SZAFERMAN, LAKIND, BLUMSTEIN BLADER and LEHMANN, P.C. v. ROBERT PARISE AND MARJORIE PARISE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1871-08T21871-08T2

SZAFERMAN, LAKIND, BLUMSTEIN,

BLADER & LEHMANN, P.C.,

Plaintiff-Respondent,

v.

ROBERT PARISE AND MARJORIE PARISE,

Defendants-Appellants.

____________________________________

 

Argued November 10, 2009 - Decided

Before Judges Carchman, Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1613-05.

David A. Avedissian argued the cause for appellants.

Anthony M. Anastasio argued the cause for pro se respondent.

PER CURIAM

Defendants, Robert and Marjorie Parise, appeal from summary judgment entered on October 24, 2008, awarding plaintiff Szaferman, Lakind, Blumstein, Blader & Lehmann, P.C. outstanding legal fees of $125,755.60 and dismissing defendants' counterclaim, which alleged legal malpractice and fraud. Defendants also appeal from a December 5, 2008 order denying their request for reconsideration. On appeal, defendants argue:

POINT I

THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF WITH REGARD TO BOTH ENTITLEMENT TO FEES AND THE AMOUNT OF THE FEES SOUGHT.

POINT II

THE TRIAL COURT ERRED IN ITS DISMISSAL OF THE COUNTERCLAIM FOR FRAUD AND ERRED IN DENYING THE MOTION FOR RECONSIDERATION WHICH SOUGHT TO INCLUDE A CERTIFICATION OF DEFENDANT ROBERT PARISE INTO THE MOTION RECORD.

We affirm.

We set forth the facts in the underlying litigation, which gave rise to plaintiff's claims for legal fees and defendants' assertions of malpractice. Defendants retained plaintiff to perform legal services in connection with a residential construction matter entitled, Peter Sloane and Janice Sloane v. K&R Custom Homes, Marjorie Parise, President, and Robert Parise, Docket No. OCN-L-2111-03 (Sloane litigation). On April 28, 2004, defendants executed a retainer agreement prepared by plaintiff, agreeing to pay for "the actual amount of attorney time spent on their matter" along with billed costs for "[o]ut-of-pocket expenses such as filing fees, investigation costs, witness fees, deposition costs, service charges[,]" and expenses for photocopying, computer research, secretarial overtime and messenger deliveries.

The Sloane litigation has been described as "factually and legally complex," and included claims of fraud, consumer fraud, and breach of contract arising from the alleged defective construction of a single-family residence. Defendants faced potential corporate and individual liability, as owners of the construction company, K&R Custom Homes (K&R). Initially, defendants were represented by another law firm until a trial date was scheduled. Defendants then discharged their attorney and engaged plaintiff with the expectation that it would "aggressively prepare the case for trial."

Defendants agree the Sloane litigation "involved a large amount of documentation, consisting of approximately nine bankers boxes of documents." Plaintiff performed significant pretrial services, including conducting depositions, defending and defeating motions for summary judgment, and filing in limine motions to narrow the issues to be presented at trial.

On November 17, 2004, Marjorie Parise, as the owner of K&R, wrote to plaintiff instructing it to cease all legal work when the December 5, 2004 summary judgment motions were concluded. Plaintiff immediately responded, advising defendants of the need for legal representation of the corporate defendant and of upcoming court events, including trial set for January 17, 2005. Defendants apparently changed their mind, and continued to request plaintiff's legal services. Prior to trial, the Sloane litigation was dismissed, upon entry of a mutual release, which included the parties' agreement to satisfy their respective counsel fees and costs.

In connection with the Sloane litigation, defendants paid plaintiff $59,442.98. The balance of the fees due and owing totaled $58,970. The monthly billing records presented also reflected legal services for other matters, such as fee arbitration litigation with a prior counsel, a zoning matter in Little Egg Harbor Township, a matter involving Ocean Township, and a file entitled "miscellaneous matters." There is no evidence that defendants contested any stated charges for services or costs.

Plaintiff filed its complaint to collect all outstanding attorneys' fees and costs for past services and, pursuant to the parties' retainer agreement, payment of interest at a rate of one and one-half percent per month for all balances outstanding more than thirty days from the date rendered. Defendants counterclaimed, asserting legal malpractice and fraud. Specifically, defendants disputed the reasonableness of certain time entries, cited the existence of billing irregularities, and concluded the fees charged for the work performed were excessive. The fraud contention suggested plaintiff misrepresented the level of expertise of the associate attorney assigned to handle the Sloane matter, Thomas Eschleman.

Following discovery, plaintiff moved for summary judgment, on the legal malpractice claims predicated on defendants' failure to obtain an expert report, as defendants' reliance on "subjective opinions" was insufficient to support their contentions. Defendants conceded the necessity of expert proofs to sustain a legal malpractice claim, yet argued the fraud claim remained viable. Plaintiff also asserted defendants had failed to state, with particularity, the factual basis of any alleged fraud.

Judge Innes agreed the lack of expert testimony was fatal, determining "the only opposition to plaintiff's motion [wa]s the opinion testimony of Mr. Parise and Mrs. Parise[,]" which amounts to "really nothing more than conjecture or speculation . . . [which is] not enough to overcome the plaintiff's motion for summary judgment[.]" In reviewing defendants' fraud claims, the court inquired as to the particular proofs alleged to support the misrepresentation of Eschleman's civil litigation experience. When defendants were unable to show an affirmative misrepresentation relied upon to their detriment, the court also granted summary judgment, and dismissed that claim.

Defendants moved for reconsideration, and sought to supplement the record with Robert Parise's certification elucidating the factual basis to support the claim of fraud. Judge Innes denied the motion stating:

The basis of this motion for reconsideration is defendants' contention that defense counsel failed to sufficiently support the claim of fraud in the opposition papers and that this mistake was due to defense counsel's later appearance in the case. It's clear here that it was not the [c]ourt that erred with regard to any particular fact. Instead, it was the defendants who failed to provide the necessary evidence with regard to fraud in order to overcome plaintiff's motion for summary judgment. Furthermore, the certification of defendant Parise does not raise any facts that were not brought to the court's attention prior to entry of summary judgment.

This appeal followed.

Defendants argue the court's grant of summary judgment was inappropriate, under the circumstances, because the legal malpractice claim was based on the "legitimacy" of the billing entries. Citing Sommers v. McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996), defendants maintain expert testimony is not required where the issue of professional negligence is based on a layperson's common knowledge. Specifically, defendants maintain if plaintiff cannot "justify the basis of charges for which [it has] bille[d] . . . the jury can reject the legitimacy of the charges." Regarding the alleged fraudulent mis-representation of the extent of Eschleman's civil litigation experience, defendants add they would not have retained the plaintiff to represent their interests had they known his prior trial experience was in mostly criminal matters. We reject defendant's contentions.

Review of a trial court's grant of summary judgment is de novo. Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). We apply the same standard as the motion judge in its review of the order granting summary judgment. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 490-91 (2005); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we examine the record to determine the existence of a genuine issue of material fact, which precludes the entry of summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

"An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). This requires a review of the competent evidential materials in the light most favorable to the non-moving party to determine whether a rational fact-finder could resolve the issue in favor of the non-moving party. Brill, supra, 142 N.J. at 540. Bare conclusions in the pleadings, without factual support, will not defeat a summary judgment motion. See Merchants Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.)(stating that "speculation does not meet the evidential requirements which would . . . defeat a summary judgment motion"), certif. granted, 183 N.J. 592 (2005), appeal dismissed Jan. 3, 2006; Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002); Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999); Fargas v. Gorham, 276 N.J. Super. 135, 140-41 (Law. Div. 1994) (holding that self-serving assertions alone will not create a question of material fact sufficient to defeat a summary judgment motion).

Reviewing the allegations of professional negligence, we note attorneys are "obligated to exercise that degree of reasonable knowledge and skill that lawyers of ordinary ability and skill possess and exercise." St. Pius X House of Retreats v. Diocese of Camden, 88 N.J. 571, 588 (1982). To establish legal malpractice, a party must demonstrate "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." Sommers, supra, 287 N.J. Super. at 9-10; see Stoeckel v. Tp. of Knowlton, 387 N.J. Super. 1, 14 (App. Div.)(internal citations omitted), certif. denied, 188 N.J. 489 (2006).

"Expert testimony is required in cases of professional malpractice where the matter to be addressed is so esoteric that the average juror could not form a valid judgment as to whether the conduct of the professional was reasonable." Sommers, supra, 287 N.J. Super. at 10. This is "[b]ecause the duties a lawyer owes to his client are not known by the average juror[.]" Stoeckel, supra, 387 N.J. Super. at 14.

Defendants believe their claims fall within the "the common knowledge doctrine," obviating the need for an expert because "the carelessness of the [attorney] is readily apparent to anyone of average intelligence and ordinary experience." Rosenberg v. Cahill, 99 N.J. 318, 325 (1985); see also Klimko v. Rose, 84 N.J. 496, 503-04 (1980) (holding that a layperson's common knowledge maybe sufficient to permit a finding that the duty of care has been breached). It is settled that in those rare cases where "the issue of negligence is not related to technical matters peculiarly within the knowledge of" the licensed practitioner, Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961), and the duty of care can be determined "as a matter of law," expert testimony is not required. Sommers, supra, 287 N.J. Super. at 10. Illustrative of such attorney neglect is the failure to file an action within the statute of limitations, Brizak v. Needle, 239 N.J. Super. 415, 429 (App. Div.), certif. denied, 122 N.J. 164 (1990), or the failure to record a bond and mortgage, Stewart v. Sbarro, 142 N.J. Super. 581, 591 (App. Div.), certif. denied, 72 N.J. 459 (1976).

In Sommers, supra, the plaintiff asserted she was compelled to settle her claims because counsel failed to prepare her matter, and misrepresented the defendant's evidence to "induce her to settle the case and collect his fee." 287 N.J. Super. at 11. We concluded summary judgment was improper because the litigation file contained factual support for the plaintiff's claims relating to the alleged breach of specific duties of counsel.

[S]ommers was not required to have an expert opine that McKinney should have briefed an issue and that the failure to do so was a breach of that duty to plaintiff. Similarly, Sommers was not obliged to have an expert opine that McKinney was required to report the settlement discussion accurately and recommend a disposition of the case based upon an accurate rendition of each party's positions. Furthermore, Sommers was not required to produce an expert to opine that, if she had been told that the [defendant] had no defense to her . . . claim, she would have changed her settlement position.

[Id. at 12.]

Thus, "the jury could have evaluated the reasonableness of defendant's investigative efforts without expert testimony because the evidence on the point was within the grasp of common understanding." Brizak, supra, 239 N.J. Super. at 431.

We reject defendants' reliance on Sommers, suggesting this case presents a similar circumstance. In Sommers, supra, those claims, based on the plaintiff's allegations that "she ha[d] been charged for work that was not done or inadequately performed," and questioned "the quality of the work done on her behalf," were properly dismissed "because of her failure to submit an expert report." 287 N.J. Super. at 13.

In their depositions and in response to plaintiff's statement of material facts, defendants conceded "Eschleman worked diligently on [their] behalf," and "they were happy with the outcome of the litigation." Defendants' continued alleged dissatisfaction with the amount of the legal fees charged, supported only by defendants' personal experience "in paying attorneys' fees in [the] work with K&R properties," is insufficient factual support for a claim that the fees were excessive for the work performed. In short, Judge Innes properly rejected defendants' contention that they could proceed on their affirmative legal malpractice claims without expert testimony, and allow the jury to refer to common knowledge to evaluate the performance of plaintiff. In cases such as this, when the adequacy of an attorney's representation is challenged, expert opinion is necessary. Ibid.; Brizak, supra, 239 N.J. Super. at 432.

We reject defendants' other recited claims as lacking sufficient merit to warrant discussion in a written opinion. R. 2:10-3(e)(1)(E). We add these limited comments.

Defendants' contention that they did not request a jury trial and, therefore, a judge, acting as fact-finder, would have sufficient knowledge to review defendants' allegations, without need for expert testimony, is fallacious: a jury trial was demanded. Likewise, the allegation that the amount awarded in the judgment bears no relationship to the outstanding legal fees billed is also incorrect, as the sum due included not only the fees outstanding on April 22, 2005, but also accrued interest on that sum, as provided in the parties' retainer agreement. The suggestion that defendants were billed for work completed for another client, or that they did not accept the terms of the retainer agreement, were not raised before the trial court, and will not be considered on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Turning to defendants' allegations of fraud, the motion judge determined there was no evidence in Robert Parise's deposition testimony averring he was told by senior partner Arnold Lakind that Eschleman, a former assistant prosecutor, was an experienced civil litigator. The record supports Lakind's statement that Eschleman was an experienced litigator. This fact was true, and could not support the misrepresentation claim. So too, defendants' were "very pleased" with the results achieved.

On reconsideration, Robert Parise's two-page affidavit asserted, "Mr. Lakind informed us that his associate, Thomas Eschleman, Esquire was an experienced civil litigator." Further, defendants suggest, "based upon [Lakind's] representation[,]" they "were agreeable to Mr. Eschleman working on [their] file despite the fact that we consulted with and sought the representation of Arnold Lakind, Esquire." Judge Innes declined to view the newly-filed, self-serving certification as evidence of a disputed material fact.

Our review of the record is consistent with Judge Innes' determination. We concur that defendants' factual allegations are insufficient to substantiate a claim of fraud, warranting dismissal, and that the denial of the motion for reconsideration does not evince an abuse of discretion. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).

 
Affirmed.

The trial court caption incorrectly lists defendant's name as "Margaret." We have corrected that error in our opinion.

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A-1871-08T2

February 24, 2010