CATHY MITCHELL VS. GERALD SKEY (L-0486-12, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-1657-14T2
CATHY MITCHELL,
Plaintiff-Appellant,
v.
GERALD SKEY, S. BHATTACHARYA,
SKEY BHATTACHARYA LAW FIRM,1
Defendants-Respondents.
———————————————————————————————
Argued telephonically January 17, 2017 –
Decided May 12, 2017
Before Judges Lihotz, Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
0486-12.
Cathy Mitchell, appellant, argued the cause
pro se.
Patrick J. McCormick argued the cause for
respondents (Hardin, Kundla, McKeon & Poletto,
P.A., attorneys; Mr. McCormick, on the brief).
PER CURIAM
1 W.S. Gerald Skey improperly plead as "Gerald Skey", Supti
Bhattacharya improperly plead as "S. Bhattacharya" and Skey &
Bhattacharya, LLC, improperly plead as "Skey Bhattacharya Law
Firm".
Plaintiff Cathy Mitchell appeals from the December 1, 2014
Law Division order, which granted the summary judgment dismissal
of her legal malpractice action against defendants W.S. Gerald
Skey, and the law firm of Skey & Bhattacharya, LLC (collectively
defendants). Plaintiff's complaint alleged defendants negligently
represented her in the divorce proceedings she initiated against
her husband, Richard Miller. The Law Division dismissed
plaintiff's complaint because she failed to provide a report from
an expert who would testify as to the applicable standard of care,
and explain how defendants deviated from that standard with
resulting harm to plaintiff. Following our review of the record
and the parties' briefs, we affirm.
I.
We begin with a brief summary of the underlying divorce
litigation between plaintiff and her now former husband. 2
Plaintiff and Miller are both practicing attorneys. They married
in October 1993, and had two children, born in 1995 and 1999;
Miller also had two emancipated children from a prior marriage.
The parties maintained an affluent lifestyle, including luxury
2 Our opinion entered on plaintiff's appeal from her divorce
proceedings contains a more detailed account of the divorce
litigation. See Mitchell v. Miller, No. A-3756-12 (App. Div. June
11, 2015).
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vehicles, international family vacations, frequent Broadway shows,
and country club memberships.
The parties worked together for the majority of their
marriage, moving together into various positions, including in-
house counsel with a sporting goods manufacturer, various law
firms throughout New Jersey and New York, and their own law firm.
Financial documents showed they earned roughly equal salaries
throughout the marriage. In 2009, plaintiff received earned income
of $136,044 while defendant received earned income of $149,937.
Plaintiff filed for divorce in September 2009. Originally
scheduled for August 9, 2010, the trial was adjourned several
times for various reasons, including plaintiff changing attorneys
three times before trial due to alleged misconduct and conflicts.
Trial finally commenced in February 2011 before a Family Part
judge, with Skey serving as plaintiff's trial counsel. During the
first week of trial, the parties entered into an agreement
resolving custody and parenting time issues.3
Trial lasted thirteen days. After the tenth day, plaintiff
sought an adjournment in order to change attorneys again, asserting
3 In a certification, Skey said his representation of plaintiff
began in November 2010, after plaintiff's third attorney filed a
motion to withdraw. Skey said he focused his discovery on the
issue of custody. He claimed that by the time he began
representing plaintiff, all financial discovery had been
completed.
3 A-1657-14T2
a conflict with Skey because of his conduct, which she
characterized as misconduct and cognitive problems. The trial
judge denied plaintiff's application, and noted she had not
witnessed Skey exhibit any cognitive difficulties or misconduct.
The judge concluded that substitution of counsel at that late
stage would cause undue delay and unfair prejudice to Miller.
The judge nevertheless offered plaintiff three options: to
continue with Skey as trial counsel; to represent herself, as an
attorney admitted to practice in New Jersey; or to obtain a new
attorney post-trial to prepare a written summation on her behalf.
When plaintiff refused to choose one of these options, the judge
ordered Skey to continue as trial counsel for plaintiff.
At the conclusion of trial testimony, counsel gave their oral
summations on April 13, 2011. Nearly two years later, on March
8, 2013, the trial judge issued a Final Judgment of Divorce (FJOD),
accompanied by a seventy-one-page written opinion. In pertinent
part, the judge distributed the marital assets equally, and denied
plaintiff's requests for alimony, child support, and fee-
shifting.4 The judge found plaintiff's testimony suspect, noting
she often evaded questions by answering "I don't know[,]" or "I
can't remember[,]" sometimes even before the attorney had finished
4 Defendant appealed, and we affirmed. Mitchell, supra, (slip
op. at 1).
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asking the question. The judge further stated she had not "seen
one instance of behavior during trial or numerous conferences in
chambers and via telephonic conferences" that caused her concern
regarding Skey's ability to represent plaintiff. Rather, she
believed that plaintiff raised the issue because it was "clear
that plaintiff simply did not like how the trial was going."
In February 2012, over a year before the Family Part judge
issued her decision, plaintiff filed this malpractice action
against defendants.5 Plaintiff alleged Skey failed to depose
Miller until a week before the start of the divorce trial; failed
to obtain Miller's bank records until the middle of trial; failed
to obtain Miller's billing records because Skey waited until the
middle of trial to subpoena them, only to have the subpoena quashed
by the court; and failed to properly prepare materials, witnesses,
and other evidence to allow for the possibility of settlement
under "favorable terms."
In April 2012, plaintiff filed an affidavit of merit (AOM).
Following a May 2012 hearing, the court deemed the AOM insufficient
and gave plaintiff sixty days to file a new one. Plaintiff
thereafter filed a second AOM.
On August 8, 2012, defendants filed a motion to dismiss
5 Plaintiff's complaint also named Skey's law partner, Supti
Bhattacharya, as a defendant.
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plaintiff's complaint with prejudice, challenging the sufficiency
of the replacement AOM. On September 28, 2012, the court granted
the motion as to Bhattacharya only — because the replacement AOM
did not address her — but denied the motion as to Skey and his law
firm.
In January 2013, the remaining defendants filed a motion to
dismiss plaintiff's complaint without prejudice based on her
failure to provide discovery. The same month, plaintiff filed a
motion to compel certain depositions. In April 2013, defendants
filed a motion to set a deadline for furnishing expert reports.
In mid-May 2013, plaintiff filed a motion for summary judgment as
to liability only. On June 14, 2013, defendants filed a motion
for summary judgment based on plaintiff's failure to serve a report
from a legal malpractice expert. Unexplainably, these motions
went undecided, and the case lay dormant until June 12, 2014, when
defendants renewed their summary judgment motion based on
plaintiff's failure to provide an expert report.
On June 27, 2014, plaintiff filed a motion for a stay, or in
the alternative, for an extension of the discovery period to permit
her to serve an expert report. On October 20, 2014, plaintiff
filed a motion to extend discovery and for an additional sixty
days to file her expert report.
On October 28, 2014, the court denied both summary judgment
6 A-1657-14T2
motions as well as plaintiff's motion for a stay. The court also
denied plaintiff's motion to compel depositions and defendants'
motion to dismiss the complaint without prejudice, and gave
plaintiff until December 1, 2014, to serve her expert report. The
court entered corresponding orders the same date, including an
order directing that any depositions sought by plaintiff not occur
until she served answers to interrogatories, responded to certain
document requests, and submitted to a deposition; an order denying
defendants' motion to dismiss the complaint without prejudice; an
order denying plaintiff's motion for summary judgment on
liability; an order denying plaintiff's motion for a stay pending
the decision by the Appellate Division in the divorce action; and
an order denying plaintiff's motion for a protective order and to
quash defendants' subpoena of the divorce case file held by a non-
party company, New Jersey Legal.
On December 1, 2014, after plaintiff failed to serve her
expert's report, the motion court issued an oral decision granting
defendants' motion for summary judgment. The court entered a
corresponding order and dismissed plaintiff's complaint the same
day. This appeal followed.6
6 In addition to the December 1, 2014 dismissal order, plaintiff
also appeals from the October 28, 2014 orders denying plaintiff's
motions.
7 A-1657-14T2
II.
Review of a ruling on summary judgment is de novo, and we
apply the same legal standard as the trial court. Nicholas v.
Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is
appropriate where "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." R. 4:46-2(c).
When determining whether there is a genuine issue of material
fact, we must consider "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). We afford no deference to the trial court's legal
conclusions. Nicholas, supra, 213 N.J. at 478.
Plaintiff contends no expert was required in this case because
Skey's negligence was obvious and a matter of common knowledge,
such that a juror of average intelligence could understand. We
disagree. Plaintiff's malpractice claim was sufficiently complex
to require expert testimony regarding the accepted standard of
care and how Skey allegedly failed to meet that standard.
8 A-1657-14T2
Plaintiff told the court at the October 2014 hearing that her
"expert report would be about everything." By "everything," she
apparently was referring to the alleged conflict of interest that
arose when Skey agreed to continue to represent her after she had
notified him of her intention to file a malpractice action against
him because he allegedly failed to timely obtain Miller's billing
and bank records. Plaintiff also argues that Skey committed
malpractice by not sending information to a forensic accountant
she had retained.
In denying plaintiff's motion for summary judgment at the
October 28, 2014 hearing, the motion court stated:
There are cases that are so obvious. They're
few and far between, especially in
professional malpractice . . . . You know,
an attorney takes money to file a complaint
and just never files the complaint or blows
the statute of limitations . . . but that's
not this case. . . . This case has more
nuances to it. . . . It's not even whether
or not, or why subpoenas weren't sent earlier,
or things that weren't requested, whether an
adversary promised something and didn't live
up to that promise, . . . so I don't think
it's . . . such a clear cut case of . . .
alleged attorney malpractice, that it would
fall into the rule that does require expert
testimony.
Also, there does need to be the issue of
causation . . . . You have to have a
connection between the causation [sic].
Now I'm not saying you can't prove that,
but you would need expert testimony in this
type of a case to prove that
9 A-1657-14T2
. . . . So, again, you don't have an expert
on proximate causation. You don't have an
expert on whether or not . . . this was
malpractice for Mr. Skey if he decided not to
use a certain expert . . . or not to question
your ex-husband in a certain manner. That
would all require an expert.
Generally, 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). In reviewing a summary judgment
determination based on an evidentiary issue, like the trial court,
we must first identify the evidentiary issue and then make the
summary judgment determination. Id. at 53.
The usual principles of negligence apply to a legal
malpractice action. Conklin v. Hannoch Weisman, 145 N.J. 395, 416
(1996). Thus, a plaintiff must establish by competent proof an
attorney-client relationship creating a duty of care upon the
attorney, breach of that duty, and proximate causation. Ibid.
Generally, a lawyer is required to exercise the degree of
reasonable knowledge and experience that lawyers of ordinary
ability and skill possess and exercise. Brach, Eichler, Rosenberg,
Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J.
Super. 1, 12 (App. Div. 2001). That obligation encompasses "the
taking of any steps reasonably necessary in the proper handling"
of a case, including the duty of investigating the facts,
formulating a litigation strategy and filing within a reasonable
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time anything necessary to effectuate recovery. Kranz v. Tiger,
390 N.J. Super. 135, 147 (App. Div.) (quoting Passanante v.
Yormark, 138 N.J. Super. 233, 239 (App. Div. 1975), certif. denied,
70 N.J. 144 (1976)), certif. denied, 192 N.J. 294 (2007).
The AOM Statute (AMS), N.J.S.A. 2A:53A-26 to -29, requires a
plaintiff in a legal malpractice action to file an affidavit of
merit. However, an AOM is not required in a case where the "common
knowledge" doctrine applies and obviates the need for expert
testimony to establish a deviation from the standard of care.
Hubbard v. Reed, 168 N.J. 387, 390 (2001); Bender v. Walgreen E.
Co., 399 N.J. Super. 584, 590 (App. Div. 2008). The doctrine
applies where jurors' common knowledge as lay persons is sufficient
to enable them, using ordinary understanding and experience, to
determine a defendant's negligence without the benefit of an
expert's specialized knowledge. Bender, supra, 399 N.J. Super.
at 590. Such a situation is where the carelessness of the
defendant is readily apparent to anyone of average intelligence
and ordinary experience. Ibid.
One of the requirements for the admission of expert testimony
is that the intended testimony must concern a subject matter beyond
the ken of the average juror. State v. Kelly, 97 N.J. 178, 208
(1984). Generally, expert testimony is required in cases of
professional malpractice where the matter to be addressed is so
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esoteric that the average juror cannot form a valid judgment as
to whether the conduct of the professional was reasonable. Sommers
v. McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996). However,
depending on the facts of a given case, a layperson's common
knowledge may be sufficient to permit a finding that the duty of
care had been breached. Ibid.
Generally, because the duties a lawyer owes his or her client
are not known by the average juror, expert testimony is required
to set forth that duty and explain the breach. Buchanan v.
Leonard, 428 N.J. Super. 277, 288 (App. Div.), certif. denied, 213
N.J. 534 (2013). However, in "rare cases," expert testimony is
not required in a legal malpractice action where the duty of care
to the client is so basic that it may be determined by the court
as a matter of law. Ibid. In addition, expert testimony may not
be required to establish proximate cause in a legal malpractice
case where the causal relationship between the attorney's
malpractice and the client's loss is so obvious that the trier of
fact can resolve the issue as a matter of common knowledge.
Sommers, supra, 287 N.J. Super. at 11.
"A common thread runs through these cases, namely none of
them required the trier of fact to evaluate an attorney's legal
judgment concerning a complex legal issue." Brach, Eichler, supra,
345 N.J. Super. at 13. New Jersey courts have dispensed with the
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expert testimony requirement where attorneys have failed to
fulfill the most basic of responsibilities, such as failing to
submit a legal argument, not properly recording a bond and
mortgage, and letting the statute of limitations run. Id. at 12-
13.
In Buchanan, supra, 428 N.J. Super. at 280-82, the plaintiff
had been sued for legal malpractice and sought coverage from his
insurer. The insurer denied coverage after the attorney assigned
to defend the plaintiff in the malpractice matter informed the
insurer the plaintiff committed bankruptcy fraud. Id. at 283.
The insurer brought a declaratory judgment action, and the court
determined that the plaintiff was, in fact, entitled to coverage.
Ibid.
The plaintiff then filed a malpractice action against the
attorney and firm that had represented him in the underlying
malpractice action. Ibid. In granting the defendants' motion for
summary judgment, the trial court determined that the plaintiff
was required to provide an expert report, and had not done so.
Id. at 284. On appeal, the defendants argued that the defendant
attorney had merely provided the insurer with his "candid
assessment" of the plaintiff's potential liability in the
underlying lawsuit. Id. at 289. The plaintiff argued that the
attorney violated his duty to provide him with undivided loyalty.
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Ibid. Faced with these arguments, we held that without the
assistance of expert evidence, a jury would not have been able to
determine the duty of care that applied. Ibid.
In Brizak v. Needle, 239 N.J. Super. 415, 417-18 (App. Div.),
certif. denied, 122 N.J. 164 (1990), the plaintiff alleged that
her attorney had committed malpractice because he failed to file
a medical malpractice action prior to the expiration of the statute
of limitations. The attorney maintained that he did not believe
there was a limitations problem because he thought that the claim
would not accrue until the plaintiff found a doctor who believed
her treatment had been malpractice. Id. at 425.
We held that the plaintiff was not required to produce an
expert in support of her claim because there was no need for an
expert to "refute defendant's obviously incorrect belief that the
limitations period did not begin to run until an expert medical
opinion was obtained." Id. at 429. Moreover, the evidence in
support of the claim "was within the grasp of common
understanding." Id. at 431. This evidence included the
defendant's failure to obtain the medical opinion of someone with
the appropriate expertise who would be willing to testify, and his
failure to obtain x-rays and office records. Id. at 432. However,
the court added:
We do not want to leave the wrong
impression. Although expert opinion is not
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necessary to establish the negligence of a[n]
. . . attorney who fails to conduct any
investigation of his client's claim, where the
attorney has undertaken some investigation, a
jury will rarely be able to evaluate its
adequacy without the aid of expert legal
opinion. We are convinced that this is one
of those rare cases. We nevertheless caution
that a plaintiff's attorney who litigates a
legal malpractice claim without the opinion
testimony of a legal expert unnecessarily
exposes his client to a serious risk of
dismissal.
[Ibid.]
In Aldrich v. Hawrylo, 281 N.J. Super. 201, 204 (App. Div.
1995), appeal dismissed, 146 N.J. 493 (1996), the plaintiffs
claimed that their attorneys committed malpractice by advising
against disclosing to a purchaser the existence of a setback
restriction, imposed as a condition of a variance grant, because
the restriction was invalid. We reversed the trial court's
determination that expert testimony was not needed. Id. at 213-
15. We held that because the attorneys conducted an extensive
investigation into the question prior to rendering their opinion,
a jury could not properly evaluate the adequacy of the
investigation or the opinion without the aid of expert legal
testimony. Id. at 214.
In Brach, Eichler, supra, 345 N.J. Super. at 11, 14, the
defendant physician sought to raise a legal malpractice
counterclaim in an action brought against him to recover unpaid
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legal fees. She alleged her former attorneys failed to file, or
delayed filing, certain lawsuits. Id. at 11. The trial court
denied her request because she failed to supply an expert report.
Id. at 11-15. We affirmed because the issues raised by the
counterclaim were matters of "analysis, opinion, [and]
interpretation." Id. at 15.
In Sommers, supra, 287 N.J. Super. at 5, a tax assessor
brought an action to affirm her tenured status and to receive back
pay. The case settled during trial, with the plaintiff tax
assessor receiving back pay but surrendering her tenure claim.
Ibid. The plaintiff then brought a malpractice action against her
trial attorney alleging inadequate case preparation, failure to
communicate more favorable settlement offers to her, and
misrepresentation of the strength of the municipality's proofs on
the tenure issue. Id. at 7. As a result of this malpractice, the
plaintiff claimed she accepted an inadequate settlement. Id. at
8.
The trial court granted summary judgment to the defendant
attorney because the plaintiff failed to produce an expert to
establish the standard of care and breach of that standard. Id.
at 9. We reversed the entry of summary judgment, stating:
Stripped to its essentials, plaintiff
asserts that she accepted a settlement offer
far inferior to one previously tendered
because her attorney inadequately prepared the
16 A-1657-14T2
case, failed to submit a legal argument to
support her tenure claim and misrepresented
the state of the case to her. These issues
do not require a jury to speculate whether
[the attorney] selected the appropriate
authorities to advance plaintiff's legal
position or to evaluate [the attorney's]
judgment in recommending a settlement offer
to her. Rather plaintiff asserts that no work
was done to advance her case and that [the
attorney] knew the shortcomings of the
Borough's case but misrepresented the strength
of its defense to her back pay claim to induce
her to settle the case and collect his fee.
. . . .
We conclude that [the plaintiff] was not
required to have an expert opine that [the
attorney] should have briefed an issue and
that the failure to do so was a breach of that
duty to plaintiff. Similarly, [the plaintiff]
was not obliged to have an expert opine that
[the attorney] was required to report the
settlement discussion accurately and
recommend a disposition of the case based upon
an accurate rendition of each party's
positions. Furthermore, [the plaintiff] was
not required to produce an expert to opine
that, if she had been told that the town had
no defense to her back pay claim, she would
have changed her settlement position.
[Id. at 11-12 (footnote omitted).]
The appeal under review is not one where an attorney did no
work and made misrepresentations to plaintiff, as in Sommers, nor
where an attorney failed to file an action in time because of an
"obviously incorrect belief" regarding the statute of limitations,
as in Brizak. Rather, Skey's alleged failure to obtain billing
and banking records in a timely manner, is more akin to the
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question of the adequacy of an investigation, as in Aldrich, and
the alleged conflict of interest is similar to the divided loyalty
charge in Buchanan.
Therefore, we conclude plaintiff's malpractice allegation was
not so "readily apparent" and the alleged breach of the duty of
care not so "basic" as to warrant holding that the trial court
erred in determining this was not one of those "rare cases" where
an expert was not required. In addition, to the extent Skey
continued to represent plaintiff after she advised she intended
to file a malpractice action against him constituted a basis for
her claim, such allegation raises a relatively "complex legal
issue," not amenable to determination without the assistance of
expert testimony.
Our conclusion that plaintiff was required to provide expert
testimony to prove her legal malpractice case renders moot
plaintiff's appeal of the denial of her motion for summary
judgment. Plaintiff's remaining appellate arguments, including
her challenge to the other orders entered on October 28, 2014,
lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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