MARGARET BELL VS. RICHARD C. KLEIN(L-3121-12, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3523-14T3
MARGARET BELL,
Plaintiff-Appellant,
v.
RICHARD C. KLEIN, ESQUIRE,
RICHARD C. KLEIN, P.C., and
SPECTOR, GADON & ROSEN,
Defendants-Respondents.
_________________________________
Argued December 13, 2016 – Decided July 11, 2017
Before Judges Messano, Suter and Guadagno.
On appeal from New Jersey Superior Court, Law
Division, Camden County, Docket No. L-3121-
12.
Colleen Flynn Cyphers argued the cause for
appellant (Levin Cyphers, attorneys; Ms.
Cyphers, on the briefs).
Jason S. Feinstein argued the cause for
respondents (Eckert, Seamans, Cherin &
Mellott, L.L.C., attorneys; Mr. Feinstein, of
counsel and on the brief).
PER CURIAM
Plaintiff Margaret Bell appeals the February 26, 2015 summary
judgment order, which dismissed her claims of legal malpractice
against defendants Richard C. Klein, Esq., Richard C. Klein, P.C.
(P.C.), and Spector, Gadon & Rosen (SGR) (collectively, the
defendants). We affirm in part, reverse in part and remand.
I.
Bell retained Klein and his P.C. in September 2005 to
represent her in a divorce action filed by her husband, Michael
Bell (husband). Klein continued to represent Bell after he
dissolved his P.C. on December 31, 2005 and became employed by
SGR.
Bell and her husband were married for sixteen years. He
worked full-time in a family-owned business. She was employed in
the last few years of the marriage part-time as a realtor. The
divorce involved two parcels of real estate: the marital home in
New Jersey and another property solely in Bell's name in Florida.
A pendente lite order provided that Bell was to receive unallocated
support of $600 per week. Her husband was to pay certain household
expenses such as the mortgage, insurance and utilities on the
marital home, and Bell's car payment.1
The couple was divorced by Dual Final Judgment of Divorce
with Stipulations (Final Judgment) on February 26, 2007. The
Final Judgment included their settlement agreement, and was signed
1
This order was not included in the record.
2 A-3523-14T3
by both parties and their counsel. The parties were both
questioned under oath about their willingness to voluntarily enter
into the settlement. For her part, Bell acknowledged she was
entering into the agreement freely and voluntarily and without
coercion.
KLEIN: Thank you. Now, you understand that
this is an agreement that both of
you must be bound by and it is going
to become an order of the Court,
correct.
BELL: Yes.
KLEIN: All right, and you certainly intend
to be bound by this agreement,
correct.
BELL: Yes, I intend - -
KLEIN: Okay.
BELL: - - everything I said here.
. . . .
KLEIN: As you sit here today are you under
the influence of any substance,
medication, that would impair your
ability to understand these
proceedings?
BELL: No.
KLEIN: Okay. And do you understand that
[the judge] is making no
determination today about the
fairness of this agreement or the
merits of this agreement, that all
she is doing today is taking
testimony and making a
3 A-3523-14T3
determination that each of you have
entered into this freely,
voluntarily and willingly, is that
correct?
BELL: That's correct.
KLEIN: Do you understand that?
BELL: Yes.
KLEIN: Okay. And you are - - nobody's
forcing you or coercing you to enter
into this agreement, correct? You
had questions about it, we addressed
those questions, correct.
BELL: Yes.
KLEIN: Okay.
BELL: You addressed them.
The trial judge found the parties "entered into the agreement
voluntarily and intended to be fully bound by it."
The settlement had been achieved two weeks earlier following
a two-day, non-binding arbitration before a retired judge, who was
well-versed in matrimonial law. Klein had submitted a lengthy
memorandum to the arbitrator in advance that addressed alimony,
real estate, equitable distribution and counsel fees.
The Final Judgment provided for permanent alimony of $800 per
week. Bell's husband was required to secure the alimony by
maintaining life insurance with a face amount of $300,000 that
would be reduced by $50,000 every five years. The Final Judgment
4 A-3523-14T3
referenced two earlier agreements signed during the marriage. One
agreement from 2000 was allegedly drafted by Klein. The second
"Indemnification and Hold Harmless Agreement," drafted by another
lawyer not involved here, purportedly required Bell's husband to
be responsible for past due federal income taxes, and he allegedly
waived any rights to equitable distribution or possession of the
premises.2 The Final Judgment provided the indemnification
agreements "shall be and are hereby declared unenforceable . . .
past, present or future."
The Final Judgment addressed equitable distribution. The
Florida home had been sold and a portion of the net proceeds after
payment of mortgages, taxes and commissions were placed in escrow.
The marital home was in foreclosure, having both a mortgage and
home equity line of credit. Under the Final Judgment, Bell could
refinance the property or the property would be sold. If sold,
paragraph five of the Final Judgment described various deductions
and credits from any resulting equity, the net balance of which
was to be paid by Bell to her husband. "[U]npaid direct and
indirect support" of $17,500 was to be deducted from the net
equity.
2
These agreements (the indemnification agreements) are not part
of the record on appeal.
5 A-3523-14T3
The parties were "equally responsible" for federal income
taxes under the Final Judgment although Bell's husband agreed to
be solely responsible for unpaid New Jersey income taxes. The
Final Judgment required each party to maintain life insurance for
their child's benefit. Each party was responsible for their
attorney's fees. The parties agreed the Final Judgment was "final
and binding," entered into "voluntarily" without "force, coercion
and/or duress," was a "compromise" of their claims, and was "fair,
adequate and satisfactory."
SGR sued Bell in September 2007 for unpaid attorney's fees.
Bell filed a counterclaim against SGR and a third-party complaint
against Klein and P.C., alleging legal malpractice (the 2007
complaint). The 2007 complaint alleged that Klein, P.C. and SGR
deviated from "customary standards and practices of lawyers" by
not acting in her best interests; by forcing her under duress to
sign the settlement agreement; by not conducting discovery prior
to settling the case; by not enforcing the earlier indemnification
agreements; by not enforcing the pendente lite support order and
by not using monies held in the attorney's escrow to pay her
delinquent mortgage and taxes, as Klein allegedly promised.
In March 2010, Bell voluntarily dismissed the 2007 complaint
without prejudice. This dismissal did not conform with Rule 4:37-
1(a). Bell's counsel explained to the court that as a result of
6 A-3523-14T3
post-trial motions, specifically one decided on February 19, 2010,
which allegedly involved a negative interpretation of the
settlement agreement, Bell could not "raise the additional claim
of negligence and damages as part of this action" because discovery
was closed and thus, needed to dismiss the legal malpractice
complaint to assert such claims. Bell then accepted the
defendants' $30,000 Offer of Judgment, which dismissed with
prejudice the attorney's fee portion of the case. The malpractice
claim remained dismissed (voluntarily) without prejudice.
Bell filed another legal malpractice complaint in May 2012
(the 2012 complaint).3 The 2012 complaint was similar to the 2007
action, naming Klein, his P.C. and SGR as defendants. In the
complaint, Bell alleged Klein failed to enforce the pendente lite
order for support; did not file motions to amend her visitation
rights; improperly distributed monies from the sale of the Florida
house to her husband; did not enforce the earlier indemnification
agreements; did not pay her mortgage arrears or property taxes as
agreed; did not conduct discovery about her husband's income; and
presented her with the settlement agreement just before going on
the record in court, without the ability to review it, and that
3
In the interim, we decided a post-divorce judgment appeal, where
we rejected a request by Bell's ex-husband to reduce or terminate
alimony, but we remanded the case for a recalculation of attorney's
fees. Bell v. Bell, No. A-4003-10 (App. Div. June 1, 2012).
7 A-3523-14T3
it included terms with which she did not agree. The 2012 complaint
alleged the Final Judgment required her to pay 100% of the equity
from the marital home to her husband; 100% of the capital gains
tax on the Florida home; and part of the federal income tax
arrears. It did not include a clause requiring her husband to pay
past due support payments or to pay the mortgage, taxes or
utilities on either home. Bell objected to the alimony amount,
contending it was based on inaccurate income figures. She also
complained about certain allegedly inappropriate comments Klein
made to her. The 2012 complaint did not make any reference to
post-judgment motions.
Defendants filed a motion to dismiss the 2012 complaint,
alleging that because the 2007 complaint had been withdrawn in
violation of Rule 4:37-1(a), Bell should not be able to relitigate
the same issues. In April 2013, the motion judge denied the
motion, but ordered Bell to pay defendants' litigation costs
arising from the 2007 complaint in sixty days or the 2012 complaint
would be dismissed with prejudice. Bell paid $11,283.20 and the
2012 complaint was reinstated in October 2013.
Bell retained the same individual as an expert witness that
she utilized in connection with the 2007 complaint. The October
23, 2014 report of Cary Cheifetz, Esq. (Cheifetz) identified six
different "deviations" from "accepted standards of practice" that
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constituted legal malpractice by defendants. The first deviation
concerned the failure to incorporate into the settlement agreement
the indemnification agreements, which allocated tax liabilities
in Bell's favor. Klein allegedly did not aggressively seek
enforcement of those agreements, which were not "mid-marriage"
agreements according to Cheifetz, but enforceable "tax
indemnification agreements." Klein allegedly deviated from
accepted practice because there was no "downside exposure" to
trying to enforce the agreements, and Klein should have sought a
compromise or a ruling on their enforceability. Cheifetz opined
that Bell's damages constituted one-half the equity in the marital
home and the income tax liabilities she had paid.
The second deviation concerned alimony. The "material
deviation" was that Klein "used an insufficient income stream for
[husband] in calculating the alimony for his client." He should
have retained a "forensic accountant and [conducted] discovery,"
which should have included inquiry into the family-run books and
records. Cheifetz asserted that Klein "settled the case far below
his client's worst case scenario." Cheifetz opined that Bell was
damaged through lost alimony of $35,950 per year. Cheifetz also
took issue with the income that had been used for Bell in the
alimony calculation.
9 A-3523-14T3
The third alleged deviation was Klein's failure to collect
the pendente lite arrears for the mortgages, taxes and capital
gains, which should have been collected at the time of the
settlement.
The fourth alleged deviation involved the improper drafting
of the settlement agreement, which required "post-judgment
litigation as well as the employment of a certified public
accountant" to implement the agreement. Cheifetz found paragraph
five's formula, which he asserted spawned post-judgment
litigation, to be "incomprehensible." Cheifetz alleged the lack
of clarity resulted in unspecified damages.
The fifth deviation alleged that Klein had a conflict of
interest because of his purported involvement in drafting the 2000
indemnification agreement. Cheifetz opined that had Klein pressed
for a trial, he could not have testified because of his conflict.
This gave the other side "an unfair negotiation advantage" that
damaged Bell.
The sixth deviation addressed miscellaneous issues.
Cheifetz alleged there was no need for Bell to have life insurance
for her daughter's benefit. He asserted the $300,000 insurance
that her husband was required to purchase was not adequate to
secure the alimony and the $50,000 stepdown added to the problem.
Cheifetz alleged Klein deviated from the standard of care when he
10 A-3523-14T3
failed to pay Bell's mortgage and taxes as promised. Klein also
was alleged to be rude and disrespectful contrary to the Rules of
Professional Conduct.
Cheifetz concluded that the "settlement agreement deviate[d]
materially from the reasonable expectations that a client would
expect to receive if they were represented by competent counsel."
He opined the settlement was, "as a whole," plaintiff's "worst
case scenario with no consideration for compromise." The "alimony
issue" was settled "far below" the worst case. Acceptance of the
settlement was "incompetent." He opined that Klein committed
legal malpractice by advising his client to settle the case instead
of trying it where she would have received more in alimony and
equitable distribution. In addition, Cheifetz concluded Bell
incurred costs arising post-judgment that she "would not have
incurred."4
Defendants' summary judgment motion in October 2014 alleged
that the 2012 complaint was barred by the entire controversy
doctrine and constituted fraud upon the court, because the case
had been dismissed with prejudice in 2010, and Bell now was making
the same allegations. Defendants alleged that Cheifetz's expert
4
Defendants retained an expert in 2009, whose report is in the
record. We do not know if that report was updated for the 2012
litigation.
11 A-3523-14T3
report offered only inadmissible net opinions. Defendants alleged
Bell should be judicially estopped because she agreed to the
settlement and now was taking a contrary, inconsistent position;
that the claims against the P.C. were time-barred, having been
brought more than six years after the P.C. was closed; and that
the expert report was defective because it did not allege any
damages.
The motion was opposed by Bell, who alleged there were
disputed facts. Bell relied on Cheifetz's report about deviations
involving "the improper allocation of outstanding income tax
liabilities, equity in the former marital residence, the amount
of alimony recommended[,] . . . failure to collect pendente lite
arrears [and] numerous other issues."
On November 21, 2014, the trial judge granted partial summary
judgment under the entire controversy doctrine and dismissed with
prejudice "all claims [existing] on or prior to February 26, 2007."
For claims after that, the court denied defendants' motion, but
invited additional briefing to address whether those claims should
be dismissed. Both parties filed supplemental submissions.
Bell filed a motion to reconsider the November 21, 2014 order
and extend discovery to serve a supplemental expert report.
Discovery was extended, which permitted the service of expert
reports.
12 A-3523-14T3
On February 20, 2015, the trial judge granted Bell's motion
for reconsideration, explaining that Bell's claims arising before
February 2007 could go forward based upon the prior judge's ruling.
However, the judge then granted summary judgment to defendants,
finding Bell's claims were judicially estopped, as "[t]he only
evidence of any coercion is the plaintiff's own words, some two
years after the fact. It is a bootstrap attempt to deny what she
said under oath." The judge also found summary judgment was
appropriate because Cheifetz's opinion was a net opinion, as he
"ha[d] a personal opinion that he could have done better for
[plaintiff] if he were the attorney."
Bell appealed the February 26, 2015 order that dismissed her
complaint. Defendants have not filed a cross-appeal. As such,
there is no appeal of the February 20, 2015 order that granted
reconsideration nor of the December 19, 2014 order that allowed
Bell to serve a supplemental report by Cheifetz.5
On appeal, Bell contends summary judgment was erroneously
entered because there was a dispute of fact regarding her state
of mind when she was "forced, threatened and coerced" into settling
her matrimonial case, because Klein disputes "such threats and
allegations of duress." Moreover, Bell contends the trial court
5
A supplemental report was served which addressed the issue of
damages.
13 A-3523-14T3
erred as a matter of law in finding her expert report constituted
a net opinion because the report was "replete with sound factual
data," was supported by "legal foundation and citations," and
explained the legal "deviations from the standard of care." Bell
contends that post-judgment litigation regarding the equity from
the marital home provided an independent basis to continue this
malpractice litigation, despite the dismissal of the earlier
litigation, because that issue arose after dismissal of the earlier
case.
II.
We review a trial court's order granting or denying summary
judgment under the same standard employed by the trial court.
W.J.A. v. D.A., 210 N.J. 229, 237 (2012). The question is whether
the evidence, when viewed in a light most favorable to the non-
moving party, raises genuinely disputed issues of fact sufficient
to warrant resolution by the trier of fact, or whether the evidence
is so one-sided that one party must prevail as a matter of law.
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Where there are claims of legal malpractice, "summary disposition
is appropriate only when there is no genuine dispute of material
fact." Ziegelheim v. Apollo, 128 N.J. 250, 261 (1992) (citing
Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 74 (1954)).
14 A-3523-14T3
The trial judge dismissed the malpractice complaint on two
grounds, namely that Bell was judicially estopped from raising the
claims, and that her expert's report constituted a net opinion.
We agree Bell is judicially estopped from raising certain claims,
but not others. We do not agree that Bell's expert offered net
opinions on the remaining claims.
A.
"Public policy favors the settlement of disputes."
Willingboro Mall, Ltd. v. 240/242 Franklin Ave. L.L.C., 215 N.J.
242, 253 (2013). See also Gere v. Louis, 209 N.J. 486, 500 (2012)
(noting "New Jersey's strong public policy in favor of the
settlement of litigation"). We also acknowledge a "'strong public
policy favoring stability of arrangements' in matrimonial
matters." Quinn v. Quinn, 225 N.J. 34, 44 (2016) (quoting
Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)).
That said, "lawyers owe a duty to their clients to provide
their services with reasonable knowledge, skill, and diligence.
Ziegelheim, supra, 128 N.J. at 260. Necessary steps in the proper
handling of the case "will include, among other things, a careful
investigation of the facts of the matter, the formulation of a
legal strategy, the filing of appropriate papers, and the
maintenance of communication with the client." Id. at 261. "[T]he
Court in Ziegelheim concluded that '[t]he fact that a party
15 A-3523-14T3
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.'" Guido v. Duane
Morris, L.L.P., 202 N.J. 79, 93 (2010) (alteration in original)
(citations omitted). A "lawyer is obligated to give the client
reasonable advice." Ziegelheim, supra, 128 N.J. at 261.
"[A]ttorneys who pursue reasonable strategies . . . and who render
reasonable advice to their clients cannot be held liable for the
failure of their strategies or for any unprofitable outcomes
. . . ." Id. at 267.
"[T]he existence of a prior settlement is not a bar to the
prosecution of a legal malpractice claim arising from such
settlement." Guido, supra, 202 N.J. at 94. A narrow equity based
exception to this exists "to prevent injustice by not permitting
a party to repudiate a course of action on which another party has
relied to his detriment." Ibid. (quoting Knorr v. Smeal, 178 N.J.
169, 178 (2003)) (other citation omitted). The Court applied this
exception in Puder v. Buechel, 183 N.J. 428 (2005), where the
client's malpractice claim was barred because the "second
settlement had the effect of placing [the client] in the situation
she contended she should have occupied at the outset." Gere,
supra, 209 N.J. at 504. Actions by counsel after settlement may
16 A-3523-14T3
also form the basis for a legal malpractice action. Ibid.(finding that the malpractice claim was not barred where claims
"revolved instead around" attorneys action after the settlement
agreement was executed and the agreement reserved the ability to
sue former attorney).
Here, the trial judge erred in concluding that all of Bell's
claims of legal malpractice were judicially estopped. "Judicial
estoppel is an equitable doctrine precluding a party from asserting
a position in a case that contradicts or is inconsistent with a
position previously asserted by the party in the case or a related
legal proceeding." Tamburelli Props. Ass'n v. Borough of
Cresskill, 308 N.J. Super. 326, 335 (App. Div. 1998). The doctrine
is "meant to protect the integrity of the judicial system, designed
to prevent litigants from 'playing fast and loose with the
courts.'" Ibid. (quoting Scarano v. Cent. R.R. Co., 203 F.2d 510,
513 (3d Cir. 1953)).
We have applied the doctrine of judicial estoppel in upholding
the dismissal of a legal malpractice action where a client
voluntarily agreed to a settlement of the record, and later alleged
she was forced to accept this settlement. See Newell v. Hudson,
376 N.J. Super. 29, 46-47 (App. Div. 2005) (although agreeing with
the settlement on the record, the client later asserted she was
forced to agree to this to obtain a divorce). In Newell, we said
17 A-3523-14T3
that such "self-serving behavior is precisely the type of
inconsistent judicial position-taking that the doctrine of
judicial estoppel is designed to prevent." Id. at 47.
Here, the trial court was correct to judicially estop Bell's
malpractice claim premised on duress. Bell now alleges she was
coerced into the settlement, yet specifically told the court when
the settlement was placed on the record that she was not coerced.
The settlement document itself stated that it was the final
agreement entered into voluntarily. She has offered no proof of
coercion. Her self-serving statements alone are insufficient to
create a genuine issue of material fact to survive a summary
judgment motion. See generally Heyert v. Taddese, 431 N.J. Super.
388 (App. Div. 2013).
Similarly, we agree with the trial judge that judicial
estoppel applies to Bell's claim of legal malpractice regarding
the incomes used to determine alimony and the alleged lack of
discovery regarding that issue. The emails included in the record
show that Bell was well aware her husband's income was not fully
known prior to the arbitration. The issue was raised by Klein in
the arbitration memorandum presented to the arbitrator. Klein
provided Bell with the names of two experts, who could perform a
forensic accounting, but warned her of the significant costs that
such an analysis would entail. Similar to the plaintiff in Newell,
18 A-3523-14T3
who was aware of a lack of financial information, Bell agreed to
the settlement acknowledging that it was fair. Having settled the
case with knowledge of the uncertainty about her husband's income,
Bell should be estopped from asserting a different position now.
There was no basis, however, to conclude that Bell's legal
malpractice claims based on drafting errors in the settlement
agreement itself are precluded by judicial estoppel. The agreement
appears to require that 100% of the net equity from the marital
home was to be paid to her husband, but the arbitrator's notes
reflect the net equity should have been divided between the
parties. The agreement seemed to reimburse only a portion of the
pendente lite arrears although the arbitrator's notes tallied
those pendente lite arrears at more than double. Bell could not
know when she testified in support of the settlement what problems
might arise in the implementation of the settlement based on
alleged drafting errors. We are constrained to conclude the judge
erred by preventing Bell from raising the alleged drafting errors
in the settlement agreement as deviations from the standard of
care.
We cannot agree that the other alleged deviations should be
judicially estopped by Bell's agreement to the settlement. The
record is simply inadequate for us to determine what advice was
or was not given to Bell about the indemnification agreements, the
19 A-3523-14T3
life insurance, the alleged conflict of interest, or the alleged
agreement to pay the mortgage and taxes. Therefore, we reverse
in part the trial court's order that granted summary judgment and
dismissed Bell's complaint in its entirety, and remand for further
proceedings consistent with this opinion.
B.
We agree with Bell that the trial judge erred in determining
Cheifetz's report constituted a net opinion. We review that
determination under an abuse of discretion standard. Riley v.
Keenan, 406 N.J. Super. 281, 295 (App. Div.), certif. denied, 200
N.J. 207 (2009).
A trial court must decide "whether [an] expert's opinion is
based on facts and data." Rosenberg v. Tavorath, 352 N.J. Super.
385, 401 (App. Div. 2002) (citations omitted). "N.J.R.E. 703
requires that an expert's opinion be based on facts, data, or
another expert's opinion, either perceived by or made known to the
expert, at or before trial." Ibid. An expert must be able to
point to generally accepted objective standards or practices, not
merely standards personal to them. Koruba v. A. Honda Motor Co.,
396 N.J. Super. 517, 526 (App. Div. 2007), certif. denied, 194
N.J. 272 (2008). "Under the 'net opinion' rule, an opinion lacking
in such foundation and consisting of bare conclusions unsupported
20 A-3523-14T3
by factual evidence is inadmissible." Rosenberg, supra, 352 N.J.
at 401 (citations omitted).
Cheifetz opined, based upon case authority, that accepted
standards required Klein to recognize the indemnification
agreements were enforceable.6 Klein took the same position in the
arbitration memorandum. Having retreated from that position,
Cheifetz opined the settlement agreement was below what reasonably
could have been expected. Cheifetz quantified the alleged damages
attributable to this alleged deviation. We cannot say, therefore,
that the opinion was a mere conclusion based on a personal
standard. It provided the "why and wherefore" for the conclusion.
See State v. One Marlin Rifle, 319 N.J. Super. 359, 370 (App. Div.
1999) ("[T]he net opinion rule requires an expert witness to give
the why and wherefore of his expert opinion, not just a mere
conclusion.").
On the alleged drafting errors, the standard as alleged by
Cheifetz was to draft the document to reflect the parties'
agreement. He alleges the document varied from the agreement,
causing Bell's equitable distribution to be below what could have
been expected and resulting in litigation. This alleged deviation
6
We limit our discussion to the issues that survived judicial
estoppel.
21 A-3523-14T3
was not based on Cheifetz's personal opinion, but again his report
provided the foundation for his conclusions.
With respect to the amount of life insurance that Bell's
husband was required to maintain, Cheifetz explained that it would
not be adequate to secure the alimony. He supported his conclusion
with facts, not personal opinion. He explained why Bell should
not be required to obtain life insurance because there was no
indication the child would be without support in the event of
Bell's passing. Therefore, we do not agree with the trial judge
that Cheifetz's report constituted impermissible net opinions.7
Affirmed in part; reversed in part and remanded for
proceedings consistent with this opinion. We do not retain
jurisdiction.
7
Bell's reply brief did not contest defendants' claim that Bell
could not proceed against P.C. because the statute of limitations
had run. "An issue not briefed is deemed waived." W.H. Indus.,
Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App.
Div. 2008) (citation omitted). By not opposing the defense, Bell
conceded it.
22 A-3523-14T3