THE MAKE-UP BAR v. COOPER, LEVENSON, APRIL, NIEDELMAN, & WAGENHEIM, P.A., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3842-04T23842-04T2

THE MAKE-UP BAR,

Plaintiff-Appellant,

v.

COOPER, LEVENSON, APRIL,

NIEDELMAN, & WAGENHEIM, P.A., and

ROBERT E. SALAD.

Defendants-Respondents.

_________________________________________________

 

Submitted November 15, 2005 - Decided February 22, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

L-867-04.

Shain, Schaffer & Rafanello attorneys

for appellant (Peter A. Ouda, on the

brief).

Giordano, Halleran & Ciesla attorneys

for respondent (Michael J. Canning of

counsel and on the brief with Catherine

J. Bick).

PER CURIAM

Plaintiff Make-up Bar, a hair salon owned by Lisa Severino, appeals from an order of summary judgment entered against it on its complaint for legal malpractice against the law firm of Cooper, Levenson, April, Niedelman & Wagenheim and Robert E. Salad, an attorney at that firm. Plaintiff claims that the order was entered prematurely and that material issues of fact exist that precluded summary judgment. We agree and reverse.

Severino, a hairdresser, claims that she retained attorney Salad to draft a "no-hire" agreement for execution by Vincent Scerati, Jr., a hairdresser whom she had agreed to employ for a short period until his own salon, Blink Spa, was opened. Instead, she claims, Salad drafted a "non-solicitation" agreement, which proved effectively unenforceable when, in an injunctive action filed by The Make-up Bar against Scerati in the Chancery Division after four of The Make-up Bar's employees had found employment at Scerati's salon, each certified that he or she had not been solicited by Scerati. Scerati corroborated the employees' position in his own certification, and he stated additionally that he would not have signed a no-hire agreement if it had been presented to him. The action filed against Scerati was dismissed without prejudice with Severino's consent. The present complaint for legal malpractice, filed on February 13, 2004, followed.

Defendants filed their answers in or around April 1, 2004. Eight and one-half months later, on January 18, 2005, prior to any requests for discovery on Severino's behalf except for the production of the firm's file, which occurred, defendants moved for summary judgment.

For purposes of their argument only, defendants conceded that they had failed to prepare the agreement that Severino had requested. They argued nonetheless that the firm and its attorneys could not be held liable for failing to prepare a no-hire agreement, since New Jersey's courts, if faced with the issue, would follow the precedent of other states in finding that such an agreement between a present and prospective employer that limited the employment opportunities of third parties was unenforceable as a matter of public policy. The firm's failure to prepare a non-enforceable agreement, defendants then argued, could not as a matter of law constitute a proximate cause of harm to plaintiff. Further, defendants claimed that no proximate cause could exist between their failure to draft the requested agreement and damage to plaintiff, because Scerati had presented an "uncontradicted" certification that he would not have signed anything broader than the non-solicitation agreement that was presented to him.

As evidential support for their summary judgment motion, defendants relied upon a certification by Scerati, to which was attached the non-solicitation agreement drafted by Salad and the certification that Scerati had filed in the injunctive action by The Make-up Bar against him. In his new certification, Scerati reaffirmed that he had not solicited any employee of The Make-Up Bar, and that each had approached the President of his salon, Blink Spa, expressing dissatisfaction with the working conditions at The Make-Up Bar and seeing employment at Blink. Scerati certified further that Severino was fully aware of his intention to open the Blink Spa, the non-solicitation agreement had been drafted upon his recommendation, and he would never "have agreed to signing a broader restriction which would have prevented [him] from hiring any former employee of The Make-Up Bar, who on their own volition, sought employment from Blink Spa." Severino reiterated that he had never solicited and would never solicit an employee of The Make-Up Bar, and that he regarded such conduct as unprofessional.

The agreement drafted by Salad, dated January 15, 2002, and attached to Scerati's certification, was clearly captioned "Non-Solicitation Agreement." It contained Scerati's agreement that he would not "solicit either directly or indirectly any present employee or any employee who is hired by [The Make-Up Bar] during the [agreement's two-year] Term with the intention of having such employee leave the employ of [The Make-Up Bar]."

In opposition to defendants' motion, Severino offered her own certification, in which she detailed the business relationship between herself and Scerati; stated that she had discussed with Scerati the issue of preparation of an agreement "to prevent him from hiring my employees after his departure," and he had agreed to sign it; and asserted that she had retained Salad and his firm to prepare the agreement, which he had agreed without qualification to do. She was nonetheless presented with a "Non-Solicitation Agreement," and upon inquiry, she was assured that it would provide her the protection that she sought.

Severino certified that when Scerati left The Make-Up Bar in or around September 28, 2002 and Severino's employees followed, Severino sought advice from the Cooper firm, which assigned Steven Scherzer, a litigator, to prepare a verified complaint seeking temporary and permanent injunctive relief. Severino certified that when Scherzer was confronted in court with the judge's determination that the agreement was not a "no-hire" one, and recognized that a temporary restraining order would not be entered, Scherzer admitted to Severino that the agreement had not been properly drafted, and stated that Severino would not be charged for the legal work involved in seeking an injunction unless it were actually obtained. Following the completion of limited discovery, taken with court authorization, which failed to disclose any solicitation of The Make-Up Bar's employees by Scerati, Severino certified that she proposed to Scherzer that a dismissal of the complaint without prejudice be taken, so that if in the future, new evidence were disclosed, the action could be revived. Scherzer agreed, and the action was dismissed. Severino additionally certified that she had never been informed by Salad or anyone else at the firm that a "no hiring" agreement could be unenforceable, and that if such an opinion had been provided, she would not have employed Scerati and permitted her other employees to be exposed to him.

Following oral argument, during which defendants' counsel made the arguments that we have described, and Severino's counsel claimed that issues of fact precluded the requested relief, the motion judge granted summary judgment, finding a lack of causal relationship between defendants' conduct and any damage sustained by Severino. Relying on Scerati's certification, the judge found that if defendants had prepared the no-hire agreement for which Severino allegedly retained them, Scerati would have refused to sign it, and thus the failure to prepare the correct agreement could not be proximately related to Severino's loss. Further, the judge found that there was no evidence of a breach of the non-solicitation agreement that defendants had actually prepared. The judge did not rule on the argument that, because a no-hire agreement would likely have been non-enforceable, the failure to provide such an agreement could not be causally related to Severino's damages.

When considering a motion for summary judgment filed pursuant to R. 4:46-2, a court is required to view the facts in a light most favorable to the party opposing the motion, and if a genuine issue of material fact exists, the motion must be denied. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Here, defendants removed from consideration the issue of whether the correct agreement had been prepared by conceding for purposes of their argument that it had not. However, they argued that the preparation of the wrong agreement could not have been a proximate cause of Severino's damages because the proper agreement would not have been enforceable and because Scerati would not have signed it. However, in opposition to defendants' motion, Severino offered her certification that (1) she was never informed of the possible unenforceability of a no-hire agreement; (2) if she had been so informed she would not have hired Scerati; (3) contrary to Scerati's certification, he had agreed to sign the no-hire agreement that Severino proposed; and (4) if he had not, he would not have been employed.

We view Severino's certification as raising significant issues of fact as to what information and assurances were supplied to her by defendants and by Scerati and what Severino's conduct would have been if informed of the facts as defendants and Scerati claim those facts to have existed. Accordingly we find that summary judgment was improperly granted, and we reverse. In doing so, we recognize that Severino may still face considerable evidential difficulty in recovering damages in this action. Nonetheless, we find no legal grounds for foreclosing to her the opportunity to prove her case.

 
Reversed and remanded for trial.

The firm was incorrectly designated in plaintiff's complaint as Cooper, Perskie, April, Niedelman, Wagenheim & Levenson.

(continued)

(continued)

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A-3842-04T2

February 22, 2006