NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2718-20
FRANK ANGRISANI,
Plaintiff-Appellant,
v.
KEVIN M. COSTELLO, ESQ., and COSTELLO & MAINS, LLC,
Defendants-Respondents. ______________________________
Argued November 14, 2023 – Decided December 6, 2023
Before Judges Haas and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6033-18.
Frank Angrisani, appellant, argued the cause pro se (Ernest W. Schoellkopff, on the briefs).
Peter M. Perkowski, Jr., argued the cause for respondents (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Lance Jon Kalik, of counsel and on the brief; Peter M. Perkowski, Jr., and Venanzio Edward Cortese, on the brief).
PER CURIAM In this legal malpractice case, plaintiff Frank Angrisani appeals from the
Law Division's orders dismissing his complaint against his former attorneys,
defendants Kevin M. Costello and his law firm Costello & Mains, LLC. The
origins of this case go back to plaintiff's 2010 settlement of his lawsuit against
Financial Technology Ventures, LP (FTV), where plaintiff sought damages for
his financial losses as a result of Nexxar's acquisition of a Brazilian money
transfer company, Uno Money Transfer Co. (Uno), as well as the termination of
his employment as CEO of Nexxar.
Plaintiff retained Larry Orloff, Esq. and his firm Orloff, Lowenbach,
Stifelman & Siegel, PA. (collectively OLSS) to prosecute his claims against
FTV and Nexxar. OLSS withdrew from representing plaintiff, and he retained
defendants to continue to pursue the litigation. That action ended with a
settlement.
Discontented with his settlement, plaintiff claimed legal malpractice
against OLSS in a prior lawsuit that was dismissed. On August 17, 2018,
plaintiff filed a five-count legal malpractice complaint against defendants.
Plaintiff alleged that defendants improperly recommended an insufficient
settlement in plaintiff's underlying litigation against FTV and Nexxar, and failed
A-2718-20 2 to file suit against two other law firms, Pillsbury Winthrop (Pillsbury) and Sills
Cummis (Sills), the attorneys for the parties to the joint venture with Nexxar.
In a trio of orders, the trial court dismissed each of these claims. The
court found that plaintiff's allegations about defendants' handling and settlement
of the FTV and Nexxar litigation, and his claim that defendants failed to sue
Pillsbury were barred by the statute of limitations. The court also found that
plaintiff's arguments concerning Sills failed for lack of proximate cause. The
court further ruled that all three claims were barred by the doctrine of collateral
estoppel.
Plaintiff challenges all of the trial court's rulings on appeal. Having
considered his contentions in light of the record and the applicable law, we
affirm.
I.
A. Background
The parties are fully familiar with the underlying procedural history and
facts of this matter. Therefore, we will summarize only the most salient points
here.
The essential background of the litigation that spawned plaintiff's legal
malpractice action in this appeal are as follows:
A-2718-20 3 [Plaintiff], an expert in the field of worldwide money transfers, developed a business plan that resulted in his creation of a wholly owned corporation, Axxa Group, Inc. (AGI), in which he deposited his intellectual property and related business plan information. After forming AGI, he initiated a search for venture capital partners willing to invest in the new company.
Eventually [plaintiff] entered into an agreement with [FTV]. [Plaintiff] continued to serve as chief executive officer and president of AGI, and was a member of its board of directors.
In order to develop the business, FTV approved AGI's acquisition of a Brazilian money transfer company, [Uno]. [Plaintiff's] authorization to participate in the ensuing due diligence inquiry, prior to the company's acquisition, is disputed. It is not disputed that the company was acquired in November 2003. AGI subsequently changed its name to [Nexxar]. [Plaintiff] turned his AGI stock over to the new venture.
....
After acquisition, it was learned Uno's operation was illegal under Brazilian law, and possibly under American law as well. When [plaintiff] advised the Nexxar board of Uno's illegality, he claims he was terminated as a result.
From 2006 to 2010, OLSS, and Orloff individually, represented [plaintiff] in lawsuits against FTV and Nexxar seeking to recover damages for [plaintiff's] significant financial losses as a result of Nexxar's financially disastrous acquisition of Uno, as well as from his termination of employment. [OLSS] withdrew from representing [plaintiff] in 2010.
A-2718-20 4 [Orloff, Lowenbach, Stifelman & Siegel, PA v. Angrisani, No. A-3724-13 (App. Div. Feb. 12, 2016) (slip op. at 2-3), certif. denied, 226 N.J. 211 (2016).]
In May 2010, plaintiff retained defendants to represent him in the FTV
litigation after OLSS was relieved as counsel. In June 2010, defendants
attempted to reopen discovery, but that motion was denied due to the age of the
case. Thereafter, defendants advised plaintiff to settle his claims in the FTV
litigation and to file a legal malpractice claim against OLSS.
According to plaintiff, defendants advised him that they "could not try the
case against FTV because of Orloff's legal malpractice in failing to take certain
depositions and take certain actions with regard to evidence and discovery," and
therefore, plaintiff had "'no choice' but to settle the case and then pursue a legal
malpractice claim against [OLSS]." Plaintiff "was reluctant to settle the case"
but, based on defendants' advice, authorized them to settle the FTV litigation.
On September 14, 2010, plaintiff settled the FTV litigation for $800,000.
On that same date, plaintiff executed a "Settlement Agreement and Mutual
Release of Claims," which contained the following disclaimer directly above
plaintiff's signature line:
CAUTION: THIS IS A RELEASE OF ALL CLAIMS; READ BEFORE SIGNING
A-2718-20 5 I have read the foregoing Settlement Agreement and Release of Claims, and I understand its contents. I have reviewed the entire document with my attorney, and understanding its terms and conditions, agree to abide by it.
On September 24, 2010, the parties, through their respective attorneys, executed
a stipulation of dismissal with prejudice, dismissing the FTV litigation with
prejudice.
B. The OLSS Legal Malpractice Litigation
After settling the FTV litigation, plaintiff retained defendants to sue OLSS
for legal malpractice. After OLSS first sued plaintiff for unpaid legal bills,
defendants filed plaintiff's answer to the complaint and a counterclaim against
OLSS for legal malpractice. Plaintiff later hired Leo B. Dubler, Esq. to serve as
co-counsel with defendants.
In June 2012, defendants recognized that Dubler was doing the bulk of the
work and they moved to be relieved as plaintiff's counsel. Plaintiff agreed and
the trial court issued an order relieving defendants as plaintiff's attorneys.
Dubler was plaintiff's sole attorney in the litigation from that point forward. 1
1 Plaintiff subsequently sued Dubler and several other attorneys for legal malpractice. A-2718-20 6 On November 26, 2013, the trial court granted OLSS summary judgment,
dismissing all of plaintiff's legal malpractice claims. Plaintiff appealed and we
affirmed in a February 12, 2016 decision. Orloff, (slip op. at 1).
C. The Present Litigation
Plaintiff filed the instant action on August 17, 2018, alleging defendants
had been negligent in representing him in the FTV litigation. Plaintiff's claims
of legal malpractice were essentially two-fold: first, defendants improperly
advised him not to pursue his claims in the FTV litigation to judgment, but rather
to accept a settlement that did not reflect their true value and then to sue Orloff
and OLSS for negligence; and second, defendants failed to advise him of
potential claims against Pillsbury and Sills and allowed the statute of limitations
to run on those claims.
The trial court dismissed plaintiff's legal malpractice claims against
defendants in three separate motions over the course of two years. We address
each of plaintiff's challenges to those rulings in turn.
II.
Plaintiff first contends that the trial court erred by dismissing his legal
malpractice claim for the insufficient settlement. Because plaintiff's claim on
A-2718-20 7 this point was clearly barred by the six-year statute of limitations, we affirm the
court's dismissal of that claim.
To present a prima facie legal malpractice claim, a claimant must establish
"(1) the existence of an attorney-client relationship creating a duty of care upon
the attorney; (2) the breach of that duty; and (3) proximate causation." Conklin
v. Hannoch Weisman, 145 N.J. 395, 416 (1996); Fitzgerald v. Linnus, 336 N.J.
Super. 458, 467 (App. Div. 2001). Proximate cause is established by showing
that the negligent conduct was a substantial factor in causing the claimant's
damages. Conklin, 145 N.J. at 419-22. In order to survive a motion for summary
judgment, a legal malpractice plaintiff must show that he or she could have
presented a prima facie case in the matter in which the malpractice allegedly
occurred. Jerista v. Murray, 185 N.J. 175, 191 (2005).
A claim of legal malpractice is subject to the six-year statute of
limitations. McGrogan v. Till, 167 N.J. 414, 419 (2001) (citing numerous cases
applying N.J.S.A. 2A:14-1). Specifically, N.J.S.A. 2A:14-1 provides:
Every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in N.J.S.A. 2A:14-2 and N.J.S.A. 2A:14-3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the
A-2718-20 8 trade or merchandise between merchant and merchant, their factors, agents and servants, shall be commenced within six years next after the cause of any such action shall have accrued.
[(emphasis added).]
The New Jersey Legislature did not define the term "accrued" in N.J.S.A.
2A:14-1 or other similar statutes of limitations, and "therefore left to the
judiciary the role of infusing this term with meaning." Palisades at Fort Lee
Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 443 (2017). In
construing accrual statutes, the New Jersey Supreme Court has avoided "a rigid
and automatic adherence to a strict rule of law" that would produce unjust
results. Lopez v. Swyer, 62 N.J. 267, 273-74 (1973). "Ordinarily, a cause of
action 'accrues when an attorney's breach of professional duty proximately
causes a plaintiff's damages.'" Vastano v. Algeier, 178 N.J. 230, 236 (2003)
(quoting Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993)).
"The discovery rule is an equitable doctrine created by the courts to
protect unsuspecting persons from statutory limitations periods during which a
claim must be brought or forever lost." Dunn v. Borough of Mountainside, 301
N.J. Super. 262, 273 (App. Div. 1997). Under the rule, a claim does not accrue
until the plaintiff "discovers, or by an exercise of reasonable diligence and
intelligence should have discovered that he may have a basis for an actionable
A-2718-20 9 claim." Lopez, 62 N.J. at 272. The discovery rule "'postpon[es] the accrual of
a cause of action' so long as a party reasonably is unaware either that he has
been injured, or that the injury is due to the fault or neglect of an identifiable
individual or entity." Abboud v. Viscomi, 111 N.J. 56, 62 (1988).
"Once a person knows or has reason to know of this information, his or
her claim has accrued since, at that point, he or she is actually or constructively
aware 'of that state of facts which may equate in law with a cause of action.'"
Ibid. (quoting Burd v. N.J. Tel. Co., 76 N.J. 284, 291 (1978)). Thus, "[t]he
limitations period begins to run when a plaintiff knows or should know the facts
underlying those elements, not necessarily when a plaintiff learns the legal effect
of those facts." Grunwald, 131 N.J. at 492. See also Lapka v. Porter Hayden
Co., 162 N.J. 545, 555-56 (2000) ("We impute discovery if the plaintiff is aware
of facts that would alert a reasonable person to the possibility of an actionable
claim; medical or legal certainty is not required.").
"Whether a cause of action is barred by a statute of limitations is a
question of law, also reviewed de novo." Catena v. Raytheon Co., 447 N.J.
Super. 43, 52 (App. Div. 2016). "The application of the discovery rule is for the
court, not a jury, to decide." Ibid.
A-2718-20 10 Here, the trial court determined that plaintiff's claim for legal malpractice
relating to the advice defendants provided him concerning the FTV settlement
was barred by the six-year statute of limitations. The court stated:
. . . Plaintiff's action accrued at the time of settlement, September 24, 2010, rather than when [plaintiff] subsequently consulted Mr. Piekarsky, another attorney[, who provided plaintiff with expert reports concerning defendants' liability for legal malpractice].
At the time that [p]laintiff accepted the settlement money, he either suffered actual damage or should have discovered "through the use of reasonable diligence" "facts essential to the malpractice claim," which in this case was that the amount [p]laintiff settled for was not reflective of what [p]laintiff perceived to be the value of his case against FTV. [Plaintiff's] awareness of the malpractice claim is evidenced by the language within the [c]omplaint, which states, "[plaintiff] was reluctant to settle the case, but Costello advised him to settle and pursue claims against Orloff. [Plaintiff], in relying upon Costello's advice, settled his valuable claims against FTV, though the settlement did not reflect the value of his claims." Moreover, this [c]ourt does not see any reason to doubt that [plaintiff] would immediately associate Costello as the cause of his injury as Costello was [p]laintiff's attorney when the FTV litigation settled.
Thus, based on the allegations set forth in plaintiff's own complaint, the
trial court correctly determined that plaintiff was aware of the facts underlying
his claim for insufficient settlement at the time he settled the FTV litigation and
dismissed his claims against FTV, which was no later than September 24, 2010.
A-2718-20 11 Plaintiff was admittedly "reluctant to settle the case" because he believed that
"the settlement did not reflect the value of his claims." Notwithstanding his
belief, plaintiff settled the case based on defendants' advice. Because plaintiff
relied on defendants' advice to accept a settlement that he believed was
insufficient, plaintiff had knowledge of the two key elements that triggered the
discovery rule, injury and fault. Grunwald, 131 N.J. at 492-93. At the very
least, plaintiff should have known, or by exercise of reasonable diligence and
intelligence should have discovered, that he may have a basis for an actionable
claim. Lopez, 62 N.J. at 272.
Thus, because plaintiff dismissed his claim against FTV on September 24,
2010, via stipulation of dismissal, he had until September 24, 2016, to sue
defendants for malpractice based on the allegedly insufficient settlement.
However, plaintiff did not file his legal malpractice complaint until August 17,
2018, approximately eight years after the accrual of his cause of action and
almost two years beyond that applicable statute of limitations. Therefore,
plaintiff's insufficient settlement claim was plainly time-barred. McGrogan, 167
N.J. at 419; N.J.S.A. 2A:14-1.
Plaintiff's argument that the statute of limitation should not have run until
after he consulted with Piekarsky and became fully aware of defendants' alleged
A-2718-20 12 malpractice is not persuasive, because legal certainty is not required for his
claim to accrue. Lapka, 162 N.J. at 555-56. Plaintiff was aware of his alleged
injury and that defendants were allegedly at fault. Therefore, even if plaintiff
was not aware of his claim at that time, had he exercised reasonable diligence
and intelligence, he would have discovered that he may have a basis for an
actionable claim. Lopez, 62 N.J. at 272.
Furthermore, plaintiff's argument that defendants were required to advise
him of this alleged malpractice is also unpersuasive. As the trial court also found
in dismissing plaintiffs' complaint on collateral estoppel grounds, plaintiff failed
to establish a fair settlement value of his claims, and therefore, could not show
that the $800,000 settlement was insufficient. Thus, there was no evidence that
the settlement was actually insufficient. As a result, there was no evidence to
suggest that defendants had reason to believe that the settlement was insufficient
and, therefore, they had no duty to advise plaintiff that they may have committed
malpractice by advising him to settle the FTV litigation.
A-2718-20 13 Because plaintiff's claim concerning the inefficient settlement was barred
by the statute of limitations, the trial court correctly dismissed this portion of
his complaint on this ground. 2
III.
Plaintiff next contends that the trial court erred by granting defendants'
motion for summary judgment and dismissing his legal malpractice claim for
failing to sue Pillsbury during the FTV litigation. Because this claim was also
clearly barred by the six-year statute of limitations, we affirm the court's
decision.
Our review of a trial court's grant of summary judgment is de novo,
applying the same legal standard as the trial court. RSI Bank v. Providence Mut.
Fire Ins. Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22,
38 (2014)). Under that standard, summary judgment will be granted when "the
competent evidential materials submitted by the parties," viewed in the light
most favorable to the non-moving party, show that there are no "genuine issues
of material fact" and that "the moving party is entitled to summary judgment as
2 Therefore, we need not address the trial court's alternative ruling that the insufficient settlement claim was also subject to dismissal based upon the collateral estoppel doctrine. A-2718-20 14 a matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)
(quoting Bhagat, 217 N.J. at 38); see also R. 4:46-2(c).
In holding that plaintiff's legal malpractice claim for failing to sue
Pillsbury was barred by the statute of limitations, the trial court noted that,
"[w]hile an exact date of [plaintiff]'s actual knowledge of the actual claim is not
determinable from the undisputed facts presented, the date when a reasonable
person would have known is." The court determined that plaintiff "shou ld have
known of the potential malpractice claim no later than October 2011." The court
explained:
Over a six-year period between 2005 to 2011[, plaintiff] was exposed to information a reasonable person would have discovered as a basis for a malpractice claim. . . .
The [c]ourt observes a timeline as follows. First, August 2005, [plaintiff] was shown an email by Jim Cornell. May 2007, [plaintiff] discusses potential claim against Pillsbury with Orloff. May 2010, Costello replaces Orloff in the FTV litigation. September 2010, FTV litigation settles. February 2011, [plaintiff] brings a counterclaim in [the] Orloff litigation against Orloff. October 2011, Dubler sends a letter concerning claim of malpractice against Pillsbury and [plaintiff]. And August 17th, 2018, [plaintiff] files a lawsuit against Costello.
Based on all the facts [plaintiff] was exposed to, by October 27th, 2011, [plaintiff] should have known there was a potential cause of action against . . . Pillsbury. . . . Based on . . . that date [plaintiff] had
A-2718-20 15 until October 27, 2017, to file a claim against Pillsbury. The core cause of action was initiated August 17, 2018, almost 10 months after . . . [the] statute of limitations had expired. Thus for the reasons stated above, [plaintiff's] claim against Costello for failing to sue Pillsbury is dismissed with prejudice.
We discern no basis for disturbing the trial court's findings of fact or
conclusions of law on this issue. As the court specifically found, between 2005
and 2011, plaintiff knew or should have known that he had a potential legal
malpractice claim against defendants. At the very least, he was "aware of facts
that would alert a reasonable person to the possibility of an actionable claim [.]"
Lapka, 162 N.J. at 555; Grunwald, 131 N.J. at 492.
Plaintiff testified at a deposition that in August 2005, Cornell showed him
a 2003 email correspondence wherein Pillsbury advised FTV that it should
reconsider its acquisition of Uno because Uno's operations violated Brazilian
financial and banking laws and potentially violated United States law. While
plaintiff claimed that Pillsbury never shared the information with him, he
nonetheless became aware of that information no later than August 2005 when
he saw the email.
Plaintiff also testified that he had requested that Orloff add Pillsbury as a
party to the FTV litigation; and he had a conversation in which he specifically
advised Orloff that he wanted to join Pillsbury. Further, plaintiff certified, in
A-2718-20 16 the Dubler litigation, that "[t]hroughout the first four years of Mr. Orloff's
representation, [plaintiff] continually requested Orloff depose Pillsbury as they
had been an integral part of the formation of Nexxar . . . [n]onetheless, Mr.
Orloff vehemently refused to depose Pillsbury executives." As a result of his
continued frustration with Orloff's refusal to proceed against Pillsbury, plaintiff
"contacted the U.S. Justice Department and anonymously discussed how a law
firm and a venture capital firm were misleading financial institutions and may
have committed money laundering, [violated] U.S. Patriot Act Laws, and aided
and abetted tax [e]vasion by foreign entities."
On December 4, 2006, Orloff filed the complaint in the FTV litigation
without naming Pillsbury as a defendant. When defendants replaced Orloff and
OLSS as counsel in the FTV litigation in May 2010, defendants did not amend
the pleading to add Pillsbury. In September 2010, defendants advised plaintiff
to settle his claims in the FTV litigation and, based on that advice, plaintiff
voluntarily settled his claims against FTV and Nexxar.
On September 14, 2010, plaintiff executed the "Settlement Agreement and
Mutual Release of Claims," wherein he forever released any and all claims
against FTV, Nexxar, and, among others, their attorneys, relating to his
employment and discharge from Nexxar and to the FTV litigation. Specifically,
A-2718-20 17 the settlement agreement contained a disclaimer directly above plaintiff's
signature line which stated, in part: "CAUTION: THIS IS A RELEASE OF
ALL CLAIMS; READ BEFORE SIGNING."
Plaintiff was aware that Pillsbury was FTV's attorney for the acquisition
of Uno, which plaintiff alleged caused him damages. Thus, plaintiff was aware,
or at the very least should have been aware, that by executing the Settlement
Agreement, he was releasing any and all potential claims he may have had
against Pillsbury. His argument that he was not specifically advised of the
release language in the Settlement Agreement, and therefore was not aware of
the release of his claims against Pillsbury, is not persuasive. The above -cited
provision expressly cautioned plaintiff that he was releasing his claims and i t
advised him to read the document before signing it. Plaintiff, by signing the
document, acknowledged that he had in fact read it, understood it, and agreed to
be bound by its terms.
Furthermore, under New Jersey law, by signing the settlement agreement,
plaintiff is presumed to have read it and is precluded from claiming that he did
not. "It is the general rule that where a party affixes his signature to a written
instrument . . . a conclusive presumption arises that he read, understood and
assented to its terms and he will not be heard to complain that he did not
A-2718-20 18 comprehend the effect of his act in signing." Peter W. Kero, Inc. v. Terminal
Constr. Corp., 6 N.J. 361, 368 (1951). Accord County of Morris v. Fauver, 153
N.J. 80, 110 (1998) (noting the “presum[ption] that the parties to a contract know
the terms of their agreement”). See also Henningsen v. Bloomfield Motors, Inc.,
32 N.J. 358, 386 (1960) (As a general rule, "one who does not choose to read a
contract before signing it, cannot later relieve himself of its burdens."). Thus,
it is immaterial that plaintiff claims that he did not read the settlement agreement
in its entirety.
As a result of the foregoing, the record supports the trial court's conclusion
that plaintiff had actual knowledge that he released his potential claims against
Pillsbury when he executed the settlement agreement and actually dismissed the
FTV litigation, which occurred on September 14, 2010, and September 24, 2010,
respectively. By relying on defendants' advice to accept and execute the
settlement agreement, which released his potential claims against Pillsbury,
plaintiff had knowledge of the two key elements that triggered the discovery
rule, injury and fault. Grunwald, 131 N.J. at 492-93; Lapka, 162 N.J. at 555-56.
Accordingly, plaintiff had until September 24, 2016, to file his legal
malpractice claim against defendants within the statute of limitations. However,
A-2718-20 19 plaintiff did not do so until August 17, 2018, nearly two years after the
expiration of the statute of limitations.
Moreover, notwithstanding the foregoing, by letter dated October 27,
2011, Dubler advised defendants and plaintiff of plaintiff's potential claims
against Pillsbury and that OLSS had committed legal malpractice by failing to
sue Pillsbury. At that time, defendants and Dubler were assessing OLSS's
potential liability for failing to prosecute plaintiff's claims against Pillsbury.
Specifically, the letter provided:
In the September to November 2003 time period, it is clear that Pillsbury knew that the way Uno was operated was illegal. Further, they also learned that it was probably a crime under Brazilian law. Pillsbury told FTV and never disclosed it to [plaintiff].
Orloff should have filed fraud claims, conspiracy to commit fraud claims, securities claims, and a RICO claim against Pillsbury and the individuals involved in perpetrating the fraud.
Larry Orloff did not file suit against Pillsbury. Larry Orloff did not depose any of the employees of Pillsbury. Larry Orloff did not subpoena Pillsbury's records.
As a result of Dubler's October 27, 2011 letter, which was also sent
directly to plaintiff, plaintiff was advised by legal counsel that he had a potential
claim against Pillsbury and that neither OLSS nor defendants had filed suit
A-2718-20 20 against Pillsbury. Plaintiff had settled all his claims against FTV and Nexxar
and dismissed the FTV litigation, and by signing the settlement agreement, he
was aware that he released any and all potential claims he may have had against
Pillsbury. Peter W. Kero, Inc., 6 N.J. at 368; Henningsen, 32 N.J. at 386.
Plaintiff contends that he did not become aware of defendants' culpability
until 2018, when he received expert legal opinions from his liability experts
regarding the same. That position is not persuasive because, as set forth above,
the limitations period began to run when he knew or should have known the
facts that form the basis of a cause of action, "not necessarily when a plaintiff
learns the legal effect of those facts." Grunwald, 131 N.J. at 492; Lapka, 162
N.J. at 555-56. The record demonstrates that plaintiff learned sufficient facts to
form the basis of a cause of action no later than the date he received the October
27, 2011, letter, which was likely October 28, 2011, 3 since his direct copy was
sent via Federal Express. That letter independently gave plaintiff knowledge of
injury and fault to trigger the discovery rule. Grunwald, 131 N.J. at 492-93;
Lapka, 162 N.J. at 555-56.
3 Although the letter was sent via facsimile to plaintiff's counsel, his copy was sent via Federal Express. October 27, 2011, was a Thursday, so plaintiff likely received his copy of the letter on Friday, October 28, 2011, or Monday, October 31, 2011, as it is unclear from the letter whether it was sent via overnight mail.
A-2718-20 21 Thus, at the latest, the statute of limitations ran after plaintiff received the
October 27, 2011 letter. Even if he received that letter as late as October 31,
2011, plaintiff was required to file suit against defendants by Octobe r 31, 2017.
However, he did not file suit until August 17, 2018. His legal malpractice claim
against defendants for failing to file suit against Pillsbury was thus time -barred.
Therefore, we affirm the trial court's determination that plaintiff's claim
concerning Pillsbury was barred by the six-year statute of limitations. 4
IV.
Finally, plaintiff argues that the trial court erred by granting summary
judgment to defendants and dismissing his legal malpractice claim for
defendants' failure to sue Sills in the FTV litigation. Again, we disagree.
The trial court found that plaintiff was unable to demonstrate that
defendants were the proximate cause of plaintiff's alleged damages. In this
regard, plaintiff asserts that defendants should have sued Sills before the statute
of limitations barring such a claim expired. However, the court found that
plaintiff's cause of action against Sills accrued no later than December 2008,
and defendants stopped representing plaintiff in September 2012. After that,
4 Therefore, we need not address the trial court's alternative ruling that plaintiff's legal malpractice claim concerning defendants' failure to sue Pillsbury was also subject to dismissal based upon the collateral estoppel doctrine. A-2718-20 22 plaintiff had twenty-seven additional months to sue Sills before the statute of
limitations expired. As a result, the court concluded that defendants could not
have been the proximate cause of any damages plaintiff sustained by not suing
Sills.
As set forth above, to establish a prima facie legal malpractice claim, a
claimant must prove the existence of an attorney-client relationship, breach of
duty, and proximate causation. Conklin, 145 N.J. at 416. Proximate cause is
established by showing that the negligent conduct was a substantial factor in
causing the claimant's damages. Id. at 419-22. Stated differently, proximate
cause is "any cause which in the natural and continuous sequence, unbroken by
an efficient intervening cause, produces the result complained of and without
which the result would not have occurred." Dawson v. Bunker Hill Plaza
Assocs., 289 N.J. Super. 309, 322 (App. Div. 1996) (quoting Fernandez v.
Baruch, 96 N.J. Super. 125, 140 (App. Div. 1967), rev'd on other grounds, 52
N.J. 127 (1968)).
Here, the record does not support the conclusion that plaintiff could
establish a prima facie claim of legal malpractice for defendants' failure to sue
Sills. First, Dubler considered a legal malpractice claim against Orloff for his
failure to sue Sills. However, after evaluating Sills's potential liability, Dubler
A-2718-20 23 decided not to file such a claim. Furthermore, in his May 13, 2013 supplemental
expert report, plaintiff's expert Michael Galpern concluded that Sills did not
deviate from the applicable standard of care or breach any duty to plaintiff by
including an integration clause in the stock purchase agreement involved in the
FTV litigation. Indeed, it is not clear from the record that plaintiff had a viable
claim against Sills.
Second, the record does not support the conclusion that defendants were
the proximate cause of plaintiff's alleged damages because it is undisputed that
Dubler had sufficient opportunity to consider, investigate, and file a lawsuit
against Sills after defendants withdrew from representing plaintiff. Dubler had
approximately twenty-seven months to evaluate any potential claim but chose
not to file a lawsuit against Sills. Indeed, plaintiff's liability expert, Scott B.
Piekarsky, Esq., confirmed at a deposition that Dubler had approximately
twenty-seven months to evaluate any potential claim but chose not to file a
lawsuit against Sills, and that plaintiff had hired a legal malpractice expert to
assist Dubler in making that evaluation and decision. There was no evidence
that Dubler was prevented from asserting a claim against Sills. Rather, the
record supports the conclusion that Dubler sufficiently considered the issue but
chose not to assert a claim against Sills.
A-2718-20 24 Simply put, plaintiff cannot establish that defendants were the proximate
cause of his alleged damages because his subsequent counsel had ample time
and opportunity to file suit against Sills within the applicable statute of
limitations. See 4 Ronald E. Mallen, Legal Malpractice § 33:12 (2023 ed.)
("[W]here a lawyer's employment ends and ample time remains for the client or
successor counsel to complete the task for which the lawyer is sued[,] . . .
causation analysis [establishes that] the lawyer is not liable if there was
sufficient time to complete the task."); id. at § 33:13 ("An accepted proposition
is that a lawyer is not liable for an omission that occurred during the
representation of successor counsel or after withdrawal, where ample time
remained to perform the act or task.").
This conclusion is firmly supported by our decision in Fraser v. Bovino,
317 N.J. Super. 23 (App. Div. 1998). In Fraser, after a land deal fell through
due to delays caused by an unsuccessful challenge to municipal approval of a
condominium project, Robert Fraser brought actions starting in 1990 against
various parties that opposed the project, and in 1997 William and Donald
Gelnaw instituted a similar action. Id. at 30-33. We held that all the claims in
the Gelnaws' action and several of the claims in Fraser's actions were properly
dismissed pursuant to statutes of limitations. Id. at 34, 36. However, only the
A-2718-20 25 Gelnaws had included a claim of legal malpractice against their former
attorneys, for failing to ensure that the claims against the objectors were brought
within the statutes of limitations. Id. at 33, 35.
The Gelnaws claimed to have retained their former counsel in October
1996, by which time the only "conceivably viable" claims against the objectors
were those subject to the six-year limitation period. Id. at 35. However, the
Gelnaws admitted that their former counsel withdrew and "returned the file to
them" three months later, on a date that was "several weeks . . . before the six -
year statute of limitations expired." Ibid. Because the Gelnaws still had several
weeks to pursue the "conceivably viable" claims with new counsel, the
withdrawal of their former counsel did not have a "material adverse effect" on
their interests. Ibid. (quoting RPC 1.16(b)). Without a harm to the Gelnaws
arising from counsel's withdrawal, we upheld the dismissal on summary
judgment of the malpractice claim against them. Ibid.
Thus, in Fraser, we determined that twenty-four days before the expiration
of the statute of limitations was sufficient time for the attorneys to withdraw
without a material adverse effect on their client's interest. Here, defendants
withdrew from their representation of plaintiff approximately twenty-seven
months prior to the expiration of the statute of limitations. That gave Dubler,
A-2718-20 26 who was already familiar with the case as co-counsel, ample time and
opportunity to file suit against Sills. In fact, Dubler, with the help of plaintiff's
expert, considered doing so and chose not to. Thus, the trial court correctly
determined that defendants' failure to file suit against Sills was not the proximate
cause of plaintiff's alleged loss. 5
Therefore, we affirm the trial court's decision granting defendants
summary judgment and dismissing plaintiff's legal malpractice claim for failure
to sue Sills.
Affirmed.
5 In light of this ruling, we need not address the trial court's alternative decision that plaintiff's legal malpractice claim concerning defendants' failure to sue Sills was also subject to dismissal based upon the collateral estoppel doctrine.
A-2718-20 27