ANTHONY J. GIRARD VS. EDWARD G. FOSTER (L-0056-11, CAPE MAY COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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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