Barry Cohen v. Jeff Horn

• Court: Court of Appeals for the Third Circuit
• Decided: December 9, 2022
• Docket: 22-2148
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2148 __________

BARRY COHEN,

Appellant

v.

JEFF J. HORN; THE HORN LAW GROUP, LLC

____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-19-cv-05604) Chief District Judge: Honorable Freda L. Wolfson ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) December 6, 2022

Before: AMBRO, KRAUSE, and SCIRICA, Circuit Judges

(Opinion filed December 9, 2022)

___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Appellant Barry Cohen (“Cohen”) appeals from an order of the District Court

granting summary judgment in favor of defendants, Jeff Horn, Esq., and the Horn

LaGroup, LLC (“HLG”). For the following reasons, we will affirm.

As the parties are familiar with the facts and the procedural history of this case, we

recite them only as necessary to explain our decision. Cohen hired defendants to

represent him in a dispute with his mother, Selma Cohen, over the administration of his

father’s estate. In June 2016, Horn filed a Verified Complaint against Selma in the

Ocean County Surrogate’s Court (“probate court”), New Jersey, alleging that she failed to

follow the terms of Harry Cohen’s 1999 will.1 Horn also filed a Show Cause order

seeking, inter alia, an accounting of the Estate’s assets, removal of Selma as Executrix,

appointment of Cohen as Executer, and reimbursement of funds by Selma to the trust. In

August 2016, Selma’s counsel, Christopher Olszak, Esq., sent Horn a copy of a 2009

will, executed by Harry Cohen, which left everything to Selma. Olszak filed an answer

to the complaint and a counterclaim seeking to remove the 1999 will and admit the 2009

will for probate.

Pursuant to a “game plan” that he and Cohen devised,2 Horn filed a response to the

counterclaim and a certification executed by Cohen which included statements

1 Under the 1999 will, Harry Cohen’s assets were placed in a trust for Selma; she would receive income and distributions from a trust and, upon her death, Cohen and his sister, Helene, would receive $200,000 plus half the balance of the principal of the trust. Harry Cohen died in March 2011, and Helene passed away two months later. In July 2011, Selma filed the 1999 will for probate. 2 In a letter to Cohen, Horn confirmed that the “game plan” was to give Olszak “the impression that [Cohen was] willing to go the distance,” and then settle the matter 2 questioning the legitimacy of the 2009 will, including that his father “suffered significant

age-related mental issues.” The probate court entered a case management order. In a

telephone conference with Horn in September 2016, Cohen and his wife directed Horn to

“go forward full throttle” to obtain the Estate’s accounting, to serve interrogatories and

subpoenas, and to request a file from Adult Protective Social Services to demonstrate to

Olszak that Harry suffered from “mentally limiting disorders” and lacked the capacity to

enter into the 2009 will. ECF No. 38-23. The expectation was that Selma would

capitulate to the terms of the 1999 will and withdraw as Executor. See id.

Selma did not capitulate. See ECF Nos. 1 at 23 (noting numerous objections to

Cohen’s response to Selma’s Notice to Produce and Interrogatories); 38-28 at 22 (Horn

email to Cohen noting that Selma’s answers to interrogatories “are once again over-

due”); 38-26 at 2 (Horn letter to Cohen noting that “[t]he answers to interrogatories

received from Selma’s counsel were deficient in numerous areas”). In December 2016,

Horn issued a subpoena to Virginia Muscarella of Senior Services of Manchester

Township, requiring her to appear for a deposition and to produce Harry and Selma’s

records. Olszak filed a motion to quash the subpoena. After that point, the relationship

between Cohen and defendants broke down. The probate court granted Horn’s motion to

be relieved as counsel in February 2017, and, three months later, it admitted the 2009 will

and vacated the admittance of the 1999 will.

conceding to admission of the 2009 will superseding the 1999 will and “collecting maximum reimbursement for your legal fees expended to date.” ECF No. 38-21 at 2. 3 Cohen filed a complaint against defendants in state court alleging, inter alia, that

the defendants “were negligent and/or committed legal malpractice and breached the

contract created by the Engagement Letter fiduciary duties” through certain acts and

omissions in the probate court litigation. ECF No. 1 at 8 ¶6. Defendants removed the

matter to the District Court pursuant to 28 U.S.C. §§ 1332, 1441.

This is the second time this case is before us. The first time, we affirmed the

District Court’s order granting summary judgment in favor of defendants on Cohen’s

legal malpractice claim to the extent he sought to establish proximate causation of actual

damages by proving the “suit within the suit.”3 See Cohen v. Horn, No. 21-1223, 2021

WL 2935029, at *3 (3d Cir. 2021). We agreed with the District Court that Cohen failed

to prove that he would have prevailed in the probate action but for defendants’ alleged

conduct. We affirmed in part and vacated in part the District Court’s judgment; we

remanded for the District Court to determine whether Cohen could otherwise recover on

his malpractice claim and to consider “any other actionable tort or contract claim in

[Cohen’s] complaint.” Id.

On remand, the District Court determined that defendants had not breached a duty

of care to Cohen and that, therefore, his malpractice claim failed under any viable theory

of proximate causation. The District Court granted summary judgment for defendants on

3 To establish a claim for legal malpractice in New Jersey, a plaintiff must establish “(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of such duty; and (3) proximate causation.” DeAngelis v. Rose, 727 A.2d 61, 67 (N.J. Super. Ct. App. Div. 1999). 4 that claim and on Cohen’s claims for breach of fiduciary duty, breach of contract,

negligence, and negligent supervision. Cohen appeals.

We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

decision on summary judgment, which involved the interpretation and application of New

Jersey law, de novo. Dixon Ticonderoga Co. v. Estate of O’Connor, 248 F.3d 151, 161

(3d Cir. 2001). Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). Although “[w]e view the facts and draw all reasonable

inferences in the non-movant's favor,” we will conclude that “[a] disputed issue is

‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable jury could

find for the non-moving party.” Resch v. Krapf’s Coaches, Inc., 785 F.3d 869, 871 n.3

(3d Cir. 2015) (citation and quotation marks omitted).

On appeal, Cohen does not challenge the District Court’s determination that the

defendants were not liable for malpractice because they did not breach a duty of care.

Accordingly, the issue has been forfeited. See M.S. by & through Hall v. Susquehanna

Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020) (noting that arguments not raised in

an opening brief on appeal are forfeited); see also Mala v. Crown Bay Marina, Inc., 704

F.3d 239, 245 (3d Cir. 2013) (noting that pro se litigants “must abide by the same rules

that apply to all other litigants”). In any event, we agree with the District Court that

Cohen failed to meet his burden of proof.

Cohen failed to obtain an expert to explain the defendants’ duty of care and how it

was breached. Carbis Sales, Inc. v. Eisenberg, 935 A.2d 1236, 1244 (N.J. Super. Ct.

5 App. Div. 2007) (“As ‘the duties a lawyer owes to his client are not known by the

average juror,’ expert testimony must necessarily set forth that duty and explain the

breach.”) (citation omitted). Even assuming that this is one of the “rare” malpractice

cases for which expert testimony is not required, Sommers v. McKinney, 670 A.2d 99,

104 (N.J. Super. Ct. App. Div. 1996), Cohen failed to present sufficient evidence from

which a jury could conclude that defendants’ conduct deviated from a professional care

standard. In particular, granting courtesy extensions of deadlines to defendants and,

without more, failing to complete discovery by the state court’s scheduled deadlines do

not rise to the level of malpractice. See generally Ziegelheim v. Apollo, 607 A.2d 1298,

1306 (N.J. 1992) (noting that “[t]he law demands that attorneys handle their cases with

knowledge, skill, and diligence, but it does not demand that they be perfect or infallible,

and it does not demand that they always secure optimum outcomes for their clients”).

And, as the District Court explained, Horn did not simply fail to respond to Selma’s

motion to quash the subpoena; he advised Cohen of his assessment of the case at that

point – that the costs of responding to the motion and pursuing the next phase of the

litigation could exceed the potential financial recovery.4 Cohen failed to demonstrate that

4 As Cohen explained to Horn,

[w]e built rapport at the beginning of the matter when I urged a step-by-step process involving analysis of the cost versus the likely gain at each stage. We are about to embark upon an expensive stage of the litigation and the refusal of Selma to provide even a reasonably detained informal accounting has impaired our ability to analyze the value of the estate. In short, I am not certain that pressing on with the litigation will produce a financial recovery that justifies the expenditure. I know 6 he responded or otherwise indicated to Horn that he should challenge the motion to

quash.5

Finally, Cohen failed to produce evidence from which a jury could conclude that

the defendants breached their duty of care by the timing or manner of their withdrawal

from representation of him. Pursuant to the New Jersey Rules of Professional Conduct

(R.P.C.), “[u]pon termination of representation, a lawyer shall take steps to the extent

reasonably practicable to protect a client’s interests.” N.J. R.P.C. 1:16(d); see also Gilles

v. Wiley, Malehorn & Sirota, 783 A.2d 756, 760 (N.J. Super Ct. App. Div. 2001)

(explaining that a violation of the R.P.C. is evidence of a “failure to comply with the

required standard of care”). Cohen failed to demonstrate that the defendants’ conduct

had a “material adverse effect on [his] interests.” Id.

As the District Court noted, on January 9, 2017, Horn corresponded with Cohen

explaining that their approaches to the litigation had diverged and stating that Cohen had

taken certain actions that were “incongruent with the attorney-client relationship.” ECF

that you are a business man (sic) as am I. Before I expend time and your money on expanding the litigation, I need your input and to address litigation funding.

ECF No. 38-26 at 3-4. 5 Cohen produced an email from Horn’s employee which included an attached file of the “Estate of Cohen” folder. See ECF No. 18-2 at 19. Although the email includes a draft response from Cohen asking when defendants “intend to respond to the Motion to Quash,” and advising that Cohen had “attorneys who are waiting for the complete file,” there is no indication that the reply was sent to defendants. 7 No. 17-16 at 25; see also ECF No. 17-17 at 6-9. Horn requested that Cohen execute an

enclosed Substitution of Attorney form and take over the representation or retain new

counsel. Horn advised Cohen that if the form was not returned to him by January 16,

2017, he would file a motion to be relieved as counsel. The correspondence included a

copy of the probate court’s scheduling order which also indicated that no date had been

set for trial. Absent a response from Cohen, see fn. 5, infra, Horn sent a letter on January

27, 2017, advising Cohen that a hearing on the motion to be relieved as counsel and two

motions to quash was scheduled for February 6, 2017, and outlining Cohen’s options.

See ECF No. 17-18 at 2-3. Cohen neither responded to the letter nor appeared at the

hearing, at which Horn’s motion to withdraw was granted. Under these circumstances,

where the record includes reasonable cause to end the attorney-client relationship, and

where Cohen was made aware of Horn’s intent to withdraw as counsel and that the

motions to quash were pending, Cohen could not establish that the defendants committed

malpractice. See Gilles, 783 A.2d at 761 (noting that “the determination of

reasonableness is ordinarily circumstantially dependent”).

In light of the foregoing, we can quickly dispense with Cohen’s challenge to the

grant of summary judgment in defendants’ favor on his claims for breach of contract,

breach of fiduciary duty, and negligence. Cohen based these claims on the same “acts

and omissions” underlying his malpractice claim. See ECF No. 1 at 8, ¶ 6. He also

framed these claims in terms of defendants’ failure to act with a degree of professional

care (i.e., “with the degree of competence generally possessed by attorneys and law

firms”). ECF No. 1 at 8, ¶ 5, 9 ¶ 6(b); see also ECF No. 39-1 at 7 (discussing “the

8 negligent failure of the attorney to perform his or her professional obligation” and “a

legal duty owed by an attorney” (quotation marks and citations omitted)), id. at 8

(arguing that defendants “did not act with a degree of skill and competence that meets

reasonable professional standards”), id. at 10-12. As pleaded, Cohen’s claims for breach

of contract, breach of fiduciary duty, and negligence are not distinct claims for relief but

rather alternative theories in support of a malpractice claim. See Cortez v. Gindhart, 90

A.3d 653, 664 (N.J. Super. Ct. App. Div. 2014) (noting that a claim for breach of

fiduciary duty is subsumed in a malpractice claim where the “only fiduciary relationship

identified is that of attorney and client” and the conduct underlying both claims is the

same); see also McGrogan v. Till, 771 A.2d 1187, 1192-93 (N.J. 2001) (noting that a

plaintiff may “employ an underlying theory of contract or tort in a legal-malpractice

action” but such suits are “grounded in the tort of negligence”). Accordingly, defendants

were entitled to summary judgment on these claims.

Based on the foregoing, we will affirm the District Court’s judgment.6

6 Cohen’s “Motion to Amend Pleadings” is denied. See Webb v. City of Philadelphia, 562 F.3d 256, 261 n.4 (3d Cir. 2009) (noting that courts of appeals generally do “not consider material [ ] that is outside of the district court record.”); see also Fed. R. App. P. 10(e); Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 226 (3d Cir. 2009) (explaining the “exceptional circumstances” necessary to justify supplementing the record on appeal). We note that the “financial accounting” documents are not necessary to decide the appeal. 9