VICTOR C. OTTILIO v. DAVID J. GORBERG & ASSOCIATES, P.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VICTOR C. OTTILIO,

Plaintiff-Appellant,

v.

DAVID J. GORBERG &

ASSOCIATES, P.C. and

DAVID J. GORBERG, ESQ.,

Defendants-Respondents.

________________________________________________________________

July 31, 2014

Submitted April 8, 2014 Decided

Before Judges Espinosa and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-740-11.

Buglione, Hutton & DeYoe, LLC, attorneys for appellant (Albert C. Buglione, on the brief).

Swartz Campbell, LLC, attorneys for respondents (Jeffrey B. McCarron and Nicole L. Graham, on the brief).

PER CURIAM

Plaintiff Victor C. Ottilio appeals from an order that granted summary judgment to defendants, dismissing his complaint. We affirm.

Plaintiff retained defendants to represent him in an action against Mercedes Benz, USA, LLC (Mercedes Benz), regarding his purchase of a 2004 Mercedes Benz SL-55 AMG. In the underlying action, plaintiff alleged breach of warranty and also asserted a claim under New Jersey's Lemon Law, N.J.S.A. 56:12-29 to -49. The matter proceeded to non-binding arbitration. In support of plaintiff's claim, defendants presented an expert report prepared by J. Kenneth Belli, an expert in automotive evaluation and warranty servicing. Belli reviewed maintenance and repair records regarding repeated problems with the vehicle and opined that the vehicle, which plaintiff retained, suffered a diminution in value due to defects in the amount of $19,193.30. On April 6, 2009, the arbitrator found in favor of plaintiff and against Mercedes Benz in the amount of $18,063.44.

Although the arbitration award was only $1,129.86 less than the diminution in value estimated by Belli, plaintiff was not satisfied with the arbitration award and advised defendants to reject the award and file for a trial de novo. A timely request was not made and defendants do not dispute that the failure to file a timely request constituted a breach of their duty to plaintiff. Defendants filed a motion to appeal from the award nunc pro tunc, which was denied. The litigation ended when a motion filed by Mercedes Benz to confirm the arbitration award was granted.

Plaintiff filed this action in January 2011. In May 2012, plaintiff asked for an extension of the discovery end date (DED) from June 1, 2012 to August 31, 2012. The trial court granted an extension, but only to July 31, 2012. On July 6, 2012, plaintiff sought a second extension of the DED. His request was granted and the DED was extended to September 29, 2012. Trial was scheduled for October 15, 2012.

At this point in the proceedings, despite the DED extensions and the scheduled trial date, plaintiff did not have an expert to support his legal malpractice claim. At oral argument of defendants' summary judgment motion in September 2012, the trial court observed that plaintiff needed an expert to support his claim and advised that the court would consider another extension of the DED to permit plaintiff to retain experts. The trial court denied defendants' motion for summary judgment without prejudice by order dated September 28, 2012. Plaintiff requested and was granted a third extension of the DED. However, the court also ordered plaintiff to serve expert reports by December 1, 2012. Trial was rescheduled to March 11, 2013.

Plaintiff did not serve any expert reports by the December deadline. In January 2013, plaintiff provided defendants with an expert report from Andrew R. Wolf, Esq., in which Wolf opined that plaintiff had a viable Lemon Law claim. However, Wolf offered no opinion as to the value of that claim and, more particularly, whether the value of the claim exceeded the arbitration award.

At oral argument on defendants' second motion for summary judgment on January 11, 2013, the trial judge stated he had received Wolf's expert report, which had been faxed to him three days earlier. He subsequently stated that the opinions proffered by both Wolf and a report by Power and Associates submitted on behalf of defendants were not "proper expert reports" because, rather than provide opinions as to the standard of care or breach, the reports were opinions of law as to whether there was a prima facie case under the Lemon Law.

Upon inquiry from the court, plaintiff's counsel stated that if the summary judgment motion was denied, plaintiff would present Belli as an expert in the malpractice action. Belli had not been identified in discovery as an expert plaintiff intended to call. Plaintiff's counsel asserted that this was unnecessary because he believed plaintiff had responded in discovery that he intended to rely "upon the entire body of discovery from the underlying file, including but not limited to, all fact witnesses and experts . . . ." Plaintiff's counsel stated further that plaintiff intended to subpoena Belli to testify as a fact witness about the bases for his report. Drawing all reasonable inferences in plaintiff's favor, the trial judge declined to dismiss the legal malpractice claim premised on the failure to file a timely request for a trial de novo and dismissed the remaining claims in plaintiff's complaint by order dated January 11, 2013. Because it was unclear as to whether plaintiff had complied with discovery rules, the trial judge said he would deny the motion to dismiss the malpractice claim without prejudice and invited the parties to file another motion.

Thereafter, Belli prepared an affidavit in which he stated he had not been retained as an expert by plaintiff; that neither plaintiff nor his attorney had asked him to serve as an expert; and that if asked to serve as an expert for plaintiff, he would decline.

Defendants filed a third motion for summary judgment. Citing Rule 4:17-7, plaintiff filed a cross-motion on February 12, 2013, to re-open discovery for sixty days and amend discovery responses to introduce a new expert report, that of George H. Meinschein, P.E. Meinschein opined that plaintiff had a valid Lemon Law claim, but did not present any opinion as to the value of the claim or whether it exceeded the arbitration award.

Following oral argument on the motion and cross-motion, the trial judge denied plaintiff's motion and granted defendants' motion, dismissing the complaint with prejudice.

In his appeal from the orders dated January 11, 2013, and March 1, 2013, plaintiff argues that summary judgment was improperly granted as there were material issues of fact; that the trial judge should not have stricken the expert report of his legal malpractice expert, Wolf; and that the trial court's rulings are contrary to established case law. After reviewing the record in light of the applicable law, we are satisfied that plaintiff's arguments lack merit.

In order to survive summary judgment, plaintiff had to show that the claims he asserted were viable. As to the legal malpractice claim, he was required to show that competent, credible evidence existed to support each of the elements of that negligence action, i.e., "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 v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996) (citing Albright v. Burns, 206 N.J. Super. 625, 632 (App. Div. 1986)). In light of defendants' concession that a breach occurred, the critical issue here was whether plaintiff suffered actual damages, that is, whether the value of his Lemon Law claim exceeded the amount he received in arbitration.

As we have noted, Wolf's report did not provide any basis for the calculation of cognizable damages. It was limited to an opinion as to whether the evidence presented a prima facie case under the Lemon Law. The trial judge correctly ruled that this was not a proper area for expert opinion. Questions of law lie within the exclusive province of the court and are not appropriate subjects of expert testimony. See N.J.R.E. 702; Boddy v. Cigna Prop. & Cas. Cos., 334 N.J. Super. 649, 659 (App. Div. 2000) (expert witnesses may not render opinions on issues of law).

Plaintiff contends that the trial court struck Wolf's report sua sponte. However, no order has been produced that bars Wolf's testimony. Rather, the trial judge assessed Wolf's report as having no value within the context of weighing the evidence that might preclude summary judgment. His observation as to its value was entirely correct.

In arguing that material facts existed to preclude summary judgment, plaintiff has identified no genuine issue of fact as defined by Rule 4:46-2(c):

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.

Instead, he alludes to unidentified material facts that "hinge on" whether defendants' conduct constituted "legal malpractice per se." As conceded by defendants, there was a breach here; that does not negate the need to prove the remaining elements of a legal malpractice claim.

Specifically, plaintiff had to prove that he suffered actual damages, which are "real and substantial as opposed to speculative." Grunwald v. Bronkesh, 131 N.J. 483, 495 (1993). "An attorney is only responsible for a client's loss if that loss is proximately caused by the attorney's legal malpractice." 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super.478, 487 (App. Div.), certif. denied, 137 N.J.311 (1994). Therefore, the client bears the burden of showing, by a preponderance of the competent, credible evidence, "what injuries were suffered as a proximate consequence of the attorney's breach of duty." Id.at 488. Ordinarily, the measure of damages is what result the client would have obtained in the absence of attorney negligence. Ibid.; see alsoGarcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J.343, 358 (2004); Froom v. Perel, 377 N.J. Super.298, 315 (App. Div.), certif. denied, 185 N.J.267 (2005). Thus, plaintiff was required to demonstrate that he "would have won materially more" at a trial de novo. Lerner v. Laufer, 359 N.J. Super. 201, 221 (App. Div.), certif. denied, 177 N.J. 223 (2003). He failed to do so.

Finally, we turn to plaintiff's contention that the trial judge erred in denying him yet another discovery extension and allow him to submit a new expert report. Plaintiff was granted three extensions of the DED and, despite an order directing him to produce an expert report by December 1, 2012, failed to do so. He was told by the court in September 2012 that he needed an expert. There is no contention that he lacked access to the underlying file, which included Belli's report. Although the motion was supported by a certification that the amendment sought was not reasonably available or discoverable with the exercise of due diligence pursuant to Rule 4:17-7, the record simply does not bear that out.

At the time plaintiff made this application, a trial date had been set and re-scheduled twice to accommodate his requests for extensions of the DED. His request was therefore governed by Rule 4:24-1(c), which states, "No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." (Emphasis added). See Bender v. Adelson, 187 N.J. 411, 427 (2006). Since no exceptional circumstances were shown here, plaintiff's motion was properly denied.

To the extent that any arguments raised by plaintiff have not been explicitly addressed in this opinion, it is because we are satisfied that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.