CYNTHIA SUMMERFIELD v. CURTIS J. ROMANOWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CYNTHIA SUMMERFIELD,

f/k/a CYNTHIA SUMMERFIELD ARELLANO,

Plaintiff-Appellant,

v.

CURTIS J. ROMANOWSKI and

JOHN NACHLINGER,

Defendants-Respondents.

____________________________________________

June 29, 2015

 

Argued May 11, 2015 Decided

Before Judges Guadagno, Leone, and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-587-11.

George C. Summerfield (Stadheim & Grear, Ltd.) of the Illinois bar, admitted pro hac vice, argued the cause for appellant (Peter A. Ouda and Mr. Summerfield, attorneys and on the brief).

Daniel R. Esposito argued the cause for respondents (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Esposito, of counsel and on the brief; John W. Kaveney, on the brief).

PER CURIAM

Plaintiff Cynthia Summerfield appeals the trial court's order for summary judgment dismissing her legal malpractice claim against defendant attorneys, Curtis Romanowski and John Nachlinger, who represented her in a matrimonial matter. Plaintiff claims that defendants committed malpractice in failing to seek pendente lite support and in proffering allegedly false evidence regarding the execution of her prenuptial agreement. Defendants maintain that they acted reasonably because pendente lite support was precluded by the prenuptial agreement and they relied on plaintiff's representations in proffering the contested evidence.

I.

Plaintiff's first marriage ended in divorce in 1996. She met her second husband, Felix Arellano (Felix),1 in 2000 when she was assistant general counsel at Pfizer, Inc. and he was a medical doctor employed by Pharmacia Corporation, which was subsequently acquired by Pfizer. Plaintiff and Felix lived together from 2000 until October 2003, when they decided to marry.

Prior to their marriage, plaintiff and Felix agreed to execute a prenuptial agreement. Felix's counsel drafted the agreement and plaintiff retained independent counsel to review it. Two weeks before the marriage, plaintiff received a draft of the agreement, and suggested revisions that were ultimately incorporated. The final version of the agreement contained the following provision

The parties specifically make the following provisions regarding alimony, maintenance or support of the other upon Termination of Marriage, as that term is defined in Paragraph 5.1 hereinabove, whether final or on a pendente lite basis. If an action is commenced by either party to effect a Termination of Marriage at any time, the parties agree that neither shall have any legal obligation to support the other or be required to pay any alimony or maintenance to the other. Notwithstanding the above, if either Felix or [plaintiff] has attained the age of fifty-five (55) and is unemployed or employed in the same profession in some other capacity making less than twenty-five (25%) percent of W-2 compensation as of January 1, 2004, (adjusted for inflation at the CPI rate for the New York/New Jersey Metropolitan area for a period of three (3) years at the time of the Termination of Marriage), either Felix or [plaintiff] may be required to provide alimony to the spouse if determined by the Court at such time.

The agreement also provided that, in the event the marriage was terminated, neither party would have any obligation to pay for the other's attorney's fees. Attached to the agreement were schedules of assets and liabilities of both plaintiff and Felix. On January 1, 2004, plaintiff and Felix married at a ski resort in Utah.

In 2006, plaintiff resigned her position at Pfizer to move to Spain with Felix so that he could start a business there. In August 2007, plaintiff discovered that Felix was having an affair and she moved back to the United States the following month.

On January 17, 2008, plaintiff retained defendants2 to file for divorce from Felix. Plaintiff reviewed a draft complaint and crossed out provisions that sought alimony and counsel fees. Defendants removed these claims and filed a complaint for divorce based on adultery and irreconcilable differences.

Felix filed an answer and counterclaim, stating that the parties entered into a prenuptial agreement on December 31, 2003. In plaintiff's answer to the counterclaim, she admitted the existence of the prenuptial agreement, but neither admitted nor denied its enforceability.

Romanowski and counsel for Felix participated in a telephonic case management conference on July 21, 2008.3 An order entered that day indicated that alimony, equitable distribution, counsel fees, and insurance were issues in dispute. The order required discovery and depositions solely as to the prenuptial agreement and stated a hearing on the enforceability of the agreement would be held in December 2008.

On September 2, 2008, the court entered a consent order permitting plaintiff and Felix to withdraw $50,000 from their frozen joint account.

Felix was deposed on October 31, 2008. On October 27, 2008, plaintiff sent an email to defendants regarding the deposition. She suggested that Felix had not made full disclosure of his properties and indicated that the prenuptial agreement was not properly executed because she signed the agreement after December 31, 2003, the date of execution indicated on the document.

Romanowski followed plaintiff's suggestion and, during his deposition of Felix, the following exchange took place

[Romanowski]: And the fact of the matter is that your wife, Cynthia A. Summerfield at the time, did not actually sign this agreement on December 31, 2003. Is that correct?

[Felix]: That's not my recollection.

[Romanowski]: What was your recollection?

[Felix]: My recollection is that these things were signed before we got married, that Gail signed it later.

[Romanowski]: Didn't you think that was a bit odd?

[Felix]: What?

[Romanowski]: That someone with your experience and level of education would think that somebody could actually witness your signature when they haven't ever witnessed your signature.

[Felix]: Well, I was told by your client that that was okay and that Gail knew both of us very well and that that wouldn't be a problem. Had I known that this would be a problem, I promise you that I wouldn't have signed it.

[Romanowski]: Now, as a proffer of my client's testimony, Cynthia is going to state that she did not sign this agreement on 12/31/2003 and that she left Utah with that signature line empty. What do you have to say about that?

[Felix]: I don't have anything to say.

On January 21, 2009, plaintiff sent defendants an email indicating her strong desire to settle the case and again mentioned that she did not sign the prenuptial agreement before the marriage.

On February 16, 2009, plaintiff sent an email to defendants asking them to prepare a motion for pendente lite support (PLS). She acknowledged that she had waived PLS in the "prenup," but complained that her expenses were greater than her income and she had been living off of her child support (from her first husband), her 401(k), and credit cards. She also asked that defendants request that Felix pay the support "personally," because that would be "[g]ood leverage for settlement."

On February 19, 2009, Nachlinger responded that he and Romanowski had discussed her request to file a PLS motion and advised that they needed "a full, documented due diligence job search . . . showing your job search every month since you lost your job, including resumes out, job search print outs, communication with recruiters, etc." Nachlinger explained that he thought the motion judge was "not going to swallow your inability to obtain a job as an attorney very easily. Therefore, for us to have any chance of succeeding on this motion, we need to attach as much documentation as possible showing how you have done everything in your power to obtain work as an attorney, or in an alternative related area." The same day, plaintiff sent a second request that defendants file a motion for PLS, stating, "I really need some relief." Nachlinger responded and again asked for "a detailed explanation of your work history, including why you left any jobs, during the marriage."

Apparently, plaintiff provided a spreadsheet to defendants prompting a response by Nachlinger on February 24, 2009, that he and Romanowski were "still not convinced it is a wise use of resources UNLESS we can show with extensive documentation that you have done everything in your power to get a job and have been unsuccessful. . . . [W]e actually need documentation backing up the spreadsheet you sent."

During his deposition and in response to discovery demands, Felix refused to produce certain financial records, claiming that they were not relevant to the enforcement of the prenuptial agreement. Plaintiff moved to compel discovery and, in support of that motion, submitted a certification dated March 11, 2009, stating that the agreement had been signed after the marriage.

On March 30, 2009, plaintiff emailed defendants complaining that the PLS motion had not been filed, stating, "I [am a bit] concerned about a motion for support which should have been done long ago and to which, despite my significant level of education and experience, I am entitled to."

On April 2, 2009, Nachlinger emailed plaintiff requesting that she review Felix's documentation. He also stated that they "need to move forward on the motion for summary judgment as well as a motion for support[.]"

Shortly thereafter, plaintiff terminated defendants and Peter Harris of Einhorn, Harris, Ascher, Barbarito & Frost, P.C. was substituted as counsel on April 16, 2009. On April 23, 2009, Harris wrote to Felix's counsel advising that plaintiff's March 11, 2009 certification had to be corrected to indicate that the prenuptial agreement was signed by both parties before the wedding took place.

Felix agreed to permit plaintiff to take an additional $70,000 from the frozen joint account and on May 3, 2010, plaintiff and Felix entered into a property settlement agreement (PSA). The PSA provided that the parties would divide their assets and mutually waive claims for support and attorneys' fees. On May 6, 2010, a final judgment of divorce was entered terminating plaintiff's marriage to Felix and incorporating the terms of the PSA.

On October 12, 2010, plaintiff filed the malpractice complaint. On January 6, 2012, the court granted defendants' motion to dismiss without prejudice for plaintiff's failure to answer discovery. After plaintiff responded to discovery demands, her motion to reinstate the action was granted and a discovery schedule was set. Plaintiff was ordered to serve expert reports by September 1, 2012, and the court warned that it was unlikely that further discovery extensions would be granted.

In spite of this admonition, the court granted four additional extensions of discovery to enable plaintiff to obtain expert reports. On June 25, 2013, the court denied plaintiff's final motion to further extend discovery and to "revise prior expert reports and serve new expert reports."

On September 25, 2013, plaintiff moved to amend her complaint to include an allegation that defendants committed willful and wanton misconduct by offering false evidence in the divorce action. Specifically, plaintiff sought to include an allegation that Romanowski had misrepresented her execution of the prenuptial agreement. The court denied the motion on October 11, 2013.

Following completion of discovery, defendants moved for summary judgment on September 27, 2013. The court heard argument on October 25, 2013, and entered an ordering granting the motion and dismissing plaintiff's complaint with prejudice on November 6, 2013.

On appeal, plaintiff raises the following points

i.

the trial court erred in granting the respondent's summary judgment on appellant's claim for malpractice.

a. the trial court erred in granting the respondent's summary judgment on appellant's malpractice claim for pendente lite support.

1. the prenuptial agreement as a purported bar to pendente lite support.

a. invalidating the prenuptial agreement was not a prerequisite for pendente lite support.

b. there was sufficient evidence of the invalidity of the prenuptial agreement to create an issue of fact warranting denial of summary judgment.

2. appellant's termination of respondents as a purported exculpatory basis for failing to seek pendente lite support.

a. termination of respondents is immaterial given their preexisting delay in seeking pendente lite support.

b. termination of respondents was immaterial in light of their having proffered false evidence during the underlying divorce proceeding.

3. the amount of pendente lite support to which appellant was entitled.

4. conclusion regarding pendente lite support.

b. the trial court erred in granting the respondents' summary judgment on appellant's malpractice claim for alimony.

1. the prenuptial agreement as a prerequisite to alimony.

2. appellant's termination of respondents as a purported exculpatory basis for failing to secure alimony.

3. the alimony factors

c. the trial court erred in granting the respondents' summary judgment on appellant's malpractice claim for distribution of marital property.

d. the trial court's reliance on puderdecision is misplaced.

e. conclusion regarding the malpractice claim.

ii.

the trial court erred in denying appellant leave to supplement her expert report.

iii.

the trial court erred in denying leave to appellant leave to supplement her [COMPLAINT].

II.

We begin with a review of the well-settled principles that inform our analysis. A ruling on summary judgment is reviewed de novo. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Summary judgment is proper if, after drawing all inferences in favor of the non-moving party, "no genuine issue as to any material fact" exists. R. 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." Ibid.

A legal malpractice action has three essential elements: "'(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff.'" Jerista v. Murray, 185 N.J. 175, 190-91 (2005) (quoting McGrogan v. Till, 167 N.J. 414, 425 (2001)).

The first element requires an attorney "to exercise on his client's behalf the knowledge, skill and ability ordinarily possessed and exercised by members of the legal profession similarly situated and to employ reasonable care and prudence in connection therewith." Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983). At a minimum, an attorney must take "any steps necessary" to properly handle a case, including carefully investigating the facts, formulating a legal strategy, filing appropriate papers, and communicating with the client. Ziegelheim v. Apollo, 128 N.J. 250, 260-61 (1992). The second element requires a breach of these duties. Additionally, a plaintiff alleging legal malpractice must file an expert affidavit stating that there is a reasonable probability that the attorney's actions fell outside of acceptable professional standards. N.J.S.A. 2A:53A-27. As to the third element, plaintiff must prove that she suffered damages as a proximate consequence of defendants' breach of duty. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 357 (2004).

In her original complaint, plaintiff alleged that, despite her repeated requests and instructions, defendants failed and refused to file an application for PLS. Plaintiff claimed damages because she "was required to compromise substantially from what she was legally entitled to in order to achieve a settlement in the divorce case."

The conventional way of proving a malpractice action is the "suit within a suit" approach, in which a plaintiff presents the evidence that would have been submitted at a trial had no malpractice occurred. Id. at 358. Under this approach, the plaintiff has the burden of proving by a preponderance of the evidence that she would have recovered a judgment in the action against defendants, the amount of that judgment, and the degree of collectability of such judgment. Ibid. (quoting Hoppe v. Ranzini, 158 N.J. Super. 158, 165 (App. Div. 1978)). A plaintiff's loss proximately resulting from the attorney's malpractice is deemed to be measured only by the amount of the judgment that could have been collected against the defendant. Hoppe, supra, 158 N.J. Super. at 165. Legal malpractice may also be established through any reasonable modification of the "suit within a suit" approach or through expert testimony. Garcia, supra, 179 N.J. at 346.

Here, plaintiff submitted an expert report from Ronald A. Abramson, who concluded that defendants' failure to file for pendente lite support and Romanowski's proffer of false statements amounted to a breach of defendants' professional duty of care.4 Abramson also found that defendants' actions resulted in "catastrophic financial losses" to plaintiff, due to "substantial diminution of the value of plaintiff's assets," a "severely compromised ability" to maintain her marital lifestyle during trial, an inability to "be made financially whole" or seek post-judgment alimony, incurrence of legal fees and expenses, and a weakened settlement position.

Because this appeal is from the motion judge's grant of summary judgment, we consider the facts in the light most favorable to plaintiff. R. 4:46-2(c); Guido v. Duane Morris LLP, 202 N.J. 79, 82 (2010).

When plaintiff first retained defendants, she reviewed a draft divorce complaint they prepared and crossed out claims originally included by defendants that sought alimony and counsel fees. During her deposition, plaintiff explained that she did this because she "was anxious to resolve this matter as quickly as possible" and was willing to waive the issue of support at the time the complaint was filed.

Plaintiff first raised financial concerns in a July 10, 2008 email to defendants upon learning that Felix intended to freeze their joint account. On September 3, 2008, a consent order was executed permitting plaintiff and Felix to each withdraw $50,000 from their joint account. Plaintiff also received $20,000 in counsel fees and another $50,000 during the discovery period.

The first specific request by plaintiff that defendants file a motion for PLS came in a February 16, 2009 email. Contrary to plaintiff's claim, defendants did not refuse to file a motion for PLS. Rather, they requested more documentation as to her job search "for us to have any chance of succeeding on this motion." When plaintiff supplied a spreadsheet that apparently lacked supporting documentation, defendants responded that "documentation backing up the spreadsheet was needed." There is no indication in the record before us that such documentation was ever provided. On April 2, 2009, defendants emailed plaintiff stating that "we need to move forward on the motion for summary judgment as well as the motion for support[.]" Defendants were terminated shortly thereafter. The record is devoid of any proof that plaintiff "repeatedly requested and instructed the defendants to file an application for pendente lite support," as alleged in her complaint.

Similarly, plaintiff's supplemental claim, not included in her original complaint, that Romanowski proffered "demonstrably false evidence regarding the execution of the prenuptial agreement" is unsupported by any record evidence and is contradicted by plaintiff's own conflicting sworn statements.

We initially note that plaintiff presents no authority to suggest that an after-the-fact notarization would invalidate a prenuptial agreement. As a general rule, these agreements are enforced absent a showing that they are unconscionable or the product of fraud or overreaching by a party. N.J.S.A. 37:2-38; Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Plaintiff, an attorney, reviewed a draft of the agreement with the advice of independent counsel and does not dispute that she signed it voluntarily.

More importantly, Romanowski's proffer made during Felix's deposition that plaintiff would testify that she did not sign the agreement on December 31, 2003, "and that she left Utah with the signature line empty," was based on plaintiff's clear and unequivocal representation in her email, and was subsequently confirmed in equally unambiguous communications.

The first unsolicited representation came in plaintiff's email of October 27, 2008 on the eve of Felix's deposition. Plaintiff was apparently attempting to provide fodder for defendants' questioning of Felix

Agreement was not properly executed. Felix wasn't even present when Gail[5] "witnessed" the agreement. I signed [the] agreement after December 31 in front of Gail.

The second email, sent by plaintiff to defendants on January 21, 2009, was consistent

I really need you guys to talk to [Felix's attorney]. Felix doesn't understand the precarious position he is in [vis- -vis] the pre-nup, lying under oath or some of the ways we could value assets etc.

I am so certain when [Felix's attorney] hears the facts that he will finally advise Felix as to his risk. I didn't sign the agreement before the marriage (because needed to review for fidelity clause and when it wasn't there I wanted to have to option to invalidate the pre-nup for failure of consideration), Gail will testify as [to] the signature as well. There is a lot of circumstantial evidence that supports my would-be testimony (e.g., on the originals of the pre-nup it appears that Gail and I signed in the same pen. But, it is also obvious that Felix and I didn't. There were 4 notaries within a mile of us and we had a car). Add in, lying under oath (Gail and I will testify that Felix wasn't there. Pfizer's records will also confirm[)].

[(Emphasis supplied).]

Plaintiff signed a certification on March 11, 2009, in support of her motion for counsel fees and to compel discovery

[Felix] continues to make allegations that we have never offered up an explanation why I am contesting the enforcement of the purported pre-nuptial agreement. Nothing could be further from the truth, as we have indicated on numerous occasions that it was both signed after the date of marriage and failed to list all assets/liabilities in existence on the date of the agreement.

In her March 30, 2009 email, sent just before she terminated defendants, plaintiff again confirmed that she did not sign the prenuptial agreement before the wedding

Given what has turned up in Felix's deposition/documents regarding non-disclosures, I want to distance myself from the pre-nup signed after the marriage argument. The law is too close and we have a clear statutory violation. The facts are murky, he said she said. And I don't know if you noticed, but Gail has executed a number [of] documents for me/Felix that would fall into the same category of him not being present. She even notarized a document that said that his sister who was in Spain appeared before her. Gail will be only an ok witness. It makes me look like I have unclean hands.

As I predicted, the strategy to date is resulting in Felix digging in his [heels]. From here on out, we need to always have settlement as part of our message.

[(Emphasis supplied).]

After she terminated defendants, substitute counsel Peter Harris notified counsel for Felix on April 23, 2009 that plaintiff's March 11, 2009 certification had to be "corrected." In a certification dated October 24, 2013, plaintiff stated, "I had indeed signed the prenuptial agreement before the marriage, and any representations by my former counsel to the contrary had been false."

Plaintiff's deposition testimony was consistent with this new version. On June 11, 2012, she testified that she and Felix signed the prenuptial agreement on December 31, 2003 in Utah before they were married the following day. Plaintiff further testified that, when she returned to New Jersey from Utah, Gail Kuzmiskas notarized both signatures on January 2, 2004.

In making the proffer at Felix's deposition, Romanowski was entitled to rely on the information provided to him by plaintiff in her October 27, 2008 email. The representation made by plaintiff in that email, that she signed the prenuptial agreement after the wedding, was confirmed in her January 21, 2009 email where she repeated that she did not sign the agreement before the marriage.

Whether the truth lies in plaintiff's first or second version is of no moment. Clearly, Romanowski's proffer was made in good faith and was based on information provided by his client. We agree with the motion judge that "[i]t cannot seriously be argued that an attorney could be found negligent for not disregarding [his] client's statements when those statements suggested a possible legal course[] of action relevant to the matter."

We find the remainder of plaintiff's arguments lack sufficient merit to warrant any further discussion in our opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 As plaintiff used the surname Arellano during the marriage, we refer to the husband as Felix to avoid confusion.

2 The retainer was between plaintiff and Romanowski Law Offices and indicated that Romanowski would have primary responsibility for plaintiff's representation.

3 No transcript of the conference has been provided.

4 During his deposition, Abramson agreed that because no application had been filed to challenge the prenuptial agreement, it would be speculation as to how the judge would have decided such a motion, and he did not "have an opinion as to whether or not a court would enforce or vitiate the premarital agreement."

5 Gail Kuzmiskas is a paralegal who worked with plaintiff at Pfizer and who notarized the prenuptial agreement.