ANDREW TOTOLI v. JOSEPH A. MECCA, ESQ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANDREW TOTOLI,

Plaintiff-Appellant,

v.

JOSEPH A. MECCA, ESQ.,

Defendant-Respondent.

____________________________

January 20, 2015

Submitted January 13, 2015 - Decided

Before Judges Yannotti, Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5481-13.

Justin Van Dyke argued the cause for appellant (Budd Larner, P.C., attorneys; Mr. Van Dyke and Cynthia A. Walters, on the brief).

Joseph A. Mecca, respondent, argued the cause pro se.

PER CURIAM

In this legal malpractice lawsuit, plaintiff appeals from a January 17, 2014 order granting defendant's motion to dismiss plaintiff's complaint with prejudice. We affirm.

The Federal Bureau of Investigation (FBI) raided plaintiff's auto body shop as part of an ongoing narcotics investigation and arrested plaintiff along with other individuals (the "other individuals"). After being read his Miranda1 rights, plaintiff exercised his right to speak to an attorney and called defendant who met plaintiff at the FBI's office. Plaintiff had previously used defendant for legal services related to his auto body shop, but defendant did not have experience in serious criminal matters.

Plaintiff contends that during their meeting, defendant advised him to cooperate with the FBI despite plaintiff's assertion that he did not know of the narcotics transactions. Plaintiff then made incriminating statements to the FBI, which the government used to indict plaintiff on charges of conspiracy to distribute narcotics, and possession with intent to distribute narcotics.

Defendant subsequently referred plaintiff to an experienced criminal defense attorney (the "trial attorney"). The trial attorney indicated that plaintiff "said enough in the statement [to the FBI] to admit to being involved in the conspiracy." As a result, the trial attorney negotiated a plea deal where plaintiff testified against the other individuals, pled guilty to the conspiracy charge, and was sentenced to two years in prison, followed by five years of probation.

Plaintiff filed this action against defendant, alleging defendant negligently advised him to cooperate with the FBI. Plaintiff asserted that had he not cooperated with the FBI, he would not have gone to jail. The motion judge granted defendant's motion and dismissed the complaint in this case, concluding that "exoneration is required in legal malpractice cases arising from criminal contacts," and that in this case "there was no exoneration."2

Plaintiff maintains on appeal that (1) exoneration is not an element of a prima face cause of action alleging legal malpractice, and (2) his guilty plea does not judicially estop him from contesting the factual allegations of his guilty plea.

When reviewing an order granting summary judgment, we apply the same standards that the trial court applies when ruling on the motion. Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div.), certif. denied, 216 N.J. 86 (2013). Because there are no disputed issues of material fact and the judge dismissed plaintiff's claim based upon his interpretation of the law, we review the dismissal of the claim de novo. SeeManalapan Realty v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995) (indicating that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference"). Applying these standards, we conclude that the motion judge properly dismissed plaintiff's complaint because plaintiff did not receive the requisite exoneration in the criminal matter.

In McKnight v. Office of the Pub. Defender, 197 N.J.180, 182 (2008), the Court held that "in a legal malpractice action brought by a defendant against the attorney who represented [that defendant] in a criminal case, the statute of limitations does not begin to run until the defendant receives relief in the form of exoneration." The Court reversed the decision of a divided appellate panel, and substantially adopted the reasoning of Judge Stern's dissenting opinion which held

[W]e should at least require some relief in the criminal matter to evidence the proximate cause necessary to constitute an actionable [legal malpractice] claim. That relief might be vacation of a guilty plea and dismissal of the charges, entry of judgment on a lesser offense after spending substantial time in custody following conviction for a greater offense[,] or any disposition more beneficial to the criminal defendant than the original judgment. I need not now explore the necessary exoneration short of actual innocence which could suffice, but the criminal defendant should certainly need to secure some relief so as to trigger the accrual of the malpractice claim.

. . . .

I would hold that [a] defendant has to be exonerated to the point of being able to show some injury caused by the alleged malpractice whether that relief is dismissal of the charges, acquittal on retrial, conviction of a lesser included offense or otherwise, before . . . being permitted to file . . . his or her . . . claim.

[McKnight v. Office of the Pub. Defender, 397 N.J. Super. 265, 298, 300-01 (2007) (Stern, J. dissenting) (internal citations and quotation marks omitted).]

Judge Stern based his reasoning partly on this court's decision in Alampi v. Russo, 345 N.J. Super. 360 (App. Div. 2001). In Alampi, the plaintiff alleged that "his attorney's professional negligence caused [the plaintiff] to plead guilty . . . to a federal misdemeanor charge." Id.at 361. The trial court granted summary judgment, and we affirmed stating that "[t]o permit this action would undermine the integrity of the federal guilty plea in pursuit of a highly speculative thesis that [the] plaintiff would have achieved an 'optimum outcome' of no prosecution if his first attorney had in retrospect used different tactics." Id.at 371. The holdings in Alampiand McKnighthave subsequently been followed in other proceedings. SeeMarrero v. Feintuch, 418 N.J. Super.48, 50 (App. Div. 2011) (reversing a trial court decision to limit discovery in a legal malpractice case where the plaintiff's criminal conviction was overturned and the indictment was dismissed); Winstock v. Galasso, 430 N.J. Super. 391, 396 (App. Div.) (finding that dismissal of a legal malpractice claim was inappropriate under Almapibecause the plaintiff used the legal advice to inadvertently commit a crime), certif. denied, 215 N.J. 487 (2013).

Here, plaintiff's claim of legal malpractice falls squarely within the scope of Alampiand McKnightbecause plaintiff failed to show some form of exoneration. Plaintiff pled guilty to a federal crime, spent two years in jail, and an additional five years on probation. No "dismissal of the charges, acquittal on retrial, conviction of a lesser included offenses or otherwise" occurred. McKnight, supra, 397 N.J. Super. at 301.

Although plaintiff is correct that he need not show "actual innocence" for his legal malpractice claim to accrue, he must still receive a "disposition more beneficial to [him] than the original judgment." Id.at 298. This did not occur, and to permit plaintiff's claim would "undermine the integrity of the federal guilty plea." Alampi, supra, 345 N.J. Super.at 371. This also accords with our most recent decision in Cortez v. Gindhart, 435 N.J. Super. 589, 599 (App. Div. 2014), where we stated that for the accrual of a malpractice claim based on an invalid conviction, there is no injury until the conviction is shown to be invalid.

Plaintiff's assertion that Marreroand Winstocksupport his contention is mistaken. Unlike plaintiff in this case, the plaintiff in Marrerodid receive an exoneration; his conviction was overturned and the indictment was dismissed. Marrero, supra, 418 N.J. Super. at 51-52. Therefore, the plaintiff in Marrero had a viable legal malpractice claim against his lawyer. Moreover, the plaintiffs in Winstockhired an attorney to "ensure that their business model was proper and lawful," but the attorney gave erroneous advice that caused them to engage in "conduct that gave rise to . . . criminal charges." Winstock, supra, 430 N.J. Super. at 395. Winstockdoes not apply here because plaintiff sought the advice of counsel after he was arrested.

Plaintiff's remaining argument, that he can contest the factual allegations of his guilty plea, is "without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(1)(E), because it is irrelevant as to whether plaintiff has a viable cause of action. Although "[a] guilty plea is merely evidence, not conclusive proof, of the facts underlying the offense," Eaton v. Eaton, 119 N.J. 628, 644 (1990), the issue in this case is whether defendant obtained some form of exoneration of his guilty plea so as to permit his legal malpractice claim to proceed pursuant to Alampiand McKnight. It is undisputed that no exoneration occurred and therefore, plaintiff's legal malpractice claim is barred as a matter of law.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 We consider the order under review as granting summary judgment because the judge considered matters outside the pleadings and cited Rule 4:6-2.