PETER N. FIORENTINO, JR v. JOSEPH S. SFERLAZZA

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5228-07T25228-07T2

PETER N. FIORENTINO, JR.,

Plaintiff-Respondent,

v.

JOSEPH S. SFERLAZZA,

Defendant-Appellant.

 

Argued May 27, 2009 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-10961-05.

Joseph S. Sferlazza, appellant, argued the cause pro se.

Peter N. Fiorentino, Jr., respondent, argued the cause pro se.

PER CURIAM

Plaintiff, an attorney, sued defendant for counsel fees for his representation of defendant, and defendant filed a counterclaim against plaintiff for legal malpractice. Following a three-day bench trial, Judge Fernandez-Vina, after reserving decision, entered an order, supported by a lengthy written decision, entering judgment in favor of plaintiff in the amount of $7500 on his claim for counsel fees and dismissing defendant's counterclaim.

On appeal, defendant raises the following legal arguments for our consideration:

I. THE TRIAL [COURT] ERRED IN FAILING TO RECOGNIZE THAT A SOCIAL SECURITY DETERMINATION OF DISABILITY IS BINDING ON THE COURT.

II. THE TRIAL [COURT] ERRED AS IT BASED ITS DECISION UPON INCORRECT FACTS WHICH IT "PRESUMED" TO BE TRUE.

III. THE TRIAL COURT ERRED IN [NOT] GIVING PROPER WEIGHT TO COUNTERCLAIMANT'S EXPERT TESTIMONY. THE TRIAL COURT ERRED BY FAILING TO ACKNOWLEDGE PLAINTIFF/COUNTERCLAIM DEFENDANT'S LACK OF EXPERT TESTIMONY. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE NEGOTIATED AGREEMENT WAS UNCONSCIONABLE AND NEGLIGENTLY AGREED TO.

IV. THE PLAINTIFF'S TESTIMONY IS INCONSISTENT AND FULL OF CONTRADICTIONS.

In light of the record and prevailing law, we conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). We affirm substantially for the reasons expressed by the trial judge in his thorough and well-reasoned May 21, 2008 written opinion. We add only the following brief comments.

On appeal, defendant argues that the trial court failed to properly consider that the Social Security Administration had determined that he was disabled as a result of his medical condition, primarily depression and an anxiety disorder. Defendant asserts that due to his depression, he needed special attention from plaintiff during the property settlement negotiations in his divorce action. He claims that plaintiff deviated from the standard of care in his representation of defendant in that action by not recognizing that defendant required special attention and counseling.

Despite the Social Security Administration's adjudication of disability, the trial judge concluded that the record contained no evidence that defendant

suffered from any condition which prevented him from understanding what was transpiring at a hearing. [Defendant] was able to represent himself ably in the case before [the] Court and no medical evidence, competent or otherwise was provided in support of any argument that [defendant] suffered from some type of condition nor was there any testimony from [defendant's expert] that [his] opinion was based on anything other than his own belief.

In other words, the court found that although defendant may suffer from a disability, there was no medical evidence to show the extent of that disability, or to otherwise show that it in any way impaired his ability to understand what was transpiring during the hearings in the divorce action. We agree.

Simply because the Social Security Administration has determined that a person is disabled, does not necessarily mean that the person is incapable of performing everyday tasks. As the United States Supreme Court has indicated, a person may qualify for disability benefits under the Social Security Act's administrative rules, yet remain capable of performing the essential functions of his or her job. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803-04, 119 S. Ct. 1597, 1602-03, 143 L. Ed. 2d 966, 975-76 (1999); see also Ramer v. N.J. Transit Bus Operations, Inc., 335 N.J. Super. 304, 315-16 (App. Div. 2000). Furthermore, the nature of defendant's disability may have changed from the time he applied for benefits, and the Social Security determination may not reflect defendant's ability at the time he was negotiating the settlement in his divorce proceeding. Cleveland, supra, id. at 805, 119 S. Ct. at 1603, 143 L. Ed. 2d at 976. Consequently, simply because the Social Security Administration had determined defendant to be disabled did not mean, as the trial court correctly pointed out, that he suffered "from any condition which prevented him from understanding what was transpiring at [the divorce hearing]."

To prove a legal malpractice claim, a plaintiff must show: "(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) that the attorney breached the duty owed; (3) that the breach was the proximate cause of any damages sustained; and (4) that actual damages were incurred." Somers v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996). A plaintiff must prove that he suffered injuries as a proximate consequence of the attorney's breach of his duty to his client. Id. at 10. "This burden is not satisfied by mere conjecture, surmise or suspicion." Ibid.

Subject to certain exceptions that are not applicable here, expert testimony is required to establish a deviation from the standard of care in legal malpractice cases. Ibid. An expert "testifying in a malpractice case is limited to the recitation of his understanding as to what comprises the standards in the profession, rather than a statement as to his feelings as to what are legal bases for a [lawyer's] responsibility. An expert witness should distinguish between what he knows as an expert and what he may believe as a layman." Sesselman v. Muhlenberg Hospital, 124 N.J. Super. 285, 289-90 (App. Div. 1973).

Here, the trial judge found that defendant's expert failed to establish a deviation from the standard of care. The expert said that it was "unusual to have a client pay for the expenses for the home and also allow the other party to live in the home and pay alimony." This was simply the expert's personal opinion. See Fernandez v. Baruch, 52 N.J. 127, 131 (1968); Crespo v. McCartin, 244 N.J. Super. 413, 422-23 (App. Div. 1990).

The trial judge also found, and we agree, that even if defendant's expert established that plaintiff had breached a duty to defendant, there was no evidence of record, by expert testimony or otherwise, to show that the alleged breach was the proximate cause of damages to defendant. Defendant did not prove that he suffered an economic loss by reason of plaintiff's actions. To conclude that defendant suffered damages by reason of any purported malpractice on behalf of plaintiff, is, on the current record, nothing more than "mere conjecture, surmise or suspicion." Somers, supra, 287 N.J. Super. at 10.

Affirmed.

 

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A-5228-07T2

June 17, 2009