VIRGINIA McDONALD v. BETTINA MUNSON, ESQ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VIRGINIA McDONALD,

Plaintiff-Appellant,

v.

BETTINA MUNSON, ESQ., AND

LOMURRO, DAVISON, EASTMAN,

& MUNOZ, P.A.,

Defendants-Respondents.

June 5, 2014

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0856-09.

Peter A. Ouda, attorney for appellant.

Lomurro, Davison, Eastman & Munoz, P.A, attorneys for respondents (James M. McGovern, Jr., and Nichole E. DeFazio, on the brief).

PER CURIAM

Plaintiff Virginia McDonald appeals from the summary judgment dismissal of her legal malpractice complaint against her former attorney, defendant Bettina Munson, and her law firm, Lomurro, Davison, Eastman and Munoz, P.A. On defendants' motion, the Law Division judge concluded plaintiff's expert rendered a net opinion when analyzing plaintiff's claims of negligence related to her divorce. On appeal, plaintiff challenges the court's determination as error. We disagree and affirm.

I.

These facts are taken from the motion record, viewed in a light most favorable to plaintiff. Estate of Hanges v. Metro Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). George Mazauskas and plaintiff married in August 2000. Three years later, plaintiff retained Munson to represent her in divorce proceedings. In August 2003, Munson filed a divorce complaint and drafted a property settlement agreement (PSA), which both parties signed. The PSA did not contain a reconciliation clause. A few months after the parties signed the PSA, plaintiff's father died. Soon thereafter, the parties reconciled and plaintiff dismissed her divorce complaint.

Almost four years later, plaintiff reinitiated divorce proceedings. Because the PSA was unenforceable, the parties began negotiating new settlement terms. Initially, Mazauskas requested plaintiff pay him $150,000, insisting "[a]nything less than this amount would be an insult." On December 18, 2007, plaintiff emailed Munson, informing her that the day before, "I offered him $20,000 [to settle] and he said that he would settle for $40,000. I am not giving him $40,000. Let's continue forward on this matter." At that time, Mazauskas indicated he had retained an attorney. The record suggests Munson supported plaintiff's decision to reject the $40,000 settlement demand.

On January 12, 2009, the parties appeared before an Early Settlement Panel, which recommended plaintiff pay Mazauskas $250,000 in satisfaction of all claims, including alimony and equitable distribution. Thereafter, plaintiff and Munson exchanged numerous emails attempting to resolve the matter.

On January 23, 2009, plaintiff expressed to Munson her dissatisfaction with her services, stating:

I spoke with [Mazauskas] directly yesterday and he is willing to take $150,000 over 3 years. For that $150,000 he will leave my pension alone and not ask for alimony. That would be his total payout to settle this divorce.

Once again, I come to you for your expert advice. We could have settled this in 2007 for $40,000. Then in August, 2008, we could have settled this for $100,000. All along, I have listened to your advice.

On February 16, 2009, plaintiff terminated Munson's services, asserting:

I have given this much thought. I can no longer have you represent me. You have ill advised me throughout this long and arduous process. I have no faith in any professional advice you offer. I will be hiring another attorney tomorrow who will advocate for me and my interests. He will be in touch with you.

Ultimately, plaintiff reached a settlement with Mazauskas, which included paying him $150,000. On February 18, 2009, two days after firing Munson, plaintiff filed a complaint against defendants alleging legal malpractice. Plaintiff's complaint alleged defendants negligently represented her in the 2003 proceedings by drafting a PSA which failed to include plaintiff's interest in a piece of real estate and failed to state the agreement would survive reconciliation.

Two years later, plaintiff provided a seven-page expert report from Arthur N. Chagaris, Esq., who opined Munson was negligent for failing; to include a clause in the 2003 PSA so that it survived reconciliation; advising plaintiff not to settle for $40,000; and failing to protect her business's real property from equitable distribution. Chagaris recognized that Ziegelheim v. Apollo, 128 N.J. 250 (1992) provided the general duties owed by an attorney to a client, including the obligation to provide a client "reasonable advice." Id. at 261. Without citing any authority or other reference, Chagaris expounded on an attorney's duty to a client in settlement, stating:

It is a very basic principle that courts encourage settlements. Litigants rely heavily on the professional advice of counsel when they decide whether to accept or reject offers of settlement. Courts have insisted that lawyers of our state advise clients with respect to settlement with the same skill, knowledge and diligence with which they pursue other legal tasks. Attorneys are supposed to know the likelihood of success for types of cases they handle and are supposed to know the range of possible awards in those cases.

Because Munson knew the parties' situation, including the duration of the marriage, their employment, there were no children, plaintiff had a pension, owned a business, and was anxious to finalize the divorce, Chagaris stated Munson's advice to reject Mazauskas's offer to settle for $40,000 constituted malpractice. Chagaris also concluded Munson was negligent in drafting the PSA. As to the business property, he opined Munson's failure to include it as an asset not subject to equitable distribution in the PSA deviated from accepted standards of legal representation because she did not conduct a careful investigation. Regarding the reconciliation clause, he claimed Munson committed legal malpractice by not including a clause stating the PSA survives reconciliation.

Chagaris further opined because Munson counseled against settling for $40,000, defendants were liable for $110,000 in damages, representing the amount paid in excess of $40,000. An additional damage claim included legal fees incurred as a result of the malpractice action.

At the conclusion of discovery, defendants moved for summary judgment, arguing Chagaris's report represents a net opinion and the record otherwise lacks evidence defendants deviated from accepted standards of care. Following oral argument, the motion judge carefully reviewed the motion record and Chagaris's report and found his opinions inadmissible as constituting a net opinion. In reaching this conclusion, the judge stated, "Mr. Chagaris neglect[ed] to provide case law, a treatise, court rules or anything similar to explain to a jury how Ms. Munson's conduct was negligent. His opinion does not provide any applicable accepted standard of conduct for matrimonial attorneys in settlement proceedings."

The judge concluded Chagaris's report was a "bare conclusion" and inadmissible net opinion because

Mr. Chagaris fail[ed] to identify the facts and data upon which his opinion is founded. He fail[ed] to provide any analysis of the relevant statutory and common law. He fail[ed] to offer evidence establishing the generally accepted professional standard and to adequately explain the methodology employed in ascertaining a breach of any duty or a calculation of any damages. He also fail[ed] to analyze the causal link between Ms. Munson's alleged negligence and the damages Ms. McDonald claim[ed] to have suffered.

As a result, the judge granted defendants' motion for summary judgment. This appeal followed, with plaintiff principally arguing the motion judge erred in excluding Chagaris's proffered testimony as a net opinion. We disagree.

II.

In considering plaintiff's appeal, we acknowledge certain fundamental principles applicable to summary judgment motions. In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the motion court. See Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). When reviewing such determinations on appeal, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

To "establish legal malpractice, a plaintiff must show '(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation.'" Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 14 (App. Div.) (quoting Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996)), certif. denied, 188 N.J. 489 (2006). Because the duties owed by a lawyer to his or her client are "not known by the average juror, a plaintiff will usually have to present expert testimony defining the duty and explaining the breach[,]" ibid., as well as its causal connection to the plaintiff's damages. Vort v. Hollander, 257 N.J. Super. 56, 61 (App. Div.), certif. denied, 130 N.J. 599 (1992). And to be admissible in evidence, "the expert's opinion must be based on standards accepted by the legal community and not merely on the expert's personal opinion." Stoeckel, supra, 387 N.J. Super. at 14.

We apply a "deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). "[A] court must ensure that the proffered expert does not offer a mere net opinion." Id. at 372. A net opinion is "an expert's bare opinion that has no support in factual evidence or similar data . . . ." Ibid.

Expert witness opinion not reasonably supported by the factual record and an explanatory analysis may be excluded as net opinion. Creanga v. Jardal, 185 N.J. 345, 360 (2005). In general, an expert should provide the "whys and wherefores" supporting his or her analysis. Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002). As we have explained, "'[e]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.'" Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.) (alteration in original) (quoting Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 146 N.J. 569 (1996).

"[I]f an expert cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is 'personal,' it fails because it is a mere net opinion." Pomerantz, supra, 207 N.J. at 373. Indeed, we have stressed that "opinion testimony 'must relate to generally accepted . . . standards, not merely to standards personal to the witness.'" Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999) (quoting Fernandez v. Baruch, 52 N.J. 127, 131 (1968)); see also Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001) (noting in Taylor we were "concerned by . . . 'the total absence in [plaintiff's expert's] testimony of reference to any text book, treatise, standard, custom or recognized practice, other than his personal view.'" (quoting Taylor, supra, 319 N.J. Super. at 182) (alteration in original)). "A standard which is personal to the expert is equivalent to a net opinion." Taylor, supra, 319 N.J. Super. at 180.

Initially, we note plaintiff's complaint contained only two allegations of malpractice: (1) negligently omitting from the 2003 PSA the fact that plaintiff owned an interest in a piece of real property and (2) failing to include a clause stating the agreement would survive reconciliation. Both allegations concern defendants' representation of plaintiff in 2003. Relying on Bauer v. Nesbitt, 198 N.J. 601 (2008), the judge concluded plaintiff could proceed only on these claims.1 We agree with defendants that plaintiff's complaint failed to allege legal malpractice related to Munson advising plaintiff not to settle for $40,000. Nevertheless, much of Chagaris's report concerned the failure to recommend plaintiff accept the $40,000 settlement offer.

Although Chagaris's report correctly recited an attorney's basic duties to a client, he then asserted, "[a]ttorneys are supposed to know the likelihood of success for types of cases they handle and are supposed to know the range of possible awards in those cases." While, noting these "principles are all applicable to the present legal malpractice case[,]" Chagaris presented no authority supporting his opinion. No reference was made to "any written document, or even unwritten custom or practice indicating that the consensus . . . of the legal community recognizing what would constitute a reasonable settlement under the facts presented in this case." Kaplan, supra, 339 N.J. Super. at 103. By failing to articulate an accepted standard of care, Chagaris provided a net opinion.

Chagaris also stated Munson's failure to include a reconciliation clause was a breach of the standard of care, without adequate explanation. Chagaris "offered no evidential support establishing the existence of a standard of care[.]" Kaplan, supra, 339 N.J. Super. at 103. In this regard, he "failed to reference any written document or unwritten custom accepted by the legal community" recognizing the failure to include a reconciliation provision deviated from the standard of care. Ibid.

As for causation, Chagaris seemingly presumed because, in his view, Munson committed professional negligence by failing to include a reconciliation provision, it caused plaintiff's damages. However, Chagaris failed to address the issue of enforcement of the reconciliation provision, particularly given the facts of this case, where Mazauskas was unrepresented at the time of the 2003 PSA and where the parties marriage continued for almost four years after the PSA.

In fact, the general rule in New Jersey is "reconciliation or resumption of cohabitation before a divorce abrogates the executory provisions of a separation agreement." Weiner v. Weiner, 120 N.J. Super. 36, 39 (Ch. Div. 1972), aff d o.b., 126 N.J. Super. 155 (App. Div.), certif. denied, 65 N.J. 286 (1974). The rationale behind such a rule is to encourage the preservation of marriage. Ibid. Thus, public policy dictates reconciliation terminates the future obligations of parties pursuant to a separation agreement. Ibid. Further, when reconciliation occurs, "'it is the presumed intent of the parties . . . to resume the marital relationship in all respects and abrogate any prior agreements restricting or inhibiting the rights of one of the spouses, unless they indicate otherwise at the time of reconciliation.'" In re Estate of K.J.R., 348 N.J. Super. 618, 623 (App. Div. 2002) (quoting Brazina v. Brazina, 233 N.J. Super. 145, 151 (Ch. Div. 1989)). Only "executed portions" of a property settlement agreement will be unaffected. Ibid.

Chagaris's opinion that a reconciliation provision was legally enforceable is mere speculation, unsupported by the record or any authority. At the time of reconciliation, the record suggests the entire agreement remained executory and the parties did not express an intent to preserve the PSA; therefore, the PSA was likely abrogated when the parties resumed their marital relationship.

We find no basis to disturb the motion judge's conclusion that Chagaris's report was a net opinion, and, therefore, inadmissible. Having properly excluded Chagaris's testimony as a net opinion, the judge correctly granted summary judgment dismissing plaintiff's complaint, as without such expert proof, no reasonable jury could have found negligence on the part of defendants. Accordingly, summary judgment was properly granted.

1 Significantly, as emphasized by the motion judge, plaintiff never moved to amend her complaint to include any other claims. Although we discern no error in the judge's determination to limit plaintiff to the claims set forth in her complaint, the additional claims were likewise unsupported by competent expert opinion.