BRENDA GILBERT VS. KENYATTA K. STEWART (L-3459-16, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 28, 2020
• Docket: A-1841-18T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1841-18T2

BRENDA GILBERT,

Plaintiff-Appellant,

v.

KENYATTA K. STEWART, ESQ., HUNT, HAMLIN & RIDLEY, and JAMES A. ADDIS, ESQ.,

Defendants-Respondents,

and

STATE OF NEW JERSEY JUDICIARY, PASSAIC COUNTY VICINAGE PROBATION DEPARTMENT, and MONROE GILBERT,

Defendants.

Submitted November 6, 2019 - Decided July 28, 2020

Before Judges Accurso and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3459-16.

Hegge & Confusione, LLC, attorneys for appellant (Michael James Confusione, of counsel and on the brief).

Juliana E. Blackburn, attorney for respondents Kenyatta K. Steward, Esq. and Hunt, Hamlin & Ridley.

Connell Foley LLP, attorneys for respondent James A. Addis, Esq. (Karen Painter Randall, of counsel; Steven A. Kroll, of counsel and on the brief; Andrew C. Sayles, on the brief).

PER CURIAM

Plaintiff Brenda Gilbert appeals from the entry of summary judgment

dismissing her complaint for legal malpractice against two former lawyers,

defendants Kenyatta K. Stewart and his firm Hunt, Hamlin & Ridley and

James A. Addis. Because the facts are not in dispute, and we agree defendants

were entitled to judgment as a matter of law, we affirm.

Plaintiff divorced her husband Monroe in 2006. Monroe got the family

Ford Explorer, which he was supposed to register in his own name. In 2016,

Monroe told plaintiff he had racked up a number of parking tickets on the

Explorer, which was still registered to plaintiff, and asked her to accompany

him to a municipal court hearing. Although the violation notices had been

A-1841-18T2 2 mailed to plaintiff's home, Monroe admitted using his keys to remove the

notices before plaintiff saw them.

When plaintiff arrived at the municipal court, she met Monroe and

defendant Stewart, a friend of the couple's son, who was representing Monroe.

The case was called, but the hearing adjourned until the following week. In

the interim, Stewart convinced plaintiff to plead guilty because of Monroe's

"terrible driving record," which would likely result in his receiving "severe

penalties." Stewart represented that the judge "would probably impose" only

minimal fines on her, "for which his client, Monroe, would indemnify her."

Stewart did not advise plaintiff about the effect such a guilty plea might have

on her job as a probation supervisor in the Judiciary.

Plaintiff has been employed by the State in the Passaic probation

department since 1994. She began as an investigator and was promoted to a

probation officer, a senior probation officer and, finally, a probation

supervisor. During her tenure, plaintiff regularly acknowledged receipt of

Judiciary policy and procedures, which require all Judiciary employees to

"immediately report" any personal involvement in any criminal or quasi-

criminal matter, whether in state, federal or municipal court, commencing on

A-1841-18T2 3 "being formally charged, indicted, summoned or upon the filing of a complaint

or other document" initiating the court's jurisdiction.

On the adjourned date, defendant Stewart advised the court he

represented both Monroe and plaintiff, which plaintiff claimed was not true, as

she never retained Stewart. Plaintiff pleaded guilty to the motor vehicle

violations, which the judge described as "like a book of parking tickets," the

most she had "seen in [her] 15 years on the bench." The judge imposed

probation, fines, and community service.

When Stewart asked whether plaintiff could perform the community

service through her church, the judge explained that plaintiff would "be

contacted by probation." Stewart explained that plaintiff "actually works for

probation," prompting the judge to ask whether plaintiff could "put [herself] in

a church." When plaintiff responded affirmatively, the judge said she would

"make a note, no objection."

Following her plea, plaintiff advised her supervisor of the municipal

court action. The Judiciary responded by charging her with insubordination;

conduct unbecoming a public employee; neglect of duty; misuse of public

A-1841-18T2 4 property, including motor vehicles 1; and violating Judiciary policy on

reporting involvement in litigation; and Canons 1 and 4 of the Judiciary Code

of Conduct. The Passaic vicinage's human resource manager advised plaintiff

in writing that the vicinage was seeking her removal, and she was immediately

suspended without pay.

Plaintiff hired new counsel to file a petition for post-conviction relief in

connection with the municipal court matter. She hired a different lawyer,

defendant Addis, to represent her in her disciplinary proceeding. While her

PCR petition was pending, the Judiciary presented her with what she admits

was a "take it or leave it" deal to save her job.

The settlement required plaintiff to admit to the charges of conduct

unbecoming, neglect of duty, and other sufficient cause. The Judiciary would

dismiss the remaining charges, the fifty days of suspension plaintiff had

already served would remain without pay and considered part of the discipline

imposed, and plaintiff would have to accept a demotion to senior probation

officer. She would also have to release the Judiciary from any and all claims

1 The human resources manager testified at deposition that he reviewed plaintiff's driver's abstract in the course of his investigation, and learned that plaintiff had requisitioned a State car on three occasions in 2013 when her license was under suspension. A-1841-18T2 5 arising out of the matter and her employment generally, including her rights

under eleven specifically named statutes, including the Age Discrimination in

Employment Act. The settlement also required both parties to waive any right

to appeal.

Plaintiff was not happy with the terms and did not want to sign the

agreement. Her disciplinary hearing, however, had already been adjourned

once at her request and neither the hearing officer nor the Judiciary would

consent to further adjournment to allow plaintiff's PCR petition to be decided.

Addis recommended that plaintiff sign the agreement, advising she could lose

her job and her pension were she to fight the discipline and lose. Plaintiff

signed the agreement on the adjourned hearing date, later testifying at

deposition that she did so only because one of her children was ill, and she

desperately needed to reinstate the health insurance benefits she had been

deprived of during her suspension. Addis immediately telefaxed the

agreement to the human resources manager and the hearing officer. In his

letter to the hearing officer, Addis wrote that the settlement agreement

obviated the necessity of a hearing and thanked him "again for permitting us

the extra time needed this morning to complete the agreement."

A-1841-18T2 6 Two days after she signed the settlement, plaintiff appeared in Addis'

office saying she had changed her mind and directed him to rescind it. Addis

told plaintiff "it was too late," and if she wanted to pursue that course, she

would have to hire somebody else. The retainer agreement plaintiff signed

with Addis provided that the firm would not, and could not "be forced to

pursue frivolous actions or actions . . . not substantiated by valid facts or

viable tenets of law."

Plaintiff hired yet another lawyer to appeal the discipline. The Civil

Service Commission declined to review the matter. Plaintiff's PCR petition,

however, was completely successful; all charges were dismissed, and her fines

and court costs were refunded to her.

Defendant Stewart faced disciplinary charges in connection with his

representation of defendant and her ex-husband in municipal court based on

his dual representation and the conflict of interest it engendered. Although the

District Ethics Committee, after investigation and formal complaint, agreed to

submit a joint motion with Stewart to permit an admonition by consent, the

Disciplinary Review Board denied the motion. The Board, expressing concern

that Stewart "may have disadvantaged [plaintiff] in favor of Monroe," thus

elevating "the interests of one client (Monroe) over those of another

A-1841-18T2 7 ([plaintiff])," denied the motion and remanded the matter to the District Ethics

Committee to review the municipal court transcripts and engage in further

proceedings to address the Board's concerns. The record does not reflect the

final resolution of those disciplinary proceedings.

After hearing argument on the motions, the Law Division granted

summary judgment to both defendants. As to defendant Stewart, the judge

found a breach of duty by Stewart's dual representation, but concluded the

breach was not the proximate cause of the harm plaintiff claims to have

suffered. The judge found defendant Addis breached no duty to plaintiff.

Plaintiff appeals, asserting the trial judge erred in dismissing her claims,

contending a reasonable jury could determine that both defendants were

negligent, and "that this caused harm to plaintiff." We do not accept that a

reasonable jury could find for plaintiff on this record.

As the parties agree that there was no dispute as to the material facts, our

task is limited to determining whether the trial judge's ruling on the applicable

law was correct. Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255,

258 (App. Div. 1987). In order to survive summary judgment, plaintiff had to

establish

that competent, credible evidence existed to support each of the elements of [her] negligence action, i.e.,

A-1841-18T2 8 "1) the existence of an attorney-client relationship creating a duty of care upon the attorney; 2) that the attorney breached the duty owed; 3) that the breach was the proximate cause of any damages sustained; and 4) that actual damages were incurred."

[Cortez v. Gindhart, 435 N.J. Super. 589, 598 (App. Div. 2014) (quoting Sommers v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996)).]

Plaintiff's cause of action as to Stewart foundered on the third element,

proximate cause. Plaintiff claims a reasonable jury could conclude that but for

Stewart's unethical conduct, she would not have faced discipline by her

employer. "There would have been no convictions for plaintiff to have to

report to her employer" had Stewart "not purported to represent her, not

violated conflict of interest rules, [and] not misadvised her about the

consequences." Plaintiff claims she "would not have pleaded guilty to

something she did not do but for Stewart’s urging of her to 'take the fall.'"

Plaintiff, however, ignores the court's critical finding that "[t]he only

testimony in this case as to the reason . . . [plaintiff] was demoted was because

of her lack of candor in not reporting the ticket[s] in the first place." Plaintiff

admitted she did not report her involvement in the municipal court matter

when Monroe first advised her of the tickets and the court hearing. Plaintiff

also admitted she didn't report the matter after her first appearance when the

A-1841-18T2 9 municipal court judge advised her of the charges against her. It is undisputed

that she did not report the matter until after the case was over, contrary to

established Judiciary policy of which she was well aware.

The vicinage's human resource manager testified unequivocally that the

Judiciary's concern was not the guilty pleas, and that "those municipal court

tickets were not the focus of [its] disciplinary action against her."

Accordingly, the court was correct to conclude the record was clear that it was

not anything Stewart did that prompted the disciplinary charges against

plaintiff. Instead, as the court found on the undisputed facts, plaintiff faced

disciplinary charges "because of her lack of candor in not reporting the

ticket[s] in the first place." A rational jury could not find otherwise given the

undisputed facts. See Conklin v. Hannoch Weisman, 145 N.J. 395, 422 (1996)

(explaining that to prevail on a legal malpractice claim alleging incompetent

advice that plaintiff must establish "the negligence was a substantial factor in

bringing about the ultimate harm").

As to defendant Addis, plaintiff argues he was negligent for failing to

defend plaintiff against the disciplinary charges, for counseling her to accept

the settlement, for failing to ensure that her consent was knowing and

voluntary, for failing to include a revocation period in the agreement,

A-1841-18T2 10 notwithstanding that it included a waiver of ADEA2 claims, and for failing to

pursue rescission when plaintiff directed him to. None of those claims has

merit.

Plaintiff testified unequivocally at deposition, and admitted on the

motion, that she signed the agreement voluntarily, fully understanding its

terms, and that she did so because she needed to restore her insurance benefits.

There is nothing in the record to the contrary. Thus, plaintiff's claims as to

Addis' failure to defend her against the disciplinary charges, his advice in

recommending settlement and in failing to ensure her consent was voluntary

are without basis.

As for plaintiff's claim that Addis was negligent in failing to include a

period of time for plaintiff to revoke her acceptance of the agreement, there is

nothing in the record to support that the Judiciary would have agreed to such a

term in the absence of an ADEA claim plaintiff admits she did not bring.

Indeed, the human resource manager, who drafted the agreement, testified he

would never have agreed to include a revocation period in the agreement.

2 Section 626 of the ADEA provides that a waiver of the rights secured by the Act will not be considered voluntary unless the person signing the agreement is provided at least twenty-one days to consider it and seven days following execution to revoke it. 29 U.S.C. § 626(f)(1)(F)(i), (f)(1)(G). A-1841-18T2 11 Plaintiff cannot assert her lawyer was negligent for failing to include a term in

a contract she cannot establish the other party would have accepted. See

Froom v. Perel, 377 N.J. Super. 298, 315 (App. Div. 2005).

Finally, there is no legal basis for plaintiff's claim that Addis was

negligent for failing to attempt to revoke the agreement. Settlement

agreements are enforceable in New Jersey just as any other contract.

Thompson v. City of Atl. City, 190 N.J. 359, 379 (2007). As was undisputed

on the motion record, plaintiff was presented with a "take it or leave it" deal to

save her job. The vicinage's human resource manager testified it was "as good

as it was gonna get." Accordingly, plaintiff's signature on the document

represented an "unconditional written acceptance" of the terms. See Morton v.

4 Orchard Land Tr., 180 N.J. 118, 129 (2004). We agree with the trial judge

that Addis could not be negligent as a matter of law for failing to attempt to

rescind what was obviously a binding agreement on the facts.

Affirmed.

A-1841-18T2 12