NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2334-24
CHRISTOPHER GONZALEZ,
Plaintiff-Appellant,
v.
NICOLE DIBELLO and MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP,
Defendants-Respondents. _____________________________
Argued March 26, 2026 – Decided April 15, 2026
Before Judges Mawla and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3518-22.
Jamie N. Burke (Manning & Kass, Ellrod, Ramirez, Trester, LLP) argued the cause for appellant (Jamie N. Burke and Nathalie C. Hackett (Manning & Kass, Ellrod, Ramirez, Trester, LLP), attorneys; Jamie N. Burke and Nathalie C. Hackett, on the briefs). John L. Slimm argued the cause for respondents (Marshall Dennehey, PC, attorneys; John L. Slimm and Jeremy J. Zacharias, on the brief).
PER CURIAM
In this legal malpractice case, plaintiff Christopher Gonzalez appeals from
two July 19, 2024 orders, which denied his motion to extend discovery and
granted in part defendants Nicole DiBello, Esq. and McElroy, Deutsch,
Mulvaney & Carpenter, LLP's motion precluding Gonzalez's liability expert
from testifying at trial. Gonzalez also appeals from a September 23, 2024 order
denying his motion for summary judgment and a February 20, 2025 order
granting defendants summary judgment. We affirm.
Gonzalez served as a representative buyer for investors who sought to
purchase an auto dealership. DiBello and her law firm were retained to provide
document preparation and review services for the transaction.
On August 3, 2020, a federal complaint was filed against Gonzalez,
DiBello, Alex Korchmar, Sam Asman, Steven LaBonte, Esq., Edward
Bussinger, Denville Partners, LLC, and Joseph S. Aboyoun, Esq. by an
individual investor, Elliot Zemel, and Zemel's company, Koze Investments,
LLC. The complaint alleged Korchmar devised a scheme to defraud Zemel with
the assistance of the other defendants in connection with the transaction.
A-2334-24 2 Korchmar allegedly approached Zemel and represented he was in the process of
acquiring the dealership. Korchmar was acting through representative buyers,
initially Asman, and later, Gonzalez. The representative buyers and Korchmar
were originally represented by LaBonte, who negotiated and dealt with Zemel's
counsel. The seller was Bussinger and his company, Denville Partners, LLC.
They were represented by Aboyoun.
Around June 2019, LaBonte represented to Zemel's counsel the seller
executed the sales contract, which was held in escrow by Aboyoun pending the
wiring of the deposit into escrow. Zemel negotiated with Korchmar's counsel
and the representative buyers, who agreed to assign the property from Asman to
an entity to be formed by Zemel. Korchmar claimed the deal would be lost if
the deposit was not wired, so Zemel wired the money.
The federal complaint asserted LaBonte told Aboyoun that Zemel was the
source of the funds, the real buyer, and the assignee. LaBonte and Korchmar
represented to Zemel the assignment was forthcoming. At Aboyoun's insistence,
DiBello then replaced LaBonte as counsel. DiBello and Aboyoun previously
worked together at the same law firm. LaBonte informed DiBello that Zemel
was the source of the escrow money and the plan was to convey the property to
an entity formed by Zemel.
A-2334-24 3 Zemel alleged he never received an executed contract from the seller or
the assignment from the representative buyers. On September 3, 2019, without
Zemel's knowledge, Korchmar, Asman, and Gonzalez, acting through DiBello,
and the seller, acting through Aboyoun, executed an amendment to the sales
agreement, which made the escrow deposit non-refundable. The complaint
alleged Aboyoun released the deposit to the seller without Zemel's approval,
who then split the money with the other defendants.
The federal complaint alleged: fraud, breach of contract, and breach of
fiduciary duty against Gonzalez; aiding and abetting the breach of fiduciary duty
against DiBello; and conspiracy to commit fraud and aiding and abetting fraud
against Gonzalez and DiBello. The alleged damages consisted of the loss of the
security deposit.
Gonzalez moved for summary judgment in the federal case. His motion
was denied because a stipulation dismissing him from the case had been entered.
The federal matter, including all claims and cross-claims, were ultimately
dismissed by stipulation on January 16, 2024. Neither Gonzalez nor DiBello
were ever found liable.
In the federal matter, discovery showed Zemel never retained DiBello and
DiBello never gave him legal advice. Zemel told LaBonte he was the source of
A-2334-24 4 the wired escrow funds, but Zemel was unaware of any communication with
DiBello indicating he was the source of the funds. Neither Zemel nor his
attorney, Neil Fink, Esq., ever spoke with DiBello about the transaction. The
deposit was wired to Aboyoun, not DiBello.
Discovery revealed DiBello was not involved in Gonzalez becoming the
representative buyer. DiBello prepared documentation to reflect a transfer of
interest from Asman to Gonzalez. Gonzalez became DiBello's client after the
transfer occurred and Gonzalez signed a retainer agreement. He did not want
DiBello to undo the agreements he had signed without advice of counsel.
In his summary judgment motion in the federal case, Gonzalez represented
he signed the amendment to the sales agreement, which made the escrow deposit
non-refundable, after it was forwarded to him by Korchmar. Gonzalez was not
involved with the negotiation for the amendment and was not represented by
DiBello during the negotiation. His statement of undisputed material facts
pointed out DiBello wrote to Aboyoun that the amendment "ha[d] not yet been
fully reviewed by [her] client or . . . Gonzalez," which evidenced Gonzalez was
not her client. Gonzalez certified he never provided any funds for the
transaction. His only involvement was signing the amendment to the agreement,
"which was previously negotiated without his participation or representation of
A-2334-24 5 his interests by legal counsel." Gonzalez was unaware of Zemel's involvement,
or the involvement of any other investors in the transaction, believing Korchmar
used his own money to fund the transaction.
Gonzalez confirmed he retained DiBello to represent him only after he
signed the amendment to the agreement on September 3, 2019. He signed and
returned DiBello's retainer agreement the following day. On September 13,
2019, Gonzalez filed an application as a proposed buyer with the auto
manufacturer. On October 9, 2019, the manufacturer rejected Gonzalez's
application, and another representative buyer replaced him in November.
On October 20, 2022, Gonzalez sued defendants in this case. He alleged
legal malpractice and a breach of fiduciary duty regarding the transaction, which
gave rise to the federal litigation. His damages were the legal fees he incurred
to defend the federal litigation, which he claimed were at least $300,000.
On May 24, 2024, the motion judge granted an extension of discovery
until June 28, 2024, to allow the parties to complete expert discovery, and set
the trial date for September 23, 2024. The judge found good cause to extend
discovery pursuant to Rule 4:24-1(c) and noted the case would have had 570
days of discovery by June 28, 2024. Further requests to extend discovery would
require a motion and
A-2334-24 6 be governed by the "exceptional circumstances" standard since an [a]rbitration/[t]rial [d]ate has been fixed by this [c]ourt. The holding in Hollywood Café Diner, Inc. v. Jaffee, 473 N.J. Super. 210 (App. Div. 2022), is not applicable . . . because an [a]rbitration/[t]rial [d]ate is being fixed by this [c]ourt after the parties received the benefit of previously granted days of discovery and multiple discovery extensions. The [c]ourt has not set the arbitration/trial date in the early stages of litigation, or by way of automated notice to potentially cause any confusion to the parties. The dates set forth herein and the scheduling of [a]rbitration/[t]rial is so that the [c]ourt may appropriately manage discovery, set forth the terms and conditions of the within extension [o]rder, and provide a realistic arbitration and trial date pursuant to the spirit of the 2000 Rule Amendments.
[(Citations reformatted).]
Gonzalez initially retained a liability expert who created a report on July
24, 2023. However, that expert was disqualified due to a conflict of interest.
On June 25, 2024, Gonzalez filed two expert reports dated September 21, 2023,
and June 18, 2024, prepared by a second expert. The same day, defendants
moved to preclude the original expert from testifying and the second expert from
relying on any part of the first expert's report or opinions. Gonzalez opposed
defendants' motion and, pursuant to Rule 4:24-1(c), moved to extend discovery
until July 29, 2024.
A-2334-24 7 The motion judge entered two orders on July 19, 2024. The first order
denied Gonzalez's cross-motion to extend discovery, because there were no
exceptional circumstances. The second order granted in part defendants' motion
and precluded: Gonzalez's first expert from testifying at trial; Gonzalez's
attorneys from referring to the first expert's report or opinions in the questioning
of lay or expert witnesses; any reference to the first expert's opinion in the
second expert's report; and the second expert from opining at trial by referring
to the opinions of the first expert. The order added that any facts in the first
expert's report could be utilized. If the parties disagreed on what was fact versus
opinion in the first expert's report, the trial judge would resolve the dispute "by
decision or a Rule 104 [hearing]."
Defendants moved for summary judgment. They argued Gonzalez signed
the amendment prior to retaining DiBello and admitted he did not have legal
advice from an attorney prior to signing the amendment. Defendants asserted
Gonzalez's second expert offered speculative, inadmissible net opinions and the
breach of fiduciary duty claim should be dismissed because it was duplicative
of the malpractice claim. Gonzalez alleged he was entitled to summary
judgment because defendants breached various duties under the Rules of
A-2334-24 8 Professional Conduct (RPC), specifically RPCs 1.1, 1.3, 1.4, 1.6, and 1.7,
causing him to suffer damages.
Following oral argument, the motion judge made oral rulings on the
summary judgment motions. He denied Gonzalez's motion, finding the RPCs
"are not designed to establish standards of civil liability but, rather, to provide
standards of professional conduct by which lawyers may be disciplined."
The judge observed Gonzalez's second expert opined DiBello had a duty
to investigate the facts and determine whether Gonzalez was financially capable
of buying the property. If she had done so, she would have learned it was
Korchmar financing the purchase and, therefore, could have protected Gonzalez
from the federal lawsuit. An investigation would have also revealed Gonzalez
was disqualified from the transaction due to his association with Korchmar .
The judge found he could not discern the source of the second expert's
opinions. They were net opinions either because the expert did not explain the
bases of his conclusions or had improperly adopted the first expert's opinion.
The judge also found the expert's opinion DiBello had a duty to investigate
and determine the source of the funds for the transaction contradicted Meisels
v. Fox Rothschild LLP, 240 N.J. 286 (2020). He explained, quoting Meisels,
240 N.J. at 302, there is no "duty on lawyers involved in their client's real estate
A-2334-24 9 transaction to inquire into the origins and possible third-party interests of every
source of funds that flow[] into a trust account for the purposes of closing on a
transaction." Nor does an attorney have "to determine whether the client was
financially capable of consummating the transaction." The case was not about
the source of the funds, but instead what did DiBello "know[ or] not know, what
. . . did she ask [Gonzalez,] and what did he say or not [about] any involvement
of" Korchmar.
The motion judge struck portions of the second expert's opinions related
to his ruling and barred him from testifying there was a duty to investigate the
source of the funds in the transaction. He denied the remainder of defendants'
motion for summary judgment because disputed material facts remained,
including whether defendants were aware of Korchmar's involvement in the
transaction. He concluded a Rule 104 hearing was needed to parse the second
expert's opinions from the first but encouraged the parties to see whether they
could resolve the issue without a hearing.
On September 23, 2024, the motion judge entered an order reflecting his
oral decision. The order denied both parties' motions for summary judgment for
the reasons stated on the record. It also stated a "Rule 104 hearing will be
conducted on [Gonzalez]'s [second] expert to determine what independent
A-2334-24 10 opinions are his, if any, and not those of [the first expert]." Citing Meisels, 240
N.J. at 300, the order excluded the second expert's "opinion an attorney has a
duty to investigate the source of funds to close [a] transaction."
In November 2024, defendants moved for summary judgment, arguing the
court should bar Gonzalez's damages claim, namely, recoupment of the fees
expended in the federal litigation, because the second expert rendered a net
opinion. Defendants pointed out the expert did not assess the reasonableness of
the fees and quantify the damages.
The motion judge made oral findings on December 6, 2024. He concluded
neither of the second expert's reports indicated he reviewed Gonzalez's legal
bills. Instead, the expert based his opinion on the initial retainer Gonzalez paid
for the federal litigation and the fact he was billed on an hourly basis, but "did
not provide an exact figure." The expert then opined, "to the extent . . . the legal
fees incurred were reasonable and necessary for [Gonzalez's] defense[,] they
qualify as damages. These damages are legally recoverable in the instant legal
malpractice action."
The judge concluded the expert's failure to review the legal fees was fatal
because he had to analyze if they were reasonable and customary for them to
count as damages. This was a complex case, which required the expert to
A-2334-24 11 competently explain to a jury what the damages were, but the expert rendered a
net opinion instead. Although the judge barred Gonzalez's expert from
testifying regarding damages, he declined to grant defendants summary
judgment because he did not know if Gonzalez had another means to adduce the
bills into evidence to prove damages. The judge deferred his final decision and
permitted the parties to file supplemental submissions to address this issue.
On January 31, 2025, the motion judge heard oral argument to address
whether damages could be established without an expert opinion. Even though
the jury would hear the total amount of fees Gonzalez incurred in the federal
litigation and DiBello's hourly rate, it would not be able to determine the
reasonableness of the billing. An expert was required to establish the damages
and explain to the jury Gonzalez's lost benefit of the bargain, including what
income he lost by not purchasing the dealership. The common knowledge
exception did not apply.
Gonzalez's counsel argued the case could not be dismissed because
Gonzalez paid DiBello a $5,000 initial retainer, which the expert quantified and
discussed in his report. The judge accepted the argument Gonzalez paid the
retainer and received "trouble and malpractice." However, an expert was still
necessary to opine on the reasonableness of the amount. On February 20, 2025,
A-2334-24 12 the judge entered an order granting defendants summary judgment and
dismissing the case with prejudice.
I.
Gonzalez contends the motion judge erred when he applied the
exceptional circumstances standard to decide whether to grant another extension
of discovery because the good cause standard applied. Motions to extend
discovery are timely when "made returnable prior to the conclusion of the
applicable discovery period." R. 4:24-1(c). Discovery may be extended for
"good cause" prior to the setting of an arbitration or trial date. R. 4:24-1(c);
Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 168 (App. Div. 2009).
Once "an arbitration or trial date is fixed," motions to extend discovery are only
permitted if "exceptional circumstances are shown." R. 4:24-1(c); Szalontai v.
Yazbo's Sports Cafe, 183 N.J. 386, 396-97 (2005). The exceptional
circumstances standard does not apply when a court sends administrative
notices, setting an arbitration or a trial date before the end of discovery.
Hollywood Café Diner, 473 N.J. Super. at 220. "[A]ppellate courts 'generally
defer to a trial court's disposition of discovery matters unless the court has
abused its discretion or its determination is based on a mistaken understanding
A-2334-24 13 of the applicable law.'" State v. Brown, 236 N.J. 497, 521 (2019) (quoting
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).
The motion judge neither abused his discretion nor applied the wrong
legal standard when he denied the motion to extend discovery. The exceptional
circumstances standard applied because the trial date was not set based on an
administrative notice from the court. The May 2024 order stated the exceptional
circumstances standard would apply in the future because the matter had already
been granted several extensions and had 570 days of discovery.
The July 19, 2024 order correctly found no exceptional circumstances. A
party demonstrating exceptional circumstances must show
(1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.
[Kronfeld v. Malone, 482 N.J. Super. 474, 487 (App. Div. 2025) (quoting Hollywood Café Diner, 473 N.J. Super. at 217 (emphasis omitted)).]
Gonzalez was never precluded from taking discovery. Depositions were
taken along with prodigious amounts of paper discovery. Gonzalez sought the
A-2334-24 14 extension of discovery to provide yet another expert report where he had already
taken three proverbial bites at the apple, in the form of one report from the first
expert and two from the second. Defendants' ability to convince the judge of
the deficiencies in each report is not a valid reason to extend discovery, nor does
it demonstrate the issue was beyond counsel's control, requiring a discovery
extension. If any party was disadvantaged it was the defense, which had to
cancel the second expert's deposition due to Gonzalez's attempt to submit what
would have been a fourth expert report on the eve of the expert's deposition.
The record shows Gonzalez did not meet any of the Hollywood Café Diner
factors. Thus, no additional explanation from the judge was necessary.
II.
Gonzalez argues the Rule 104 hearing the judge promised never happened
and was necessary to resolve whether expert testimony was required to prove
his claims. The hearing would show the expert's opinion on causation and
damages was his own, based on the evidence, and not a net opinion.
Gonzalez also asserts the judge misconstrued the law when he held the
expert did not analyze the legal fees and explain whether they were reasonable.
The fees he incurred were the consequential damages of the malpractice,
A-2334-24 15 whereas the reasonableness of an attorney's fees is only an issue in the context
of a fee-shifting case.
N.J.R.E. 104(a)(1) requires a court to "decide any preliminary question
about whether a witness is qualified . . . or evidence is admissible." A judge
"should conduct a [Rule] 104 hearing if the parties' written submissions are
insufficient to allow a decision to be made on these issues." Garden Howe Urb.
Renewal Assocs., LLC v. HACBM Architects Eng'rs Planners, LLC, 439 N.J.
Super. 446, 459 (App. Div. 2015).
A court's decision to determine admissible issues is subject to review for
an abuse of discretion and will be deferred to unless based on a mistaken
understanding of law. Pomerantz Paper Corp., 207 N.J. at 371. Motion judges
must ensure expert opinions are not net opinions. Id. at 372. A net opinion is
one which "has no support in factual evidence or similar data," and "is not
admissible and may not be considered." Ibid. "The admissibility rule has been
aptly described as requiring . . . the expert 'give the why and wherefore' that
supports the opinion, 'rather than a mere conclusion.'" Ibid. (quoting Polzo v.
Cnty. of Essex, 196 N.J. 569, 583 (2008)).
The Supreme Court has held "if an expert cannot offer objective support
for [their] opinions, but testifies only to a view about a standard that is 'personal,'
A-2334-24 16 [the expert's opinion] fails because it is a mere net opinion." Id. at 373. When
an expert's opinion revolves around an element a party must prove and the
opinion is unsupported by the record or is a speculative conclusion, the opinion
should not be allowed to satisfy the element. Townsend v. Pierre, 221 N.J. 36,
55 (2015). When an evidentiary issue is brought up at the same time as a motion
for summary judgment, the evidentiary issue must be resolved first. Id. at 53.
We discern no error in the lack of a 104 hearing. The hearing was ordered
in the event the matter proceeded to trial to ensure the second expert's opinion
was his own. This became unnecessary because the report was ultimately found
deficient as it failed to assert anything other than an unsupported legal
conclusion about the damages. In other words, the second expert's opinion was
fatally flawed for reasons other than its reliance on the first expert's opinion.
We discern no reversible error regarding the net opinion ruling. The
second expert conceded he did not review any of defendants' bills yet opined
"[t]o the extent that the legal fees . . . incurred were reasonable and necessary
for [Gonzalez's] defense, they qualify as damages." Neither of the expert's
reports provided law or facts to support this conclusion.
"Actual damages . . . are real and substantial as opposed to speculative."
Grunwald v. Bronkesh, 131 N.J. 483, 495 (1993). "[A]n attorney is only
A-2334-24 17 responsible for a client's loss if that loss is proximately caused by the attorney's
legal malpractice," namely, the negligence is "a substantial contributing factor
in causing the loss." 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super.
478, 487 (App. Div. 1994). The client's burden is to show through "competent,
credible evidence, 'what injuries were suffered as a proximate consequence of
the attorney's breach of duty.'" Cortez v. Gindhart, 435 N.J. Super. 589, 604
(App. Div. 2014) (quoting 2175 Lemoine Ave., 272 N.J. Super. at 488). A
client's "burden is not satisfied by mere 'conjecture, surmise[,] or suspicion.'
Ordinarily, the measure of damages is what result the client would have obtained
in the absence of attorney negligence." Ibid. (citation omitted) (quoting 2175
Lemoine Ave., 272 N.J. Super. at 488).
In regard to defendant's billing, if the measure of Gonzalez's damages is
that he would not have been sued, then it was incumbent on his expert to show
what portion of the legal fees he incurred were tied to the malpractice, causing
Zemel to sue him. Anyone can be sued. However, if Gonzalez's damages were
100% of defendant's fees, a jury would need to know if all the fees were caused
by, and related to, the malpractice. The absence of the expert's analysis of the
bills would lead a jury to treat Gonzalez's claim akin to a claim for liquidated
damages rather than a compensatory damages claim, which would be tantamount
A-2334-24 18 to speculation, because the jury would not be awarding the "actual damages."
Grunwald, 131 N.J. at 495.
For these reasons, we conclude the judge's net opinion ruling was neither
an abuse of discretion nor a mistaken application of law. Gonzalez's remaining
arguments in this vein lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
III.
Gonzalez asserts, even though the judge initially denied defendants
summary judgment due to disputed material facts, he later erred when he granted
summary judgment because, although his expert was barred, the facts were still
in dispute. The fact there was an out-of-pocket loss of $300,000 based on the
record evidence created a material dispute in fact, which should have survived
summary judgment and been left for a jury to decide.
Gonzalez argues the judge should have granted him summary judgment
because there was no dispute DiBello violated RPCs 1.4, 1.1(a), and 1.7, which
was sufficient evidence of malpractice. He claims the judge made no findings
of fact and conclusions of law on his summary judgment motion, as well as
generally throughout the case.
A-2334-24 19 The judge similarly erred when he dismissed the breach of fiduciary duty
claim without findings. This claim was separate from the negligence-based
malpractice claim because it involved an intentional act. Gonzalez alleges it
was wrong to dismiss the claim because DiBello knew the seller agreements
prohibited Korchmar's involvement, yet she failed to investigate or disclose this
issue to Gonzalez to enable him to make informed decisions.
A motion for summary judgment must be granted "if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law." R. 4:46-2(c). The court must "consider whether the competent
evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
"To decide whether a genuine issue of material fact exists, the trial court
must 'draw[] all legitimate inferences from the facts in favor of the non -moving
party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original)
(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "The court's
A-2334-24 20 function is not 'to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm.,
Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540). "If there is no
genuine issue of material fact, [the court] must then 'decide whether the trial
court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig. Support
Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)).
"Summary judgment should be granted . . . 'after adequate time for
discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial.'" Friedman, 242
N.J. at 472 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
However, summary judgment is not meant to "shut a deserving litigant from
[their] trial," Brill, 142 N.J. at 540 (quoting Judson v. Peoples Bank & Tr. Co.,
17 N.J. 67, 77 (1954)), nor is it appropriate when discovery is incomplete and
critical facts are within the moving party's knowledge, Friedman, 242 N.J. at
472.
A party opposing summary judgment must provide evidence "beyond
mere speculation and fanciful arguments." Cortez, 435 N.J. Super. at 605
A-2334-24 21 (quoting Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. 415, 426 (App. Div.
2009)) (internal quotation marks omitted). "[C]onclusory and self-serving
assertions by one of the parties are insufficient to overcome the motion." Puder
v. Buechel, 183 N.J. 428, 440-41 (2005). "If the evidence [submitted by the
non-movant] is merely colorable or is not significantly probative, summary
judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-
50 (1986) (citations omitted). Bare conclusions, "without factual support in
tendered affidavits, will not defeat a meritorious application for summary
judgment." Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App.
Div. 1999) (quoting U.S. Pipe & Foundry Co. v. Am. Arb. Ass'n, 67 N.J. Super.
384, 399-400 (App. Div. 1961)).
We review the trial court's grant or denial "of a motion for summary
judgment de novo, applying the same standard used by the trial court." Samolyk
v. Berthe, 251 N.J. 73, 78 (2022). On de novo review, "[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." Rowe v. Bell & Gossett Co.,
239 N.J. 531, 552 (2019) (alteration in original) (quoting Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
A-2334-24 22 Legal malpractice claims require a plaintiff to establish: "(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." Gilbert v. Stewart, 247 N.J.
421, 442-43 (2021) (quoting Nieves v. Off. of Pub. Def., 241 N.J. 567, 583
(2020)). Damages are typically "awarded on the basis of economic loss."
Nieves, 241 N.J. at 583. Such claims are "grounded in the tort of negligence."
McGrogan v. Till, 167 N.J. 414, 425 (2001).
Ordinarily, courts use the "suit within a suit" approach to determine if a
plaintiff's malpractice damage claims are met. Garcia v. Kozlov, Seaton,
Romanini & Brooks, P.C., 179 N.J. 343, 358 (2004). This requires a plaintiff to
"prove, by a preponderance of the evidence that: '(1) [they] would have
recovered a judgment in the action against the main defendant, (2) the amount
of that judgment, and (3) the degree of collectibility of such judgment.'" Carbis
Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 85 (App. Div. 2007) (quoting
Garcia, 179 N.J. at 358). The approach is meant to be flexible when a party was
a defendant in the underlying suit. Id. at 86. Therefore, "it is 'within the
discretion of the trial judge as to the manner in which the plaintiff may proceed
A-2334-24 23 to prove his claim for damages.'" Ibid. (quoting Lieberman v. Emps. Ins. of
Wausau, 84 N.J. 325, 343 (1980)).
Alternatively, a party may obtain an expert to establish the causation
element of an attorney's alleged malpractice. Morris Props., Inc. v. Wheeler,
476 N.J. Super. 448, 460 (App. Div. 2023). Under this approach, if a party fails
to present an expert on the issue or the expert's opinion is a net opinion, then the
party cannot establish the elements of legal malpractice and the claim fails. Id.
at 463; see Townsend, 221 N.J. at 54-55. In Morris Properties, we rejected the
plaintiff's argument summary judgment was improper when a party could have
proceeded without expert testimony because it "would have the effect of barring
summary judgment in nearly every legal-malpractice case, [which] confuse[d] a
procedural trial framework with [the] plaintiffs' prima facie burden ." 476 N.J.
Super. at 463.
The scope of an attorney's duty of care in a transaction is "to exercise that
degree of reasonable knowledge and skill that lawyers of ordinary ability and
skill possess and exercise." St. Pius X House of Retreats v. Diocese of Camden,
88 N.J. 571, 588 (1982). Alleged violations of an RPC do not create a cause of
action because the RPCs are meant to guide attorneys to help regulate their
A-2334-24 24 conduct and ensure high levels of integrity in the legal profession. Baxt v.
Liloia, 155 N.J. 190, 197-99, 204 (1998).
Plaintiffs must present expert testimony in legal malpractice cases "where
the matter to be addressed is so esoteric that the average juror could not form a
valid judgment as to whether the conduct of the professional was reasonable."
Sommers v. McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996). Expert
testimony is not required where the duty of care owed is "so basic that it may be
determined by the court as a matter of law." Ibid. These cases "involve[]
situations where the carelessness of the defendant is readily apparent to anyone
of average intelligence and ordinary experience." Rosenberg v. Cahill, 99 N.J.
318, 325 (1985).
We reject Gonzalez's contention he was entitled to summary judgment.
Without the aid of an expert, the record does not support the notion it would be
readily apparent a juror of average intelligence would be able to decide whether
there was malfeasance. The judge did not err in finding expert testimony was
required and then denying Gonzalez's motion for summary judgment.
Summary judgment was properly granted to defendants because Gonzalez
could not prove the causation-damages element of his malpractice claim.
Gilbert, 247 N.J. at 442-43. As we noted in section II, the lack of a 104 hearing
A-2334-24 25 was not error because at summary judgment, the issue was not whether
Gonzalez's second expert's opinions were his own, but whether they were
conclusory and lacked factual support. The effect of the judge having properly
barred the expert's opinion was Gonzalez could not rely upon the expert's
opinion to establish causation-damages. Morris Props., 476 N.J. Super. at 463.
Even without an expert, Gonzalez could not have proceeded under the
"suit within a suit" approach because he could not show he would have recovered
in the underlying judgment. Carbis Sales, 397 N.J. Super. at 85. The facts show
defendants had nothing to do with Gonzalez entering the agreements, which
spawned the federal lawsuit. Gonzalez did not have an underlying recoverable
judgment because he, along with DiBello, was dismissed from the federal case.
Therefore, summary judgment was properly granted.
Finally, we reject Gonzalez's argument the breach of fiduciary duty claim
should have survived summary judgment. The claim was properly dismissed
because it duplicated the malpractice claim. Both the legal malpractice and
breach of fiduciary duty counts in Gonzalez's complaint read identically as
follows:
Defendants negligently represented . . . Gonzalez by, among other things failing to properly advise . . . Gonzalez of all risks of his involvement with the [p]urchase especially as related to the [a]mendment of
A-2334-24 26 [a]greements, which was negotiated prior to . . . Gonzalez having any legal representation in the [p]urchase.
Our de novo review of the record convinces us the breach of fiduciary
duty claim would fail for the same reasons as the malpractice claim, specifically
because Gonzalez cannot establish on both causation or damages. See Cortez,
435 N.J. Super. at 608 (affirming summary judgment dismissal of the plaintiff's
breach of fiduciary duty because it was based on the same facts as the legal
malpractice claim and "failed to distinguish the breach of fiduciary duty claim
from his legal malpractice claim").
Affirmed.
A-2334-24 27