SHERRY DUDAS v. STEVEN P. GRUENBERG
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-4465-15T1
SHERRY DUDAS, JIM KINSEL
and HOLLOWAY LAND, LLC,
Plaintiffs-Appellants,
v.
STEVEN P. GRUENBERG, ESQUIRE and
SCHOLL, WHITTLESEY & GRUENBERG,
LLC,
Defendants-Respondents.
Argued January 9, 2018 – Decided February 12, 2018
Before Judges Yannotti, Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-1764-13.
David J. Byrne argued the cause for appellants
(Ansell Grimm & Aaron, PC, attorneys; Breanne
M. DeRaps and Mark M. Wiechnik, on the
briefs).
Christopher J. Carey argued the cause for
respondents (Graham Curtin, attorneys;
Christopher J. Carey, of counsel; Venanzio E.
Cortese, on the brief).
PER CURIAM
Plaintiffs Sherry Dudas and Jim Kinsel and their company
Holloway Land, LLC (Holloway)1 appeal from the May 10, 2016 summary
judgment dismissal of their legal malpractice action against
defendants Steven P. Gruenberg, Esquire and Scholl, Whittlesey and
Gruenberg, LLC (SWG). We affirm.
I.
The claim of legal malpractice arises out of a dispute between
plaintiffs and neighboring property owners. On August 20, 2007,
plaintiffs purchased farm property on Chesterfield-Georgetown Road
in Chesterfield. In connection with this purchase, plaintiffs
procured a title insurance policy issued by Commonwealth Land
Title Insurance Company (Commonwealth). Pertinent to this appeal,
the policy specifically excludes title risks that are known to the
property owner, but not to Commonwealth, as of the policy date,
unless they appear in the public records. The policy also contains
exceptions for: (1) easements, encroachments, and boundary line
disputes that a survey would disclose, and which are not shown by
the public record; and (2) any facts about the land that a correct
survey would disclose, and which are not shown by the public
record.
1
For convenience and ease of reference, we will hereafter refer
to plaintiffs collectively unless the context makes clear that we
refer to any of them separately.
2 A-4465-15T1
In October 2009, John and Carleen Niemiec (the Niemiecs)
filed a lawsuit against plaintiffs claiming they had an access
agreement that allowed them to travel over a lane on plaintiffs'
adjoining property (the easement litigation). The Niemiecs sought
an injunction restraining plaintiffs from obstructing or otherwise
interfering with their use of the access easement, together with
compensatory and punitive damages. Attached to the Niemiecs'
verified complaint was a May 13, 2009 letter from Kinsel to John
Niemiec. In relevant part, Kinsel's letter stated: "Prior to the
closing on [our] property . . . you advised us you believed you
had an access easement on our farm lane which is owned by us in
fee simple."
Plaintiffs retained defendants to represent them in the
easement litigation. Plaintiffs and Gruenberg appeared in court
on April 15, 2011, for oral argument on a motion to enforce
litigant's rights. During oral argument, the judge engaged counsel
for the parties in settlement discussions. Plaintiffs then went
into the jury room with Gruenberg and the Niemiecs' counsel, where
the settlement terms were reduced to writing. The judge then
entered an order incorporating the parties' handwritten
settlement. In relevant part, the April 15, 2011 order dismissed
with prejudice both the Niemiecs' complaint and plaintiffs'
counterclaim, and allowed the Niemiecs a twelve-foot easement over
3 A-4465-15T1
plaintiffs' property for the limited purpose of ingress and egress
only.
Shortly thereafter, plaintiffs terminated defendants'
services and retained the law firm of Wilentz, Goldman & Spitzer,
P.A. (Wilentz) to represent them in the easement litigation. On
May 4, 2011, Wilentz filed a motion on behalf of plaintiffs seeking
to vacate the April 15, 2011 order because it purportedly violated
an existing restrictive easement and various statutes. On July
29, 2011, the court granted the motion in part and amended the
April 15, 2011 order "to reflect that it is subject to the review
and approval of all other regulatory authorities, including but
not limited to – township, county, and state."
In September 2011, plaintiffs moved to vacate the April 15,
2011 order in its entirety on the basis that the settlement was
entered into involuntarily and without their authority. The trial
court scheduled an evidentiary hearing on the motion and required
Gruenberg to attend. However, prior to the hearing, Wilentz
negotiated a new settlement with the Niemiecs on plaintiffs'
behalf. Among other things, the May 11, 2012 settlement agreement
vacated the April 15, 2011 order. Plaintiffs agreed to pay the
Niemiecs $21,000 toward the cost of constructing a new driveway
on the Niemiecs' property, and the Niemiecs agreed to relinquish
any right to use the access lane on plaintiffs' property.
4 A-4465-15T1
Plaintiffs commenced the present legal malpractice action on
July 12, 2013. Plaintiffs alleged defendants were negligent in
failing to present a timely claim to Commonwealth for coverage
under the title policy in the easement litigation. They also
alleged Gruenberg committed malpractice by settling the easement
litigation without their authorization.
Defendants moved for summary judgment at the conclusion of
discovery. In granting the motion, the trial court found: (1)
plaintiffs had no valid claim for coverage against Commonwealth
due to the policy's exceptions and exclusions; (2) plaintiffs
failed to present expert testimony or case law that the title
policy's exclusions and exceptions are invalid or that
Commonwealth would have provided coverage had a claim been asserted
against the policy; and (3) plaintiffs failed to present any expert
testimony to support their claim that defendants' representation
with respect to the settlement was deficient. The court entered
an order on May 10, 2016, dismissing the complaint with prejudice.
This appeal followed.
II.
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)).
5 A-4465-15T1
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)). "[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, [we] [afford] no special deference
to the legal determinations of the trial court." Templo Fuente,
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, plaintiffs were
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
6 A-4465-15T1
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)).]
The first element requires an attorney "to exercise on his
client's behalf the knowledge, skill and ability ordinarily
possessed and exercised by members of the legal profession
similarly situated and to employ reasonable care and prudence in
connection therewith." Lamb v. Barbour,
188 N.J. Super. 6, 12
(App. Div. 1982). At a minimum, an attorney must take "any steps
necessary" to properly handle a case, including carefully
investigating the facts, formulating a legal strategy, filing
appropriate papers, and communicating with the client. Ziegelheim
v. Apollo,
128 N.J. 250, 260-61 (1992) (citing Passanante v.
Yormark,
138 N.J. Super. 233, 238-39 (App. Div. 1975)). The second
element requires a breach of these duties. Additionally, a
plaintiff alleging legal malpractice must file an expert affidavit
stating that there is a reasonable probability that the attorney's
actions fell outside of acceptable professional standards.
N.J.S.A. 2A:53A-27. As to the third element, plaintiffs must
prove they suffered damages as a proximate consequence of
defendants' breach of duty. Garcia v. Kozlov, Seaton, Romanini &
Brooks, P.C.,
179 N.J. 343, 357 (2004).
7 A-4465-15T1
A.
On appeal, plaintiffs renew their argument that defendants
committed malpractice by failing to submit the Niemiecs' easement
claim to Commonwealth to provide coverage and a defense under the
title policy. In rejecting this contention, the motion judge
found plaintiffs did not present expert testimony opining that
Commonwealth would have defended or covered the claim in light of
the clear terms of the policy, including its exclusions and
exceptions. The judge concluded plaintiffs "failed to do that so
there's not any evidence to present to the jury that the breach
was the proximate cause of the damages."
With respect to the third element of a malpractice action,
"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. (quoting Long v. Landy,
35 N.J. 44, 54 (1961)). Ordinarily,
8 A-4465-15T1
the measure of damages is what result the client would have
obtained in the absence of attorney negligence. Garcia,
179 N.J.
at 358. 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).
Plaintiffs submitted expert reports by Andrew Rubin, Esquire,
and John A. Cannito, Esquire, to support their contention that
defendants were negligent in failing to submit a timely claim to
Commonwealth under the title insurance policy. As noted, the
motion judge found this expert evidence insufficient to
demonstrate that defendants' failure to submit the claim was the
proximate cause of any damages plaintiffs sustained. We agree.
Rubin's report dated June 17, 2014 states: "Commonwealth
affirmed that if timely notice had been given, and if the case had
not been settled, . . . it would have defended and covered the
claim." This is an inaccurate recitation of Commonwealth's July
25, 2011 letter, which rejected plaintiffs' claim because it was
untimely. It is true that Commonwealth stated: "As the
[l]itigation involves an alleged easement on the Insured Property,
this claim would at first appear to involve a covered matter."
However, Commonwealth went on to state that it "retained the right
9 A-4465-15T1
to supplement this letter" and "to deny this claim based on
additional grounds."
It is uncontroverted that plaintiffs were aware of the
Niemiecs' claimed access easement over their property prior to
closing, that the easement was not shown on the public records,
and Commonwealth was unaware of its potential existence when it
issued the policy. As the motion judge recognized, these
uncontroverted facts clearly implicated an exclusion from coverage
under the policy. In his report, Rubin failed to explain if or
why the exclusion would not apply to negate coverage.
Rubin was questioned about this exclusion during his August
25, 2015 deposition. He responded, without any support, that the
exclusion was "ambiguous" and not enforceable. Such response is
insufficient to establish proximate cause because it merely
represents Rubin's own personal interpretation of the policy, and,
more importantly, ignores existing case law to the contrary. See
Manchester Fund, Ltd. v. First Am. Title Ins. Co.,
332 N.J. Super.
336, 346-47 (Law Div. 1999) (finding a similar policy exclusion
unambiguous, thus precluding coverage and a defense for an insured
who was aware of a title defect and failed to disclose it).
Cannito's report and deposition testimony are no more helpful
to plaintiffs' cause. In his July 21, 2014 report, Cannito
acknowledged that, in denying coverage due to the untimely filing
10 A-4465-15T1
of the claim, Commonwealth reserved its rights under the policy,
although its denial letter did not specifically mention whether
any of the exclusions or exceptions applied. Cannito offered no
opinion whether the policy's prior knowledge exclusion or the
survey exceptions negated coverage. Rather, he stated only, "the
insurer has the burden of proving that the claim falls outside the
coverage under the policy or within the exceptions or exclusions."
Cannito did, however, acknowledge Kinsel's May 13, 2009
letter, in which Kinsel stated John Niemiec advised him of his
claimed access easement prior to closing. In his report, Cannito
opined: "Whether or not this correspondence and the conditions
depicted by a survey would have provided Commonwealth with the
basis to ultimately deny coverage based on the exceptions and
exclusions set forth in the [p]olicy is at best speculative."
Cannito was then asked directly about the letter at his August 11,
2015 deposition. Cannito conceded Kinsel's letter reflected that
plaintiffs knew of the Niemiecs' claim of a right to an easement
on plaintiffs' property prior to closing.
Cannito testified that Commonwealth's intent was to exclude
from coverage risks that are known to the insured but not to the
insurer as of the policy date. When asked squarely whether the
exclusion applied in this case, Cannito responded: "I did not
reach a conclusion one way or another."
11 A-4465-15T1
Simply put, neither Rubin nor Cannito provided a sufficient
expert opinion that Commonwealth would likely have provided
coverage or a defense had defendants submitted a claim under the
title policy at the outset of the easement litigation. Without
such an opinion, a jury would be left to speculate as to the result
had the claim been timely presented. Consequently, the motion
judge correctly concluded there was insufficient evidence to
demonstrate that defendants' failure to timely submit the easement
claim to Commonwealth was a proximate cause of plaintiffs' damages.
B.
Plaintiffs also renew their claim that defendants committed
legal malpractice in settling the easement litigation without
their authorization. Defendants dispute this contention, and the
motion judge correctly recognized that summary judgment was
inappropriate where such a disputed factual issue exists.
Notwithstanding, the judge dismissed the complaint based on
plaintiffs' failure to proffer any expert testimony to establish
the standard of care owed by an attorney representing a client in
a settlement, or whether defendants deviated from that standard.
Generally, the testimony of an expert is required in legal
malpractice cases to supply the standard of care against which the
lawyer's conduct is to be evaluated. Stoeckel v. Twp. of Knowlton,
387 N.J. Super. 1, 14 (App. Div. 2006) (stating "[b]ecause the
12 A-4465-15T1
duties a lawyer owes to his client are not known by the average
juror, a plaintiff will usually have to present expert testimony
defining the duty and explaining the breach."); Taylor v. DeLosso,
319 N.J. Super. 174, 179 (App. Div. 1999). The existence of a
duty of care and the standards defining such a duty are legal
questions determined by the court as a matter of law. See Estate
of Desir ex rel. Estiverne v. Vertus,
214 N.J. 303, 322 (2013);
Ziegelheim,
128 N.J. at 261-62.
Plaintiffs do not dispute that their malpractice claim
relating to the April 15, 2011 settlement is unsupported by expert
testimony. Instead, they contend their claim is subject to the
common knowledge exception to that requirement. This exception
applies "where the questioned conduct presents such an obvious
breach of an equally obvious professional norm that the fact-
finder could resolve the dispute based on its own ordinary
knowledge and experience and without resort to technical or
esoteric information." Brach, Eichler, Rosenberg, Silver,
Bernstein, Hammer & Gladstone, P.C. v. Ezekwo,
345 N.J. Super. 1,
12 (App. Div. 2001). We are not persuaded by this argument.
Here, it is undisputed that plaintiffs were present in court
when the terms of the settlement were discussed on the record.
They then had the opportunity to discuss the settlement with
Gruenberg in the jury room, where the settlement was reduced to
13 A-4465-15T1
writing and incorporated into the April 15, 2011 order. Expert
testimony was required to establish the standard of care Gruenberg
owed to plaintiffs during the settlement process, and how his
actions deviated from that standard of care. Accordingly, the
motion judge properly determined the common knowledge exception
did not apply, and the absence of expert testimony as to the
standard of care and whether defendants breached their duty of
care was fatal to plaintiffs' claim.
Affirmed.
14 A-4465-15T1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
