PAUL WIEBEL v. MORRIS, DOWNING SHERRED LLP
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4067-16T2
PAUL WIEBEL,
Plaintiff-Appellant,
v.
MORRIS, DOWNING & SHERRED,
LLP and DAVID JOHNSON, ESQ.,
Defendants-Respondents.
______________________________
Argued November 13, 2018 – Decided December 6, 2018
Before Judges Haas, Sumners, and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Sussex County, Docket No. L-0681-14.
Peter A. Ouda argued the cause for appellant.
Marshall D. Bilder argued the cause for respondents
(Eckert, Seamans, Cherin & Mellott, LLC, attorneys;
Christopher J. Carey and Venanzio E. Cortese, on the
brief).
PER CURIAM
Plaintiff Paul Wiebel appeals from the Law Division's May 25, 2017 order
granting summary judgment to defendants Morris, Downing & Sherred, LLP
and David Johnson and dismissing his legal malpractice complaint with
prejudice. We affirm.
I.
We summarize the following facts from the record, viewing "the facts in
the light most favorable to [plaintiff,] the non-moving party." Globe Motor Co.
v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)). Defendant David
Johnson has been a partner at Morris, Downing & Sherred since 1980. Plaintiff
and Johnson have had a longstanding professional relationship for roughly
twenty-five years on a variety of business matters, some in which Johnson
served as plaintiff's attorney and others in which Johnson loaned money to
plaintiff or to businesses in which plaintiff had invested. The disputes in this
case arise from plaintiff and Johnson's investments in Destiny Plastics, Inc.
("Destiny"), a Nevada corporation with operations and officers in Orange
County, California.
On March 25, 2002, Destiny and A-1 Business Products, Inc., d/b/a
Premium Financial Services ("A-1") entered into a factoring and security
agreement ("the factoring agreement"), by which A-1 purchased the rights to
A-4067-16T2
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accounts receivable of Destiny. In 2003, plaintiff purchased one-third of
Destiny's stock for $1.2 million and loaned it $2.5 million. On March 24, 2003,
plaintiff executed a personal guaranty in favor of A-1 in exchange for A-1's
continued financial support of Destiny ("the A-1 guaranty"). Prior to executing
the A-1 guaranty, plaintiff retained defendants to review the guaranty
agreement.
On October 27 2003, Johnson, as the sole member of Jawbone, LLC
("Jawbone"), executed a sale, lease and repurchase agreement with Destiny,
regarding molds for plastic products. Per this agreement, Jawbone loaned
Destiny $430,000 "to commence and complete the manufacture of, and to
acquire title to, a mold for plastic cutlery manufactured to specifications
satisfactory to Destiny." The agreement included a personal guaranty signed by
plaintiff as an inducement for Jawbone to enter into the agreement. Plaintiff
also agreed to indemnify Johnson for any defense costs if litigation ensued.
In 2006, plaintiff discovered that Destiny's controlling shareholder,
director, and CEO had been fraudulently misrepresenting Destiny's financial
condition. After this discovery, the CEO initiated three frivolous retaliatory
lawsuits on behalf of Destiny against plaintiff and others, including Johnson and
A-4067-16T2
3
Jawbone, in California ("the Destiny actions"). 1 Plaintiff hired Winston &
Strawn, LLP ("Winston & Strawn"), a California law firm, and Greenberg Rowe
Smith & Davis, LLP ("Greenbaum Rowe"), a New Jersey law firm, to represent
plaintiff, Johnson, and Jawbone in the Destiny actions.
Thereafter, Winston & Strawn engaged in extensive settlement
negotiations with counsel for Destiny to settle all claims in the Destiny actions .
From January to July 2007, attorneys from Winston & Strawn circulated drafts
of a proposed settlement agreement via email to plaintiff and Johnson. Johnson
responded to some of these emails with questions or comments. For example,
on April 24, 2007, Johnson emailed an attorney from Winston & Strawn about
concerns with language in the proposed settlement agreement, stating: "[I]f you
feel my prior comments have merit, those involved in negotiating and drafting
the agreement should address those points and cause the language to be revised
to eliminate the ambiguities and conflicting terms, and address the other issues
raised." (emphasis in original).
Eventually, the parties executed a final settlement agreement on
November 26, 2008. The agreement called for Destiny and its CEO to pay
1
Three other lawsuits were filed in New Jersey and Nevada over the parties'
disputes.
A-4067-16T2
4
$750,000 to plaintiff and for plaintiff to relinquish his stock in Destiny. The
agreement also dismissed the claims the parties had against each other in
California and New Jersey and resolved a number of other contractual issues
between the parties.
Billing records indicate that defendants billed plaintiff for legal work
related to Destiny during this time period. Defendants billed plaintiff for
"Destiny Matters" in October and November 2016, for telephone conferences
with Winston & Strawn in January 2007, for telephone conferences with
plaintiff regarding Destiny issues in February and March 2007, and for review
of correspondence from Winston & Strawn regarding terms of the settlement
agreement in April and May 2007. Throughout 2008, defendants billed plaintiff
for research, strategy, and litigation to domesticate the settlement agreement in
New Jersey. 2
In 2008, A-1 discovered that Destiny was in breach of the factoring
agreement. On November 10, 2008, A-1 sent Destiny and plaintiff a letter titled
2
Winston & Strawn terminated its representation of plaintiff in April 2008 due
to nearly $200,000 in outstanding legal fees. On August 15, 2008, Winston &
Strawn sued plaintiff in California for unpaid legal fees. Plaintiff filed a cross-
complaint against Winston & Strawn for legal malpractice, breach of fiduciary
duty, and breach of contract. On January 31, 2011, Winston & Strawn and
plaintiff settled, with plaintiff agreeing to pay Winston & Strawn $65,000 for
the dismissal of the parties' claims against each other.
A-4067-16T2
5
"notice of termination and demand for payment-factoring agreement,"
demanding $1,324,801.64 due under the terms of the factoring agreement. The
letter is stamped as received on November 13, 2008. On July 18, 2012, A-1
filed an action against plaintiff in California for breach of the A-1 guaranty ("the
guaranty action"), which arose from Destiny's breach of the factoring agreement,
seeking damages of $2,575,062.39. Plaintiff retained a different California
attorney to represent him in the guaranty action.
In a California bench trial held in August 2014, plaintiff argued that A-1's
claim against him was time-barred under California's four-year statute of
limitations for actions arising from written contracts. The court held that the
statute of limitations for A-1's claim against Destiny for breach of the factoring
agreement began to run on July 11, 2008, when "the information available to A-
1 . . . was sufficiently problematic" to put A-1 on notice of the default of the
factoring agreement. Accordingly, A-1's complaint, filed on July 18, 2012, was
untimely. The court, however, held that plaintiff waived the statute of
limitations through an August 10, 2010 email from his attorney to counsel for
A-1. Because of plaintiff's waiver, a jury trial was held in October and
November 2014, with the jury returning a verdict in favor of A-1 for $871,803.3
3
A-1 and plaintiff later settled this judgment.
A-4067-16T2
6
II.
On November 10, 2014, plaintiff filed the complaint against defendants in
this case, alleging legal malpractice, breach of fiduciary duty, and breach of
contract. Plaintiff alleged that, notwithstanding the fact that Johnson was a co-
defendant in the Destiny actions, Johnson acted as his attorney in negotiating
the settlement agreement and negligently failed to ensure that the A-1 guaranty
was extinguished by the settlement agreement. On September 15, 2015,
defendants filed an answer denying the allegations. Defendants then filed a
motion for summary judgment on December 16, 2016, which plaintiff opposed.
On January 6, 2017, the trial court denied the motion without prejudice to allow
plaintiff to take Johnson's deposition.
Defendants moved for reconsideration of the denial of summary judgment
on February 3, 2017. Before the trial court rendered a decision on the motion
for reconsideration, defendants withdrew the motion and filed a new motion for
summary judgment on April 25, 2017, which plaintiff also opposed. On May
19, 2017, the trial court held a case management conference and ordered the
following: fact depositions to be completed by September 19, 2017; plaintiff to
provide a supplemental expert report, if necessary, by October 27, 2017;
defendant to submit an expert report by November 30, 2017; expert deposition
A-4067-16T2
7
to be completed by January 15, 2018; and all discovery to be completed by
January 31, 2018.
On May 25, 2017, the trial court held oral argument on defendant's April
25, 2017 motion for summary judgment and rendered an oral decision granting
the motion. First, the trial court held that the statute of limitations began to run
on November 13, 2008, when plaintiff received notice of A-1's demand for
payment, and that plaintiff timely filed a malpractice complaint against
defendants under New Jersey's six-year statute of limitations. Next, the court
found that there was an issue of material fact as to whether an attorney-client
relationship existed between plaintiff and Johnson, citing "several emails in
which Johnson was holding himself out as an attorney acting on behalf of
plaintiff" and records showing that defendants billed plaintiff "for work
conducted on the Destiny litigation from a period beginning around October 12,
2006 through October of 2008."
The trial court, however, held that plaintiff was unable to establish
proximate causation because of plaintiff's waiver of the statute of limitations in
the guaranty action. The court reasoned: "The statute of limitations on the
guaranty claim had expired. Plaintiff was no longer subject to any obligation
under the guarant[y] as a matter of law. However, plaintiff waived this d efense
A-4067-16T2
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thereby renewing his obligation under the A-1 guarant[y]." Additionally, the
trial court held that plaintiff's expert, Barry E. Levine, Esq., issued a net opinion
with regard to causation, noting that the expert's report did not discuss plaintiff's
waiver of the statute of limitations in the A-1 action. For these two reasons, the
trial court granted defendants' motion for summary judgment.
On appeal of the trial court's grant of summary judgment, plaintiff raises
the following points for our review:
[POINT I] SUMMARY JUDGMENT WAS
IMPROPERLY DENIED AS THERE WERE
GENUINE ISSUES OF FACT AS TO WHETHER
THE PLAINTIFF WAIVED THE STATUTE OF
LIMITATIONS DEFENSE IN THE UNDERLYING
LAWSUIT.
POINT II SUMMARY JUDGMENT WAS
IMPROPERLY GRANTED BECAUSE DISCOVERY
HAD BEEN EXTENDED BY THE COURT.
POINT III SUMMARY JUDGMENT WAS
INAPPROPRIATE BECAUSE OF THE ERRONEOUS
CONCLUSION THAT BARRY E. LEVINE ISSUED
A NET OPINION.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320,
330 (2010). Summary judgment must be granted if "the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
A-4067-16T2
9
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." R.
4:46-2(c). The court considers 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995).
Having reviewed the record and applicable legal principles, we agree with
the trial court that plaintiff's expert issued a net opinion with respect to causation
and that plaintiff cannot establish proximate causation as a matter of law. For
these reasons, we find that the trial court properly granted summary judgment
to defendants.
III.
Although not in the order raised by plaintiff, we first turn to plaintiff's
contention that the trial court erroneously concluded that plaintiff's expert issued
a net opinion with respect to causation. Plaintiff argues that Levine's expert
report was focused on the issue of attorney-client relationship and was subject
to amendment after further fact depositions were completed. He argues that the
trial court improperly struck Levine's opinion with respect to causation, because
A-4067-16T2
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Levine could have amended that portion of his opinion after the close of
discovery. We reject plaintiff's arguments.
"The admission or exclusion of expert testimony is committed to the
sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015)
(citation omitted). N.J.R.E. 703 requires that an expert opinion be based on
"facts or data . . . perceived by or made known to the expert at or before the
hearing." N.J.R.E. 703. "The net opinion rule is a 'corollary of [N.J.R.E. 703]
. . . which forbids the admission into evidence of an expert's conclusions that
are not supported by factual evidence or other data.'" Townsend, 221 N.J. at 53-
54 (alteration in original) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583
(2008); see also Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103-04
(App. Div. 2001) (holding that trial court properly excluded expert report in
legal malpractice action where expert failed to reference any evidential support
of duty of care).
Applying these standards, we conclude that plaintiff's expert issued net
opinions with respect to breach, causation, and damages. While Levine did
discuss the underlying factual basis for his opinion on the issue of the attorney-
client relationship between plaintiff and Johnson, he failed to do so on the issues
of breach, causation, and damages. With regard to these issues, Levine merely
A-4067-16T2
11
provided brief statements of the law, repeated the allegations in plaintiff's
complaint, and made bare conclusions. See Buckelew v. Grossbard, 87 N.J. 512,
524 (1981) ("[A]n expert's bare conclusions, unsupported by factual evidence,
is inadmissible."). Indeed, as noted by the trial court, the expert failed to address
plaintiff's waiver of the statute of limitations in the A-1 action, which is an
essential fact to the issue of proximate causation. 4 For these reasons, we find
that it was well within the trial court's discretion to strike Levine's opinion on
causation as a net opinion.
We next turn to plaintiff's contention that the trial court erred in holding
that plaintiff could not establish proximate causation as a matter of law. Plaintiff
argues that the trial court improperly resolved issues of disputed fact in
concluding that plaintiff was unable to establish proximate causation because of
his waiver of the statute of limitations in the A-1 action. He contends: "A fact-
finder could find that Johnson's negligence caused the guaranty suit in the first
place, (which it did) and that the fees incurred by [c]ounsel are an element of
4
To the extent that plaintiff suggests that Levine could amend his expert report
to address these deficiencies, we note that Levine was aware of the issue of the
waiver of the statute of limitations in the A-1 action from the documents he
reviewed, but failed to mention this issue in his report. See Townsend, 221 N.J.
at 57 (finding expert issued net opinion on causation where opinion "diverged
from the evidence").
A-4067-16T2
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damages that are recoverable irrespective of the outcome of the statute of
limitations motion." He also argues that defendants face the burden of
establishing that A-1 would have filed outside of the statute of limitations even
if his attorney in the guaranty actions had not inadvertently waived the statute
of limitations. We reject plaintiff's arguments.
To establish proximate causation, a plaintiff must first establish causation
in fact, which "requires proof that the result complained of probably would not
have occurred 'but for' the negligent conduct of the defendant." Conklin v.
Hannoch Weisman, 145 N.J. 395, 417 (1996) (quoting Vuocolo v. Diamond
Shamrock Chemicals Co., 240 N.J. Super. 289, 295 (App. Div. 1990)).
Additionally, a plaintiff "must present evidence to support a finding that
defendant's negligent conduct was a 'substantial factor' in bringing about
plaintiff's injury, even though there may be other concurrent causes of the harm."
Froom v. Perel, 377 N.J. Super. 298, 313 (App. Div. 2005) (quoting Conklin,
145 N.J. at 419). Stated differently, proximate cause is "any cause which in the
natural and continuous sequence, unbroken by an efficient intervening cause,
produces the result complained of and without which the result would not have
occurred." Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 322
(App. Div. 1996) (quotation omitted).
A-4067-16T2
13
Additionally, "in cases involving transactional legal malpractice, there
must be evidence to establish that the negligence was a substantial factor in
bringing about the loss of a gain or benefit from the transaction." Froom, 377 N.J. at 315. A plaintiff who alleges an attorney failed to take steps to protect
his or her interest in a transaction "must present evidence that, even in the
absence of negligence by the attorney, the other parties to the transaction would
have recognized plaintiff's interest and plaintiff would have derived a benefit
from it." Ibid. (citation omitted).
The burden is on the plaintiff to establish proximate causation "by a
preponderance of the competent, credible evidence and is not satisfied by mere
'conjecture, surmise or suspicion.'" 2175 Lemoine Ave. Corp. v. Finco, Inc.,
272 N.J. Super. 478, 488 (App. Div. 1994) (quoting Long v. Landy, 35 N.J. 44,
54 (1961)). Although issues of proximate causation are typically for the jury to
resolve, "a court may decide the issue as a matter of law where 'no reasonable
jury could find that the plaintiff's injuries were proximately caused ' [by the
defendant's conduct.]'' Broach-Butts v. Therapeutic Alternatives, Inc., 456 N.J.
Super. 25, 40 (App. Div. 2018) (quoting Vega by Muniz v. Piedilato, 154 N.J.
496, 509 (1998)).
A-4067-16T2
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In this case, we agree with the trial court that plaintiff cannot establish
proximate causation as a matter of law. Even viewing the evidence in the light
most favorable to him, plaintiff submits no evidence supporting that the parties
in the Destiny actions would have agreed to extinguish the A-1 guaranty as part
of the settlement agreement. Indeed, A-1 was not a party to the Destiny actions.
Without such evidence, plaintiff is unable to establish that Johnson's alleged
negligence in advising plaintiff about the settlement agreement was a substantial
factor in causing plaintiff's damages resulting from the guaranty action. See
Froom, 377 N.J. at 315-16 (holding that plaintiff had not established proximate
causation where no evidence showed that other parties would have agreed to
give plaintiff his desired ownership interest in property development); Finco,
272 N.J. Super. at 487-91 (holding that plaintiff had not established proximate
causation because plaintiff did not present sufficient evidence supporting that
other parties to real estate transaction were willing to include plaintiff's desired
terms in agreement).
Further, in legal malpractice cases, proximate causation must ordinarily
be established by expert testimony. See Froom, 377 N.J. Super. at 318 (holding
that expert testimony was required on the issue of proximate causation where
the legal transaction involved "a complex real estate acquisition and
A-4067-16T2
15
development"); Finco, 272 N.J. Super. at 490 (holding that expert testimony was
required to establish proximate causation in legal malpractice case involving
complex commercial transaction); Vort v. Hollander, 257 N.J. Super 56, 61
(App. Div. 1992) (holding that expert testimony was required to establish
proximate causation in legal malpractice case). As discussed above, plaintiff's
expert issued an inadmissible net opinion with respect to proximate causation
and failed to address whether plaintiff's waiver of the statute of limitations in
the guaranty action severed the chain of causation. In legal malpractices cases
involving complex transactions and litigation, such as this case, expert
testimony addressing the particular facts of the case is necessary to aid the trier
of fact in determining the issue of proximate causation. See Froom, 377 N.J.
Super. at 318; Finco, 272 N.J. Super. at 490.
As noted by the trial court, the undisputed facts establish that plaintiff
would not have been liable in the guaranty action had his attorney in that action
not waived the statute of limitations. In that regard, Johnson did not represent
plaintiff in the guaranty action. Without any admissible expert opinion or other
evidence to the contrary, we find that the inadvertent waiver of the statute of
limitations by plaintiff's attorney in the guaranty actions was a superseding
cause that severed the chain of causation from Johnson's alleged negligence.
A-4067-16T2
16
See Komlodi v. Picciano, 217 N.J. 387, 418 (2014) ("A superseding or
intervening act is one that breaks the chain of causation linking a defendant's
wrongful act and an injury or harm suffered by a plaintiff." (internal quotation
omitted)). We reject plaintiff's argument that defendants faced the burden of
establishing that A-1 would have filed outside of the statute of limitations even
if his attorney in the guaranty actions had not inadvertently waived the statute
of limitations. It is plaintiff's burden to prove proximate causation beyond mere
speculation. See Finco 272 N.J. Super. at 488. In this case, plaintiff only
speculates that his waiver of the statute of limitations did not break the chain of
causation, failing to address the undisputed fact that he would not have been
liable in the guaranty action absent this waiver.
In sum, even when viewing the evidence in the light most favorable to
him, plaintiff is unable to establish that the other parties to the Destiny actions
would have agreed to extinguish plaintiff's liability on the A-1 guaranty, or that
his other attorney's waiver of the statute of limitations did not sever the chain of
causation from Johnson's alleged negligence in advising plaintiff regarding the
settlement agreement. On the record before us, we find that no reasonable jury
could find that plaintiff's alleged damages were proximately caused by Johnson's
A-4067-16T2
17
negligence. For these reasons, the trial court correctly held that plaintiff is
unable to establish proximate causation as a matter of law.
We next address plaintiff's contention that the trial court improperly
granted summary judgment prior to the close of discovery. Although Rule 4:46-
1 permits a party to file a motion for summary judgment before the close of
discovery, "[g]enerally, summary judgment is inappropriate prior to the
completion of discovery." Wellington v. Estate of Wellington, 359 N.J. Super.
484, 496 (App. Div. 2003) (citing Velantzas v. Colgate-Palmolive Co., 109 N.J.
189, 193 (1988)). A party opposing a motion for summary judgment on the
grounds that discovery is incomplete, however, must "demonstrate with some
degree of particularity the likelihood that further discovery will supply the
missing elements of the cause of action." Badiali v. New Jersey Mfrs. Ins. Grp.,
220 N.J. 544, 555 (2015) (quoting Wellington, 359 N.J. Super. at 496). The
party must identify the specific discovery that is still needed. See Trinity Church
v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007) ("A party opposing
summary judgment on the ground that more discovery is needed must specify
what further discovery is required, rather than simply asserting a generi c
contention that discovery is incomplete."). "[D]iscovery need not be undertaken
A-4067-16T2
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or completed if it will patently not change the outcome." Minoia v. Kushner,
365 N.J. Super. 304, 307 (App. Div. 2004) (citations omitted).
In this case, plaintiff fails to specify with sufficient particularity the
additional discovery he seeks to conduct and how such discovery would change
the outcome of this case. Plaintiff points out that under the trial court's May 19,
2017 order, he had time remaining to conduct additional fact depositions and to
submit a supplemental expert report. Plaintiff, however, does not identify any
specific individuals he sought to depose or how additional discovery would aid
his expert in forming an opinion on proximate causation. See Trinity Church,
394 N.J. Super. at 178 (rejecting argument that summary judgment was
premature where briefs in opposition to summary judgment did not specify
additional discovery needed on any disputed issue). Based on our review of the
record, we find that plaintiff fails to show that additional discovery would
establish proximate causation or otherwise change the result of this case. See
Badiali, 220 N.J. at 555; Minoia, 365 N.J. Super. at 307. For these reasons, the
trial court did not err by granting summary judgment prior to the close of
discovery.
Additionally, although this determination does not undermine the trial
court's grant of summary judgment, we find that the trial court also had an
A-4067-16T2
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independent basis to grant summary judgment because plaintiff's complaint was
time-barred under California's statute of limitations for attorney malpractice.
Defendants argue that New Jersey's choice-of-law rules dictate that California's
statute of limitations govern plaintiff's claims, but that plaintiff's claims are
time-barred under either California's or New Jersey's statute of limitations. 5 The
trial court found that plaintiff timely filed the complaint within New Jersey's
six-year statute of limitations for attorney malpractice, but did not address the
choice-of-law issue. Having considered this issue, we conclude that California's
one-year statute of limitations for attorney malpractice applies and bars
plaintiff's claims.
We agree with the trial court that the statute of limitations was triggered
on November 13, 2008, when plaintiff received the demand for payment under
the factoring agreement by A-1, under both New Jersey and California law. By
this date, plaintiff had sufficient knowledge to realize that he suffered damages
by the failure to have the A-1 guaranty extinguished by the settlement agreement
in the Destiny actions. See Vision Mortg. Corp. v. Patricia J. Chiapperini, Inc.,
5
Although defendants primarily argued that the complaint was time-barred
under New Jersey's statute of limitations at oral argument on the summary
judgment motion and in their brief in support of summary judgment, they did
also briefly in their summary judgment brief argue that California's statute of
limitations applied.
A-4067-16T2
20
156 N.J. 580, 586 (1999) ("[P]ursuant to the discovery rule, a professional
malpractice claim accrues when: (1) the claimant suffers an injury or damages;
and (2) the claimant knows or should know that its injury is attributable to the
professional negligent advice." (quotation omitted and alteration in original));
Cal. Civ. Proc. Code § 340.6(a).6 Therefore, plaintiff's complaint would be
timely under New Jersey's six-year statute of limitations for attorney
malpractice, N.J.S.A. 2A:14-1, but would be untimely under California's one-
year statute of limitations, Cal. Civ. Proc. Code § 340.6(a). Accordingly, there
is a true conflict of law between New Jersey's and California's statutes of
limitations in this case. See McCarrell v. Hoffmann-La Roche, Inc., 227 N.J.
569, 584 (2017) ("[W]hen a complaint is timely filed within one state's statute
of limitations but is filed outside another state's, then a true conflict is present.").
"[S]ection 142 of the Second Restatement [of Conflicts of Laws] is now
the operative choice-of-law rule for resolving statute-of-limitations conflicts."
6
Cal. Civ. Proc. Code § 340.6(a) provides:
An action against an attorney for a wrongful act or
omission, other than for actual fraud, arising in the
performance of professional services shall be
commenced within one year after the plaintiff
discovers, or through the use of reasonable diligence
should have discovered, the facts constituting the
wrongful act or omission, or four years from the date of
the wrongful act or omission, whichever occurs first.
A-4067-16T2
21 Id. at 574. Applying this test, we find that California's statute of limitations
applies because New Jersey lacks a substantial interest in plaintiff's claims and
California has a more significant relationship to the claims. See MTK Food
Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super. 307, 314 (App. Div. 2018)
(holding that Pennsylvania's statute of limitations for legal malpractice applied
when New Jersey did not have a substantial interest in claims). As in MTK, the
primary connection to New Jersey is that defendants are attorneys licensed in
New Jersey, whereas all other relevant facts point to California. See id. at 314-
15. The underlying litigations, including the Destiny actions, plaintiff's
malpractice claim against Winston & Strawn, and the guaranty action, took place
in California and involved parties operating in California. Therefore,
California's one-year statute of limitations applies to bar plaintiff's claims. See
McCarrell, 227 N.J. at 594 (citing Restatement (Second) of Conflicts of Law §
142(2) (Am. Law Inst. 1971)) ("[W]hen New Jersey has no substantial interest
in the litigation, under section 142, our courts will not apply our State's statute
of limitations to save a claim when another state has a more significant
relationship to the case.").
In sum, we conclude that the trial court properly granted summary
judgment because plaintiff's expert issued a net opinion with respect to causation
A-4067-16T2
22
and because plaintiff cannot establish proximate causation on the facts of th is
case as a matter of law. To the extent we have not specifically addressed any of
plaintiff's remaining arguments, we find them without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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