ROCCO PICCIOLO v. JOHN H. RITTLEY, ESQ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROCCO PICCIOLO,

Plaintiff-Appellant,

v.

JOHN H. RITTLEY, ESQ., an

Attorney-at-Law of the State

of New Jersey; and LAW OFFICES

OF JOHN H. RITTLEY, LLC,

Defendants-Respondents.

______________________________

Telephonically argued October 20, 2015 Decided December 3, 2015

Before Judges Simonelli, Carroll and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3108-08.

Kenneth S. Thyne argued the cause for appellant (Roper & Twardowsky, LLC, attorneys; Mr. Thyne, on the brief).

Jeffrey S. Leonard argued the cause for respondents (Morgan Melhuish Abrutyn, attorneys; Meredith Kaplan Stoma, of counsel; Mr. Leonard, on the brief).

PER CURIAM

In this attorney malpractice matter, plaintiff Rocco Picciolo appeals from the May 31, 2012 Law Division order, which granted summary judgment to defendants John H. Rittley, Esq. and the Law Offices of John H. Rittley, LLC.,1 and dismissed the complaint with prejudice. Plaintiff also appeals from the April 10, 2014 order, which granted summary judgment to defendants on the counterclaim for attorney's fee, and from the May 22, 2014 order of judgment, which awarded attorney's fees and costs to defendants. For the following reasons, we reverse all orders and remand for further proceedings consistent with this opinion.

We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in the light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213 N.J.573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J.520, 523 (1995)).

Rittley represented plaintiff in a matrimonial matter. On May 29, 2007, Rittley received a settlement offer from adversary counsel. At the time, Rittley was out of the office due to his father's death. On May 31, 2007, a paralegal in Rittley's law firm telephoned plaintiff, advised him of the settlement offer, faxed a copy to him, and asked for his comments. The parties disagree as to what happened next. Plaintiff alleged in his complaint that he advised the paralegal that he was willing to accept the settlement offer, but the paralegal instructed him to write down what he thought should be changed. Rittley claimed that plaintiff telephoned his office and left a message that the settlement offer was unacceptable, he was making changes, and he wanted Rittley to submit a counteroffer to adversary counsel. Rittley also pointed to a list of comments plaintiff provided in October 2006 of non-negotiable settlement terms.

On May 31, 2007, plaintiff sent a list of comments to Rittley's office, disagreeing with or questioning most of the terms of the settlement offer. On June 5, 2007, Rittley advised plaintiff that he agreed the settlement offer was not what they had previously negotiated and that a "counteroffer will probably not go anywhere but [they] need to start the ground work." Rittley sent plaintiff a proposed counteroffer, which incorporated plaintiff's comments, and instructed plaintiff to carefully read it and advise him or his paralegal of any changes plaintiff desired. Rittley also advised plaintiff that the paralegal would send the counteroffer to adversary counsel by the close of business on June 6, 2007 if she received no comments from plaintiff.

On June 6, 2007, the paralegal telephoned plaintiff and left a message asking him to submit his changes by the end of the day. Having received no response from plaintiff, Rittley sent the counteroffer to adversary counsel. Plaintiff claimed that he received the counteroffer after it was already sent to adversary counsel and he never authorized Rittley to send it.

The counteroffer was rejected. While the matrimonial matter was pending, plaintiff and his wife continued residing in the marital home. Plaintiff alleged that he sustained an eye injury as a result of an assault by his wife.

On June 13, 2008, the parties executed a property settlement and support agreement (PSA). The terms of the PSA were similar to the settlement offer, but included a provision requiring plaintiff to pay permanent alimony, which the settlement offer did not require. Plaintiff appeared before the trial court and asked that the PSA be incorporated into the dual final judgment of divorce (DFJOD). Plaintiff testified that although not completely happy with the way things turned out in the case, he was willing to live with and abide by the terms of the PSA. He also testified that he was willing to waive his right to trial, no one forced him to enter into the PSA, and he intended to be bound by all of the terms of the PSA. He responded "[n]ot really" when asked if under the circumstances he found the PSA reasonable, and said he was "going to have to" live with it. Nonetheless, he testified he was still willing to accept the PSA rather than proceed to trial, was entering into the PSA voluntarily, was satisfied with Rittley's representation, and had no questions about the PSA. The PSA was incorporated into the June 13, 2008 DFJOD.

In December 2008, plaintiff filed a complaint, alleging that Rittley committed malpractice with respect to the settlement offer. Plaintiff claimed that as a result of the malpractice, he received less favorable settlement terms, was forced to continue living with his wife under contentious circumstances, was assaulted by the wife and suffered a permanent eye injury, and incurred additional legal fees.

Rittley filed a motion for summary judgment, arguing that plaintiff could not prove he advised Rittley or the paralegal that he wanted to accept the settlement offer. Rittley pointed to plaintiff's expert, who testified at his deposition that plaintiff told him that "in retrospect" plaintiff wished he had accepted the settlement offer. The expert also testified that the settlement offer was not a bona fide offer and that plaintiff could not have accepted the offer without certain conditions. Rittley also argued that because plaintiff accepted the PSA on the record before the trial court, Puder v. Buechel, 183 N.J. 428 (2005) and other applicable authority barred plaintiff's malpractice claim. Finally, Rittley argued that plaintiff did not establish damages.

In opposition, plaintiff argued that Puder did not apply under the circumstances of this case and he established damages. In support of the motion, plaintiff's attorney improperly submitted a copy of a purported transcript of plaintiff's telephone conversation with Rittley's paralegal, which plaintiff asserted supported his claim that he accepted the settlement offer and, without his authorization, Rittley rejected it and made a counteroffer.

Plaintiff did not deny that this document was not produced during the discovery period. In addition, the document was not a certified transcript and it was not supported by an affidavit from plaintiff attesting to its truth and accuracy, as required by Rules 1:6-6 and 4:46-5(a). Accordingly, the purported transcript constituted inadmissible hearsay that could not form the factual basis for the denial of a summary judgment motion. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 164 (App. Div. 2005); see also N.J.R.E. 801(c).

The motion judge granted summary judgment, finding the evidence confirmed that plaintiff did not agree to the settlement offer, but instead, either disagreed with the terms of the offer or suggested modifications to be communicated to adversary counsel. The judge made no specific factual findings or legal conclusions as to whether Puder or other legal authority barred plaintiff's malpractice claim or whether plaintiff established damages, and instead, relied on the arguments in Rittley's brief.

We review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citation omitted). Thus, we consider, as the motion judge did, "'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.'" Id.at 406 (citation omitted). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). Summary judgment should be denied when determination of material disputed facts depends primarily on credibility evaluations. Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 131 (App. Div. 2011) (citing Parks v. Rogers, 176 N.J. 491, 502 (2003)).

Applying these standards, we conclude that summary judgment based on plaintiff's alleged rejection of the settlement offer was improvidently granted. Absent the purported transcript, there was other evidence that created a dispute as to whether plaintiff accepted the settlement offer, which requires a credibility evaluation. Ibid. However, this does not end the inquiry. Assuming that plaintiff accepted the settlement offer, the question is whether Puder or other legal authority nonetheless barred his malpractice claim, or whether plaintiff can establish damages. The judge made no specific factual findings and legal conclusions on these critical issues.

Judges must make findings of fact and conclusions of law on summary judgment motions in accordance with Rule 1:7-4. R. 4:46-2(c). This requires judges to articulate "specific findings of fact and conclusions of law." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2016) (emphasis added); see also Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003). Particularly where the judge granted summary judgment without issuing adequate findings and conclusions, we have reversed summary judgment and remanded for additional findings. Pardo v. Dominguez, 382 N.J. Super. 489, 491-92 (App. Div. 2006). The judge should not rely on arguments advanced in the briefs and must make specific independent factual findings and legal conclusions on motions for summary judgment. R. 4:46-2(c).

Accordingly, we remand for the judge to make specific factual findings and legal conclusions as to whether Puder or other legal authority bars plaintiff's malpractice claim, and whether plaintiff can prove damages, including an analysis of whether plaintiff's experts rendered an inadmissible net opinion on damages. If the judge denies summary judgment on both issues, the matter shall proceed to trial. If plaintiff intends to use the transcript at trial, he must first make a motion pursuant to Rule 4:17-7 and produce the audiotape and a certified transcript. We express no view on the merits of such motion and leave that determination to the trial court.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 We shall hereinafter collectively refer to Rittley and the law firm as Rittley.