THEODORE SHANER v. NORMAN HOBBIE

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4533-04T24533-04T2

THEODORE SHANER and LINDA SHANER,

his wife, and LINDA SHANER, as

Guardian of KATHRYN C. SHANER,

an Infant,

Plaintiffs-Appellants,

v.

NORMAN HOBBIE, an Attorney at Law

of the State of New Jersey;

EDWARD BERTUCIO, an Attorney at Law

of the State of New Jersey;

GREGORY HOBBIE, an Attorney at Law

of the State of New Jersey;

CATHERINE HEACOX, an Attorney at Law

of the State of New Jersey,

Defendants-Respondents,

and

ALISON FAILA, an Attorney at Law of

the State of New Jersey and the Law

Firm of GIORDANO, HALLERAN & CISELA,

Defendants.

_______________________________________

 

Argued September 13, 2006 - Decided

Before Judges Stern, Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-5584-01.

Robert A. Franco argued the cause for appellants (Franco & Franco, attorneys; Mr. Franco, of counsel and on the brief).

Diana C. Manning argued the cause for respondents (Bressler, Amery & Ross, attorneys; Ms. Manning and Benjamin J. DiLorenzo, on the brief).

PER CURIAM

Plaintiffs Theodore and Linda Shaner, husband and wife and guardians of their daughter Kathryn Shaner, appeal an order issued by the Law Division granting defendants summary judgment in this legal malpractice case. We affirm.

The present lawsuit arises out of the former representation of the Shaners by attorneys with the law firm of defendant Giordano, Halloran and Ciesla in environmental litigation against the East Freehold Fire Department. In 1995, the Shaners were informed by the fire department that underground storage tanks on the department's property had contaminated the surrounding soil and may have infiltrated the potable water supply on the Shaners' neighboring residential property. The Shaners hired the Giordano firm to represent their interests, and those of their daughter, in seeking compensation from the department for dimunition in the value of their property, for the costs of medical monitoring and for associated personal anxiety.

The lawyer with the Giordano firm who principally handled the Shaners' file was defendant Edward Bertucio. During the course of his representation, Bertucio arranged several expert evaluations of the Shaners' property. The most favorable of the evaluations estimated at $42,000 the "stigma" loss of value in the property caused by the neighboring contamination.

In 1995, Bertucio filed a toxic tort suit against the fire department on behalf of the Shaners. About two years into that underlying case, the Shaners and Bertucio learned from a consultant that the Shaners had a leaking underground storage tank of their own in their backyard.

Bertucio alleges that Mrs. Shaner did not want to disclose the presence of the leaking tank to the fire department, and that she supposedly told him she would lie if she were asked about it. Mrs. Shaner denies ever saying that to Bertucio. In any event, the Shaners' underlying case settled shortly thereafter for $40,000, a $2,000 portion of which was earmarked for the Shaners' minor daughter.

In January 1998, Mrs. Shaner appeared as guardian ad litem with Bertucio before a Law Division judge at a "friendly" hearing pursuant to R. 4:44-1. She attested under oath that the settlement, as it related to the minor, was fair and reasonable. The very next day, the Shaners reported the leaking underground tank on their own property to the Department of Environmental Protection. No expert has ever opined that the leaking tank on the Shaners' lot did not leach into their well or water supply or that its discovery would not diminish the market value of their property.

The Shaners thereafter sued the Giordano law firm, Bertucio and other attorneys with the firm in 2001 for legal malpractice. The Shaners' theory, advanced through their malpractice expert's report, is that Bertucio allegedly violated R.P.C. 1.3 by not zealously pursuing their case against the fire department after the leaking tank on the Shaner property was discovered, and in supposedly foisting a hasty settlement on his clients.

After discovery closed in the malpractice case, the Law Division granted summary judgment to defendants. We affirm that result, substantially for the sound reasons expressed in Judge Alexander P. Waugh, Jr.'s oral opinion of March 21, 2005. There are simply no genuine issues of material fact in this record reflecting that Bertucio or any of his colleagues at the law firm deviated from professional standards of care in a manner that led to any demonstrable harm to the Shaners.

The transcript of the friendly proceeding reflects that the Shaners soberly considered their options in the environmental case once the leaking tank on their own premises was uncovered, and that, following that consideration, they elected to settle. Indeed, during the course of the proceeding, Mrs. Shaner specifically reaffirmed to the court that she understood "that this is a final settlement and [that she] cannot come back into court," and that she was "satisfied with the legal services given to [her] by [her] attorney."

We need not resolve the discrepancies of recollection of Mrs. Shaner and Bertucio as to whether she ever stated to him that she intended to lie. Even if Mrs. Shaner did not make such an alarming comment to her counsel, it is inescapable that the discovery of the leaking tank on the Shaners' own property was an unwelcome development, and one that was apt to depress the settlement value of their stigma claims against the fire department. Faced with these circumstances, Bertucio nonetheless managed to negotiate a recovery for the Shaners that amounted to about 95% of their expert's valuation, an estimate calculated before factoring in the presence of the Shaners' own leaking tank.

We are unpersuaded that the motion judge erred in failing to discern any actionable malpractice in this context. There is no competent proof that Bertucio's supposed lack of zeal upon learning about the Shaners' leaking tank harmed his clients in any way, shape or form. A plaintiff's burden to prove legal malpractice "is not satisfied by mere conjecture, surmise or suspicion." 2175 Lemoine Ave. v. Finco, Inc., 272 N.J. Super. 478, 488 (App. Div.), certif. denied, 137 N.J. 311 (1994).

Moreover, we agree with Judge Waugh that the Shaners are judicially estopped by the sworn representations at the friendly hearing that the settlement they agreed to accept was fair and reasonable. These representations were undoubtedly relied upon by all parties, counsel and the court. See Newell v. Hudson, 376 N.J. Super. 29, 30 (App. Div. 2005)(barring a matrimonial litigant from asserting a legal malpractice claim against her attorney after she had vouched for the fairness of her divorce settlement in open court and had thereafter changed her mind). As our Supreme Court has observed, a litigant may not "settle a case for less than it is [subsequently perceived to be] worth and then seek to recoup the difference in a malpractice action against the attorney." Puder v. Buechel, 183 N.J. 428, 443 (2005).

Affirmed.

 

These were the sole categories of damages recoverable from the department, as the Shaners' insurer paid for the remedial costs to clean up their property, and fortunately no one in the Shaner household has suffered any diagnosed medical complications from the department's leaking tanks.

Bertucio is the only defendant served in this malpractice case against whom the Shaners procured the requisite affidavit of merit under N.J.S.A. 2A:53A-29.

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A-4533-04T2

October 16, 2006