PENTECOSTAL ASSEMBLIES OF GOD CHURCH, v. ARCHER & GREINER
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5613-15T3
PENTECOSTAL ASSEMBLIES OF GOD
CHURCH, a non-profit religious
corporation,
Plaintiff-Appellant,
v.
ARCHER & GREINER, and
ROBERT W. BUCKNAM, JR., ESQUIRE,
Defendants/Third-Party
Plaintiffs-Respondents,
v.
ESTATE OF NORMAN G. MORRELL, DECEASED,
and PANNA CONSTRUCTION CO.,
Third-Party Defendants.
Submitted December 12, 2017 – December January 10, 2018
Before Judges Carroll and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-
1531-14.
Peter A. Ouda, LLC, attorneys for appellant
(Peter A. Ouda, on the brief).
Archer & Greiner, PC, attorneys for
respondents (Ellis I. Medoway, on the brief).
PER CURIAM
Plaintiff Pentecostal Assemblies of God Church (PAG) appeals
from the July 14, 2016 summary judgment dismissal of its legal
malpractice action against defendants Archer & Greiner, PC and
Robert W. Bucknam, Jr.,1 Esquire. The trial court found PAG's
claims were precluded by the doctrine of collateral estoppel. We
affirm.
The motion record reflects that PAG purchased vacant land in
Hammonton in 1997, for the purpose of constructing a church there.
PAG contracted with Aqua Terra, P.A. (Aqua Terra), an engineering
firm, to design a preliminary site plan to obtain a use variance
for the church construction. PAG also retained defendants to
represent it in the site plan approval process. Aqua Terra was
an existing client of Archer & Greiner, and recommended Bucknam
to PAG. PAG obtained the use variance approval in 1998.
On June 10, 1998, PAG entered into a second contract with
Aqua Terra to prepare a proposed preliminary and final site plan
for submission to various agencies, including the Hammonton Zoning
Board, Atlantic County Planning Board, New Jersey Pinelands
1
Defendant's name is misspelled in the caption and at various
points in the record as Robert W. Buckman, Jr.
2 A-5613-15T3
Commission, and the regional Soil Conservation District. The
agreed price was $7000, which did not "includ[e] services normally
performed during the bidding, construction, and operational phases
of a project." The contract further specified:
The sole purpose for the preparation of the
plans associated with this PROJECT is to
secure development approval from certain
governmental agencies as agreed between [PAG]
and [Aqua Terra]. They are not intended to
be used as formal contract documents. Such
use by anyone shall not be interpreted to
imply any contractual relationship between
that person and [Aqua Terra] for professional
services involved in the construction of the
improvements shown on these plans, unless
there is a formal written agreement between
that person and [Aqua Terra] to provide those
services.
. . . .
Any reuse without written verification or
adaptation by [Aqua Terra] for the specific
purpose intended will be at [PAG's] sole risk
and without liability or legal exposure to
[Aqua Terra] . . . and [PAG] shall indemnify
and hold harmless [Aqua Terra] . . . from all
claims, damages, losses and expenses including
attorneys' fees arising out of or resulting
therefrom.
At his deposition, PAG's pastor, Alberto Torres, agreed with
testimony previously given by Aqua Terra's representative that
Bucknam had no input with respect to the terms or language of the
contract.
3 A-5613-15T3
After the approvals were obtained, PAG began construction of
the church in 2003, and completed it in 2004. PAG used Aqua
Terra's site plans as contract documents with the builder, Panna
Construction (Panna), to construct the improvements shown on the
plans.
In March 2010, PAG began experiencing issues with water
infiltration in the church basement. Consequently, in November
2010, PAG filed suit against Panna, the estate of the project
architect, Norman Morrell, and Aqua Terra, alleging water
infiltration and structural damages arising from design and
construction deficiencies in the church construction (the previous
action).
PAG subsequently settled its claims against Panna and
Morrell's estate. PAG continued to assert its claims for
professional negligence and breach of contract against Aqua Terra,
based on PAG's allegation that the engineer identified the seasonal
high ground water elevation (SHGWE) four feet below its actual
level. Plaintiff contended that, when Aqua Terra's plans were
used in the construction phase, this misidentification caused the
building to be built below the SHGWE and rendered it subject to
flooding.
In May 2013, the trial court granted summary judgment in
favor of Aqua Terra. In a thirteen-page written opinion, Judge
4 A-5613-15T3
James E. Isman first found that PAG's suit was barred by the
express terms of its contract with Aqua Terra:
In essence, [p]laintiff argues that by
its unilateral misuse of the [p]erfected
[s]ite [p]lans as construction contract
documents, Aqua Terra had a duty to ensure
that the [p]erfected [s]ite [p]lans contained
the level of detail necessary to be used as
construction contract documents despite
[PAG's] unwillingness to pay for those
additional services. However . . . such an
interpretation is clearly contrary to the
clear language of the contract. . . . The
contract specifically and unambiguously
stated that additional engineering, design and
construction details were required to generate
construction contract documents. This [c]ourt
cannot overlook the fact that [PAG]
intentionally and affirmatively elected not to
pay for such additional services . . . . There
is simply no theory of law under which [PAG]
can establish that by [PAG's] unilateral
misuse of the site plans, Aqua Terra undertook
a duty to ensure that the plans contained the
level of detail necessary to be used as
construction documents, particularly given
[PAG's] unwillingness to pay for those
additional services.
As a second basis for granting summary judgment, Judge Isman
found PAG could not establish that any of its damages were
proximately caused by Aqua Terra's professional negligence. The
judge elaborated:
As argued by [Aqua Terra], [PAG's] own
expert's report and testimony supports
granting summary judgment in [Aqua Terra's]
favor. [PAG's] expert, Gregory S. Baker,
P.E., has conceded that the basement has never
experienced more than a few inches of water
5 A-5613-15T3
on the basement floor. Notably, [PAG] has not
alleged any damage from groundwater being four
feet higher than that which they have
experienced. Additionally, [PAG's] expert has
opined that the flooding occurred because the
architect, Norman G. Morrell (deceased),
failed to specify that the basement floor and
walls had to be waterproofed. Furthermore,
[PAG's] expert concedes that Aqua Terra's
identification of the SHGWE being at the same
elevation of the basement floor was sufficient
notice to the architect, Norman Morrell, to
require him to specify that the basement floor
and walls be waterproofed. However, Mr.
Morrell failed to specify that the basement
floor and walls be waterproofed. Furthermore,
even [PAG's] expert opines that had the
basement floor and walls been properly
waterproofed and the perimeter drain properly
located, the basement would not have
experienced any flooding. As such, [PAG] has
failed to allege any damage that could have
been proximately caused by Aqua Terra's
failure to identify the SHGWE four feet
higher.
PAG commenced the present malpractice action on April 7,
2014, alleging defendants "should have known that [PAG] could not
proceed with construction based on the site plans of Aqua Terra,"
and that defendants "specifically advised [PAG] that it could
proceed with construction based on Aqua Terra's documents." During
discovery, PAG presented a four-page report from its expert
witness, an attorney, who distilled the malpractice claim into the
following:
[The June 10, 1998] contract should have been
discussed with the client PAG in detail so
that [PAG] fully understood the risks of using
6 A-5613-15T3
the documents beyond what was permitted in the
. . . contract. . . . In the exercise of
reasonable care, [Archer & Greiner] should
have advised PAG not to use the documents as
construction documents and should have advised
[PAG] further to make contact with Aqua Terra
to ascertain the costs and timing to obtain
documents that could be used as "formal
contract documents."
At the conclusion of discovery, defendants moved for summary
judgment, arguing that (1) PAG's claims were precluded by the
doctrine of collateral estoppel, and (2) PAG failed to produce an
expert engineering report to support its claim that Aqua Terra's
negligence led to the water infiltration in the church basement.
Judge Noah Bronkesh dismissed the malpractice complaint,
finding the following:
When all facts are viewed in the light most
favorable to the non—moving party, no
questions of material fact remain. The
princip[le] of collateral estoppel precludes
[relitigation] of the same issue. [PAG]
concedes [defendants'] statement of material
facts, including that Judge Isman determined
in the previous action that the engineer was
entitled to summary judgment because [PAG]
could not establish that any of the alleged
damages caused by the water infiltration were
proximately caused by the engineer. [PAG's]
"Counterstatement of Material Facts" are
unavailing because none of those facts touch
upon Judge Isman's factual finding that the
engineer was not the proximate cause for the
water damage sustained by the Church's
building. The proximate cause issue was fully
and fairly litigated by [PAG] before Judge
Isman and his decision bars the [relitigation]
of that fact issue in this case. This [c]ourt
7 A-5613-15T3
finds that under the princip[le] of collateral
estoppel, [d]efendants are entitled to summary
judgment.
This appeal followed.
When reviewing the grant of summary judgment, we analyze the
decision applying the "same standard as the motion judge." Globe
Motor Co. v. Igdalev,
225 N.J. 469, 479 (2016) (quoting Bhagat v.
Bhagat,
217 N.J. 22, 38 (2014)).
That standard mandates that summary judgment
be granted "if the pleadings, depositions,
answers to interrogatories and admissions on
file, together with the affidavits, if any,
show that there is no genuine issue as to any
material fact challenged and that the moving
party is entitled to a judgment or order as a
matter of law."
[Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co.,
224 N.J. 189, 199 (2016)
(quoting R. 4:46-2(c)).]
"To defeat a motion for summary judgment, the opponent must
'come forward with evidence' that creates a genuine issue of
material fact." Cortez v. Gindhart,
435 N.J. Super. 589, 605
(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J.
v. State,
425 N.J. Super. 1, 32 (App. Div. 2012)), certif. denied,
220 N.J. 269 (2015). "[C]onclusory and self-serving assertions
by one of the parties are insufficient to overcome the motion."
Puder v. Buechel,
183 N.J. 428, 440-41 (2005) (citations omitted).
"When no issue of fact exists, and only a question of law remains,
8 A-5613-15T3
[we] [afford] no special deference to the legal determinations of
the trial court." Templo Fuente De Vida,
224 N.J. at 199 (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366,
378 (1995)).
To establish legal malpractice, PAG was
required to show that competent, credible
evidence existed to support each of the
elements of that negligence action, i.e., "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."
[Cortez,
435 N.J. Super. at 598 (quoting
Sommers v. McKinney,
287 N.J. Super. 1, 9-10
(App. Div. 1996)).]
With respect to the third factor, "an attorney is only
responsible for a client's loss if that loss is proximately caused
by the attorney's legal malpractice[,]" that is, "the negligent
conduct is a substantial contributing factor in causing the loss."
2175 Lemoine Ave. Corp. v. Finco, Inc.,
272 N.J. Super. 478, 487
(App. Div. 1994). Therefore, a plaintiff bears the burden of
showing, by a preponderance of the competent, credible evidence,
"what injuries were suffered as a proximate consequence of the
attorney's breach of duty." Id. at 488 (citing Lieberman v. Emp'rs
Ins. of Wausau,
84 N.J. 325, 341 (1980)). The burden is not
satisfied by mere "conjecture, surmise or suspicion." Ibid.
9 A-5613-15T3
(quoting Long v. Landy,
35 N.J. 44, 54 (1961)). Ordinarily, the
measure of damages is what result the client would have obtained
in the absence of attorney negligence. Garcia v. Kozlov, Seaton,
Romanini & Brooks, P.C.,
179 N.J. 343, 358 (2004). Thus, to prove
such injury, "the client must demonstrate that he or she would
have prevailed, or would have won materially more . . . but for
the alleged substandard performance." Lerner v. Laufer,
359 N.J.
Super. 201, 221 (App. Div. 2003).
"[C]ollateral estoppel, or issue preclusion, bars the
relitigation of an issue that has already been addressed in a
prior matter . . . ." Bondi v. Citigroup, Inc.,
423 N.J. Super.
377, 423 (App. Div. 2011). That is, whereas res judicata, or
claim preclusion, bars relitigation of already adjudicated claims
between the same parties or their privies, collateral estoppel
"bars relitigation of issues in suits that arise from different
causes of action." Selective Ins. Co. v. McAllister,
327 N.J.
Super. 168, 173 (App. Div. 2000) (citing United Rental Equip. Co.
v. Aetna Life and Cas. Ins. Co.,
74 N.J. 92, 101 (1977)).
Collateral estoppel requires a party to establish:
(1) the issue to be precluded is identical to
the issue decided in the prior proceeding; (2)
the issue was actually litigated in the prior
proceeding; (3) the court in the prior
proceeding issued a final judgment on the
merits; (4) the determination of the issue was
essential to the prior judgment; and (5) the
10 A-5613-15T3
party against whom the doctrine is asserted
was a party to or in privity with a party to
the earlier proceeding.
[First Union Nat'l Bank v. Penn Salem Marina,
Inc.,
190 N.J. 342, 352 (2007) (citing
Hennessey v. Winslow Twp.,
183 N.J. 593, 599
(2005)).]
Here, in the previous action, PAG did not establish that any
professional negligence by Aqua Terra was the proximate cause of
its water damage because it was the architect who failed to specify
that the basement floor and walls be waterproofed. PAG had a full
and fair opportunity to litigate that issue in the prior action,
and was unsuccessful in establishing Aqua Terra's liability for
the water infiltration. We thus agree with Judge Bronkesh that
the doctrine of collateral estoppel precluded PAG from
relitigating that issue in the malpractice action. Consequently,
to the extent PAG alleged that defendants negligently failed to
review Aqua Terra's contract and documents, PAG was similarly
unable to establish that such failure caused PAG damage. Stated
differently, because the architect's negligence, and not the
engineer's negligence, proximately caused PAG's water damage, PAG
cannot show it suffered loss as a consequence of defendants'
11 A-5613-15T3
alleged failure to properly advise PAG regarding the use of the
engineer's plans.2
PAG contends the water damage was only one part of its damages
in the malpractice action. PAG relies upon its legal expert to
establish that "the measure [of] damages would be all of the costs
and fees associated with the purchase of the property and all of
the professional fees associated with the approval process."
However, the expert offered no basis for this opinion other than
defendants' failure to prevent the engineer's alleged
negligence. However, in the prior action PAG failed to establish
any negligence by the engineer. Hence, collateral estoppel was
properly applied to dismiss the malpractice action.
Affirmed.
2
Because we share the trial court's view that the doctrine of
collateral estoppel barred PAG's legal malpractice action, we need
not reach defendants' second argument that dismissal was also
proper due to PAC's failure to present an appropriate engineering
expert in the malpractice action.
12 A-5613-15T3
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