JOHN K. WALSH, JR ESQ. v. DANIEL PROVENZANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4043-10T1

JOHN K. WALSH, JR., ESQ. and

WALSH & WALSH, ESQS.,

Plaintiffs-Respondents,

v.

DANIEL PROVENZANO and JO-ANNE

OLSZEWSKI,

Defendants-Appellants.

_______________________________

September 28, 2012

Argued May 7, 2012 - Decided

Before Judges A.A. Rodr guez, Sabatino and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4980-08.

William Goldberg argued the cause for appellants.

Robert I. Lesser argued the cause for respondents (Greenblatt Lesser, LLP and Bressler, Amery & Ross, attorneys; Diana C. Manning, of counsel; Mr. Lesser, of counsel and on the brief).

PER CURIAM

Daniel Provenzano and his sister Jo-Anne Olszewski (defendants) appeal from the March 16, 2011 Law Division judgment, dismissing their lawsuit against plaintiffs Walsh and Walsh, Esqs. (Walsh firm) and John K. Walsh, Jr., a partner there. Plaintiffs sued defendants, their former clients, for legal fees incurred in connection with the Provenzano v. Provenzano litigation.1 Defendants counterclaimed, asserting a legal malpractice claim. Following a four-day bench trial, Judge Charles E. Powers, Jr., granted a judgment in favor of Walsh and his firm, for the entire sum of unpaid legal fees plus interest. The judge also dismissed defendants' counterclaim for legal malpractice because defendants failed to prove their claim. The judge concluded that the allegation of deviations by Walsh and his firm from the standards of care expected from an attorney, were not a matter of common knowledge and required expert testimony. We affirm.

Briefly, the Provenzano v. Provenzano litigation arose shortly after the death of defendants' father, Louis Provenzano (Louis), who died partially intestate in June 2005. Louis was survived by defendants and two grandsons, the children of his late son Ross R. Provenzano (Ross).

In July 2005, defendants met with Walsh to discuss possible representation regarding claims against Louis' estate and other entities controlled by or associated with Louis or his estate.

Defendants paid Walsh $93,700 for the legal services rendered.

In August 2005, Walsh filed a lawsuit in the General Equity Part on defendants' behalf and against the Estate and executors and relatives of their brother Ross, as well as other relatives of Ross, and four companies: Sandaro Realty, Inc.; Louis Provenzano, Inc.; Redwood Car Leasing, Inc.; and Nautical Leisure, Inc. (Provenzano v. Provenzano, Superior Court of New Jersey, Chancery Division, General Equity C-298-05).

This lawsuit was tried before Judge Robert P. Contillo. On January 9, 2007, Judge Contillo issued a written opinion on the issue of liability. Defendants were not satisfied with the results. In August, 2007, following a subsequent trial on damages, Judge Contillo found that defendants' claims were barred by the doctrine of laches and that "[defendants] have indeed sat on their rights and have to that extent forfeited them." Once again, defendants were dissatisfied with the outcome. They discharged Walsh and his firm from further representation in the Provenzano v. Provenzano litigation.

Walsh and his firm then filed this action for unpaid legal fees. Defendants filed a counterclaim, alleging professional malpractice, gross negligence, breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty. Following a period of discovery, there was a bench trial. Walsh and defendants were the only witnesses.

In a written opinion dated February 25, 2011, Judge Powers found that: Walsh and his firm's fees were reasonable and defendants' malpractice claims failed "as a matter of law." Judge Powers began his written opinion by noting that defendants agreed to pay Walsh a $15,000 retainer and a $350 hourly rate and that they had paid Walsh and his firm over $93,700 in counsel fees, "without voicing any complaint regarding the bill or the quality of the representation." The judge found that Walsh provided defendants with a "detailed accounting" of all work performed and sent monthly invoices to defendants.

Regarding the legal malpractice counterclaim, the judge found that "the issue of whether the plaintiff breached the duty of care he owed to his clients . . . cannot be resolved without a complicated and nuanced examination of the plaintiff's various practices and methods" and cannot be determined as a matter of law. Judge Powers had raised this concern throughout the trial. For example, in the middle of Walsh's cross-examination, the judge told defendants' counsel:

This is the problem where you hope that I will divine by some means the theme and theory of your case that Mr. Walsh made a number of judgmental errors which constitute deviations from the standard of care, yet you're not going to offer me any testimony that they're deviations from the standard of care, and . . . based on what I've heard they were reasonable choices among varying courses of action and matters of judgment for an attorney.

In his opinion, the judge noted that the issues raised by defendants "surely rise above [a] baseline level of common knowledge and do not represent an obvious breach of an equally obvious professional norm." The judge concluded that "defendants' legal malpractice counterclaim fails as a matter of law . . . ."

On appeal, defendants raise five errors alleged by the trial judge and challenge the denial of a trial motion to extend discovery pursuant to Rule 4:24-1(c).2 We reject all of these arguments and we affirm substantially for the reasons expressed by Judge Powers in his February 25, 2011 written opinion, which was followed by the March 16, 2011 judgment that is the subject of this appeal.

A

1 Provenzano v. Provenzano, Superior Court of New Jersey, Chancery Division, General Equity C-298-05.

2 Defendants allege:

WALSH PRESENTED NO TESTIMONY AND THE TRIAL COURT MADE NO FINDING THAT THE FEES BILLED TO DEFENDANTS FOR "SERVICES RENDERED" WERE REASONABLE WITHIN THE MEANING OF R.P.C. 1.5(a)(4) AND R.P.C. 1.5(b).

WALSH'S CONTINUING REPRESENTATIONS TO HIS CLIENTS THAT SANDARO WOULD BE JOINED IN THE NEW JERSEY LITIGATION, TOGETHER WITH HIS FAILURE TO INFORM HIS CLIENTS THROUGHOUT THE REDWOOD LITIGATION THAT THE LAWSUIT WAS AN ENDLESS AND UNPRODUCTIVE MONEY PIT, RENDERED THE FEES CHARGED TO HIS CLIENTS AS "UNREASONABLE" WITHIN THE MEANING OF R.P.C. 1.5(b).

ANY MISUNDERSTANDING AS TO THE PURPOSES OF THE RETENTION, AND WHETHER WALSH MADE AFFIRMATIVE REPRESENTATIONS THAT HE WOULD BRING SANDARO INTO THE NEW JERSEY LITIGATION, MUST BE RESOLVED IN FAVOR OF THE CLIENTS.

EXPERT TESTIMONY IS NOT REQUIRED TO PROVE MALPRACTICE WHERE BOTH THE BREACH OF THE DUTY (THE FAILURE TO OFFER A COMPETENT EXPERT TO TESTIFY) AND THE CONSEQUENCES OF THAT BREACH (THE REFUSAL OF THE TRIAL COURT TO HEAR EVIDENCE OF DAMAGES) IS SO CLEAR THAT THE TRIER OF FACT CAN RESOLVE THAT ISSUE AS A MATTER OF COMMON KNOWLEDGE.

IN THE EVENT THIS COURT DETERMINES THAT WALSH'S FAILURE TO QUALIFY BAVARO AS AN EXPERT IS AN ACT OF PROFESSIONAL MALPRACTICE, WALSH MAY NOT COLLECT LEGAL FEES FOR SERVICES NEGLIGENTLY PERFORMED, AND JO-ANNE AND DANIEL ARE ENTITLED TO DISGORGEMENT OF FEES ALREADY PAID, AS WELL AS LEGAL FEES AND RELATED EXPENSES INCURRED IN THIS ACTION AS CONSEQUENTIAL DAMAGES.

APPELLANTS' MOTION TO EXTEND DISCOVERY SHOULD HAVE BEEN GRANTED PURSUANT TO RULE 4:24-1(C).