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Albert Diclemente v. Patrick J. Jennings

November 16, 2012

ALBERT DICLEMENTE, PLAINTIFF-APPELLANT,
v.
PATRICK J. JENNINGS, ESQ., DEFENDANT-RESPONDENT,
AND JEFFREY T. CARNEY, ESQ., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2271-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 14, 2011

Before Judges A. A. Rodriguez, Ashrafi and Fasciale.

Plaintiff Albert DiClemente appeals from an order for summary judgment dismissing his legal malpractice and other claims against defendant Patrick Jennings. We affirm.

DiClemente solely owned and operated a home renovation business named Titan Contracting, LLC. Attorney Jennings represented DiClemente and Titan in litigation brought by Gail Lindsley, a recently-divorced woman who sold DiClemente her home. As consideration for the sale, DiClemente offered Lindsley cash and free renovations to the basement apartment into which she intended to move. Eight months after the sale, Lindsley filed suit in the Chancery Division to rescind the sale and for other equitable and monetary relief. She alleged that DiClemente had defrauded her and that the contract of sale was unconscionable.

After several months of litigation, DiClemente settled the lawsuit with Lindsley. He then filed a malpractice complaint against the two attorneys who successively represented him in that litigation, Jennings and Jeffrey Carney. He alleged that Jennings had failed to bring a timely motion to discharge a lis pendens filed by Lindsley against the subject real estate, and as a result, two potential contracts he had obtained to resell the property were canceled by the buyers. He also alleged that Jennings had defamed him and intentionally or negligently caused him severe emotional distress.

After discovery was conducted, Jennings moved for summary judgment, and DiClemente cross-moved for partial summary judgment on his central allegation of attorney negligence. The trial court denied DiClemente's cross-motion and granted summary judgment to Jennings, dismissing the complaint against him in its entirety. DiClemente then settled with Carney and filed this appeal.

I.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. 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).

We view the facts most favorably to DiClemente as the party opposing the summary judgment that was granted. At the same time, in a legal malpractice case such as this involving a "suit within a suit," Lieberman v. Emp'rs Ins. of Wausau, 84 N.J. 325, 342 (1980), we must consider the nature of the disputed issues in the underlying case as relevant to the allegations of attorney negligence. The Lindsley suit was settled; consequently, disputed facts in that matter were never established by a judicial proceeding or otherwise. We must view the facts cognizant of the unresolved disputed issues that Jennings was required to address in representing DiClemente.

DiClemente formed Titan in January 2005 as a limited liability company to conduct his construction business. He met Lindsley through her son-in-law near the same time. Lindsley had become divorced in 2004, and she had obtained sole ownership of the marital home in Harrington Park in which she had lived for twenty-five years. DiClemente learned that a contract she had for the sale of the home for $412,000 had been canceled because an underground oil storage tank existed on the property. He also learned that she had subsequently paid a substantial sum to have the storage tank removed. DiClemente offered to buy Lindsley's home with the intent to renovate and resell it at a profit. He offered her $300,000 in cash and told her he would complete, at no charge, renovations she desired for a basement apartment in Dumont to which she was moving. He provided a written proposal for renovating the apartment, but the proposal contained no prices or cost estimates. According to Lindsley, DiClemente told her orally that the apartment renovations would have cost her $89,000, and so, she would receive $389,000 in total value for her Harrington Park home without the need to pay a realtor's commission.

Lindsley and DiClemente signed a contract for the sale of the home in July 2005. The contract stated a selling price of $300,000 without making reference to renovation of the Dumont apartment. A rider to the contract identified attorney Gregory Mueller as representing DiClemente in the sale. Mueller had offices at 26 Franklin Street in Tenafly and had prepared the contract. Attorney John McCann, with offices at the same Tenafly address, was listed in the rider as Lindsley's attorney. Lindsley had never met or spoken with McCann before signing the contract. According to Lindsley, she told DiClemente she had an attorney, but she "was informed that this was a simple transaction and would go much smoother if [she] used the lawyer that [DiClemente] recommended."

The closing took place on September 14, 2005. Lindsley had expected to net about $167,000 after paying off a mortgage loan, but she did not receive cash proceeds in that amount. According to Lindsley, DiClemente induced her to accept a promissory note in the amount of $150,000 that he executed on behalf of Titan. DiClemente allegedly told Lindsley that she would benefit more by lending cash proceeds of the sale to Titan than by depositing the money in a bank account. Titan offered a slightly better interest rate than bank rates. At the closing, attorney McCann issued a check for $150,000 from his trust account made payable directly to DiClemente, and Lindsley received an unsecured promissory note from Titan for the $150,000 loan. DiClemente did not provide a personal guarantee for the note.

Mueller prepared a HUD-1 Uniform Settlement Statement and both DiClemente and Lindsley executed it at the closing. It made no reference to a loan to Titan. It also did not account for Lindsley's payoff of a mortgage loan. The HUD statement indicated that Lindsley had received $297,480.22 at the closing in addition to a $1,000 deposit DiClemente had paid earlier. However, McCann's ...


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