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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0240-17T 3 G.B 1,



individually, and CHRISTINE


                    Argued December 5, 2018 – Decided December 17, 2018

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-2841-15.

                    Fred J. Gelb argued the cause for appellant.

                    John L. Slimm argued the cause for respondents
                    (Marshall, Dennehey, Warner, Coleman, & Goggin,
                    attorneys; John L. Slimm and Jeremy J. Zacharias, on
                    the brief).

 We utilize plaintiff's initials because this opinion addresses a related domestic
violence matter. R. 1:38-3(d)(10).

      Plaintiff G.B. appeals from an August 4, 2017 order granting defendants

summary judgment dismissal of plaintiff's legal malpractice action. We affirm.

      The following facts are taken from the motion record. In July 2013,

plaintiff contacted defendant Christine N. Rossi regarding a potential

representation in a divorce proceeding. During their conversation, which lasted

approximately one hour, plaintiff disclosed her marital history to defendant,

including information regarding her finances, alcohol and drug use, as well as

verbal and physical arguments with J.B., her then-husband. Plaintiff could not

afford defendant's services.

      A different attorney represented plaintiff in the divorce. J.B. attempted to

retain defendant to represent him in the divorce proceeding and defendant asked

plaintiff's divorce counsel whether plaintiff would waive the conflict. Plaintiff

refused, and J.B. hired someone else.

      In October 2013, J.B. obtained a temporary restraining order (TRO)

against plaintiff pursuant to the Prevention of Domestic Violence Act,  N.J.S.A.

2C:25-17 to - 35. J.B. alleged plaintiff came home intoxicated, sat on the couch

where he was sleeping, lit two cigarettes, and ignited the blanket he was using.

J.B.'s domestic violence complaint also alleged a prior history of domestic

violence during which plaintiff pulled a gun on J.B., as well as a separate

incident of assault.

         When the parties appeared for the domestic violence trial, plaintiff was

self-represented and defendant appeared on behalf of J.B. Plaintiff sought to

disqualify defendant. Plaintiff explained she had disclosed the "whole marriage

and everything" to defendant when she had initially consulted with her,

including domestic violence issues.           Defendant responded that the initial

consultation did not relate to the domestic violence matter because it was not

pending at the time, and any information relating to domestic violence was

incidental to routine questioning during the initial consultation.

         The trial judge declined to disqualify defendant, and after trial issued a

final restraining order (FRO) against plaintiff.       Plaintiff appealed from the

decision, and we reversed and remanded for a new trial. J.B. v. G.F.B., No. A-

1802-13 (App. Div. Nov. 13, 2014) (slip op. 11). We concluded RPC 1.9(a)

mandated defendant's disqualification because "a domestic violence complaint

filed during the pendency of a divorce case is not 'unrelated' litigation ." Id. at

9, 10.

         The divorce proceeding was settled and the parties signed a property

settlement agreement (PSA) in January 2015. Pursuant to the PSA, plaintiff

received $400 per week in alimony. The parties valued J.B.'s interest in his

company at $42,000; plaintiff received an equitable distribution of $19,500

payable at $400 per week. The PSA acknowledged the arms-length nature of

the settlement, namely, each party had received discovery, voluntarily entered

into the agreement, which both considered to be fair, and had been represented

by independent counsel who had explained the agreement to them. The parties

appeared for an uncontested divorce hearing and confirmed to the sati sfaction

of the judge they accepted the terms of the PSA and wished to be bound by it .

The re-trial of the domestic violence matter following our remand did not occur

because J.B. dismissed the TRO the day after he and plaintiff were divorced.

      Plaintiff filed her malpractice complaint against defendant in October

2015. She alleged defendant's representation of J.B. in the domestic violence

matter constituted a breach of the attorney-client privilege because defendant

had confidential information she could have used against plaintiff in the

domestic violence trial. Plaintiff alleged she had suffered damages as a result

of defendant's negligence because she was homeless, excluded from her family,

and suffered emotional distress.    Defendant filed a motion for summary

judgment, arguing plaintiff had not demonstrated negligence due to a lack of

proximate cause between defendant's representation in the domestic violence

matter and the alleged harms she suffered in the divorce matter. Defendant also

argued plaintiff had not proven her emotional distress damages. The motion

judge granted defendant summary judgment and dismissed plaintiff's complaint

with prejudice. This appeal followed.


      "[W]e review the trial court's grant of summary judgment de novo under

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh,  224 N.J. 189, 199 (2016) (citing Mem'l Props.,

LLC v. Zurich Am. Ins. Co.,  210 N.J. 512, 524 (2012)). The court considers all

of the evidence submitted "in the light most favorable to the non-moving party,"

and determines if the moving party is entitled to summary judgment as a matter

of law. Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995). The

court may not weigh the evidence and determine the truth of the matter. Ibid.

If the evidence presented "show[s] that there is no real material issue, then

summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, Inc.,

 216 N.J. Super. 255, 258 (App. Div. 1987) (citing Judson v. Peoples Bank & Tr.

Co. of Westfield,  17 N.J. 67, 75 (1954)).       "[C]onclusory and self-serving

assertions by one of the parties are insufficient to overcome [summary

judgment]." Puder v. Buechel,  183 N.J. 428, 440-41 (2005).

      On appeal, plaintiff argues the following points: (1) defendant used

privileged information obtained from the initial consultation to secure an FRO

against plaintiff in the domestic violence matter and give J.B. a tactical

advantage in the divorce; (2) the subsequent settlement of the matrimonial

matter did not extinguish her claims against defendant; (3) her claim for

intentional infliction of emotional distress should not have been dismissed for

lack of medical proofs; and (4) the motion judge erred in finding she waived her

claim to an award of counsel fees from defendant as a result of the successful

domestic violence appeal because defendant was not a party to that appeal.


      "[A] legal malpractice action has three essential elements: '(1) the

existence of an attorney-client relationship creating a duty of care by the

defendant attorney, (2) the breach of that duty by the defendant, and (3)

proximate causation of the damages claimed by the plaintiff.'" Jerista v. Murray,

 185 N.J. 175, 190-91 (2005) (quoting McGrogan v. Till,  167 N.J. 414, 425

(2001)). "The burden is on the client to show what injuries were suffered as a

proximate consequence of the attorney's breach of duty." 2175 Lemoine Ave.

Corp. v. Finco, Inc.,  272 N.J. Super. 478, 487-88 (App. Div. 1994). "That

burden must be sustained by a preponderance of the competent, credible

evidence and is not satisfied by mere 'conjecture, surmise or suspicion.'" Id. at

488 (quoting Long v. Landy,  35 N.J. 44, 54 (1961)). Additionally, "the assertion

that an attorney has violated one of [the Court's] ethical rules does not give rise

to a cause of action, although the evidence may be relevant for another purpose."

Green v. Morgan Props.,  215 N.J. 431, 458 (2013).

      At the outset, we reject the argument advanced by defendant that

plaintiff's resolution of the matrimonial dispute barred her from proceeding with

a malpractice action. In Ziegelheim v. Apollo,  128 N.J. 250, 265 (1992), the

Supreme Court held a client who affirmed on the record that the divorce

agreement was fair and equitable, and later sued her former lawyer, was not

barred from proceeding with the malpractice matter. The Court reasoned the

"fact that a party received a settlement that was 'fair and equitable' does not

mean necessarily that the party's attorney was competent or that the party would

not have received a more favorable settlement had the party's incompetent

attorney been competent."      Ibid.   Although this case does not involve an

allegation of malpractice on account of advice rendered in the settlement of a

lawsuit, the fundamental principle articulated in Ziegelheim, that a settlement

does not preclude a later claim for malpractice, applies.

      Notwithstanding, this case turns on different considerations, specifically

plaintiff's failure to establish causation and damages.       Plaintiff argues she

revealed the following facts to defendant, which she claims were then utilized

to her disadvantage in the domestic violence proceeding, namely:

            the parties['] finances, the separate bank account she
            had, their alcohol and cigarette purchases, alcohol
            consumption and smoking habits, [J.B.'s] use of
            marijuana . . ., [J.B.'s] use of prescription drugs, prior
            domestic violence committed by [J.B.], a prior incident
            at [a bar] in Toms River where she did not feel capable
            of driving home after drinking alcoholic beverages
            there. . . . She discussed [an] . . . incident occurring in
            April 2012[,] wherein she attempted to put a hand gun
            in the trash as she did not want one in the house as her
            mother had committed suicide and when [J.B.] went to
            grab the gun from her she pushed him and in doing so
            [J.B.] got scratched.

      We are not persuaded this information affected the outcome of the

domestic violence matter. The evidence adduced at the FRO hearing included

the testimony of two Brick Township police officers. One officer testified to a

prior incident where plaintiff was intoxicated, and the other to an incident where

she was intoxicated and assaulted a police officer. J.B. also testified regarding

the predicate act of domestic violence leading him to apply for a TRO, as well

as prior incidents of domestic violence, including one in 2012, involving a gun.

Plaintiff has not demonstrated this information was derived from her initial

consultation with defendant or that defendant could only have obtained this

information through plaintiff. It is evident J.B. had independent knowledge of

these incidents and brought them to defendant's attention to enable her to

prosecute the domestic violence matter.

      Plaintiff claims she was disadvantaged in the divorce action because

certain business records and a recording on her cellular telephone, which

contained evidence regarding the valuation of J.B.'s interest in his company,

were located inside the former marital residence, which she could not access

because of the existing restraining order. As with the evidence adduced during

the domestic violence trial, plaintiff demonstrated no causal link between her

initial consultation with defendant, and the entry of the TRO, the FRO, or

inability to access the residence. No evidence exists of any special knowledge

acquired by defendant causing the trial court to grant either the TRO or FRO.

Moreover, as a practical matter, the TRO granted plaintiff access to the former

marital residence to collect her belongings. Notwithstanding, she does not

explain why she did not obtain the business records and her cellular telephone,

at the time or in discovery.

      Plaintiff challenges the motion judge's dismissal of her intentional

infliction of emotional distress claim against defendant because she failed to

adduce medical evidence of her damages. She also argues the judge erred by

precluding her from claiming as damages the legal fees and the costs of the

domestic violence appeal.

      As a general proposition, "emotional distress damages should not be

awarded in legal malpractice cases at least in the absence of egregious or

extraordinary circumstances." Gautam v. De Luca,  215 N.J. Super. 388, 399

(App. Div. 1987). "Even if emotional distress damages were recoverable in

legal malpractice actions, such awards would be impermissible in the absence

of medical evidence establishing substantial bodily injury or severe and

demonstrable psychiatric sequelae proximately caused by the tortfeasor's

misconduct." Ibid. "Aggravation, annoyance and frustration, however real and

justified, constitute unfortunate products of daily living.        Damages for

idiosyncratic psychiatric reactions should not be permitted." Id. at 400 (citing

Caputzal v. Lindsay Co.,  48 N.J. 69, 76 (1966)).

      "[A] negligent attorney is responsible for the reasonable legal expenses

and attorney fees incurred by a former client in prosecuting the legal malpractice

action." Packard-Bamberger & Co., Inc. v. Collier,  167 N.J. 427, 444 (2001)

(quoting Saffer v. Willoughby,  143 N.J. 256, 272 (1996)). A legal malpractice

plaintiff may also seek attorney fees "so long as the claimant proves that the

attorney's breach arose from the attorney-client relationship." Id. at 443.

      The threshold issue "is whether the party seeking the fee prevailed in the

litigation." Id. at 444 (quoting N. Bergen Rex Transp., Inc. v. Trailer Leasing,

Co.,  158 N.J. 561, 570 (1999)). Under the two prong test established by the

Court, "[t]he first prong requires that the litigant seeking fees establish that the

'lawsuit was causally related to securing the relief obtained; a fee award is

justified if [the party's] efforts are a "necessary and important" factor in

obtaining relief.'" Ibid. (alteration in original) (quoting N. Bergen Rex Transp.,

 158 N.J. at 570). "The second prong involves a factual and legal determination,

requiring the party seeking fees to prove that 'the relief granted has some basis

in law.'" Ibid. (quoting N. Bergen Rex Transp.,  158 N.J. at 571).

      The circumstances of this case, as we have noted them, fall short of the

requisite egregious or extraordinary conduct necessary for plaintiff's intentional

infliction of emotional distress claim to proceed without objective medical

evidence of her damages. Finally, plaintiff had no cause for a claim of counsel

fees against defendant as a form of damages, as she did not seek those fees for

successfully prosecuting the appeal of the FRO. Even if she had sought fees and

was denied, she could not claim them as a form of damages here where she did

not sustain her burden to establish causation to survive summary judgment in

defendant's favor.