DUC AND LYNN DUCLOS v. DANIEL POSTERNOCK & LAW OFFICES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3663-04T23663-04T2

DUC AND LYNN DUCLOS,

Plaintiffs-Appellants,

v.

DANIEL POSTERNOCK & LAW OFFICES,

Defendant-Respondent.

_________________________________

 

Submitted: December 20, 2005 - Decided January 18, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-7210-02.

Duc and Lynn Duclos, appellants pro se.

Swartz Campbell, attorneys for respondent (John A. Mercer, Jr., on the brief).

PER CURIAM

Plaintiffs Duc and Lynn Duclos appeal from a January 21, 2005 summary judgment to defendant Daniel Posternock and his law firm dismissing plaintiffs' malpractice cause of action for failing to present an expert report on liability and damages. Plaintiffs also appeal the court's March 5, 2005 denial of their motion for reconsideration and refusal to permit oral argument.

In their pro se briefs and appendices, plaintiffs raise a litany of issues and provide voluminous documentation, some of which is not relevant to the issues on appeal. Pertinent to the appeal, plaintiffs contend there are material issues of fact precluding summary judgment. Namely, they contend they did not need an expert to establish malpractice under the "common sense" exception for legal malpractice liability and other theories. Alternatively, if they did, they should have been afforded the time needed to provide the proper reports. We are satisfied from our painstaking review of the extensive record presented by plaintiffs that Judge Michael Kassel's rulings were appropriate as a matter of law, and he did not abuse his discretion in denying an extension of discovery, further oral argument or reconsideration.

In view of plaintiffs' pro se status and consistent argument that they have been denied their "day in court," our recitation of the factual and procedural history will be lengthy.

The underlying action involved a claim against Paparone Homes for negligent construction of the house purchased by plaintiffs in August 1992, and titled solely in wife Lynn's name. On June 26, 1997, Duc filed a Special Civil Part complaint against Paparone on behalf of himself and his wife, listing eleven defects to the home. Pursuant to a consent order, the matter was transferred to the Law Division on January 5, 1998.

Daniel Posternock, defendant in the malpractice action, was thereafter retained, and on September 18, 1998 he filed a substitution of attorney on plaintiffs' behalf. Plaintiffs attach several letters from defendant to Paparone's counsel discussing and rejecting settlement offers. One letter dated March 8, 1999 enclosed two engineering reports from Paul Carafa (repairs) and Harold Lichtman (cost), supporting a damage claim of about $46,000. Paparone joined numerous subcontractors in the action. At some point in the litigation, plaintiffs accepted a settlement of $3,500 from Diblase Construction and it appears they also accepted a $3,500 settlement from Medford Carpentry, which they claim they were pressured into by defendant to put towards payment of his fee.

Defendant apparently referred plaintiffs to Lukoff Engineering Associates, which provided a report on March 6, 2000, which detailed the problems with the house and made recommendations for repair of the items. Plaintiffs contend defendant sent two of Lukoff's reports to Paparone's attorney.

Giving plaintiffs all favorable inferences, as is required on summary judgment, on a Saturday in August 2000, defendant brought them to his office and recommended they accept Paparone's $9,500 settlement offer. When they refused, he told them the court would allow him to withdraw, even though the October 1, 2000 trial was imminent, and convinced them to sign a consent for his withdrawal as counsel, which is dated August 15, 2000. Thus, defendant's involvement in the underlying action was from September 18, 1998 to August l5, 2000, slightly less than a two-year period.

Judge Vogelson granted plaintiffs' request for an adjournment to obtain new counsel and, as reflected in the Case Management Order (CMO) dated January 25, 2001, scheduled a discovery deadline and set the trial for May 21, 2001, which was postponed twice to October 1, 2001. Under the CMO, plaintiffs were permitted to submit a report of Long Engineering dated January 11, 2001, which tracked Lukoff's report and established the cost of the repairs at $69,550. The CMO further provided that plaintiffs were barred from producing expert reports other than the two reports supplied in discovery and Long's report. We assume those two reports are the March 6, 2000 and January 2, 2001 Lukoff reports.

Plaintiffs were unable to retain counsel to prosecute their case against Paparone, and apparently Duc proceeded to trial pro se on October 1, 2001 before Judge Fratto, but Lynn was not present. According to plaintiffs' brief, the court dismissed Lynn's claim and did not permit Duc to proceed on her behalf because he was not a title owner of the property and was not an attorney. Plaintiffs further state in their brief that notwithstanding the dismissal, Duc settled the underlying action with Paparone for $35,000. We are unable to verify these assertions as plaintiffs have omitted from the voluminous documents provided on appeal a transcript of the trial proceedings before Judge Fratto.

On October 22, 2002, plaintiffs filed a pro se malpractice complaint against defendant, asserting "negligence, carelessness and unskillfulness." Default was thereafter entered and was vacated by order of March 21, 2003. On June 16, 2003 plaintiffs submitted an affidavit of merit by Carol Weil. By order of August 21, 2003, plaintiffs' complaint was dismissed without prejudice for failure to make discovery pursuant to Rule 4:23-5(a)(1), and was thereafter reinstated.

On August 5, 2004, plaintiffs filed a motion to file an amended complaint against defendant, expanding their claims to emotional distress and fraud. Judge Kassel initially denied the motion on September 10, 2004, as outside the discovery deadline. Plaintiffs then retained an attorney, Walter Wolf, who filed a motion for reconsideration. There was a lengthy argument on November 5, 2004, during which the court treated the reconsideration motion as a new motion. Judge Kassel ultimately concluded that since plaintiffs' motion was filed before the discovery end date of August 25, he would grant the motion.

It appears plaintiffs had obtained and served an August 10, 2004 report from Michael Ambrosio, a Seton Hall Law School professor, opining malpractice liability by defendant, which defendant had either moved or was going to move to bar as a net opinion. During argument, recognizing the deficiencies of the report, Wolf requested permission to have Ambrosio's report "updated for trial purposes." The judge noted that no formal motion to extend discovery had been filed prior to the discovery end date; it had just been raised during oral argument on reconsideration. The judge denied plaintiffs' informal request to extend discovery. The court's decision was memorialized in an order of November 15, 2004.

Defendant thereafter moved for summary judgment on plaintiffs' malpractice claims based on their failure to provide expert testimony establishing legal malpractice in the underlying action. In a responding brief plaintiffs' counsel claimed defendant's malpractice was permitting incompetent evidence to be proffered, presumably having recommended Lukoff and proffered his report, and not having obtained a damages report; abandoning plaintiffs without time to obtain substitute counsel; and draining plaintiffs of cash reserves to obtain substitute counsel. Wolf withdrew Ambrosio's expert report from consideration. Initially Wolf indicated he was prepared to rely on the "common sense" exception for legal malpractice liability and argue no expert was necessary to sustain his cause of action.

During oral argument on January 21, 2005, however, Wolf admitted to the court: "I have to tell you that we're not prepared to make out a prima facie case for malpractice and neither are we able to -- assuming we get by that hurdle, we don't have an expert on damages." He further acknowledged that plaintiffs did "not have competent proof as to liability or damages" and would not "be able to survive a motion at the end of the case or even a motion at the beginning in limine." He represented that both liability and damage reports could be promptly obtained and requested an opportunity to reopen discovery to permit their late filing. Plaintiffs' counsel acknowledged that the discovery end date had been August 25, 2004, trial was scheduled for February 7, 2005, and the necessity of his clients demonstrating "extraordinary circumstances" to warrant an extension of discovery under Rule 4:24-1(c).

Reflecting upon plaintiffs' inaction prior to Wolf's representation, the age of the case and the impending trial, Judge Kassel found the matter did not fall within the Ponden exception to "Best Practices." Ponden v. Ponden, 374 N.J. Super. 1 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). The trial judge concluded that essentially plaintiffs' only excuse for the delay was their pro se status, which did not constitute "exceptional circumstances" to relax "Best Practices" and reopen discovery on the eve of trial. The court's ruling was memorialized in an order of January 21, 2005.

On appeal, plaintiffs re-iterate the following types of malpractice claims against defendant: (1) failure to file a notice of appearance in the underlying case; (2) failure to amend plaintiffs' one-page hand-written complaint or include Lynn's claims; (3) failure to conduct depositions and otherwise prosecute the underlying case other than just writing letters; (4) coercion of plaintiffs to settle with two of the subcontractors to obtain a fee; and (5) failure to disclose a March 13, 2000 letter from Paparone offering to settle the case for $15,500, and pressuring them to settle for $9,500 before withdrawing as counsel a month before the scheduled trial. Plaintiffs also allege negligence surrounding the trial before Judge Fratto.

Plaintiffs contend there was sufficient evidence to find defendant negligent without the need for expert testimony. For the first time in their reply brief, plaintiffs argue that a jury should have heard a claim against defendant for a Consumer Fraud violation. Alternatively, they assert error in the court's failure to extend discovery to permit the filing of supplementary reports.

We note that several of plaintiffs' contentions are inaccurate or not supported by the record provided on appeal. Lynn is listed as a plaintiff in the underlying action; she chose not to appear at trial before Judge Fratto. Paparone's attorney indulged plaintiffs and accepted the one-page pro se complaint as an action for construction defects despite its deficiencies. Plaintiffs were not harmed by defendant's withdrawal in August 2000, as the court granted their request for an adjournment of the October 2000 trial to obtain new counsel. Furthermore, plaintiffs were permitted to submit an additional expert report in January 200l, and trial did not commence until October 2001. Plaintiffs chose to proceed pro se. Even assuming some or all of plaintiffs' claims were dismissed during trial, plaintiffs received a $35,000 settlement from Paparone in addition to the settlements previously received from the subcontractors while represented by defendant.

In order to sustain a legal malpractice claim, plaintiffs must demonstrate that their attorney breached a duty of care that proximately resulted in damages. Jerista v. Murray, 185 N.J. 175, 190-91 (2005). We are satisfied the underlying matter was of a sufficiently complex legal nature to require expert testimony to establish the standard of care against which defendant's actions were to be measured, that defendant breached that standard, and that plaintiffs' damages attributable to that breach were in excess of the settlement received in the underlying action. See, e.g., Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12-13 (App. Div. 2001). We are further satisfied that plaintiffs had ample opportunity to provide the requisite expert liability and damage reports, and failed to demonstrate "exceptional circumstances" under "Best Practices" warranting an extension of discovery on the eve of the trial. Accordingly, summary judgment dismissing their malpractice complaint was appropriately granted by the trial court.

 
Affirmed.

Plaintiffs did not appeal dismissal of the third and fourth counts of their amended complaint asserting negligent infliction of emotional distress and fraud.

Copies of these reports were not in the appendix.

The appendix only contains one seven-page report dated March 6, 2000, which does not cost-out the project, and a supplemental report of January 2, 2001, after defendant withdrew as counsel, which plaintiffs obtained from Lukoff, referencing subsequent problems.

The record does not reflect what happened with the Carafa and Lichtman reports.

Defendant provided a November 26, 2001 order for dismissal by Judge Fratto reciting the case was settled.

As aforementioned, defendant was also granted summary judgment on counts three and four of plaintiffs' complaint asserting negligent infliction of emotional distress and fraud.

(continued)

(continued)

11

A-3663-04T2

January 18, 2006