ANTHONY J. GIRARD v. EDWARD G. FOSTER, ESQ

NOT FOR PUBLICATION WITHOUT THE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-5190-16T1


ANTHONY J. GIRARD,

          Plaintiff-Appellant,

v.

EDWARD G. FOSTER, ESQ.,

     Defendant-Respondent.
_____________________________

                    Argued October 25, 2018 – Decided December 12, 2018

                    Before Judges Simonelli and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Cape May County, Docket No. L-0056-11.

                    Gary R. Matano argued the cause for appellant.

                    Danielle M. Hughes argued the cause for respondent
                    (Koster, Brady & Nagler, LLP, attorneys; Danielle M.
                    Hughes, on the brief).

PER CURIAM
      In this legal malpractice matter, plaintiff, Anthony J. Girard, appeals from

a June 27, 2017, order granting defendant Edward G. Foster's motion for

summary judgment. We affirm.

      Defendant represented plaintiff in a 2006 lawsuit between and among the

plaintiff and the other children of Rose M. Girard. The underlying dispute

between plaintiff and his siblings involved a disagreement over the land owned

by Rose and the attached marina with several boat slips for rent. Prior litigation

over the same estate property ended in November 2, 2001, when plaintiff and

his siblings signed a consent order that required the property, previously deeded

from Rose to plaintiff, instead be titled to all four siblings as tenants in common.

As part of the consent order, plaintiff represented to his siblings and the court

he was unaware of any will executed by Rose. However, plaintiff later admitted

he knew of and actively participated in the creation of a will for Rose, dated

March 23, 2001.

      Following Rose's death on January 16, 2004, plaintiff was appointed

executor of her estate pursuant to the previously undisclosed will. The siblings

filed an order to show cause and succeeded in having plaintiff removed as

executor of the estate. Plaintiff maintained he managed the records and business




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of the estate and provided services to the marina, for which he sought

compensation.

      In the estate administration litigation, the siblings maintained plaintiff did

not keep sufficient records of his alleged services, plaintiff misused the property,

misappropriated the marina rental income and property and caused the estate to

become insolvent. The property was ultimately sold to a third party. The

siblings asserted numerous claims, mostly for attorney's fees.

      Plaintiff argued he was entitled to compensation for the services and

expenses he rendered to the estate in maintaining the property and marina after

his mother's death. Following a three-day bench trial and having reviewed all

of the evidence, the probate judge ruled plaintiff was not entitled to

compensation for services rendered to the property. He also determined the

siblings were entitled to attorney's fees for plaintiff's failure to timely execute

the deed and comply with the consent order and the siblings were entitled to

three-fourths of the rental income generated from the boat slip on the property.

The probate judge concluded the siblings were not entitled to collect the fair

rental value of the property nor were they entitled to legal fees associated with

the sale. It is noteworthy that the probate judge found plaintiff neither credible




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nor reliable and that plaintiff was untruthful, specifically concerning his claims

for compensation.

      On January 24, 2011, plaintiff filed a pro se complaint alleging defendant

committed malpractice in the estate action. Plaintiff asserted in his complaint

defendant committed legal malpractice, among other things, by not engaging an

independent accountant to perform a financial review or audit to determine the

correct income and expenses of his mother's property. Plaintiff's complaint was

dismissed twice, but ultimately reinstated and allowed to go forward.

      Plaintiff retained a legal malpractice expert, Mark F. Heinze, and an

economic expert, Dennis C. Meyerson, each of whom furnished a report. The

court barred the Meyerson report because it was net opinion, and plaintiff did

not appeal that ruling. See Townsend v. Pierre,  221 N.J. 36, 54 (2015). The

Heinze report offered no opinion on damages but listed instances wherein he

asserted defendant was unprepared for trial and should have proffered evidence

of the valuation of plaintiff's services. The Heinze report does not address the

court's finding plaintiff was an untruthful witness. Following a lengthy term of

discovery marked by numerous delays, on March 15, 2017, defendant moved for

summary judgment pursuant to Rule 4:46-2(c). Plaintiff opposed the motion.

After hearing argument on the motion on April 13, 2017, the trial judge issued


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an order with a written decision granting summary judgment to defendant on

June 27, 2017. This appeal followed.

      On appeal, plaintiff argues there are material issues of fact that should

have precluded summary judgment and he has presented sufficient evidence of

damages. We disagree.

      At the heart of this case is plaintiff's general assertion defendant's

negligence was the cause of an unfavorable outcome in the estate administration

case.1 The trial court concluded plaintiff's expert explained neither causation

nor quantification of damages arising from malpractice. In short, plaintiff could

not prove his case.

      When reviewing a grant of summary judgment we use the same standard

as the trial court. Globe Motor Co. v. Igdalev,  225 N.J. 469, 479 (2016). A

court should grant summary judgment, "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." Ibid.



1
  We note plaintiff's outcome was not entirely unfavorable because the siblings
were denied a share of the fair rental value of the property and legal fees
associated with its sale. The probate judge also awarded plaintiff $8000 in
reimbursed expenses.
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(citing R. 4:46-2(c)). The evidence must be viewed in "the light most favorable

to the non-moving party." Mem'l Props., LLC v. Zurich Am. Ins. Co.,  210 N.J.
 512, 524 (2012). "Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard

mandates that the opposing party do more than 'point[] to any fact in dispute' in

order to defeat summary judgment."          Globe Motor Co.,  225 N.J. at 479

(alteration in original) (quoting Brill v. Guardian Life Ins. Co. of Am.,  142 N.J.
 520, 529 (1995)).

      Utilizing the Brill standard, the judge considered the undisputed facts and

the various allegations as to defendant's substandard representation at trial and

granted defendant's motion because plaintiff did not establish causation and a

quantum of damages for his legal malpractice claims.

      In order to succeed in a legal malpractice claim a plaintiff must show, "(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." McGrogan v. Till,

 167 N.J. 414, 425 (2001). Here it is unnecessary to consider the first two

elements because defendant only disputed that plaintiff presented expert

testimony sufficient to establish causation between a breach of care and

quantifiable damages incurred.


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      After conducting a thorough review of the record, we reach the same

conclusion as the motion judge, that plaintiff did not demonstrate the essential

elements of proximate causation and quantifiable damages. Moreover, plaintiff

did not show what injuries were suffered as a proximate consequence of the

defendant's alleged breach of duty. 2175 Lemoine Ave. Corp. v. Finco, Inc.,

 272 N.J. Super. 478, 487-88 (App. Div. 1994).

      A client asserting a legal malpractice claim must typically offer expert

testimony. Stoeckel v. Twp. of Knowlton,  387 N.J. Super. 1, 14 (App. Div.

2006). However, expert testimony may not be necessary if there is an obvious

causal link between the attorney's negligence and a client's loss. 2175 Lemoine

Ave. Corp.,  272 N.J. Super. at 490. There was no obvious causal link alleged

here capable of proving actual loss, and plaintiff did not demonstrate he 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).    Legal malpractice damages must be reasonably certain and a

definite consequence of a breach. Grunwald v. Brokesh,  131 N.J. 483, 495

(1993).

      Plaintiff's expert, Heinze, did not explain how the alleged malpractice and

the omission of evidence of the value of plaintiff's services for the benefit of the


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property was the cause of an unfavorable outcome in the estate administrati on

matter. Moreover, plaintiff presented no evidence, expert or non-expert, to

explain his specific damages and losses. Plaintiff did not set forth evidence of

advances he made to the marina that were lost as a result of defendant's alleged

malpractice. The probate judge actually awarded over $8000 in repayment for

expenses he advanced to the marina, notwithstanding the probate judge's finding

plaintiff was not truthful or credible. Plaintiff argued his proofs of damages

would be presented at trial, however, the court correctly determined "[f]ailing

to establish proofs at the time of summary judgment, which would demonstrate

. . . a meritorious claim exists that necessitates trial, is fatal to [p]laintiff's

claim." Plaintiff did not demonstrate he is entitled to additional compensation,

moreover, he did not demonstrate he is entitled to additional compensation based

upon something defendant did or did not do.

      We have carefully reviewed plaintiff's remaining arguments and have

determined they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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