Peter Innes v. Madeline Marzano-Lesnevich, Esq. v. Mitchell A. Liebowitz, Esq. , 435 N.J. Super. 198 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0387-11T1
PETER INNES and VICTORIA
SOLENNE INNES, by Her
Guardian PETER INNES, APPROVED FOR PUBLICATION
Plaintiffs-Respondents, April 7, 2014
v. APPELLATE DIVISION
MADELINE MARZANO-LESNEVICH,
ESQ., and LESNEVICH &
MARZANO-LESNEVICH, Attorneys
At Law, i/j/s/a,
Defendants-Appellants/
Third-Party Plaintiffs,
v.
MITCHELL A. LIEBOWITZ, ESQ.,
PETER VAN AULEN, ESQ. and
MARIA JOSE CARRASCOSA,
Third-Party Defendants.
_____________________________________________________
Argued October 8, 2013 – Decided April 7, 2014
Before Judges Messano, Hayden and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-7739-07.
Christopher J. Carey argued the cause for
appellant Madeline Marzano-Lesnevich, Esq.
(Graham Curtin, P.A., and Lesnevich &
Marzano-Lesnevich, LLC, attorneys; Michael
R. Mildner, on the brief).
James H. Waller argued the cause for
respondents Peter and Victoria Innes (Mr.
Waller, attorney; Mr. Waller and Michael A.
Casale, on the brief).
Steven J. Tegrar argued the cause for
respondent Peter Van Aulen (Law Offices of
Joseph Carolan, attorneys; Mr. Tegrar and
George H. Sly, Jr., on the brief).
William F. O'Connor, Jr., argued the cause
for respondent Mitchell A. Liebowitz, Esq.
(McElroy, Deutsch, Mulvaney & Carpenter,
L.L.P., attorneys; Mr. O'Connor, of counsel;
Lawrence S. Cutalo, on the brief).
Respondent Maria A. Carrascosa has not filed
a brief.
The opinion of the court was delivered by
MESSANO, P.J.A.D.
Plaintiff Peter Innes, individually and on behalf of his
daughter, Victoria Solenne Innes (Victoria, and collectively
plaintiffs), filed suit against defendants Madeline Marzano-
Lesnevich, an attorney, and her law firm, Lesnevich & Marzano-
Lesnevich (the Lesnevich firm, and collectively defendants).1
The complaint stemmed from defendants' allegedly improper
release of Victoria's United States passport to her mother,
Maria Jose Carrascosa, during the prelude to contentious
1
Separate counsel represented Innes and his daughter in the Law
Division and on appeal, although plaintiffs filed a joint brief.
2 A-0387-11T1
matrimonial proceedings between Innes and Carrascosa.2 Innes
alleged that Carrascosa used the passport in 2005 to "abduct"
Victoria and bring her to Spain, where the child remains with
her maternal grandparents, beyond the reach of her father.
Defendants filed an answer and third-party complaint
seeking contribution against (1) Carrascosa, their former
client; (2) Peter Van Aulen, the attorney for Innes in the
matrimonial dispute; and (3) Mitchell Liebowitz, the attorney
who initially represented Carrascosa. Before trial, Van Aulen
and Liebowitz were granted summary judgment, while defendants'
motions seeking summary judgment dismissing the complaint were
denied. The court also sua sponte severed defendants' third-
party complaint against Carrascosa.
Immediately before trial, defendants moved to exclude any
claim for counsel fees, and to bar the testimony of plaintiffs'
2
The parties' divorce and related actions have resulted in
several previous decisions in our courts, the federal courts and
the courts of Spain. In our prior decision, we presented a
comprehensive overview and held that New Jersey had subject
matter jurisdiction over the parties' divorce, property
distribution and child custody issues. Innes v. Carrascosa, 391
N.J. Super. 453, 462 (App. Div.), certif. denied, 192 N.J. 73
(2007), cert. denied, 555 U.S. 1129, 129 S. Ct. 981, 173 L. Ed.
2d 167 (2009). See also Carrascosa v. McGuire, 520 F.3d 249,
263 (3d Cir.) (affirming district court's determination that New
Jersey Superior Court had authority to rule on the child's
custody and to issue orders pertaining to the mother's civil
contempt and incarceration), cert. denied, 555 U.S. 998, 129 S.
Ct. 491, 172 L. Ed. 2d 363 (2008).
3 A-0387-11T1
professional expert, attorney George Conk. The judge denied
both requests. The judge reserved decision on defendants'
motion to bar plaintiffs' claims for emotional distress damages.
At the close of plaintiffs' case, defendants moved to
dismiss the complaint for failure to establish proximate cause,
and to dismiss plaintiffs' claims for emotional distress
damages. The judge denied both requests.
The jury returned a verdict in favor of plaintiffs and
awarded damages of $700,000 to Innes and $250,000 to Victoria.
On May 20, 2011, judgment was entered that also included pre-
judgment interest of $133,815.07 for Innes and $47,791.09 for
Victoria. On June 28, 2011, the judge entered an amended order
for judgment that additionally included counsel fees and costs
for Innes and Victoria in the amounts of $158,517.70 and
$126,397.07, respectively.
Defendants moved for a new trial or for judgment
notwithstanding the verdict (JNOV), which the judge denied after
initially reserving decision. The judge granted a stay of
judgment pending disposition of the third-party complaint
against Carrascosa.
On July 18, 2011, plaintiffs filed a motion seeking to
participate in the trial of defendants' third-party complaint
against Carrascosa and to "bar[] the allocation of fault at
4 A-0387-11T1
. . . trial." In a written opinion, the judge dismissed
defendants' third-party complaint with prejudice, concluding
essentially that defendants were not entitled to contribution
from Carrascosa. This appeal followed.
Defendants raise myriad arguments regarding the
interlocutory orders denying their pre-trial motion for summary
judgment seeking dismissal of the complaint, as well as the
orders granting Van Aulen and Liebowitz summary judgment. As to
the trial itself, defendants contend the judge erred by
permitting Conk to testify, allowing the jury to award emotional
distress damages without any medical testimony and amending his
charge to the jury after defendants' summation. Defendants also
argue their motions for judgment and JNOV should have been
granted.
Defendants also contend their third-party claim against
Carrascosa should not have been severed from the trial, and the
judge erred by ultimately dismissing the complaint. Lastly,
defendants contest the award of any counsel fees.
We have considered these arguments in light of the record
and applicable legal standards. We affirm in part, reverse in
part, and remand for entry of an amended judgment.3
3
Plaintiffs argue that the appeal should be dismissed as
untimely, having not been filed within forty-five days of the
(continued)
5 A-0387-11T1
I.
A.
We first consider defendants' arguments regarding the pre-
trial orders granting Van Aulen and Liebowitz summary judgment.
We need not set forth the entire factual history between Innes
and Carrascosa, which was detailed in our prior opinion, see
Innes, supra, 391 N.J. Super. at 461-65, and we limit our
consideration as necessary to the motion record that existed
when the orders were entered. See, e.g., Ji v. Palmer, 333 N.J.
Super. 451, 463-64 (App. Div. 2000) ("In reviewing a summary
judgment, we can consider the case only as it had been unfolded
to that point and the evidential material submitted on that
motion.") (citations omitted).
In October 2004, Innes and Carrascosa were separated but
neither had filed a divorce complaint. Innes was represented by
Van Aulen, and Carrascosa was represented by Liebowitz.
Victoria was four and one-half years old and resided with
(continued)
July 18, 2011 amended judgment. R. 2:4-1(a). However, it was
not until September 2, 2011, that the court dismissed the third-
party complaint with prejudice, adopting the argument that
plaintiffs made in their motion to intervene. Defendants'
notice of appeal was timely filed thereafter. Plaintiffs'
argument lacks sufficient merit to warrant further discussion.
R. 2:11-3(e)(1)(E).
6 A-0387-11T1
Carrascosa after the separation. It suffices to say that the
instant litigation centered on the October 2004 agreement (the
Agreement) executed by Innes and Carrascosa as it related to
restrictions upon travel with Victoria. Innes, supra, 391 N.J.
Super. at 462. Specifically, the Agreement, drafted by
Liebowitz on his letterhead, provided in relevant part:
Neither . . . Carrascosa nor . . . Innes
may travel outside of the United States
with Victoria . . . without the written
permission of the other party. To that end,
Victoria['s] . . . United States and Spanish
passport [sic] shall be held in trust by
Mitchell A. Liebowitz, Esq. Victoria['s]
. . . Spanish passport has been lost and not
replaced, and its loss was reported to the
Spanish Consulate in New York. . . .
Carascosa [sic] will file an application for
a replacement Spanish passport within
[twenty] days of today.
On November 23, 2004, Liebowitz responded to a letter
written by Sarah J. Jacobs, an associate with the Lesnevich
firm, advising that Carrascosa had retained them and seeking
release of the file.4 Liebowitz wrote: "As you may know, I am
holding her daughter's United States Passport. I would prefer
if you arranged for the original file to be picked up by
messenger with the messenger acknowledging receipt of the
passport." On November 24, Jacobs wrote to Van Aulen,
4
Jacobs' prior surname was "Tremml." The documentary evidence
at trial bore that name.
7 A-0387-11T1
indicating the Lesnevich firm's representation of Carrascosa and
noting that, despite having signed the Agreement, Carrascosa
"ha[d] grave concerns" regarding provisions dealing with Innes'
parenting time. Notes taken by Jacobs during an office
conference with Carrascosa on November 18, 2004, were filed in
support of both Van Aulen's and Liebowitz's summary judgment
motions. The notes contained the following: "Spanish passport
stole[n.] American passport turned over to attorney[.] GET
BACK[.]"
In her deposition, Marzano-Lesnevich stated she received
the file from Liebowitz and reviewed the Agreement sometime in
December. Victoria's United States passport was in the file at
the time, but it was missing after a December meeting with
Carrascosa. The implication was that Carrascosa had taken the
passport without Marzano-Lesnevich's foreknowledge.
It was first revealed that Victoria was in Spain during
proceedings before the Family Part in February 2005. In a
February 2006 letter to plaintiffs' attorney in this litigation,
Marzano-Lesnevich claimed Liebowitz never advised her of "a
requirement to hold [the passport] in trust." She also wrote:
"At the time we turned over the passport to the mother, the
[A]greement between the parties was moot[,]" because "it had
been repudiated by both parties immediately." (Emphasis added).
8 A-0387-11T1
On this motion record, in December 2009, the judge granted
Van Aulen summary judgment and dismissed the third-party claim
against him. Defendants moved for reconsideration in August
2010 after securing the expert report of attorney John F.
DeBartolo. In November 2010, the judge denied the motion for
reconsideration. In his written opinion, the judge explained:
"Based on the facts herein, Van Aulen cannot be classified as a
joint tortfeasor because he did not breach his duty to Innes and
did not have a duty to anticipate that [defendants] would
violate a fiduciary obligation."
Liebowitz sought summary judgment in August 2010. In
support, he attached defendants' answers to interrogatories in
which they claimed that Carrascosa "took her daughter's
passport. No one [at the firm] 'gave it' to her or 'turned it
over to her.'" They also denied knowing that Carrascosa
intended to "remove Victoria . . . from the jurisdiction o[f]
New Jersey."
By the time Liebowitz's motion was filed, Jacobs had been
deposed. She testified that Marzano-Lesnevich told her that she
(Marzano-Lesnevich) gave Victoria's passport to Carrascosa.
Carrascosa had also been deposed and testified that she always
had Victoria's Spanish passport and it was never lost or stolen.
Carrascosa asked the Lesnevich firm for Victoria's United States
9 A-0387-11T1
passport and picked it up the day before her daughter travelled
to Spain with her grandparents.5 Carrascosa also stated that she
told the firm "we were going to travel."
In November 2010, the judge granted summary judgment to
Liebowitz. In his written opinion, the judge concluded that
after Carrascosa discharged him, Liebowitz could not have
reasonably anticipated that Innes would continue to rely on his
(Liebowitz's) actions or representations. Liebowitz did not owe
a duty of care to Innes after transferring his file containing
the passport to the Lesnevich firm.
Defendants argue the judge erred by denying their motion
for reconsideration of the prior summary judgment granted to Van
Aulen and by granting Liebowitz summary judgment.6 "In an appeal
of an order granting summary judgment, appellate courts 'employ
5
Later testimony revealed that Victoria did not leave the United
States until January 13, 2005, nearly a month after Carrascosa
secured possession of the passport.
6
Defendants' notice of appeal did not list the November 2010
order denying reconsideration. See R. 2:5-1(f)(3)(A) (requiring
the notice of appeal to include all orders for which review is
sought). Nevertheless, in the interests of justice, we consider
all issues raised regarding the dismissal of the third-party
complaint against Van Aulen. See Fusco v. Bd. of Educ., 349
N.J. Super. 455, 461 (App. Div.) (recognizing that in some
situations, "the basis for the motion judge's ruling on the
summary judgment and reconsideration motions may be the same.
In such cases, an appeal solely from the grant of summary
judgment or from the denial of reconsideration may be sufficient
for an appellate review of the merits of the case[.]"), certif.
denied, 174 N.J. 544 (2002).
10 A-0387-11T1
the same standard [of review] that governs the trial court.'"
Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)
(alteration in original) (quoting Busciglio v. DellaFave, 366
N.J. Super. 135, 139 (App. Div. 2004)). We first determine
whether the moving party has demonstrated there were no genuine
disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside
Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.),
certif. denied, 189 N.J. 104 (2006).
[A] determination whether there exists a
"genuine issue" of material fact that
precludes summary judgment requires the
motion judge to 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 then decide "whether the motion judge's application of the
law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at
231. We conduct our review de novo. Gere v. Louis, 209 N.J.
486, 499 (2012).
Defendants were entitled to contribution from Van Aulen or
Liebowitz only if either respectively was a joint tortfeasor,
pursuant to the Joint Tortfeasors Contribution Law, N.J.S.A.
2A:53A-1 to -5 (JTCL). Under the JTCL, "'joint tortfeasors'
11 A-0387-11T1
means two or more persons jointly or severally liable in tort
for the same injury." N.J.S.A. 2A:53A-1. "'It is common
liability at the time of the accrual of plaintiff's cause of
action which is the Sine qua non of defendant's contribution
right.'" Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 72
(2004) (quoting Markey v. Skog, 129 N.J. Super. 192, 200 (Law
Div. 1974)). Since plaintiffs never asserted any claim against
either Van Aulen or Liebowitz, the inquiry is whether defendants
presented a prima facie case that either was liable to
plaintiffs.
"The elements of a cause of action for legal malpractice
are (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) (citing Conklin v. Hannoch
Weisman, 145 N.J. 395, 416 (1996)).
Defendants failed to present a prima facie case that Van
Aulen committed legal malpractice in his representation of
Innes. When Van Aulen first moved for summary judgment,
defendants produced no expert report supporting the elements of
professional negligence. See e.g., Buchanan v. Leonard, 428
N.J. Super. 277, 288-289 (App. Div. 2012) ("As 'the duties a
12 A-0387-11T1
lawyer owes to his client are not known by the average juror,'
expert testimony must necessarily set forth that duty and
explain the breach.") (quoting Carbis Sales, Inc. v. Eisenberg,
397 N.J. Super. 64, 78 (App. Div. 2007)).
When defendants sought reconsideration, they furnished
DeBartolo's report. While the report proposed some
"straightforward and prudent steps" Van Aulen might have taken,
it did not state that he breached any professional standards or
that proximately-caused damages resulted. Indeed, DeBartolo
opined that, because Carriscosa was solely responsible for
removing Victoria from the United States, defendants themselves
were not a proximate cause of plaintiffs' damages.
The record also fails to support a claim that Liebowitz,
who was not Innes's attorney, could be liable for breaching a
duty owed to a non-client. Although our courts are generally
reluctant to permit a non-client to sue an adversary's attorney,
LoBiondo v. Schwartz, 199 N.J. 62, 100 (2009), in limited
circumstances, "attorneys may owe a duty of care to non-clients
when the attorneys know, or should know, that non-clients will
rely on the attorneys' representations and the non-clients are
not too remote from the attorneys to be entitled to protection."
Petrillo v. Bachenberg, 139 N.J. 472, 483-84 (1995).
13 A-0387-11T1
"[T]he rule announced in Petrillo has been applied rather
sparingly, . . . [but] [i]t is not . . . the only basis on which
[the Court] ha[s] recognized the potential for a direct claim
against an attorney by a nonclient." LoBiondo, supra, 199 N.J.
at 102. The Court has "authorized in principle a claim against
an attorney who participated in a civil conspiracy with the goal
of assisting a client to engage in a fraudulent transfer of
assets to the detriment of a lender." Ibid. (citing Banco
Popular N. Am. v. Gandi, 184 N.J. 161, 177-78 (2005)).
We have also recognized that "[p]rivity between an attorney
and a non-client is not necessary for a duty to attach 'where
the attorney had reason to foresee the specific harm which
occurred.'" Estate of Albanese v. Lolio, 393 N.J. Super. 355,
368-69 (App. Div.) (quoting Albright v. Burns, 206 N.J. Super.
625, 633 (App. Div. 1986)). Ultimately, in determining whether
a duty exists, "[t]he primary question . . . is one of
fairness." Id. at 369.
In this case, Innes knew that Liebowitz had been
discharged, and that defendants were now representing
Carrascosa. At that point, he could no longer reasonably rely
upon Liebowitz's agreement to retain Victoria's passport.
Absent such reliance, Liebowitz owed no duty of care to
plaintiffs. Petrillo, supra, 139 N.J. at 482. Liebowitz could
14 A-0387-11T1
not reasonably foresee that, armed with full knowledge of the
agreement and his expressed caution regarding the passport,
defendants would simply turn it over to Carrascosa. Absent any
reliance by Innes upon Liebowitz's continued retention of the
passport, it would be patently unfair to extend a duty to
Liebowitz to safeguard the passport after he was discharged by
Carrascosa. Albanese, supra, 393 N.J. Super. at 369.
Summary judgment was properly granted dismissing
defendants' third-party complaint against Van Aulen and
Liebowitz.
B.
Defendants argue the judge erred by denying their motion
for summary judgment before trial. In essence, they contend the
motion record failed to establish, and the judge did not find,
that defendants owed Innes any duty, or that they made any
representations upon which Innes reasonably relied.7
In denying defendants' summary judgment motion, the judge
reasoned:
7
Although not specifically contained in a point heading,
defendants also contend the judge erred by denying them summary
judgment on plaintiffs' alternative causes of action sounding in
breach of contract, bailment, and breach of escrow. We need not
address those issues because ultimately the case was submitted
to the jury only as to the claim that defendants breached their
professional duty.
15 A-0387-11T1
[L]iability may be imposed on [defendants],
not merely because [defendants] violated an
RPC, but because of the affirmative acts of
[defendants], specifically, the letters
[defendants] sent to Liebowitz,
[defendants'] awareness of the Agreement
regarding Victoria's United States passport,
accepting the passport with Carrascosa's
file, and the notes and deposition testimony
of the [defendants'] associates referencing
the importance of the United States
passport.
The judge also concluded that a fact finder could determine that
defendants should have foreseen Innes would rely upon them to
retain Victoria's passport, return it to Liebowitz if they were
not going to honor the agreement, or at least not let the
passport fall into Carrascosa's hands.
We agree with defendants that whether a legal duty exists
is a matter of law for the court. Petrillo, supra, 139 N.J. at
479. But, contrary to defendants' assertions, the motion judge
decided there was a duty. We discern defendants' argument more
precisely to be that since they made no affirmative
representation to honor the agreement, imposing a duty upon them
to maintain possession of Victoria's passport unreasonably
extends existing precedent. We disagree.
As already noted, we have held a duty to a non-client may
"attach where the attorney had reason to foresee the specific
harm which occurred." Albanese, supra, 393 N.J. Super. at 368-
69 (internal quotations omitted). It was entirely forseeable
16 A-0387-11T1
that Carrascosa's possession of Victoria's passport would
facilitate her ability to remove her daughter from the country.
A lawyer may also be liable to a non-client third party
"where an independent duty is owed." Estate of Fitzgerald v.
Linnus, 336 N.J. Super. 458, 468 (App. Div. 2001) (citing Davin,
L.L.C., v. Daham, 329 N.J. Super. 54, 73-75 (App. Div. 2000);
DeAngelis v. Rose, 320 N.J. Super. 263, 274-76 (App. Div.
1999)). "[E]ven absent an attorney-client relationship, an
attorney 'owes a fiduciary duty to persons, though not strictly
clients, who he knows or should know rely on him in his
professional capacity.'" R. J. Longo Constr. Co. v. Schragger,
218 N.J. Super. 206, 209 (App. Div. 1987) (quoting Albright,
supra, 206 N.J. Super. at 632-33).
In Davin, for example, attorney Jaffe prepared a multi-year
lease that included a covenant for quiet enjoyment while
representing the landlords as defendants in foreclosure
proceedings involving the property. Davin, supra, 329 N.J.
Super. at 63-64. Neither the landlords nor Jaffe advised the
defendants-tenants of the foreclosure proceedings. Id. at 64.
The motion judge granted summary judgment, "conclud[ing] that
Jaffe owed no duty to [the] defendants since he had never
represented them or spoke to them, and would have been acting
adversely to the best interests of his clients, the [landlords],
17 A-0387-11T1
if he advised [the] defendants of the [landlords'] financial
difficulties. Id. at 73.
In reversing summary judgment, we said:
The practice of law is a profession, not a
business. An attorney is not merely a hired
gun, but, rather, a professional required to
act with candor and honesty. . . . Jaffe,
as an attorney who participated to the
extent he did in the efforts to stave off
foreclosure, had an affirmative obligation
to be fair and candid with [the] defendants.
Moreover, he had an obligation not to insert
the covenant of quiet enjoyment in the
lease. He had an obligation to advise his
clients . . . that they should disclose to
defendants the fact that the property was in
foreclosure. He also had a duty to advise
his clients that the lease should not
contain a covenant of quiet enjoyment in
light of the fact that it was highly
unlikely that [the] defendants would obtain
the benefits of the covenant in light of the
foreclosure. If they failed to follow his
advice, he had the right, if not the duty,
to cease representing them.
[Id. at 76-77, 78.]
We held that "the lawyer's duty of effective and vigorous
representation of his client is tempered by his corresponding
duty to be fair, candid and forthright." Id. at 78.
In denying defendants' summary judgment motion here, the
judge properly concluded that, despite the lack of any
affirmative representation, defendants owed a duty to Innes. If
they were unwilling to abide by the agreement, they were
obligated to so advise Van Aulen or Liebowitz. Simply giving
18 A-0387-11T1
the passport to Carrascosa was a breach of defendants' duty,
even if they believed in good faith that the Agreement had been
"repudiated."
Not only is this obligation entirely consistent with prior
precedent, it is consistent with the Rules of Professional
Conduct (RPC). While "a cause of action for malpractice cannot
be based exclusively on the asserted breach of" an RPC, "it is
clear that the [RPCs] may be relied on as prescribing the
requisite standard of care and the scope of the attorney's duty
to the client." Gilles v. Wiley, Malehorn & Sirota, 345 N.J.
Super. 119, 125 (App. Div. 2001) (citing Baxt v. Liloia, 155
N.J. 190, 201 (1998)); Davin, supra, 329 N.J. Super. at 74 n.3).
Therefore, a breach of an RPC "is evidential of [a] defendant's
failure to comply with the required standard of care." Id. at
125-26 (citation omitted); see also Johnson v. Schragger,
Lavine, Nagy & Krasny, 340 N.J. Super. 84, 90 (App. Div. 2001)
(noting that "the Rules of Professional Conduct may provide
guidance to the court in determining whether a duty exists").
RPC 1.15(a) requires a lawyer to appropriately safeguard
the property of clients or third parties in his or her
possession. RPC 1.15(b) obligates a lawyer to promptly notify a
third party of receipt of property in which the third party has
an interest. "Except as stated in this Rule or otherwise
19 A-0387-11T1
permitted by law or by agreement with the client, a lawyer shall
promptly deliver to the client or third person any . . .
property that the client or third person is entitled to
receive." Ibid. The clear import of these RPCs is that, in
light of the Agreement and Innes's competing claim to the
passport as Victoria's father, defendants were not free to
dispose of the passport as they saw fit. The judge properly
denied defendants' motion for summary judgment.
II.
We turn to the issues raised regarding the trial itself by
first reviewing some of the testimony. Carrascosa was a Spanish
citizen and an attorney admitted to practice in the European
Union. Victoria was a citizen of both the United States and
Spain. Innes was concerned that Carrascosa might take Victoria
to Spain, and he noted that, while Victoria also had a Spanish
passport, the family used the United States passport whenever it
traveled to Spain.
Although the Agreement had been executed by both parties,
problems arose immediately. On November 22, 2004, Carrascosa
obtained a domestic violence temporary restraining order (TRO)
against Innes. Liebowitz testified that he advised Carrascosa
against the filing, "given [the] facts she was presenting to
[him] in support of the restraining order." The issuance of the
20 A-0387-11T1
TRO resulted in the suspension of Innes's parenting time with
Victoria.8
On December 8, 2004, Liebowitz transferred his entire file,
including Victoria's United States passport, to defendants.
Efforts to negotiate a parenting time schedule thereafter were
contentious and fruitless. Innes's last visit with his daughter
took place on November 4, 2004.
Innes first learned that his daughter was in Spain when
Marzano-Lesnevich disclosed the information to the Family Part
judge during the hearing in February 2005. Innes subsequently
was told by law enforcement authorities that Victoria left the
country on January 13, 2005, with her maternal grandfather
aboard a British Airways Flight to London. She and her
grandfather then traveled from England to Spain.
Innes retained a Spanish lawyer, Elena Zarraluqui, to
assist with filing a petition to return his daughter and contest
the annulment proceedings that Carrascosa had commenced in
Spain.9 Innes went to Spain for a hearing in June 2005. The
8
On December 6, 2004, the court dismissed the TRO against Innes
at Carrascosa's request.
9
Innes filed the application for Victoria's return to New Jersey
under the Hague International Child Abduction Convention, 51
Fed. Reg. 10, 498 (March 26, 1986), its Federal implementing
statute, the International Child Abduction Remedies Act (ICARA),
42 U.S.C.A. §§ 11601 to -11611 (1988), and the New Jersey court
(continued)
21 A-0387-11T1
Spanish court denied Innes's petition and ordered Victoria to
remain in Spain until age eighteen. Innes, through Zarraluqui,
filed several unsuccessful appeals.
Innes returned to Spain in fall 2005 for the nullity
proceeding in which Carrascosa sought, among other relief,
termination of his parental rights. According to Innes, at the
time of the trial in this case, the issue remained undecided.
During both trips to Spain, Innes briefly saw Victoria.
Zarraluqui testified that she asked Carrascosa's lawyer if Innes
and Victoria could speak to each other. Carrascosa initially
agreed, but then tried to prevent Victoria from going to her
father, and Carrascosa's lawyer had to intervene. Zarraluqui
said that Victoria was "really kind with him," that Innes kissed
her and started crying when Carrascosa ended the meeting after
five or ten minutes. Zarraluqui described the scene as "very
hard, emotional."
Innes never returned to Spain again, explaining that
fourteen criminal complaints had been filed against him and
three were still pending. He denied committing any crime or
abusing Carrascosa or Victoria. Given the notoriety of the case
(continued)
order. Innes, supra, 391 N.J. Super. at 466. We discussed the
proceedings in the Spanish courts in greater detail in our
earlier decision. Innes, supra, 391 N.J. Super. at 466-72.
22 A-0387-11T1
and the wealth and position of Carrascosa's family, Innes
believed he would be unjustly accused and imprisoned if he
returned. Innes' attempts to maintain a relationship with
Victoria were rebuffed by Carrascosa's family. Aside from a
brief telephone conversation in 2007, he has not spoken to her
since their 2005 meeting in the courthouse. The family refuses
to accept delivery of the Christmas and birthday gifts Innes
sends every year.
Innes testified extensively regarding his relationship with
his daughter prior to her leaving the country in January 2005.
He moved his office to the ground floor of the couple's high-
rise apartment building so he could be close to home and see her
frequently. After the couple separated, he saw Victoria nearly
every day until Carrascosa ordered him to stay away.
Innes also stated that he thinks about "this whole
situation" every day, cannot sleep and his business suffered.
He received treatment from his doctor for anxiety, and he saw a
therapist, who "helped [him] learn how to grieve the loss of
[his] daughter," although he admitted seeing the therapist
infrequently in 2009 and not at all since.
In 2006, Carrascosa returned to the United States for the
divorce trial, leaving Victoria in Spain with her grandparents.
On August 24, 2006, the Family Part granted the parties a
23 A-0387-11T1
divorce, awarded Innes sole legal and residential custody of
Victoria, ordered Carrascosa to dismiss all actions in Spain and
return Victoria to New Jersey within ten days. The court
imposed sanctions of $148,000 in favor of Innes. Carrascosa did
not comply with any of these provisions.
Carrascosa was arrested in New York City in November 2006
and subsequently indicted. She was found guilty and sentenced
to a prison term of fourteen years. At the time of trial,
Carrascosa remained incarcerated and testified via video
conference. She accused Innes of attempting to murder Victoria
and said she filed the TRO because of Innes's "relentless
stalking, abuse, [and] battering." She claimed that she signed
the Agreement under duress and repudiated it "the very next
day," something she told Marzano-Lesnevich.
Carrascosa claimed that she asked Jacobs to retrieve
Victoria's passport from Liebowitz because she wanted to travel
with her daughter. She told Innes about her plans, and he
replied: "All right. Go ahead. Get on the boat." She also
told another associate at the Lesnevich firm, Francesca Marzano-
Lesnevich (Francesca),10 who told Carrascosa "they had spoken to
. . . Van Aulen on the phone and everything was okay." In an e-
10
We apologize for the informality of using a first name;
however, it is necessary to avoid confusion.
24 A-0387-11T1
mail dated January 11, 2005, Carrascosa notified the Lesnevich
firm that she was going to stop by. She then arrived in the
reception area where Francesca gave her the passport.
Carrascosa confirmed that she had never lost Victoria's Spanish
passport, and that her daughter was still in Spain.
The judge conducted a N.J.R.E. 104 hearing and denied
defendants' request to bar Conk as an expert witness. 11
Succinctly stated, Conk rendered the following opinion:
It was the duty of Marzano-Lesnevich as
successor in fact to the possessory right of
Liebowitz to inform Innes via his attorney
and Liebowitz, who reasonably expected
Marzano-Lesnevich to abide by the agreement,
that she intended to dispose of the passport
as her client sought fit and that she was
renouncing any obligation to operate under
the constraints imposed by the agreement on
her predecessor . . . attorney. If adequate
notice of such intention had been given[,]
Liebowitz could have retaken possession and
Innes or his attorney could have sought the
assistance of a court if a . . . new escrow
agent, could not be agreed upon.
Thomas Kilbride, who worked for the Department of Homeland
Security Immigration and Customs Enforcement (ICE), testified
that he received a request from the Bergen County Prosecutor's
Office to determine Victoria's travel history to and from the
United States. His examination of ICE's database showed
11
The trial judge was not the judge who had heard and decided
the pre-trial motions.
25 A-0387-11T1
Victoria left the country from Newark Liberty International
Airport on January 13, 2005, using her United States passport,
as she had on September 12, and December 11, 2003, and January
8, 2004. Kilbride acknowledged that a person with dual
citizenship could depart the United States using a foreign
passport, but his search failed to reveal any record of Victoria
ever leaving the United States using her Spanish passport.
Plaintiffs read Marzano-Lesnevich's deposition testimony
and defendants' interrogatory answers to the jury that implied
Carrascosa took the passport without the firm's foreknowledge.
However, Jacobs testified that Marzano-Lesnevich said she gave
the passport to Carrascosa.
In her testimony before the jury, Marzano-Lesnevich
admitted that she did not notify Innes or Van Aulen before
giving Carrascosa her daughter's passport. She believed that
because neither she nor Liebowitz held the passport in trust,
Carrascosa, the parent with primary residential custody, had the
right to safeguard the passport herself. Marzano-Lesnevich knew
of the Agreement and that Carrascosa had signed it, but she
maintained it was repudiated because no one had followed its
terms.
Marzano-Lesnevich described the passport as "simply
abandoned by . . . Liebowitz and placed in a file." She
26 A-0387-11T1
maintained that she did not have the right to hold the passport
absent a court order or successor agreement. Marzano-Lesnevich
also testified that Victoria could have traveled using her
Spanish passport and that an itinerary Carrascosa sent to the
firm indicated mother and daughter intended to return to this
country. However, the Spanish courts ordered Victoria to remain
in Spain until she turned eighteen.
Marzano-Lesnevich acknowledged on cross-examination that
her firm's strategy was to focus initially on jurisdiction,
explaining that proceedings already had begun in Spain and it
was important for Carrascosa to receive an ecclesiastical
nullity of her marriage. She acknowledged that Carrascosa
wanted the matter heard in Spain.
DeBartolo testified as an expert in the fields of family
law and ethics. He opined that Liebowitz "should have notified
. . . Van Aulen that he was seeking to terminate his role as
escrow agent, he should have notified his client, he should have
notified any successor attorney, he should have asked to be
relieved of the obligations that he voluntarily undertook as an
escrow agent, as a trustee." He also concluded that Marzano-
Lesnevich did not violate professional standards by returning
the passport to Carrascosa because she was not bound by the
Agreement and never agreed to become trustee of the passport.
27 A-0387-11T1
In DeBartolo's opinion, Marzano-Lesnevich properly relied on
Carrascosa's representations that the agreement had been
repudiated, and that Carrascosa had the superior property
interest in the passport as the primary custodial parent.12
DeBartolo also opined that Carrascosa, not defendants, was
the proximate cause of any damages. Even if Liebowitz had
retained the passport in trust or properly obtained a substitute
trustee, DeBartolo believed Carrascosa could have easily
traveled with Victoria using her Spanish passport.
12
On cross-examination, however, DeBartolo acknowledged that our
prior opinion affirmed the enforceability of the Agreement.
There, we said that
[u]nder New Jersey law and the Hague
Convention, the October parenting agreement
was valid, affirmed Carrascosa's intent that
Innes have custodial rights in the child,
and when plainly read, demonstrates that the
removal of the child was wrongful. Indeed,
Article 3 of the Convention provides that
custody rights may arise "by operation of
law, or by reason of an agreement having
legal effect under the law of that State."
The parenting agreement having been
voluntarily and knowingly executed by both
parents, and thus enforceable under the laws
of New Jersey, Carrascosa's breach of that
agreement was wrongful and violated Innes'
custodial rights.
[Innes, supra, 391 N.J. Super. at 486.]
28 A-0387-11T1
A.
Defendants moved to dismiss the complaint at the close of
plaintiffs' case. See R. 4:37-2(b). They argued plaintiffs
failed to prove the release of Victoria's United States passport
was a proximate cause of any damages. The judge denied the
motion. Defendants renewed the argument post-verdict when they
sought a new trial or JNOV, specifically contending that the
finding of proximate cause was "against the weight of the
evidence[.]" The judge denied the motion in a brief written
opinion.13 Defendants now renew this argument before us.
Motions for involuntary dismissal, Rule 4:37-2(b), and
JNOV, Rule 4:40-2(b), are "governed by the same evidential
standard: [I]f, accepting as true all the evidence which
supports the position of the party defending against the motion
and according [her] the benefit of all inferences which can
reasonably and legitimately be deduced therefrom, reasonable
13
In his written opinion, the judge noted that defendants also
sought a new trial or JNOV because "the jury's finding[]
regarding . . . Marzano-Lesnevich's deviation from the standard
of care" was against the weight of the evidence. However, that
contention was not advanced during oral argument on the motion.
To the extent defendants argue that point in their appellate
brief, we reject the contention. In light of the standards of
review we discuss in this section, the trial testimony and with
our discussion in section I.B., supra, regarding the duty owed
to a non-client demonstrates the argument lacks sufficient merit
to warrant further consideration. R. 2:11-3(e)(1)(E).
29 A-0387-11T1
minds could differ, the motion must be denied." Verdicchio v.
Ricca, 179 N.J. 1, 30 (2004) (first alteration in original)
(citations omitted). We apply the same standard on review.
Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000).
"The trial judge's obligation on a motion for a new trial
because the verdict is said to be against the weight of the
evidence is quite a different and more difficult one." Dolson
v. Anastasia, 55 N.J. 2, 6 (1969). Under Rule 4:49-1(a), a
court shall grant a motion for a new trial "if, having given due
regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and convincingly
appears that there was a miscarriage of justice under the law."
Ibid. The judge must take into account "not only tangible
factors . . . as shown by the record, but also appropriate
matters of credibility, generally peculiarly within the jury's
domain, . . . and the intangible 'feel of the case' . . . gained
by presiding over the trial." Dolson, supra, 55 N.J. at 6. We
apply a similar standard, deferring to the trial court's
assessment of those factors "which are not transmitted by the
written record." Id. at 7. Thus, "[a]n appellate court may
overturn a jury verdict 'only if [that] verdict is so far
contrary to the weight of the evidence as to give rise to the
inescapable conclusion of mistake, passion, prejudice, or
30 A-0387-11T1
partiality.'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J.
130, 134 (1990) (quoting Wytupeck v. City of Camden, 25 N.J.
450, 466 (1957)).
To prevail at trial, plaintiffs needed to establish that
defendants' breach of their professional duty was a proximate
cause of their damages. Conklin, supra, 145 N.J. at 416. When
there are concurrent independent causes of harm, the jury must
determine whether the negligence was a substantial factor in
bringing about the ultimate harm. Id. at 422; see also Froom v.
Perel, 377 N.J. Super. 298, 313 (App. Div.) ("plaintiff must
present evidence to support a finding that defendant's negligent
conduct was a 'substantial factor' in bringing about plaintiff's
injury, even though there may be other concurrent causes of
harm"), certif. denied, 185 N.J. 267 (2005).
Here, the undisputed evidence was that Victoria exited the
country using her United States passport. Whether Victoria
could have used her Spanish passport, or even whether her
Spanish passport was necessary for her entry into Spain, does
not matter. Defendants' release of the United States passport
was a "substantial factor" in bringing about the damages
plaintiffs claimed to have suffered.
31 A-0387-11T1
B.
Defendants moved pre-trial to dismiss plaintiffs' claim for
emotional distress damages, and the judge reserved decision. At
trial, plaintiffs called Janet S. Berson, a licensed clinical
psychologist, as an expert regarding the effects of parental
alienation on Innes and Victoria. However, following a Rule 104
hearing, the judge precluded Berson from testifying, finding
that she could not testify within a reasonable degree of
psychological certainty, in part because she had never examined
Victoria and her opinions were based on an out-of-date
psychological report from Spain. Plaintiffs do not challenge
that ruling on appeal.
At the close of plaintiffs' case, defendants moved to
dismiss Victoria's emotional distress claims. The judge
considered the motion as if it applied to both plaintiffs. He
concluded that "under traditional tort concepts the loss of the
child's society and companionship could give rise to emotional
distress." Citing our decision in Segal v. Lynch, 413 N.J.
Super. 171 (App. Div.), certif. denied, 203 N.J. 96 (2010), the
judge noted such circumstances "clearly engender[] a right to
compensation," and he concluded that emotional distress damages
could be presumed without evidence of physical injury or expert
psychological testimony.
32 A-0387-11T1
Following lengthy debate during the charge conference, the
judge provided the following instruction to the jury:
If you find in favor of the plaintiffs, the
law recognizes as a proper item for recovery
the mental suffering and distress that a
person may endure as a result of the
wrongful conduct of a defendant in a case
such as the one before you. Since a parent
is entitled to the services and
companionship of a minor child, until that
child reaches majority, you may award
damages to . . . Innes for the loss of his
daughter's companionship and society for as
long as you reasonably and rationally
conclude it has and will last. The measure
of damages is what a reasonable person would
consider to be adequate and just under all
of the circumstances.
Likewise, Victoria . . . is entitled to
damages for the mental suffering and
distress which she may endure as a result of
being separated from her father.
When they moved for a new trial or JNOV, defendants reiterated
the argument, which the judge rejected.
(i)
Before us, defendants argue it was error to submit the
issue of emotional distress damages to the jury because in a
legal malpractice action emotional distress damages cannot be
awarded "in the absence of medical evidence establishing
substantial bodily injury or severe and demonstrable psychiatric
sequelae proximately caused by the tortfeasor's misconduct."
Gautam v. De Luca, 215 N.J. Super. 388, 399 (App. Div.), certif.
33 A-0387-11T1
denied, 109 N.J. 39 (1987). Defendants specifically argue that
there was no such medical evidence in this case as to either
Innes or Victoria.
It is well-established that a plaintiff "'may recover for
losses which are proximately caused by the attorney's negligence
or malpractice.'" Saffer v. Willoughby, 143 N.J. 256, 271
(1996) (quoting Lieberman v. Employers Ins. of Wausau, 84 N.J.
325, 341 (1980)). The availability of emotional distress
damages in a legal malpractice case has not been subject to
extensive discussion in reported decisions in New Jersey.
In Gautam, the plaintiffs alleged that their attorneys'
malpractice resulted in the dismissal of the plaintiffs' medical
negligence claim. Gautam, supra, 215 N.J. Super. at 391-92.
The "[p]laintiffs made no effort to establish the viability or
value of their underlying medical malpractice action. Rather,
they sought to recover damages for the mental anguish and
emotional distress allegedly caused by the legal malpractice."
Id. at 390. Plaintiffs testified "that they developed various
psychological problems because of their dashed expectations."
Id. at 392. The jury awarded both compensatory and punitive
damages against the defendants. Id. at 394. Although we
reversed because of the inadequacy of the jury instructions, id.
at 394-96, we concluded that a remand was unnecessary because
34 A-0387-11T1
"the evidence was wholly insufficient to support a recovery of
either compensatory or punitive damages." Id. at 396.
We began by noting "[t]he general rule is that an attorney
is responsible for the loss proximately caused the client by his
negligence." Id. at 397. "[T]he measure of damages is
ordinarily the amount that the client would have received but
for his attorney's negligence." Ibid. (citing Lieberman, supra,
84 N.J. at 342). We recognized that damages would often be
proven by the "suit within a suit" method, that is "by
introducing evidence establishing the viability and worth of the
claim that was irredeemably lost." Ibid. However, we also
recognized the Court "eschewed rigid application of the 'suit
within a suit' principle in favor of a more flexible rule." Id.
at 398; see also Garcia v. Kozlov, Seaton, Romanini & Brooks,
P.C., 179 N.J. 343, 361 (2004) (leaving it to the "court's
discretion to declare an appropriate trial model").
We were also "persuaded that emotional distress damages
should not be awarded in legal malpractice cases at least in the
absence of egregious or extraordinary circumstances." Gautam,
supra, 215 N.J. Super. at 399. "Whether viewed within the
context of the traditional concept of proximate cause, or simply
as a matter of sound public policy, we are convinced that
damages should be generally limited to recompensing the injured
35 A-0387-11T1
party for his economic loss." Ibid. (internal citations
omitted) (emphasis added). We observed that "the relationship
between the parties was predicated upon economic interest[,]
[and] [t]he loss, if one occurred, was purely pecuniary." Id.
at 400.
We further noted that "[e]ven if emotional distress damages
were recoverable in legal malpractice actions, such awards would
be impermissible in the absence of medical evidence establishing
substantial bodily injury or severe and demonstrable psychiatric
sequelae proximately caused by the tortfeasor's misconduct."
Id. at 399. "Aggravation, annoyance and frustration, however
real and justified, constitute unfortunate products of daily
living. Damages for idiosyncratic psychiatric reactions should
not be permitted." Id. at 400. We also acknowledged that "the
outer-most boundaries of the law dealing with emotional distress
damages are not yet visible," but the facts of the case did not
permit such an award. Ibid.
We continued to recognize Gautam's general principles in
Winstock v. Galasso, 430 N.J. Super. 391 (App. Div.), certif.
denied, 215 N.J. 487 (2013). There, the plaintiffs, a police
officer and his wife, filed a legal malpractice claim against
their attorney who had provided them with advice concerning the
legality of operating a club hosting poker games. Id. at 399-
36 A-0387-11T1
401. The plaintiffs were subsequently arrested and criminally
charged with perjury and various gambling offenses. Id. at 408.
As part of a global plea agreement with the State, the husband
entered a guilty plea and his wife entered the Pre-Trial
Intervention Program. Id. at 395. As a result, the husband
forfeited his position as a police officer. Id. at 409.
Although we reversed summary judgment dismissing the
plaintiffs' complaint, we affirmed the motion judge's dismissal
of the plaintiffs' emotional distress claim. Citing Gautam,
supra, 215 N.J. Super. at 399, we noted, "[t]here is nothing in
the record before us that substantiates a finding of 'egregious
or extraordinary circumstances' warranting this form of relief."
Id. at 418-19.
The only other reported decision from our courts that
directly addresses the issue is Kohn v. Schiappa, 281 N.J.
Super. 235, 236-37 (Law Div. 1995), in which the court
considered whether damages for emotional distress were
recoverable when the attorney was retained to pursue the purely
non-economic interests of his clients. In that case, the
plaintiffs retained defendant to assist them in adopting a
child. Id. at 241. They alleged that the attorney erroneously
disclosed confidential information in the adoption complaint and
claimed this breach caused them to suffer severe emotional
37 A-0387-11T1
distress. Id. at 237. The court denied the defendant's motion
for summary judgment and distinguished Gautam:
While Gautam held that damages should be
limited to recompensating the injured party
for his economic loss, . . . that court was
not asked to consider, nor did it address,
whether damages for emotional distress were
recoverable in cases involving non-economic
claims where the "suit within a suit"
framework is inapplicable. Consequently, it
cannot be said that Gautam forecloses a
plaintiff from alleging severe emotional
distress where the underlying representation
was for non-economic purposes.
[Id. at 241 (internal quotation marks and
citation omitted).]
The Law Division explained that, in an adoption or similar
proceeding, such as contested child custody disputes, attorneys
would have virtual immunity for their negligence if plaintiffs
had no ability to seek emotional distress damages. Id. at 238-
39, 241-42.
Two reported federal district court decisions also have
distinguished Gautam so as to permit the assertion of emotional
distress damages in a legal malpractice claim when the client's
interest was non-pecuniary in nature. First, in Lawson v.
Nugent, 702 F. Supp. 91, 92 (D.N.J. 1988), the plaintiff brought
a legal malpractice claim against his attorney whose alleged
malpractice resulted in an additional twenty months of
confinement upon conviction. The plaintiff sought damages for
38 A-0387-11T1
the "emotional anguish he sustained" as a result. Ibid. The
court distinguished the case from Gautam, noting "[t]he
relationship between plaintiff-client and defendant-attorney was
not necessarily predicated upon economic interest." Id. at 93.
The court observed that because this was a "diversity case," it
"must decide the issues in accordance with the law of New
Jersey." Id. at 94. Further noting that "[d]amages for
emotional distress have been allowed by New Jersey courts in an
increasing number and variety of contexts," ibid., the court
concluded that the "plaintiff should be allowed to prove damages
for emotional distress attributable to the extra twenty months
of confinement in a maximum security penitentiary." Id. at 95.
In Snyder v. Baumecker, 708 F. Supp. 1451, 1453 (D.N.J.
1989), the plaintiff brought suit on behalf of herself and the
estate of her son, who committed suicide while in custody for
motor vehicle offenses. One of the defendants was her son's
court-appointed attorney, who allegedly committed malpractice.
Id. at 1453, 1462. Citing its prior decision in Lawson, supra,
the court again distinguished Gautam, noting that the attorney-
client relationship there was "predicated on an economic
interest, while . . . in the case at bar, the attorney was
retained to provide a defense to a criminal prosecution, thus
making emotional distress, in the latter situation, a reasonably
39 A-0387-11T1
foreseeable consequence of an attorney's malpractice." Id. at
1464.
Kohn's holding that emotional distress damages are
recoverable in a legal malpractice case where non-economic
interests are at stake has been described as the "minority
rule." Leonard v. Walthall, 143 F.3d 466, 468 (8th Cir. 1998).
In Leonard, the plaintiffs alleged negligence in the defendant's
representation of their interests in an adoption. Id. at 467.
The Eighth Circuit was asked to predict "whether, under Arkansas
law, plaintiffs may recover damages for their alleged emotional
distress resulting from defendant's negligent conduct,
notwithstanding the undisputed fact that plaintiffs have
suffered no physical injury or harm to a personal or economic
interest." Id. at 468. Relying upon the decision in Thornton
v. Squyres, 877 S.W.2d 921 (Ark. 1994), which involved the
plaintiff's "claim of outrage . . . based upon allegations that
her attorney mishandled her divorce and thus caused her
temporarily to lose custody of her child," the Leonard court
affirmed dismissal of the plaintiffs' complaint. Ibid.; see
also Taylor v. Paskoff & Tamber, LLP, 908 N.Y.S.2d 861, 863
(Sup. Ct. 2010) (rejecting claims for emotional distress damages
in a legal malpractice action involving representation in
adoption or custody matters).
40 A-0387-11T1
However, nearly a quarter of a century ago, one commentator
recognized "an emerging trend . . . that allows a client to
recover for emotional distress." Kelleher, Joseph J., "An
Attorney's Liability for the Negligent Infliction of Emotional
Distress," 58 Fordham L. Rev. 1309, 1319 (1990). This
"developing trend emphasizes the client's injured interest in
determining the extent of the attorney's liability for emotional
distress damages." Id. at 1320. "Where the attorney is
protecting a pecuniary interest, emotional distress damages are
severely limited[,] [but] [w]here the interest is personal,
. . . courts adopting this view are more willing to compensate
emotional harm." Id. at 1320-21.
In Miranda v. Said, 836 N.W.2d 8, 11-13 (Iowa 2013),
relying upon their attorney's advice, the plaintiffs voluntarily
left their children behind in the United States and returned to
their native Ecuador, from where they intended to emigrate
legally. When they attempted to return, they learned that they
were subject to a ten-year bar because they had voluntarily left
this country. Id. at 12. The Iowa Supreme Court concluded that
the facts presented warranted an exception to the general rule
that denied recovery of emotional distress damages in a legal
malpractice case. Id. at 33. The court noted it "is generally
foreseeable that emotional distress would accompany the
41 A-0387-11T1
prolonged separation of a parent and child." Id. at 32 (citing
McEvoy v. Helikson, 562 P.2d 540, 542, 544 (Or. 1977),
superseded by rule on other grounds, Moore v. Willis, 767 P.2d
62, 64 (Or. 1988); Person v. Behnke, 611 N.E.2d 1350, 1353 (Ill.
App. Ct.), appeal den., 622 N.E.2d 1226 (Ill. 1993)). The
Miranda court concluded such damages are appropriate where
"[t]he relationship involved a transaction charged with emotions
in which negligent conduct by the attorney was very likely to
cause severe emotional distress." Id. at 33.
In Person, supra, 611 N.E.2d at 1353, the Illinois appeals
court recognized "a valid claim . . . for noneconomic damages
resulting from a plaintiff's loss of custody and visitation of
his children which allegedly resulted from an attorney's
negligence."
McEvoy presents strikingly similar circumstances to this
case. The plaintiff-father brought suit against his ex-wife's
attorney. McEvoy, supra, 562 P.2d at 541. Pursuant to the
divorce decree, the plaintiff was awarded custody of the
couple's child. However, a subsequent order, executed by all
parties and the attorneys, gave the mother, a Swiss citizen,
temporary custody, subject to both parents delivering all
passports to the defendant until the child was returned to her
father. Ibid. The plaintiff alleged that the defendant failed
42 A-0387-11T1
to honor the order and gave his daughter's passport to his ex-
wife, permitting the child to be removed to Switzerland. Id. at
542.
The court reversed the lower court's dismissal of the
complaint. Id. at 544. It concluded that "conduct by defendant
which resulted in an infringement of" the plaintiff's right to
custody of his daughter, "if established by evidence on trial,
would entitle [the] plaintiff to recover damages for anguish and
mental [suffering] due to the loss of his minor child, as
alleged in the complaint." Ibid. (citations omitted) (second
alteration in original).
We conclude that plaintiffs' claim for emotional distress
damages was clearly appropriate under the facts of this case.
We do not view this as an unwarranted extension of what we said
in Gautam, specifically that emotional distress damages are
generally unavailable in a legal malpractice action absent
"egregious" and "extraordinary" circumstances. Gautam, supra,
215 N.J. Super. at 399. We used those terms in Gautam to deny a
claim in the context of a "relationship between the parties"
"predicated upon economic interest," where the plaintiffs' loss
"was purely pecuniary." Id. at 400; and see Restatement (Third)
of the Law Governing Lawyers, § 53 comment g. (2000) (emotional
43 A-0387-11T1
distress "damages are inappropriate in types of cases in which
emotional distress is unforeseeable").
However, when the harm caused by an attorney's professional
negligence is personal in nature and emanates from the
fundamental relationship between parent and child, we must
assess whether it was "egregious" and "extraordinary" through a
different prism. The trial judge specifically relied upon our
decision in Segal.
There, a father brought suit on behalf of himself and his
children against the children's mother for intentional
infliction of emotional distress based on alienation of the
children's affections. Segal, supra, 413 N.J. Super. at 176-77.
For essentially two different reasons, we concluded that the
plaintiff's complaint was properly dismissed by the Law
Division.
First, we noted that the suit presented a "litigation tug-
of-war" with the children in the middle. Id. at 189. We were
"satisfied that [the] plaintiff's cause of action . . .
constitute[d] a prima facie case of potential harm to the
children named as parties thereto." Id. at 190-91. "As a
matter of public policy," we concluded that plaintiff's
"grievances" must be brought in the Family Part "as part of an
action for custody or parenting time, where the governing
44 A-0387-11T1
principle for adjudication will be the best interests of these
two children." Id. at 192.
We also concluded that the plaintiff had "not established a
cause of action for intentional infliction of emotional
distress." Id. at 191. We noted that, among other things, the
elements of that tort required a showing that the "defendant's
conduct was 'so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community[.]'" Ibid. (quoting Buckley v. Trenton Sav. Fund
Soc., 111 N.J. 355, 366 (1988)). Although the plaintiff failed
to allege such conduct in the case, we specifically did not
foreclose the possibility that a cause of
action may be brought alleging facts that
are so outrageous in character, and so
extreme in degree, as to go beyond all
possible bounds of decency, and to be
regarded as atrocious, and utterly
intolerable in a civilized community, thus
satisfying prong two of the Buckley
standard. . . . As we previously noted,
cases involving prolonged parental
abduction, where children are intentionally
removed to foreign jurisdictions for the
purpose of frustrating the innocent parent's
custodial rights, or intentional false
accusations of parent/child sexual abuse,
are but two examples of factual scenarios
that may satisfy the outrageous conduct
requirement under Buckley.
[Id. at 192 (internal quotation marks and
citation omitted) (emphasis added).]
45 A-0387-11T1
Defendants contend that applying Segal here would be an
unwarranted "extension of liability for a client's intentional
infliction of emotional distress to the tortfeasor's attorney by
way of a legal malpractice claim[.]" We do not necessarily
agree. However, we need not directly address that contention
because we conclude that Segal does have relevance to the extent
that it explained the kind of "egregious" and "extraordinary"
conduct that, when combined with the personal interests at
stake, permit recovery for emotional distress damages in an
action sounding in legal malpractice.
We hasten to add that most factual situations will not
support such a claim, even when the underlying interests are
non-pecuniary and personal in nature. We view the "egregious"
and "extraordinary" qualifier as a sensible limitation on what
might otherwise become an increasing slew of litigation arising
out of the obviously emotionally-charged proceedings that occur
daily in the Family Part. So, for example, absent egregious and
extraordinary circumstances, a client's claim that his
attorney's malpractice resulted in an order awarding custody to
his adversary or limiting his parenting time would not support
an award of emotional distress damages. In such situations, the
deprivation to the client can be fully redressed by the Family
Court through applications addressed to the sound discretion and
46 A-0387-11T1
equitable powers of the judge, including future modification of
the award. To the extent Kohn suggested otherwise, we
disapprove it.14
Moreover, permitting claims for emotional distress in a
legal malpractice action, even one centered on the client's
personal as opposed to pecuniary interests, might provide
thinly-veiled cover for damage claims attributable to the
unfortunate, but well-recognized, anxiety that accompanies
litigation in all forms. See Picogna v. Bd. of Educ. of Cherry
Hill, 143 N.J. 391, 399 (1996) (denying "litigation-induced"
stress as a component of emotional distress damages).
In this case, however, defendants' actions were "egregious"
and "extraordinary." Despite knowing of the Agreement,
including that it had been signed by the parties and the
attorneys, the already contentious nature of the parties'
separation and Innes's reliance on the safekeeping of Victoria's
passport, defendants breached their duty and simply gave the
passport to Carrascosa. They did so without notifying Van Aulen
and without seeking approval from the court. Defendants'
14
Because the issue is not before us, we specifically do not
decide whether the deprivation of a liberty interest, like the
facts presented in Lawson, supra, and Snyder, supra, is the kind
of personal interest that would support an award of emotional
distress damages in a legal malpractice action either with, or
without, proof of egregious and extraordinary circumstances.
47 A-0387-11T1
conduct was sufficiently "egregious" and "extraordinary" to
permit an award of emotional distress damages in this case.
(ii)
Defendants argue that plaintiffs presented insufficient
evidence of emotional distress damages because they failed to
prove, through expert medical testimony or otherwise, that they
suffered "demonstrable psychiatric sequelae proximately caused"
by defendants' negligence. Gautam, supra, 215 N.J. Super. at
399. To address this argument, we need to consider the origin
of the requirement for this "heightened showing of emotional
distress." Menorah Chapels at Millburn v. Needle, 386 N.J.
Super. 100, 116 (App. Div.) (citations omitted), certif. denied,
188 N.J. 489 (2006).
Whether it is alleged that the defendant acted
intentionally, recklessly or negligently, the Court has said
that recovery lies only if the plaintiff can prove the emotional
distress produced by the defendant's tortious conduct was
"severe," Buckley, supra, 111 N.J. at 367, or "genuine and
substantial." Decker v. Princeton Packet, Inc., 116 N.J. 418,
430 (1989). "'Severe emotional distress means any type of
severe and disabling emotional or mental condition which may be
generally recognized and diagnosed by professionals trained to
do so . . . .'" Taylor v. Metzger, 152 N.J. 490, 515 (1998)
48 A-0387-11T1
(quoting Poole v. Copland, Inc., 481 S.E.2d 88, 93 (N.C. 1997)).
"Although New Jersey permits recovery for emotional distress
damages in some cases, the potential for fabricated claims
justifies a requirement of enhanced proof to support an award of
such damages." Picogna, supra, 143 N.J. at 396-397.
"By circumscribing the cause of action with an elevated
threshold for liability and damages, courts have authorized
legitimate claims while eliminating those that should not be
compensable." Buckley, supra, 111 N.J. at 367 (emphasis added).
As the Court said in Decker,
While the foreseeability of injurious
consequences is a constituent element in a
tort action, foreseeability of injury is
particularly important in the tort of
negligent infliction of emotional harm.
This reflects the concern over the
genuineness of an injury consisting of
emotional distress without consequent
physical injury. In these situations, there
must be "an especial likelihood of genuine
and serious mental distress, arising from
special circumstances, which serves as a
guarantee that the claim is not spurious."
In emotional distress cases, there has been
"a constant concern about the genuineness of
the claim."
[116 N.J. at 429-30 (quoting W. Keeton, D.
Dobbs, R. Keeton & D. Owen, Prosser and
Keeton on the Law of Torts, § 54 at 362 (5th
ed. 1984)) (emphasis added).]
Our courts have recognized two types of tortious conduct
that support a claim for negligent infliction of emotional
49 A-0387-11T1
distress. "A claim of direct, negligent infliction of emotional
distress," can exist where the plaintiff claims proximately-
caused damages as a result of the breach of a duty owed by the
defendant. Lascurain v. City of Newark, 349 N.J. Super. 251,
277 (App. Div. 2002). A second type of claim, first recognized
in Portee v. Jaffee, 84 N.J. 88, 101 (1980), exists if the
plaintiff witnessed the death or serious physical injury of
another, with whom he shares a marital or intimate, familial
relationship, as the result of the defendant's negligence.
McDougall v. Lamm, 211 N.J. 203, 214-215 (citing Portee, supra,
84 N.J. at 101). In both, the plaintiff must demonstrate
"severe emotional distress," id. at 215, or "genuine and
substantial emotional distress." Lascurain, supra, 349 N.J.
Super. at 277.
"'The severity of the emotional distress raises both
questions of law and fact. Thus, the court decides whether as a
matter of law such emotional distress can be found, and the jury
decides whether it has in fact been proved.'" Lascurain, supra,
349 N.J. Super. at 279 (quoting Buckley, supra, 111 N.J. at
367). We have said that "[i]n order to be actionable, the
claimed emotional distress must be sufficiently substantial to
result in physical illness or serious psychological sequelae."
Aly v. Garcia, 333 N.J. Super. 195, 204 (App. Div. 2000).
50 A-0387-11T1
Complaints such as lack of sleep, aggravation, headaches
and depression have been frequently deemed insufficient as a
matter of law. DeAngelis v. Hill, 180 N.J. 1, 20-21 (2004);
Buckley, supra, 111 N.J. at 368; see also Juzwiak v. Doe, 415
N.J. Super. 442, 453 (App. Div. 2010) (finding complaints of
"weight loss, sleeplessness, anxiety and depression" without
"objective documentation of [the] claims" to be insufficient);
Lascurain, supra, 349 N.J. Super. at 280; but see Wigginton v.
Servidio, 324 N.J. Super. 114, 123-24, 132 (App. Div. 1999)
(finding the plaintiff's sixty-day medical leave of absence from
work and symptoms of "nausea and diarrhea" and depression
sufficiently severe to allow her to proceed to trial on an
emotional distress claim), certif. denied, 163 N.J. 11 (2000).
We acknowledge that Innes's testimony regarding his own
emotional distress was quite limited, and no expert medical
evidence was introduced on his behalf. As noted, Berson did not
qualify as an expert witness regarding Victoria's emotional
distress claims, and there was no proof otherwise from any
witness.
The trial judge cited Rendine v. Pantzer, 141 N.J. 292,
312-13 (1995), for the proposition that expert medical evidence
of plaintiffs' emotional distress was unnecessary. Undoubtedly,
that was part of the Court's holding in Rendine. However, the
51 A-0387-11T1
Court's decision in that case was based upon both the broad
remedial purpose of the Law Against Discrimination, (LAD),
N.J.S.A. 10:5-1 to -42, and the then recently-enacted amendment,
N.J.S.A. 10:5-3, that specifically recognized "emotional stress"
as cognizable damages under the statute. Rendine, supra, 141
N.J. at 312. In this case, plaintiffs' claims for emotional
distress damages were allegedly the result of defendants'
negligence. Unlike Rendine, there was no broad, statutorily-
created remedy that necessarily relieved plaintiffs of their
burden to prove "severe" or "genuine and substantial" emotional
distress.
However, in certain circumstances, "[t]he Court has
distinguished a cause of action in tort or contract seeking
consequential damages for emotional distress from a cause of
action alleging intentional infliction of emotional distress,
holding that only the latter requires a heightened showing of
emotional distress." Menorah Chapels, supra, 386 N.J. Super. at
116. For example, "[c]ourts have required little or no proof
with regard to intangible damages for malicious use of process,
apparently in the belief that a normal person subjected to
wrongful litigation would have suffered at least some damages."
Baglini v. Lauletta, 338 N.J. Super. 282, 307 (App. Div. 2001)
(internal quotation marks and citation omitted).
52 A-0387-11T1
We also rejected the need for an enhanced standard of proof
in Geler v. Akawie, 358 N.J. Super. 437 (App. Div.), certif.
denied, 177 N.J. 223 (2003). There, the plaintiffs brought a
medical malpractice claim against various doctors based upon the
"wrongful birth" of their son, who was stricken with Tay-Sachs
disease and died within two years of his birth. Id. at 443.
The trial judge granted the defendant-doctor's motion for JNOV
on the jury's award of emotional distress damages. Id. at 444.
In reversing, we held that the "elevated standard" for emotional
distress claims did not apply. Id. at 450.
[W]e note a distinction between the judicial
treatment of claims for parental emotional
distress arising from negligence directed
solely at the parents, as here, and claims
for parental emotional distress arising from
negligence also directly affecting their
newborn child. This case falls within the
former category, and thus squarely within
Supreme Court precedent recognizing, without
mention of an enhanced standard of proof,
parental emotional distress as an element of
damages in other genetic counseling
malpractice contexts.
[Ibid. (citing Berman v. Allan, 80 N.J. 421
(1979)).]
We also recognized that "an award of damages for emotional
distress . . . [was] one of the few avenues of redress for
tortious conduct in this circumstance." Id. at 451.
In this case, plaintiffs did not seek emotional distress
damages under the rubric of negligent or intentional infliction
53 A-0387-11T1
of emotional distress, torts whose essential elements require a
"heightened showing" of physical or psychological sequelae.
Menorah Chapels, supra, 386 N.J. Super. at 116. Rather,
plaintiffs sought damages as the direct and proximate
consequence of defendants' breach of their professional
responsibility.
Under the particular facts of this case, plaintiffs were
entitled to recover for emotional distress damages without
enhanced proof based upon the particular, and foreseeable,
consequence of defendants' breach of the duty owed, i.e., the
complete, and potentially, permanent rupture of the parent-child
bond. The nature of this particular harm mitigates against the
reason for an enhanced standard of proof in the first instance —
the elimination of spurious claims. In such "'special
circumstances,'" "'an especial likelihood of genuine and serious
mental distress . . . serves as a guarantee that the claim is
not spurious.'" Strachan v. John F. Kennedy Mem. Hosp., 109
N.J. 523, 537 (1988) (quoting Prosser, supra, § 54 at 362).
For example, in Menorah Chapels, supra, 386 N.J. Super. at
106, 116, we reversed dismissal of the defendant's counterclaim
seeking emotional distress damages as a result of the
plaintiff's alleged breach of a contract to perform funeral
services in strict accordance with orthodox Jewish custom and
54 A-0387-11T1
belief. We found it was foreseeable that, because the contract
implicated interests so personal and particular to the
defendant, the plaintiff's breach would result in mental
anguish. Id. at 115-18; and see Muniz v. United Hospitals
Medical Center Presbyterian Hospital, 153 N.J. Super. 79, 82
(App. Div. 1977) (reversing dismissal of the plaintiff's
complaint against the defendant-hospital, noting "a deviation
from the standard of care reasonably to be expected of a
hospital in dealing with corpses and the reasonable
foreseeability that such a deviation would cause emotional and
substantial physical disability with respect to persons normally
constituted").
In Berman, supra, 80 N.J. at 433, the Court recognized the
plaintiffs' claims for emotional distress damages against the
defendant doctors who "directly deprived [the mother] . . . of
the option to accept or reject a parental relationship with the
child[,] and thus caused them to experience mental and emotional
anguish upon their realization that they had given birth to a
child afflicted with Down's Syndrome." Justice Handler wrote
eloquently, "[b]ecause of the unique nature of the tort,
involving as it does the denial of the opportunity to decide
whether to become the parents of a handicapped child, the
suffering of the parents assumes another, important dimension."
55 A-0387-11T1
Id. at 439 (Handler, J., concurring in part, dissenting in
part); see also Portee, supra, 84 N.J. at 101 (where the court
noted that the "interest in personal emotional stability is
worthy of legal protection against unreasonable conduct," when
the "emotional harm follow[s] the perception of the death or
serious injury to a loved one . . . , for few persons travel
through life alone").
In this case, Innes's testimony was sufficient to permit
the jury to award him emotional distress damages proximately
caused by defendants' breach of their duty. Unlike Gautam,
supra, 215 N.J. Super. at 400, where "the relationship between
the parties was predicated upon economic interest[,] [and] [t]he
loss, if one occurred, was purely pecuniary[,]" the loss in this
case was particularly personal in nature - the inability of a
father to see his daughter for many years, and the likely
prospect that he may never see her again. The New Jersey
Supreme Court has long recognized that "'[t]he right to
. . . raise one's children [is an] essential, basic civil
right[,] . . . far more precious than property rights.'" N.J.
Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)
(first alteration in original) (quoting Stanley v. Illinois, 405
U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558
(1972)). The emotional distress caused by the irreparable
56 A-0387-11T1
severance of the parent-child bond is expected, undoubtedly
genuine and easily appreciated by the average person without the
need for expert testimony.
Furthermore, there is no other form of redress for
defendants' tortious conduct in this case. Geler, supra, 358
N.J. Super. at 451. "Any other ruling would in effect immunize
[defendants] from liability[.]" Berman, supra, 80 N.J. at 432.
We therefore affirm the award of emotional distress damages to
Innes.15
We are, nevertheless, compelled to reach a different result
with respect to the award on Victoria's behalf. There was
simply no testimony regarding her emotional distress, meaning
the jury's award was based upon speculation. See Jablonowska v.
Suther, 195 N.J. 91, 102 (2008) (where, discussing historical
limits on claims for emotional distress, the Court noted that
"[f]rom a policy standpoint, courts . . . feared a 'flood of
litigation[ ] in cases . . . where the damages must rest upon
mere conjecture and speculation'") (quoting Ward v. W. Jersey &
Seashore R.R. Co., 65 N.J.L. 383, 386 (Sup. Ct. 1900) (emphasis
added)).
15
Defendants have not specifically challenged the amount of the
award.
57 A-0387-11T1
Although Berson did not testify before the jury, during the
N.J.R.E. 104 hearing, she was asked "what effect, if any, do you
know of that the alienation [from her father] had upon
[Victoria]?" Berson answered, "I don't know this particular
child. So I can't possibly answer that." Plaintiffs contend
that they were denied the opportunity to have Victoria evaluated
because of defendants' actions. We cannot determine on this
record whether that is necessarily true, but the trial judge
rejected that excuse as a reason to permit Berson's testimony.
We therefore reverse that part of the judgment awarding
emotional distress damages to Victoria.
C.
Citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427
(2001), and Saffer, supra, 143 N.J. at 256, the judge observed
that clients could recover reasonable expenses and attorney's
fees as consequential damages for an attorney's negligence. He
explained that even though plaintiffs were not defendants'
clients, defendants owed them a duty to hold Victoria's passport
in trust, and defendants knew or should have known of Inness's
reliance upon them.
Defendants contend it was error to award plaintiffs
attorneys' fees because "the narrow exception to the American
58 A-0387-11T1
Rule in the context of a legal malpractice action" does not
apply since Innes was not defendants' client. We disagree.16
The American Rule prohibits the prevailing party from
recovering counsel fees against the losing party. In re Niles
Trust, 176 N.J. 282, 294 (2003). "The purposes behind the
American Rule are threefold: (1) unrestricted access to the
courts for all persons; (2) ensuring equity by not penalizing
persons for exercising their right to litigate a dispute, even
if they should lose; and (3) administrative convenience." Ibid.
The Court, however, has "created carefully limited and
closely interrelated exceptions to the American Rule[.]" In re
Estate of Vayda, 184 N.J. 115, 121 (2005). One such exception
permits the successful plaintiff in a legal malpractice action
to recover the attorneys' fees incurred in prosecuting that
action, because those are damages proximately caused by the
attorney's negligence. Ibid. (citing Saffer, supra, 143 N.J. at
271).
The Court subsequently "extended the limited exception
allowing the recovery of attorneys' fees in attorney malpractice
actions . . . to include actions for attorney misconduct[.]"
Ibid. (citing Packard-Bamberger, supra, 167 N.J. at 443). In
16
Defendants do not challenge the amount of the fee awards or
the judge's methodology in calculating the awards.
59 A-0387-11T1
Packard-Bamberger, the defendant, who was both a corporate
director of, and legal counsel to, the plaintiffs, "committed
intentional misconduct in his role as counsel." Packard-
Bamberger, supra, 167 N.J. at 442. The Court said
[s]tated plainly, an attorney who
intentionally violates the duty of loyalty
owed to a client commits a more egregious
offense than one who negligently breaches
the duty of care. A client's claim
concerning the defendant-attorney's breach
of a fiduciary duty may arise in the legal
malpractice context. Nonetheless, if it
does not and is instead prosecuted as an
independent tort, a claimant is entitled to
recover attorneys' fees so long as the
claimant proves that the attorney's breach
arose from the attorney-client relationship.
Accordingly, we hold that a successful
claimant in an attorney-misconduct case may
recover reasonable counsel fees incurred in
prosecuting that action.
[Id. at 443.]
However, the Court also said that "a plaintiff must demonstrate
the existence of an attorney-client relationship as a
prerequisite to recovery." Id. at 443.
The Court subsequently explained the expansion of this
exception to the American Rule as having its "focus on the
recovery of attorneys' fees as damages directly and proximately
arising from the attorney's breach of fiduciary duty to the
plaintiff." Estate of Vayda, supra, 184 N.J. at 122 (emphasis
added). In In re Estate of Stockdale, 196 N.J. 275, 307 (2008),
60 A-0387-11T1
the Court described its holding in Packard-Bamberger as
permitting the recovery of counsel fees "in claims against
attorneys who intentionally violate their fiduciary duties[.]"
(Citing Packard-Bamberger, supra, 167 N.J. at 443). And, in
Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372,
405 (2009), the Court described Saffer and Packard-Bamberger as
examples of "a tightly circumscribed common law exception to the
American Rule that defies ready description, but may be titled
loosely as fiduciary malfeasance cases[.]"
We conclude that although no reported case specifically
extends Saffer's exception to the American Rule to a suit
brought against an attorney by a non-client, attorney's fees
should be awarded in this case as a direct and proximate result
of defendants' actions. Saffer, supra, 143 N.J. at 272;
Lieberman, supra, 84 N.J. at 341. To hold otherwise would
essentially eviscerate the very purpose of the exception to the
American Rule by denying plaintiffs a full award for the
consequential damages suffered as a result of defendants'
actions.
The attorney fee award is particularly appropriate in this
case, since defendants were holding Victoria's passport in trust
and knew Innes and his attorney were relying upon the Agreement.
61 A-0387-11T1
Nevertheless, they intentionally violated the Agreement and gave
the passport to Carrascosa upon her request.
We affirm that portion of the judgment that reflects the
award of counsel fees to Innes. Because we have reversed the
judgment on behalf of Victoria, she is not a prevailing party,
and therefore is not entitled to an award of fees. We vacate
that portion of the judgment.
III.
We next consider defendants' claim that it was error to
sever their third-party complaint against Carrascosa from trial
and to dismiss the complaint with prejudice after trial. The
trial judge raised the severance issue sua sponte and provided
all parties with an opportunity to address the issue several
months before the trial began.
In a short written opinion dated February 18, 2011, the
judge decided severance was appropriate "for the convenience of
the parties, and to avoid prejudice to . . . Carrascosa." The
judge noted that defendants were being represented at trial by
Walter Lesnevich, a principal in the Lesnevich firm and husband
of Marzano-Lesnevich. Relying on RPC 1.9, the judge determined
that Lesnevich was disqualified from representing defendants in
litigation against their former client, Carrascosa. The judge
concluded that defendants would not be prejudiced by a severance
62 A-0387-11T1
because they were able to present their defense at trial, and,
if successful, the contribution claim against Carrascosa would
"evaporate." If unsuccessful, defendants were free to pursue
their contribution claim at a second trial represented by other
counsel.
Rule 4:38-2(a) provides that a court may order a separate
trial of any claim for the convenience of the parties or to
avoid prejudice. "[O]ur Rules vest the determination whether or
not to sever claims to the sound exercise of a trial court's
discretion." Rendine, supra, 141 N.J. at 310 (citing R. 4:38-
2(a)).
"RPC 1.9(a) plainly provides that [a] lawyer who has
represented a client in a matter shall not thereafter represent
another client in the same or substantially related matter in
which that client's interests are materially adverse to the
interests of the former client unless the former client gives
informed consent confirmed in writing." City of Atlantic City
v. Trupos, 201 N.J. 447, 451 (2010). Matters are considered
"substantially related" if
(1) the lawyer for whom disqualification is
sought received confidential information
from the former client that can be used
against that client in the subsequent
representation of parties adverse to the
former client, or
63 A-0387-11T1
(2) facts relevant to the prior
representation are both relevant and
material to the subsequent representation.
[Id. at 467.]
Subject to certain exceptions that do not apply here, "[w]hen
lawyers are associated in a firm, none of them shall knowingly
represent a client when any one of them practicing alone would
be prohibited from doing so by . . . RPC 1.9 [.]" RPC 1.10(a).
Here, the judge did not mistakenly exercise his discretion
by severing defendants' contribution claim against Carrascosa.
Lesnevich clearly could not represent defendants in a
"substantially related matter in which" defendants' interests
were "materially adverse" to those of their former client.
In the end, however, the severance decision was immaterial
because the judge ultimately dismissed defendants' contribution
claim against Carrascosa. In his written opinion, citing
Blazovic v. Andrich, 124 N.J. 90 (1991), the judge concluded
that any apportionment of fault was inappropriate because
defendants had a duty to prevent the "specific misconduct" of
their client. As the judge explained:
As a result of the attorney-client
relationship between . . . Carrascosa and
the defendants, a relationship that derives
its genesis from Victoria's passport and the
attendant ramifications arising from that
document, the Lesnevich firm was also
charged with preventing any harm from
befalling Peter and Victoria Innes. The
64 A-0387-11T1
jury verdict was issued in accordance with
this notion. All of these factors therefore
coalesce to place . . . Carrascosa outside
the boundaries of the traditional joint
tortfeasor realm.
Defendants argue before us that they are entitled to
contribution from Carrascosa under the JTCL. We disagree and
affirm the judge's dismissal of defendants' third-party
complaint for contribution.
Pro rata apportionment of liability among negligent and
intentional tortfeasors is appropriate based upon the
"percentages of fault assigned by the trier of fact." Blazovic,
supra, 124 N.J. at 105, 107-12. However, an exception to the
general rule applies "when the duty of one encompassed the
obligation to prevent the specific misconduct of the other."
Id. at 111 (citing Butler v. Acme Markets, Inc., 89 N.J. 270
(1982)).
Application of this exception relies upon both the
foreseeability of the "specific misconduct" and its "adequate
causal relationship" to the duty imposed on the other tortfeasor
to prevent it. Id. at 112. See e.g., Waldron v. Johnson, 368
N.J. Super. 348, 349-50, 352 (App. Div.) (rejecting the Blazovic
exception where the plaintiff's recovery against a shopping mall
for an assault at an automatic teller machine "was not so
foreseeable nor did it bear such a close causal connection to
65 A-0387-11T1
the [m]all's slow response to the melee that it should justify
imposing upon the [m]all the entire responsibility for [the]
plaintiff's injuries"), certif. denied, 182 N.J. 139 (2004);
Martin v. Prime Hospitality Corp., 345 N.J. Super. 278, 292
(App. Div. 2001) (holding that the plaintiff's sexual assault in
the defendant's hotel was "neither sufficiently foreseeable nor
sufficiently related to [the hotel's] alleged fault to justify
imposing responsibility on [the hotel] for all of the
[plaintiff's] injuries").
Here, the judge correctly held that the Blazovic exception
applied. Defendants were fully aware of the Agreement and
assumed a duty to safeguard Victoria's passport. Because they
released the passport to Carrascosa without notice to Innes or
his attorney, defendants failed to prevent the "specific
misconduct" that enabled Victoria's removal to Spain. Moreover,
based upon the evidence adduced at trial, that specific harm was
entirely foreseeable.
IV.
The balance of defendants' arguments lack sufficient merit
to warrant extensive discussion in a written opinion. R. 2:11-
3(e)(1)(E). Conk was clearly qualified to render the opinions
he gave at trial, and the judge did not mistakenly exercise his
discretion in so ruling. See Koseoglu v. Wry, 431 N.J. Super.
66 A-0387-11T1
140, 159 (App. Div.) (quoting Carey v. Lovett, 132 N.J. 44, 64
(1993)), ("'[T]he competency of a witness to testify as an
expert is remitted to the sound discretion of the trial court.
Absent a clear abuse of discretion, an appellate court will not
interfere with the exercise of that discretion.'"), certif.
denied, 216 N.J. 4 (2013).
Defendants cannot assert prejudice when they provided the
judge with a proposed charge that contained an improper
statement of the law regarding proximate cause, and then
commented on it extensively in summation. Although the judge
did not discern the error until afterwards, he properly
exercised his discretion and gave the jury a curative
instruction.
In sum, we affirm the judgment in all respects as it
applies to Innes. We reverse the judgment in all respects as it
applies to Victoria, and remand the matter to the Law Division
for entry of judgment in defendants' favor as to her claims. We
do not retain jurisdiction.
67 A-0387-11T1