MIGUEL HERRERA v. JEFFREY HARK, ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1862-05T21862-05T2

MIGUEL HERRERA,

Plaintiff-Appellant,

v.

JEFFREY HARK, ESQUIRE,

and HARK & HARK, P.C., A

New Jersey Professional

Corporation,

Defendants-Respondents,

and

PESKIE, WALLACH, FENDT & HOLTZ, P.C.

A New Jersey Professional

Corporation,

Defendant.

______________________________________________

 

Submitted: December 13, 2006 - Decided May 8, 2007

Before Judges A. A. Rodr guez and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, CAM-L-4574-04.

Van Syoc Chartered, attorneys for appellant (Sebastian B. Ionno, on the brief).

Sterns & Weinroth, attorneys for respondents (Marshall D. Bilder, on the brief).

PER CURIAM

Plaintiff, Miguel Herrera, sued his former attorneys, Jeffrey Hark, Esquire and Hark & Hark, P.C. (collectively "Hark"), for legal malpractice and fraud. Herrera alleged that the malpractice and fraud were committed in connection with Hark's handling of his automobile accident negligence claim. Herrera appeals from the March 18, 2005 summary judgment granting summary judgment and dismissing his claim. We affirm.

Herrera sought damages for lack of sleep, anxiety, headaches, humiliation, emotional distress, depression, and loss of enjoyment of life, along with compensatory and punitive damages, nominal damages, counsel fees, and litigation costs.

These are the salient facts. On or about March 1, 2002, Herrera was the operator of a motor vehicle involved in a collision with a vehicle owned and operated by Vernon Roth, the grandfather of Jeffrey Hark's wife. Herrera was injured and hospitalized. During Herrera's hospitalization, and without his authorization, Hark obtained access to Herrera's hospital room. Despite the fact that Herrera was in severe pain and under the influence of pain medication, Hark induced Herrera to sign a contingency fee agreement. Hark disclosed neither his conflict of interest nor that his conduct in soliciting to be retained under these circumstances was in violation of the Rules of Professional Conduct. RPC 7.3(b)(1); see In re Pajerowski, 156 N.J. 5, 515 (1998) (finding a violation to send runner to accident victims hospital rooms shortly after accident).

While Hark represented Herrera on the negligence claim, he arranged for Christopher Marrone, Esquire, a tenant in his building, to handle Herrera's municipal court matter arising out of the same accident. According to Herrera's certification, Hark also arranged for Joshua Marks, Esquire, also a tenant in his building, to appear in that municipal court matter for Roth. Hence, Hark provided attorneys for both sides of the municipal court matter.

With regard to the negligence action, Hark advised Herrera that Roth had only a $100,000 insurance policy. This was true. However, Hark also told Herrera that he could not recover more than that. This statement was made in spite of Hark's knowledge that Roth owned substantial assets.

Herrera eventually discharged Hark and retained defendants, Perskie, Wallach, Fendt & Holtz, P.C (the Perskie firm). Once represented by the Perskie firm, Herrera settled the case for $95,000. Later, Herrera learned of Hark's relationship to Roth.

Hark moved to hold in escrow, the settlement proceeds, including Herrera's share, pending further order from the court. Herrera retained independent counsel to represent his interests in the fee dispute between Hark and the Perskie firm. This fee dispute concluded with a judgment permitting the Perskie firm to disburse to Herrera his share of the settlement proceeds.

Herrera filed the present suit against Hark. Following a period of discovery, but before Hark was deposed, Hark moved for summary judgment. The judge granted Hark's motion for summary judgment. The judge found that Herrera had not sustained any damages as a result of Hark's conduct. Herrera moved for reconsideration. The judge denied reconsideration. Herrera appeals from the grant of summary judgment dismissing his complaint and from the denial of his motion for reconsideration.

On appeal, Herrera contends that the judge erred by: (1) granting Hark's motion for summary judgment; (2) concluding that Herrera did not have a viable legal malpractice cause of action; (3) dismissing Herrera's fraud cause of action as that claim was not briefed nor addressed in Perskie firm's cross-motion for summary judgment; and (4) granting Hark's motion for summary judgment before Herrera had the opportunity to depose defendant Hark.

We are not persuaded by Herrera's arguments. Viewing Herrera's proofs in the light most favorable to him, as we must, we conclude that while he established a prima facie case of Hark's deviation from accepted legal standards; Herrera did not, however, make a showing of any damages.

It is well-settled that a legal malpractice claim is a negligence action brought against an attorney. Kranz v. Tiger, 390 N.J. Super. 135, 147 (App. Div. 2007); Sommers v. McKinney, 287 N.J. Super. 1, 9 (App. Div. 1996). In order to establish legal malpractice, the plaintiff must demonstrate: 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. Jerista v. Murray, 185 N.J. 175, 190-191 (2005); Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996). The law imposes upon the attorney a standard of care to ensure adequate legal needs of the client. Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983); Lovett v. Estate of Lovett, 250 N.J. Super. 79, 88 (Ch. Div. 1991). The claim is based on alleged negligence in the practice of law because the attorney did not comply with the requisite standard of care. McGrogan v. Till, 167 N.J. 414, 425 (2001); Carney v. Finn, 145 N.J. Super. 234, 236 (App. Div. 1976).

It is part of the claimant's burden to show that the attorney's negligence proximately caused damages. Davin, L.L.C. v. Daham, 329 N.J. Super. 54, 72 (App. Div. 2000); Lamb, supra, 188 N.J. Super. at 12. That is to say, the negligence of the lawyer must have been a substantial factor in bringing about the loss and in addition some harm must have been foreseeable. Conklin, supra, 145 N.J. at 418-22.

Usually, a legal malpractice trial follows the "trial within a trial" format because the claimant has to show what result would have been obtained, but for the attorney's negligence. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358, petition denied, 182 N.J. 151 (2004). At such a trial, "plaintiff has the burden of proving by a preponderance of the evidence that (1) he would have recovered a judgment in the action against the main defendant, (2) the amount of that judgment, and (3) the degree of collectability of such judgment." Garcia, supra, 179 N.J. at 358 (quoting Hoppe v. Ranzini, 158 N.J. Super. 158, 165 (App. Div. 1978)). The plaintiff's damages are the difference between the result sought and the actual result. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001); see Gautam v. De Luca, 215 N.J. Super. 388, 397, certif. denied, 109 N.J. 39 (1987) ("The measure of damages is ordinarily the amount that the client would have received but for his attorney's negligence.").

Here, Herrera has not shown how he would have obtained a better result than the $95,000 settlement, even if Hark had disclosed his conflict of interest. In short, no showing of damages has been made.

We are still concerned by the conduct alleged here; however, disciplinary code violations are not designed to establish standards for civil liability, but rather to provide standards of professional conduct for which lawyers are to be disciplined. Baxt v. Liloia, 155 N.J. 190, 200 (1998). Accordingly, a copy of this opinion will be sent to the Office of Attorney Ethics, for its review and further action if appropriate.

 
Affirmed.

Herrera also sued the Perskie firm. However, that claim was subsequently dismissed.

R. 4:46-2; Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

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A-1862-05T2

May 8, 2007