JOHN CLEMENTE v. TIMOTHY NEUMANN, ESQ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN CLEMENTE,

Plaintiff-Appellant,

v.

TIMOTHY NEUMANN, ESQ., BROEGE,

NEUMANN, FISCHER & SHAVER, LLC,

Defendants-Respondents.

____________________________________

July 28, 2015

Submitted April 28, 2015 Decided

Before Judges Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1604-13.

Peter A. Ouda, attorney for appellant.

Morgan Melhuish Abrutyn, attorneys for respondent (Timothy K. Saia, of counsel and on the brief).

PER CURIAM

Plaintiff John Clemente appeals from the March 25, 2014 Law Division order that dismissed without prejudice his legal malpractice claim against Timothy Neumann, Esquire and Broege, Neumann, Fisher & Schaver, LLC. We affirm.

This legal malpractice action has its genesis in protracted, bitter, divorce and post-judgment proceedings that are amply detailed in the opinions of the trial court, Clemente v. Clemente, No. FM-13-379-04 (Ch. Div. August 7, 2006); this court, Clemente v. Clemente, No. A-0290-06 (App. Div. November 28, 2008), certif. denied, 198 N.J. 473 (2009), Clemente v. Clemente, No. A-0487-11 (App. Div. February 20, 2013), certif. denied, 215 N.J. 485 (2013) and, Clemente v. Clemente, No. A-0114-12 (March 14, 2014); and the United States District Court for the District of New Jersey, In re Clemente, No. 12-37 (D.N.J. March 19, 2012). The facts need not be recounted at length. Suffice it to say that the Clementes were divorced following a forty-two day trial that took place between October 2005 and June 2006. Plaintiff John Clemente, who was the defendant in the divorce action, appealed.1 We affirmed in Clemente v. Clemente, supra, No. A-0290-06, and the Supreme Court denied certification, 198 N.J. 473 (2009).

Meanwhile, on January 17, 2008, Clemente filed for voluntary bankruptcy relief under Chapter 11 of the United States Bankruptcy Code. On June 3, 2009, the case was converted to a Chapter 7 bankruptcy. The bankruptcy proceedings concluded in 2013.

Defendant Timothy Neumann represented Clemente in the bankruptcy proceedings until Clemente terminated the attorney-client relationship in April 2011. In July 2013, the same year the bankruptcy proceedings concluded, defendant filed this legal malpractice action against Neumann, alleging that Neumann had mishandled his representation of Clemente in the bankruptcy proceedings.

One of Clemente's creditors in the bankruptcy proceedings was the law firm that had represented his wife in the divorce proceedings. According to Clemente's malpractice complaint against Neumann, Clemente's ex-wife's former law firm, Ansell, Grimm & Aaron, P.C., had an irreconcilable conflict of interest in the bankruptcy proceedings because the law firm represented itself, Clemente's ex-wife, and his ex-wife's forensic accounting firm. Clemente had urged Neumann to take formal action to have the Ansell, Grimm firm disqualified from representing itself, plaintiff's ex-wife, and the accounting firm. Clemente alleged that Neumann had failed to pursue the disqualification of the law firm, as well as claims that the firm had overstated its fees and misrepresented Clemente's ex-wife's position in the bankruptcy proceedings. Neumann's omissions allegedly caused Clemente to sustain additional losses that resulted in his converting the bankruptcy proceedings to a Chapter 7 liquidation.

Here, on defendants' motion, Judge Anthony M. Massi dismissed Clemente's Law Division legal malpractice action. Judge Massi dismissed the action without prejudice. After considering relevant sections of the United States Bankruptcy Code, as well as applicable federal and state case law, Judge Massi determined, among other things, that Clemente's potential claim against Neumann was an asset that Clemente should have, but did not, disclose to the bankruptcy trustee. The judge dismissed Clemente's complaint without prejudice "to allow [Clemente] an opportunity, if he so wishes, to make an appropriate application to the bankruptcy court to reopen his case. In the event this occurs, the trustee can then decide whether to abandon the claim or take other appropriate action." Clemente filed this appeal, raising a single point

THE COURT ERRED IN GRANTING THE MOTION TO DISMISS.

Clemente argues that the judge misapplied the legal standard applicable to motions to dismiss under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. Clemente also argues that Neumann never disclosed to him that he, Neumann, had not followed his, Clemente's direction to, among other things, pursue the conflict-of-interest claim against the Ansell, Grimm law firm; and, therefore, Clemente's legal malpractice cause of action did not accrue until after the bankruptcy proceedings had ended.

Having considered Clemente's argument in light of the record and controlling law, we find that it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only these comments. On the face of Clemente's complaint, it appears that his potential malpractice claim against Neumann was an asset that should have been disclosed in the bankruptcy proceedings. Moreover, Judge Massi dismissed the Law Division complaint without prejudice to permit Clemente to reopen the bankruptcy proceedings. The trustee would be in a better position than a Law Division judge to determine whether Clemente's legal malpractice action accrued during the bankruptcy proceedings, which continued for two years after Clemente terminated Neumann's representation.

Affirmed.

1 Due to the numerous proceedings in which Dr. Clemente was either a plaintiff or a defendant, we refer to him in this opinion as "Clemente" for the sake of clarity, meaning no disrespect.