super. 155, 157 (App. Div. 1978), two plaintiffs allegedly made two separate loans to the decedent prior to her death. Plaintiff DeBlanco asserted that he drew a check on one of his business accounts payable to decedent's business. Id. at 158. Other than the check, the only evidence of the alleged loan was DeBlanco's testimony. Ibid. The other plaintiff formalized its loan with decedent with a promissory note. Ibid. The court concluded "that the unsupported testimony of an interested party, such as [DeBlanco] here, that a check made payable to a corporation was actually a loan to an individual, simply does not meet th[e clear and convincing evidence] standard." Ibid. Regarding the other note, the court held that the note, the check, and plaintiff's testimony had the cumulative effect of satisfying the clear and convincing evidence burden. Id. at 160.

We reject plaintiff's argument that he hired defendant two years prior to Kathleen's death and therefore defendant had ample time to file plaintiff's loan claims. Plaintiff conceded that he (1) ignored defendant's letters, e-mails, and requests for information; (2) decided not to pursue any legal action against Kathleen while she was ill; and (3) clarified that he would be reimbursed from the property's closing proceeds. Thus, the clear and convincing standard expressed in the Dead Man's Statute applies because any cause of action would not have occurred until after Kathleen died.

Giving plaintiff the benefit of all reasonable inferences, he is unable to surmount the higher burden of proof. He conceded that "no writings were associated with the checks [he] wrote to [Kathleen] representing the . . . loans." The only written evidence plaintiff produced are two letters he mailed to Kathleen. In one such letter plaintiff stated, "I think you have long forgotten how I have given you money over the last couple of years!" In another, he lists monies Kathleen allegedly owed him. Kathleen did not acknowledge the loans, and she disputed the carrying costs. No promissory notes exist here. As in DeBlanco, supra, all we have is plaintiff's self-serving testimony that he made a loan to Kathleen who in turn made an oral promise to repay him.

Finally, we reject plaintiff's contention that defendant breached a duty owed him and thereby proximately caused him damage. For proximate causation, "[t]he client must sustain actual damage," Olds v. Donnelly, 150 N.J. 424, 437 (1997), superseded by rule on other grounds, Rule 4:30A, which is "'real,'" and "not 'speculative,'" ibid. (quoting Grunwald, supra, 131 N.J. at 495). The "burden . . . is not satisfied by mere 'conjecture, surmise, or suspicion.'" 2175 Lemoine Ave. Corp., supra, 272 N.J. Super. at 488 (quoting Long v. Landy, 35 N.J. 44, 54 (1961)). "[C]ause in fact in attorney malpractice cases arises from the case-within-a-case concept." Conklin, supra, 145 N.J. at 417. "For example, if a lawyer misses a statute of limitations . . . a plaintiff must still establish that had the action been timely filed it would have resulted in a favorable recovery." Ibid. Moreover, "[t]he test of proximate cause is satisfied where the negligent conduct is a substantial contributing factor in causing the loss." Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983).

Plaintiff bears the burden of establishing proximate causation. Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 341 (1980). "'In fixing damages, the general problem of the law is, and should be, to put a plaintiff in as good a position as he would have been had the defendant kept his contract.'" Ibid. (quoting Giumarra v. Harrington Heights, Inc., 33 N.J. Super. 178, 196 (App. Div. 1954), aff'd o.b., 18 N.J. 548 (1955)).

Here, the property passed to plaintiff by operation of law upon Kathleen's death. As a result, plaintiff was made whole and put "in as good a position as he would have been had the defendant kept his contract." In fact, if plaintiff were to recover from defendant, he would experience a windfall. The property is worth $2.6 million with a mortgage balance of approximately $375,000. Ultimately, plaintiff is in a far better position now because his 100% interest in the property exceeds the amount that he claims he loaned or advanced to Kathleen. Receiving the interest in the property enabled plaintiff to reimburse himself money that he loaned or advanced to Kathleen. Therefore, plaintiff has failed to establish that defendant proximately caused him actual damage, an essential element in a legal malpractice claim. See 2175 Lemoine Ave. Corp., supra, 272 N.J. Super. at 491.


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