Peter Innes v. Madeline Marzano-Lesnevich, Esq. v. Mitchell A. Liebowitz, Esq.

87 A.3d 775, 435 N.J. Super. 198

• Court: New Jersey Superior Court Appellate Division
• Decided: April 7, 2014
• Docket: A-0387-11
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0387-11T1

PETER INNES and VICTORIA SOLENNE INNES, by Her Guardian PETER INNES, APPROVED FOR PUBLICATION

Plaintiffs-Respondents, April 7, 2014

v. APPELLATE DIVISION

MADELINE MARZANO-LESNEVICH, ESQ., and LESNEVICH & MARZANO-LESNEVICH, Attorneys At Law, i/j/s/a,

Defendants-Appellants/ Third-Party Plaintiffs,

v.

MITCHELL A. LIEBOWITZ, ESQ., PETER VAN AULEN, ESQ. and MARIA JOSE CARRASCOSA,

Third-Party Defendants. _____________________________________________________

Argued October 8, 2013 – Decided April 7, 2014

Before Judges Messano, Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7739-07.

Christopher J. Carey argued the cause for appellant Madeline Marzano-Lesnevich, Esq. (Graham Curtin, P.A., and Lesnevich & Marzano-Lesnevich, LLC, attorneys; Michael R. Mildner, on the brief). James H. Waller argued the cause for respondents Peter and Victoria Innes (Mr. Waller, attorney; Mr. Waller and Michael A. Casale, on the brief).

Steven J. Tegrar argued the cause for respondent Peter Van Aulen (Law Offices of Joseph Carolan, attorneys; Mr. Tegrar and George H. Sly, Jr., on the brief).

William F. O'Connor, Jr., argued the cause for respondent Mitchell A. Liebowitz, Esq. (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. O'Connor, of counsel; Lawrence S. Cutalo, on the brief).

Respondent Maria A. Carrascosa has not filed a brief.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Plaintiff Peter Innes, individually and on behalf of his

daughter, Victoria Solenne Innes (Victoria, and collectively

plaintiffs), filed suit against defendants Madeline Marzano-

Lesnevich, an attorney, and her law firm, Lesnevich & Marzano-

Lesnevich (the Lesnevich firm, and collectively defendants).1

The complaint stemmed from defendants' allegedly improper

release of Victoria's United States passport to her mother,

Maria Jose Carrascosa, during the prelude to contentious

1 Separate counsel represented Innes and his daughter in the Law Division and on appeal, although plaintiffs filed a joint brief.

2 A-0387-11T1 matrimonial proceedings between Innes and Carrascosa.2 Innes

alleged that Carrascosa used the passport in 2005 to "abduct"

Victoria and bring her to Spain, where the child remains with

her maternal grandparents, beyond the reach of her father.

Defendants filed an answer and third-party complaint

seeking contribution against (1) Carrascosa, their former

client; (2) Peter Van Aulen, the attorney for Innes in the

matrimonial dispute; and (3) Mitchell Liebowitz, the attorney

who initially represented Carrascosa. Before trial, Van Aulen

and Liebowitz were granted summary judgment, while defendants'

motions seeking summary judgment dismissing the complaint were

denied. The court also sua sponte severed defendants' third-

party complaint against Carrascosa.

Immediately before trial, defendants moved to exclude any

claim for counsel fees, and to bar the testimony of plaintiffs'

2 The parties' divorce and related actions have resulted in several previous decisions in our courts, the federal courts and the courts of Spain. In our prior decision, we presented a comprehensive overview and held that New Jersey had subject matter jurisdiction over the parties' divorce, property distribution and child custody issues. Innes v. Carrascosa, 391 N.J. Super. 453, 462 (App. Div.), certif. denied, 192 N.J. 73 (2007), cert. denied, 555 U.S. 1129, 129 S. Ct. 981, 173 L. Ed. 2d 167 (2009). See also Carrascosa v. McGuire, 520 F.3d 249, 263 (3d Cir.) (affirming district court's determination that New Jersey Superior Court had authority to rule on the child's custody and to issue orders pertaining to the mother's civil contempt and incarceration), cert. denied, 555 U.S. 998, 129 S. Ct. 491, 172 L. Ed. 2d 363 (2008).

3 A-0387-11T1 professional expert, attorney George Conk. The judge denied

both requests. The judge reserved decision on defendants'

motion to bar plaintiffs' claims for emotional distress damages.

At the close of plaintiffs' case, defendants moved to

dismiss the complaint for failure to establish proximate cause,

and to dismiss plaintiffs' claims for emotional distress

damages. The judge denied both requests.

The jury returned a verdict in favor of plaintiffs and

awarded damages of $700,000 to Innes and $250,000 to Victoria.

On May 20, 2011, judgment was entered that also included pre-

judgment interest of $133,815.07 for Innes and $47,791.09 for

Victoria. On June 28, 2011, the judge entered an amended order

for judgment that additionally included counsel fees and costs

for Innes and Victoria in the amounts of $158,517.70 and

$126,397.07, respectively.

Defendants moved for a new trial or for judgment

notwithstanding the verdict (JNOV), which the judge denied after

initially reserving decision. The judge granted a stay of

judgment pending disposition of the third-party complaint

against Carrascosa.

On July 18, 2011, plaintiffs filed a motion seeking to

participate in the trial of defendants' third-party complaint

against Carrascosa and to "bar[] the allocation of fault at

4 A-0387-11T1 . . . trial." In a written opinion, the judge dismissed

defendants' third-party complaint with prejudice, concluding

essentially that defendants were not entitled to contribution

from Carrascosa. This appeal followed.

Defendants raise myriad arguments regarding the

interlocutory orders denying their pre-trial motion for summary

judgment seeking dismissal of the complaint, as well as the

orders granting Van Aulen and Liebowitz summary judgment. As to

the trial itself, defendants contend the judge erred by

permitting Conk to testify, allowing the jury to award emotional

distress damages without any medical testimony and amending his

charge to the jury after defendants' summation. Defendants also

argue their motions for judgment and JNOV should have been

granted.

Defendants also contend their third-party claim against

Carrascosa should not have been severed from the trial, and the

judge erred by ultimately dismissing the complaint. Lastly,

defendants contest the award of any counsel fees.

We have considered these arguments in light of the record

and applicable legal standards. We affirm in part, reverse in

part, and remand for entry of an amended judgment.3

3 Plaintiffs argue that the appeal should be dismissed as untimely, having not been filed within forty-five days of the (continued)

5 A-0387-11T1 I.

A.

We first consider defendants' arguments regarding the pre-

trial orders granting Van Aulen and Liebowitz summary judgment.

We need not set forth the entire factual history between Innes

and Carrascosa, which was detailed in our prior opinion, see

Innes, supra, 391 N.J. Super. at 461-65, and we limit our

consideration as necessary to the motion record that existed

when the orders were entered. See, e.g., Ji v. Palmer, 333 N.J.

Super. 451, 463-64 (App. Div. 2000) ("In reviewing a summary

judgment, we can consider the case only as it had been unfolded

to that point and the evidential material submitted on that

motion.") (citations omitted).

In October 2004, Innes and Carrascosa were separated but

neither had filed a divorce complaint. Innes was represented by

Van Aulen, and Carrascosa was represented by Liebowitz.

Victoria was four and one-half years old and resided with

(continued) July 18, 2011 amended judgment. R. 2:4-1(a). However, it was not until September 2, 2011, that the court dismissed the third- party complaint with prejudice, adopting the argument that plaintiffs made in their motion to intervene. Defendants' notice of appeal was timely filed thereafter. Plaintiffs' argument lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

6 A-0387-11T1 Carrascosa after the separation. It suffices to say that the

instant litigation centered on the October 2004 agreement (the

Agreement) executed by Innes and Carrascosa as it related to

restrictions upon travel with Victoria. Innes, supra, 391 N.J.

Super. at 462. Specifically, the Agreement, drafted by

Liebowitz on his letterhead, provided in relevant part:

Neither . . . Carrascosa nor . . . Innes may travel outside of the United States with Victoria . . . without the written permission of the other party. To that end, Victoria['s] . . . United States and Spanish passport [sic] shall be held in trust by Mitchell A. Liebowitz, Esq. Victoria['s] . . . Spanish passport has been lost and not replaced, and its loss was reported to the Spanish Consulate in New York. . . . Carascosa [sic] will file an application for a replacement Spanish passport within [twenty] days of today.

On November 23, 2004, Liebowitz responded to a letter

written by Sarah J. Jacobs, an associate with the Lesnevich

firm, advising that Carrascosa had retained them and seeking

release of the file.4 Liebowitz wrote: "As you may know, I am

holding her daughter's United States Passport. I would prefer

if you arranged for the original file to be picked up by

messenger with the messenger acknowledging receipt of the

passport." On November 24, Jacobs wrote to Van Aulen,

4 Jacobs' prior surname was "Tremml." The documentary evidence at trial bore that name.

7 A-0387-11T1 indicating the Lesnevich firm's representation of Carrascosa and

noting that, despite having signed the Agreement, Carrascosa

"ha[d] grave concerns" regarding provisions dealing with Innes'

parenting time. Notes taken by Jacobs during an office

conference with Carrascosa on November 18, 2004, were filed in

support of both Van Aulen's and Liebowitz's summary judgment

motions. The notes contained the following: "Spanish passport

stole[n.] American passport turned over to attorney[.] GET

BACK[.]"

In her deposition, Marzano-Lesnevich stated she received

the file from Liebowitz and reviewed the Agreement sometime in

December. Victoria's United States passport was in the file at

the time, but it was missing after a December meeting with

Carrascosa. The implication was that Carrascosa had taken the

passport without Marzano-Lesnevich's foreknowledge.

It was first revealed that Victoria was in Spain during

proceedings before the Family Part in February 2005. In a

February 2006 letter to plaintiffs' attorney in this litigation,

Marzano-Lesnevich claimed Liebowitz never advised her of "a

requirement to hold [the passport] in trust." She also wrote:

"At the time we turned over the passport to the mother, the

[A]greement between the parties was moot[,]" because "it had

been repudiated by both parties immediately." (Emphasis added).

8 A-0387-11T1 On this motion record, in December 2009, the judge granted

Van Aulen summary judgment and dismissed the third-party claim

against him. Defendants moved for reconsideration in August

2010 after securing the expert report of attorney John F.

DeBartolo. In November 2010, the judge denied the motion for

reconsideration. In his written opinion, the judge explained:

"Based on the facts herein, Van Aulen cannot be classified as a

joint tortfeasor because he did not breach his duty to Innes and

did not have a duty to anticipate that [defendants] would

violate a fiduciary obligation."

Liebowitz sought summary judgment in August 2010. In

support, he attached defendants' answers to interrogatories in

which they claimed that Carrascosa "took her daughter's

passport. No one [at the firm] 'gave it' to her or 'turned it

over to her.'" They also denied knowing that Carrascosa

intended to "remove Victoria . . . from the jurisdiction o[f]

New Jersey."

By the time Liebowitz's motion was filed, Jacobs had been

deposed. She testified that Marzano-Lesnevich told her that she

(Marzano-Lesnevich) gave Victoria's passport to Carrascosa.

Carrascosa had also been deposed and testified that she always

had Victoria's Spanish passport and it was never lost or stolen.

Carrascosa asked the Lesnevich firm for Victoria's United States

9 A-0387-11T1 passport and picked it up the day before her daughter travelled

to Spain with her grandparents.5 Carrascosa also stated that she

told the firm "we were going to travel."

In November 2010, the judge granted summary judgment to

Liebowitz. In his written opinion, the judge concluded that

after Carrascosa discharged him, Liebowitz could not have

reasonably anticipated that Innes would continue to rely on his

(Liebowitz's) actions or representations. Liebowitz did not owe

a duty of care to Innes after transferring his file containing

the passport to the Lesnevich firm.

Defendants argue the judge erred by denying their motion

for reconsideration of the prior summary judgment granted to Van

Aulen and by granting Liebowitz summary judgment.6 "In an appeal

of an order granting summary judgment, appellate courts 'employ

5 Later testimony revealed that Victoria did not leave the United States until January 13, 2005, nearly a month after Carrascosa secured possession of the passport. 6 Defendants' notice of appeal did not list the November 2010 order denying reconsideration. See R. 2:5-1(f)(3)(A) (requiring the notice of appeal to include all orders for which review is sought). Nevertheless, in the interests of justice, we consider all issues raised regarding the dismissal of the third-party complaint against Van Aulen. See Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461 (App. Div.) (recognizing that in some situations, "the basis for the motion judge's ruling on the summary judgment and reconsideration motions may be the same. In such cases, an appeal solely from the grant of summary judgment or from the denial of reconsideration may be sufficient for an appellate review of the merits of the case[.]"), certif. denied, 174 N.J. 544 (2002).

10 A-0387-11T1 the same standard [of review] that governs the trial court.'"

Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)

(alteration in original) (quoting Busciglio v. DellaFave, 366

N.J. Super. 135, 139 (App. Div. 2004)). We first determine

whether the moving party has demonstrated there were no genuine

disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside

Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.),

certif. denied, 189 N.J. 104 (2006).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non- moving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide "whether the motion judge's application of the

law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at

231. We conduct our review de novo. Gere v. Louis, 209 N.J.

486, 499 (2012).

Defendants were entitled to contribution from Van Aulen or

Liebowitz only if either respectively was a joint tortfeasor,

pursuant to the Joint Tortfeasors Contribution Law, N.J.S.A.

2A:53A-1 to -5 (JTCL). Under the JTCL, "'joint tortfeasors'

11 A-0387-11T1 means two or more persons jointly or severally liable in tort

for the same injury." N.J.S.A. 2A:53A-1. "'It is common

liability at the time of the accrual of plaintiff's cause of

action which is the Sine qua non of defendant's contribution

right.'" Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 72

(2004) (quoting Markey v. Skog, 129 N.J. Super. 192, 200 (Law

Div. 1974)). Since plaintiffs never asserted any claim against

either Van Aulen or Liebowitz, the inquiry is whether defendants

presented a prima facie case that either was liable to

plaintiffs.

"The elements of a cause of action for legal malpractice

are (1) the existence of an attorney-client relationship

creating a duty of care by the defendant attorney, (2) the

breach of that duty by the defendant, and (3) proximate

causation of the damages claimed by the plaintiff." McGrogan v.

Till, 167 N.J. 414, 425 (2001) (citing Conklin v. Hannoch

Weisman, 145 N.J. 395, 416 (1996)).

Defendants failed to present a prima facie case that Van

Aulen committed legal malpractice in his representation of

Innes. When Van Aulen first moved for summary judgment,

defendants produced no expert report supporting the elements of

professional negligence. See e.g., Buchanan v. Leonard, 428

N.J. Super. 277, 288-289 (App. Div. 2012) ("As 'the duties a

12 A-0387-11T1 lawyer owes to his client are not known by the average juror,'

expert testimony must necessarily set forth that duty and

explain the breach.") (quoting Carbis Sales, Inc. v. Eisenberg,

397 N.J. Super. 64, 78 (App. Div. 2007)).

When defendants sought reconsideration, they furnished

DeBartolo's report. While the report proposed some

"straightforward and prudent steps" Van Aulen might have taken,

it did not state that he breached any professional standards or

that proximately-caused damages resulted. Indeed, DeBartolo

opined that, because Carriscosa was solely responsible for

removing Victoria from the United States, defendants themselves

were not a proximate cause of plaintiffs' damages.

The record also fails to support a claim that Liebowitz,

who was not Innes's attorney, could be liable for breaching a

duty owed to a non-client. Although our courts are generally

reluctant to permit a non-client to sue an adversary's attorney,

LoBiondo v. Schwartz, 199 N.J. 62, 100 (2009), in limited

circumstances, "attorneys may owe a duty of care to non-clients

when the attorneys know, or should know, that non-clients will

rely on the attorneys' representations and the non-clients are

not too remote from the attorneys to be entitled to protection."

Petrillo v. Bachenberg, 139 N.J. 472, 483-84 (1995).

13 A-0387-11T1 "[T]he rule announced in Petrillo has been applied rather

sparingly, . . . [but] [i]t is not . . . the only basis on which

[the Court] ha[s] recognized the potential for a direct claim

against an attorney by a nonclient." LoBiondo, supra, 199 N.J.

at 102. The Court has "authorized in principle a claim against

an attorney who participated in a civil conspiracy with the goal

of assisting a client to engage in a fraudulent transfer of

assets to the detriment of a lender." Ibid. (citing Banco

Popular N. Am. v. Gandi, 184 N.J. 161, 177-78 (2005)).

We have also recognized that "[p]rivity between an attorney

and a non-client is not necessary for a duty to attach 'where

the attorney had reason to foresee the specific harm which

occurred.'" Estate of Albanese v. Lolio, 393 N.J. Super. 355,

368-69 (App. Div.) (quoting Albright v. Burns, 206 N.J. Super.

625, 633 (App. Div. 1986)). Ultimately, in determining whether

a duty exists, "[t]he primary question . . . is one of

fairness." Id. at 369.

In this case, Innes knew that Liebowitz had been

discharged, and that defendants were now representing

Carrascosa. At that point, he could no longer reasonably rely

upon Liebowitz's agreement to retain Victoria's passport.

Absent such reliance, Liebowitz owed no duty of care to

plaintiffs. Petrillo, supra, 139 N.J. at 482. Liebowitz could

14 A-0387-11T1 not reasonably foresee that, armed with full knowledge of the

agreement and his expressed caution regarding the passport,

defendants would simply turn it over to Carrascosa. Absent any

reliance by Innes upon Liebowitz's continued retention of the

passport, it would be patently unfair to extend a duty to

Liebowitz to safeguard the passport after he was discharged by

Carrascosa. Albanese, supra, 393 N.J. Super. at 369.

Summary judgment was properly granted dismissing

defendants' third-party complaint against Van Aulen and

Liebowitz.

B.

for summary judgment before trial. In essence, they contend the

motion record failed to establish, and the judge did not find,

that defendants owed Innes any duty, or that they made any

representations upon which Innes reasonably relied.7

In denying defendants' summary judgment motion, the judge

reasoned:

7 Although not specifically contained in a point heading, defendants also contend the judge erred by denying them summary judgment on plaintiffs' alternative causes of action sounding in breach of contract, bailment, and breach of escrow. We need not address those issues because ultimately the case was submitted to the jury only as to the claim that defendants breached their professional duty.

15 A-0387-11T1 [L]iability may be imposed on [defendants], not merely because [defendants] violated an RPC, but because of the affirmative acts of [defendants], specifically, the letters [defendants] sent to Liebowitz, [defendants'] awareness of the Agreement regarding Victoria's United States passport, accepting the passport with Carrascosa's file, and the notes and deposition testimony of the [defendants'] associates referencing the importance of the United States passport.

The judge also concluded that a fact finder could determine that

defendants should have foreseen Innes would rely upon them to

retain Victoria's passport, return it to Liebowitz if they were

not going to honor the agreement, or at least not let the

passport fall into Carrascosa's hands.

We agree with defendants that whether a legal duty exists

is a matter of law for the court. Petrillo, supra, 139 N.J. at

479. But, contrary to defendants' assertions, the motion judge

decided there was a duty. We discern defendants' argument more

precisely to be that since they made no affirmative

representation to honor the agreement, imposing a duty upon them

to maintain possession of Victoria's passport unreasonably

extends existing precedent. We disagree.

As already noted, we have held a duty to a non-client may

"attach where the attorney had reason to foresee the specific

harm which occurred." Albanese, supra, 393 N.J. Super. at 368-

69 (internal quotations omitted). It was entirely forseeable

16 A-0387-11T1 that Carrascosa's possession of Victoria's passport would

facilitate her ability to remove her daughter from the country.

A lawyer may also be liable to a non-client third party

"where an independent duty is owed." Estate of Fitzgerald v.

Linnus, 336 N.J. Super. 458, 468 (App. Div. 2001) (citing Davin,

L.L.C., v. Daham, 329 N.J. Super. 54, 73-75 (App. Div. 2000);

DeAngelis v. Rose, 320 N.J. Super. 263, 274-76 (App. Div.

1999)). "[E]ven absent an attorney-client relationship, an

attorney 'owes a fiduciary duty to persons, though not strictly

clients, who he knows or should know rely on him in his

professional capacity.'" R. J. Longo Constr. Co. v. Schragger,

218 N.J. Super. 206, 209 (App. Div. 1987) (quoting Albright,

supra, 206 N.J. Super. at 632-33).

In Davin, for example, attorney Jaffe prepared a multi-year

lease that included a covenant for quiet enjoyment while

representing the landlords as defendants in foreclosure

proceedings involving the property. Davin, supra, 329 N.J.

Super. at 63-64. Neither the landlords nor Jaffe advised the

defendants-tenants of the foreclosure proceedings. Id. at 64.

The motion judge granted summary judgment, "conclud[ing] that

Jaffe owed no duty to [the] defendants since he had never

represented them or spoke to them, and would have been acting

adversely to the best interests of his clients, the [landlords],

17 A-0387-11T1 if he advised [the] defendants of the [landlords'] financial

difficulties. Id. at 73.

In reversing summary judgment, we said:

The practice of law is a profession, not a business. An attorney is not merely a hired gun, but, rather, a professional required to act with candor and honesty. . . . Jaffe, as an attorney who participated to the extent he did in the efforts to stave off foreclosure, had an affirmative obligation to be fair and candid with [the] defendants. Moreover, he had an obligation not to insert the covenant of quiet enjoyment in the lease. He had an obligation to advise his clients . . . that they should disclose to defendants the fact that the property was in foreclosure. He also had a duty to advise his clients that the lease should not contain a covenant of quiet enjoyment in light of the fact that it was highly unlikely that [the] defendants would obtain the benefits of the covenant in light of the foreclosure. If they failed to follow his advice, he had the right, if not the duty, to cease representing them.

[Id. at 76-77, 78.]

We held that "the lawyer's duty of effective and vigorous

representation of his client is tempered by his corresponding

duty to be fair, candid and forthright." Id. at 78.

In denying defendants' summary judgment motion here, the

judge properly concluded that, despite the lack of any

affirmative representation, defendants owed a duty to Innes. If

they were unwilling to abide by the agreement, they were

obligated to so advise Van Aulen or Liebowitz. Simply giving

18 A-0387-11T1 the passport to Carrascosa was a breach of defendants' duty,

even if they believed in good faith that the Agreement had been

"repudiated."

Not only is this obligation entirely consistent with prior

precedent, it is consistent with the Rules of Professional

Conduct (RPC). While "a cause of action for malpractice cannot

be based exclusively on the asserted breach of" an RPC, "it is

clear that the [RPCs] may be relied on as prescribing the

requisite standard of care and the scope of the attorney's duty

to the client." Gilles v. Wiley, Malehorn & Sirota, 345 N.J.

Super. 119, 125 (App. Div. 2001) (citing Baxt v. Liloia, 155

N.J. 190, 201 (1998)); Davin, supra, 329 N.J. Super. at 74 n.3).

Therefore, a breach of an RPC "is evidential of [a] defendant's

failure to comply with the required standard of care." Id. at

125-26 (citation omitted); see also Johnson v. Schragger,

Lavine, Nagy & Krasny, 340 N.J. Super. 84, 90 (App. Div. 2001)

(noting that "the Rules of Professional Conduct may provide

guidance to the court in determining whether a duty exists").

RPC 1.15(a) requires a lawyer to appropriately safeguard

the property of clients or third parties in his or her

possession. RPC 1.15(b) obligates a lawyer to promptly notify a

third party of receipt of property in which the third party has

an interest. "Except as stated in this Rule or otherwise

19 A-0387-11T1 permitted by law or by agreement with the client, a lawyer shall

promptly deliver to the client or third person any . . .

property that the client or third person is entitled to

receive." Ibid. The clear import of these RPCs is that, in

light of the Agreement and Innes's competing claim to the

passport as Victoria's father, defendants were not free to

dispose of the passport as they saw fit. The judge properly

denied defendants' motion for summary judgment.

II.

We turn to the issues raised regarding the trial itself by

first reviewing some of the testimony. Carrascosa was a Spanish

citizen and an attorney admitted to practice in the European

Union. Victoria was a citizen of both the United States and

Spain. Innes was concerned that Carrascosa might take Victoria

to Spain, and he noted that, while Victoria also had a Spanish

passport, the family used the United States passport whenever it

traveled to Spain.

Although the Agreement had been executed by both parties,

problems arose immediately. On November 22, 2004, Carrascosa

obtained a domestic violence temporary restraining order (TRO)

against Innes. Liebowitz testified that he advised Carrascosa

against the filing, "given [the] facts she was presenting to

[him] in support of the restraining order." The issuance of the

20 A-0387-11T1 TRO resulted in the suspension of Innes's parenting time with

Victoria.8

On December 8, 2004, Liebowitz transferred his entire file,

including Victoria's United States passport, to defendants.

Efforts to negotiate a parenting time schedule thereafter were

contentious and fruitless. Innes's last visit with his daughter

took place on November 4, 2004.

Innes first learned that his daughter was in Spain when

Marzano-Lesnevich disclosed the information to the Family Part

judge during the hearing in February 2005. Innes subsequently

was told by law enforcement authorities that Victoria left the

country on January 13, 2005, with her maternal grandfather

aboard a British Airways Flight to London. She and her

grandfather then traveled from England to Spain.

Innes retained a Spanish lawyer, Elena Zarraluqui, to

assist with filing a petition to return his daughter and contest

the annulment proceedings that Carrascosa had commenced in

Spain.9 Innes went to Spain for a hearing in June 2005. The

8 On December 6, 2004, the court dismissed the TRO against Innes at Carrascosa's request. 9 Innes filed the application for Victoria's return to New Jersey under the Hague International Child Abduction Convention, 51 Fed. Reg. 10, 498 (March 26, 1986), its Federal implementing statute, the International Child Abduction Remedies Act (ICARA), 42 U.S.C.A. §§ 11601 to -11611 (1988), and the New Jersey court (continued)

21 A-0387-11T1 Spanish court denied Innes's petition and ordered Victoria to

remain in Spain until age eighteen. Innes, through Zarraluqui,

filed several unsuccessful appeals.

Innes returned to Spain in fall 2005 for the nullity

proceeding in which Carrascosa sought, among other relief,

termination of his parental rights. According to Innes, at the

time of the trial in this case, the issue remained undecided.

During both trips to Spain, Innes briefly saw Victoria.

Zarraluqui testified that she asked Carrascosa's lawyer if Innes

and Victoria could speak to each other. Carrascosa initially

agreed, but then tried to prevent Victoria from going to her

father, and Carrascosa's lawyer had to intervene. Zarraluqui

said that Victoria was "really kind with him," that Innes kissed

her and started crying when Carrascosa ended the meeting after

five or ten minutes. Zarraluqui described the scene as "very

hard, emotional."

Innes never returned to Spain again, explaining that

fourteen criminal complaints had been filed against him and

three were still pending. He denied committing any crime or

abusing Carrascosa or Victoria. Given the notoriety of the case

(continued) order. Innes, supra, 391 N.J. Super. at 466. We discussed the proceedings in the Spanish courts in greater detail in our earlier decision. Innes, supra, 391 N.J. Super. at 466-72.

22 A-0387-11T1 and the wealth and position of Carrascosa's family, Innes

believed he would be unjustly accused and imprisoned if he

returned. Innes' attempts to maintain a relationship with

Victoria were rebuffed by Carrascosa's family. Aside from a

brief telephone conversation in 2007, he has not spoken to her

since their 2005 meeting in the courthouse. The family refuses

to accept delivery of the Christmas and birthday gifts Innes

sends every year.

Innes testified extensively regarding his relationship with

his daughter prior to her leaving the country in January 2005.

He moved his office to the ground floor of the couple's high-

rise apartment building so he could be close to home and see her

frequently. After the couple separated, he saw Victoria nearly

every day until Carrascosa ordered him to stay away.

Innes also stated that he thinks about "this whole

situation" every day, cannot sleep and his business suffered.

He received treatment from his doctor for anxiety, and he saw a

therapist, who "helped [him] learn how to grieve the loss of

[his] daughter," although he admitted seeing the therapist

infrequently in 2009 and not at all since.

In 2006, Carrascosa returned to the United States for the

divorce trial, leaving Victoria in Spain with her grandparents.

On August 24, 2006, the Family Part granted the parties a

23 A-0387-11T1 divorce, awarded Innes sole legal and residential custody of

Victoria, ordered Carrascosa to dismiss all actions in Spain and

return Victoria to New Jersey within ten days. The court

imposed sanctions of $148,000 in favor of Innes. Carrascosa did

not comply with any of these provisions.

Carrascosa was arrested in New York City in November 2006

and subsequently indicted. She was found guilty and sentenced

to a prison term of fourteen years. At the time of trial,

Carrascosa remained incarcerated and testified via video

conference. She accused Innes of attempting to murder Victoria

and said she filed the TRO because of Innes's "relentless

stalking, abuse, [and] battering." She claimed that she signed

the Agreement under duress and repudiated it "the very next

day," something she told Marzano-Lesnevich.

Carrascosa claimed that she asked Jacobs to retrieve

Victoria's passport from Liebowitz because she wanted to travel

with her daughter. She told Innes about her plans, and he

replied: "All right. Go ahead. Get on the boat." She also

told another associate at the Lesnevich firm, Francesca Marzano-

Lesnevich (Francesca),10 who told Carrascosa "they had spoken to

. . . Van Aulen on the phone and everything was okay." In an e-

10 We apologize for the informality of using a first name; however, it is necessary to avoid confusion.

24 A-0387-11T1 mail dated January 11, 2005, Carrascosa notified the Lesnevich

firm that she was going to stop by. She then arrived in the

reception area where Francesca gave her the passport.

Carrascosa confirmed that she had never lost Victoria's Spanish

passport, and that her daughter was still in Spain.

The judge conducted a N.J.R.E. 104 hearing and denied

defendants' request to bar Conk as an expert witness. 11

Succinctly stated, Conk rendered the following opinion:

It was the duty of Marzano-Lesnevich as successor in fact to the possessory right of Liebowitz to inform Innes via his attorney and Liebowitz, who reasonably expected Marzano-Lesnevich to abide by the agreement, that she intended to dispose of the passport as her client sought fit and that she was renouncing any obligation to operate under the constraints imposed by the agreement on her predecessor . . . attorney. If adequate notice of such intention had been given[,] Liebowitz could have retaken possession and Innes or his attorney could have sought the assistance of a court if a . . . new escrow agent, could not be agreed upon.

Thomas Kilbride, who worked for the Department of Homeland

Security Immigration and Customs Enforcement (ICE), testified

that he received a request from the Bergen County Prosecutor's

Office to determine Victoria's travel history to and from the

United States. His examination of ICE's database showed

11 The trial judge was not the judge who had heard and decided the pre-trial motions.

25 A-0387-11T1 Victoria left the country from Newark Liberty International

Airport on January 13, 2005, using her United States passport,

as she had on September 12, and December 11, 2003, and January

8, 2004. Kilbride acknowledged that a person with dual

citizenship could depart the United States using a foreign

passport, but his search failed to reveal any record of Victoria

ever leaving the United States using her Spanish passport.

Plaintiffs read Marzano-Lesnevich's deposition testimony

and defendants' interrogatory answers to the jury that implied

Carrascosa took the passport without the firm's foreknowledge.

However, Jacobs testified that Marzano-Lesnevich said she gave

the passport to Carrascosa.

In her testimony before the jury, Marzano-Lesnevich

admitted that she did not notify Innes or Van Aulen before

giving Carrascosa her daughter's passport. She believed that

because neither she nor Liebowitz held the passport in trust,

Carrascosa, the parent with primary residential custody, had the

right to safeguard the passport herself. Marzano-Lesnevich knew

of the Agreement and that Carrascosa had signed it, but she

maintained it was repudiated because no one had followed its

terms.

Marzano-Lesnevich described the passport as "simply

abandoned by . . . Liebowitz and placed in a file." She

26 A-0387-11T1 maintained that she did not have the right to hold the passport

absent a court order or successor agreement. Marzano-Lesnevich

also testified that Victoria could have traveled using her

Spanish passport and that an itinerary Carrascosa sent to the

firm indicated mother and daughter intended to return to this

country. However, the Spanish courts ordered Victoria to remain

in Spain until she turned eighteen.

Marzano-Lesnevich acknowledged on cross-examination that

her firm's strategy was to focus initially on jurisdiction,

explaining that proceedings already had begun in Spain and it

was important for Carrascosa to receive an ecclesiastical

nullity of her marriage. She acknowledged that Carrascosa

wanted the matter heard in Spain.

DeBartolo testified as an expert in the fields of family

law and ethics. He opined that Liebowitz "should have notified

. . . Van Aulen that he was seeking to terminate his role as

escrow agent, he should have notified his client, he should have

notified any successor attorney, he should have asked to be

relieved of the obligations that he voluntarily undertook as an

escrow agent, as a trustee." He also concluded that Marzano-

Lesnevich did not violate professional standards by returning

the passport to Carrascosa because she was not bound by the

Agreement and never agreed to become trustee of the passport.

27 A-0387-11T1 In DeBartolo's opinion, Marzano-Lesnevich properly relied on

Carrascosa's representations that the agreement had been

repudiated, and that Carrascosa had the superior property

interest in the passport as the primary custodial parent.12

DeBartolo also opined that Carrascosa, not defendants, was

the proximate cause of any damages. Even if Liebowitz had

retained the passport in trust or properly obtained a substitute

trustee, DeBartolo believed Carrascosa could have easily

traveled with Victoria using her Spanish passport.

12 On cross-examination, however, DeBartolo acknowledged that our prior opinion affirmed the enforceability of the Agreement. There, we said that

[u]nder New Jersey law and the Hague Convention, the October parenting agreement was valid, affirmed Carrascosa's intent that Innes have custodial rights in the child, and when plainly read, demonstrates that the removal of the child was wrongful. Indeed, Article 3 of the Convention provides that custody rights may arise "by operation of law, or by reason of an agreement having legal effect under the law of that State." The parenting agreement having been voluntarily and knowingly executed by both parents, and thus enforceable under the laws of New Jersey, Carrascosa's breach of that agreement was wrongful and violated Innes' custodial rights.

[Innes, supra, 391 N.J. Super. at 486.]

28 A-0387-11T1 A.

Defendants moved to dismiss the complaint at the close of

plaintiffs' case. See R. 4:37-2(b). They argued plaintiffs

failed to prove the release of Victoria's United States passport

was a proximate cause of any damages. The judge denied the

motion. Defendants renewed the argument post-verdict when they

sought a new trial or JNOV, specifically contending that the

finding of proximate cause was "against the weight of the

evidence[.]" The judge denied the motion in a brief written

opinion.13 Defendants now renew this argument before us.

Motions for involuntary dismissal, Rule 4:37-2(b), and

JNOV, Rule 4:40-2(b), are "governed by the same evidential

standard: [I]f, accepting as true all the evidence which

supports the position of the party defending against the motion

and according [her] the benefit of all inferences which can

reasonably and legitimately be deduced therefrom, reasonable

13 In his written opinion, the judge noted that defendants also sought a new trial or JNOV because "the jury's finding[] regarding . . . Marzano-Lesnevich's deviation from the standard of care" was against the weight of the evidence. However, that contention was not advanced during oral argument on the motion. To the extent defendants argue that point in their appellate brief, we reject the contention. In light of the standards of review we discuss in this section, the trial testimony and with our discussion in section I.B., supra, regarding the duty owed to a non-client demonstrates the argument lacks sufficient merit to warrant further consideration. R. 2:11-3(e)(1)(E).

29 A-0387-11T1 minds could differ, the motion must be denied." Verdicchio v.

Ricca, 179 N.J. 1, 30 (2004) (first alteration in original)

(citations omitted). We apply the same standard on review.

Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000).

"The trial judge's obligation on a motion for a new trial

because the verdict is said to be against the weight of the

evidence is quite a different and more difficult one." Dolson

v. Anastasia, 55 N.J. 2, 6 (1969). Under Rule 4:49-1(a), a

court shall grant a motion for a new trial "if, having given due

regard to the opportunity of the jury to pass upon the

credibility of the witnesses, it clearly and convincingly

appears that there was a miscarriage of justice under the law."

Ibid. The judge must take into account "not only tangible

factors . . . as shown by the record, but also appropriate

matters of credibility, generally peculiarly within the jury's

domain, . . . and the intangible 'feel of the case' . . . gained

by presiding over the trial." Dolson, supra, 55 N.J. at 6. We

apply a similar standard, deferring to the trial court's

assessment of those factors "which are not transmitted by the

written record." Id. at 7. Thus, "[a]n appellate court may

overturn a jury verdict 'only if [that] verdict is so far

contrary to the weight of the evidence as to give rise to the

inescapable conclusion of mistake, passion, prejudice, or

30 A-0387-11T1 partiality.'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J.

130, 134 (1990) (quoting Wytupeck v. City of Camden, 25 N.J.

450, 466 (1957)).

To prevail at trial, plaintiffs needed to establish that

defendants' breach of their professional duty was a proximate

cause of their damages. Conklin, supra, 145 N.J. at 416. When

there are concurrent independent causes of harm, the jury must

determine whether the negligence was a substantial factor in

bringing about the ultimate harm. Id. at 422; see also Froom v.

Perel, 377 N.J. Super. 298, 313 (App. Div.) ("plaintiff must

present evidence to support a finding that defendant's negligent

conduct was a 'substantial factor' in bringing about plaintiff's

injury, even though there may be other concurrent causes of

harm"), certif. denied, 185 N.J. 267 (2005).

Here, the undisputed evidence was that Victoria exited the

country using her United States passport. Whether Victoria

could have used her Spanish passport, or even whether her

Spanish passport was necessary for her entry into Spain, does

not matter. Defendants' release of the United States passport

was a "substantial factor" in bringing about the damages

plaintiffs claimed to have suffered.

31 A-0387-11T1 B.

Defendants moved pre-trial to dismiss plaintiffs' claim for

emotional distress damages, and the judge reserved decision. At

trial, plaintiffs called Janet S. Berson, a licensed clinical

psychologist, as an expert regarding the effects of parental

alienation on Innes and Victoria. However, following a Rule 104

hearing, the judge precluded Berson from testifying, finding

that she could not testify within a reasonable degree of

psychological certainty, in part because she had never examined

Victoria and her opinions were based on an out-of-date

psychological report from Spain. Plaintiffs do not challenge

that ruling on appeal.

dismiss Victoria's emotional distress claims. The judge

considered the motion as if it applied to both plaintiffs. He

concluded that "under traditional tort concepts the loss of the

child's society and companionship could give rise to emotional

distress." Citing our decision in Segal v. Lynch, 413 N.J.

Super. 171 (App. Div.), certif. denied, 203 N.J. 96 (2010), the

judge noted such circumstances "clearly engender[] a right to

compensation," and he concluded that emotional distress damages

could be presumed without evidence of physical injury or expert

psychological testimony.

32 A-0387-11T1 Following lengthy debate during the charge conference, the

judge provided the following instruction to the jury:

If you find in favor of the plaintiffs, the law recognizes as a proper item for recovery the mental suffering and distress that a person may endure as a result of the wrongful conduct of a defendant in a case such as the one before you. Since a parent is entitled to the services and companionship of a minor child, until that child reaches majority, you may award damages to . . . Innes for the loss of his daughter's companionship and society for as long as you reasonably and rationally conclude it has and will last. The measure of damages is what a reasonable person would consider to be adequate and just under all of the circumstances.

Likewise, Victoria . . . is entitled to damages for the mental suffering and distress which she may endure as a result of being separated from her father.

When they moved for a new trial or JNOV, defendants reiterated

the argument, which the judge rejected.

(i)

Before us, defendants argue it was error to submit the

issue of emotional distress damages to the jury because in a

legal malpractice action emotional distress damages cannot be

awarded "in the absence of medical evidence establishing

substantial bodily injury or severe and demonstrable psychiatric

sequelae proximately caused by the tortfeasor's misconduct."

Gautam v. De Luca, 215 N.J. Super. 388, 399 (App. Div.), certif.

33 A-0387-11T1 denied, 109 N.J. 39 (1987). Defendants specifically argue that

there was no such medical evidence in this case as to either

Innes or Victoria.

It is well-established that a plaintiff "'may recover for

losses which are proximately caused by the attorney's negligence

or malpractice.'" Saffer v. Willoughby, 143 N.J. 256, 271

(1996) (quoting Lieberman v. Employers Ins. of Wausau, 84 N.J.

325, 341 (1980)). The availability of emotional distress

damages in a legal malpractice case has not been subject to

extensive discussion in reported decisions in New Jersey.

In Gautam, the plaintiffs alleged that their attorneys'

malpractice resulted in the dismissal of the plaintiffs' medical

negligence claim. Gautam, supra, 215 N.J. Super. at 391-92.

The "[p]laintiffs made no effort to establish the viability or

value of their underlying medical malpractice action. Rather,

they sought to recover damages for the mental anguish and

emotional distress allegedly caused by the legal malpractice."

Id. at 390. Plaintiffs testified "that they developed various

psychological problems because of their dashed expectations."

Id. at 392. The jury awarded both compensatory and punitive

damages against the defendants. Id. at 394. Although we

reversed because of the inadequacy of the jury instructions, id.

at 394-96, we concluded that a remand was unnecessary because

34 A-0387-11T1 "the evidence was wholly insufficient to support a recovery of

either compensatory or punitive damages." Id. at 396.

We began by noting "[t]he general rule is that an attorney

is responsible for the loss proximately caused the client by his

negligence." Id. at 397. "[T]he measure of damages is

ordinarily the amount that the client would have received but

for his attorney's negligence." Ibid. (citing Lieberman, supra,

84 N.J. at 342). We recognized that damages would often be

proven by the "suit within a suit" method, that is "by

introducing evidence establishing the viability and worth of the

claim that was irredeemably lost." Ibid. However, we also

recognized the Court "eschewed rigid application of the 'suit

within a suit' principle in favor of a more flexible rule." Id.

at 398; see also Garcia v. Kozlov, Seaton, Romanini & Brooks,

P.C., 179 N.J. 343, 361 (2004) (leaving it to the "court's

discretion to declare an appropriate trial model").

We were also "persuaded that emotional distress damages

should not be awarded in legal malpractice cases at least in the

absence of egregious or extraordinary circumstances." Gautam,

supra, 215 N.J. Super. at 399. "Whether viewed within the

context of the traditional concept of proximate cause, or simply

as a matter of sound public policy, we are convinced that

damages should be generally limited to recompensing the injured

35 A-0387-11T1 party for his economic loss." Ibid. (internal citations

omitted) (emphasis added). We observed that "the relationship

between the parties was predicated upon economic interest[,]

[and] [t]he loss, if one occurred, was purely pecuniary." Id.

at 400.

We further noted that "[e]ven if emotional distress damages

were recoverable in legal malpractice actions, such awards would

be impermissible in the absence of medical evidence establishing

substantial bodily injury or severe and demonstrable psychiatric

sequelae proximately caused by the tortfeasor's misconduct."

Id. at 399. "Aggravation, annoyance and frustration, however

real and justified, constitute unfortunate products of daily

living. Damages for idiosyncratic psychiatric reactions should

not be permitted." Id. at 400. We also acknowledged that "the

outer-most boundaries of the law dealing with emotional distress

damages are not yet visible," but the facts of the case did not

permit such an award. Ibid.

We continued to recognize Gautam's general principles in

Winstock v. Galasso, 430 N.J. Super. 391 (App. Div.), certif.

denied, 215 N.J. 487 (2013). There, the plaintiffs, a police

officer and his wife, filed a legal malpractice claim against

their attorney who had provided them with advice concerning the

legality of operating a club hosting poker games. Id. at 399-

36 A-0387-11T1 401. The plaintiffs were subsequently arrested and criminally

charged with perjury and various gambling offenses. Id. at 408.

As part of a global plea agreement with the State, the husband

entered a guilty plea and his wife entered the Pre-Trial

Intervention Program. Id. at 395. As a result, the husband

forfeited his position as a police officer. Id. at 409.

Although we reversed summary judgment dismissing the

plaintiffs' complaint, we affirmed the motion judge's dismissal

of the plaintiffs' emotional distress claim. Citing Gautam,

supra, 215 N.J. Super. at 399, we noted, "[t]here is nothing in

the record before us that substantiates a finding of 'egregious

or extraordinary circumstances' warranting this form of relief."

Id. at 418-19.

The only other reported decision from our courts that

directly addresses the issue is Kohn v. Schiappa, 281 N.J.

Super. 235, 236-37 (Law Div. 1995), in which the court

considered whether damages for emotional distress were

recoverable when the attorney was retained to pursue the purely

non-economic interests of his clients. In that case, the

plaintiffs retained defendant to assist them in adopting a

child. Id. at 241. They alleged that the attorney erroneously

disclosed confidential information in the adoption complaint and

claimed this breach caused them to suffer severe emotional

37 A-0387-11T1 distress. Id. at 237. The court denied the defendant's motion

for summary judgment and distinguished Gautam:

While Gautam held that damages should be limited to recompensating the injured party for his economic loss, . . . that court was not asked to consider, nor did it address, whether damages for emotional distress were recoverable in cases involving non-economic claims where the "suit within a suit" framework is inapplicable. Consequently, it cannot be said that Gautam forecloses a plaintiff from alleging severe emotional distress where the underlying representation was for non-economic purposes.

[Id. at 241 (internal quotation marks and citation omitted).]

The Law Division explained that, in an adoption or similar

proceeding, such as contested child custody disputes, attorneys

would have virtual immunity for their negligence if plaintiffs

had no ability to seek emotional distress damages. Id. at 238-

39, 241-42.

Two reported federal district court decisions also have

distinguished Gautam so as to permit the assertion of emotional

distress damages in a legal malpractice claim when the client's

interest was non-pecuniary in nature. First, in Lawson v.

Nugent, 702 F.Supp. 91, 92 (D.N.J. 1988), the plaintiff brought

a legal malpractice claim against his attorney whose alleged

malpractice resulted in an additional twenty months of

confinement upon conviction. The plaintiff sought damages for

38 A-0387-11T1 the "emotional anguish he sustained" as a result. Ibid. The

court distinguished the case from Gautam, noting "[t]he

relationship between plaintiff-client and defendant-attorney was

not necessarily predicated upon economic interest." Id. at 93.

The court observed that because this was a "diversity case," it

"must decide the issues in accordance with the law of New

Jersey." Id. at 94. Further noting that "[d]amages for

emotional distress have been allowed by New Jersey courts in an

increasing number and variety of contexts," ibid., the court

concluded that the "plaintiff should be allowed to prove damages

for emotional distress attributable to the extra twenty months

of confinement in a maximum security penitentiary." Id. at 95.

In Snyder v. Baumecker, 708 F.Supp. 1451, 1453 (D.N.J.

1989), the plaintiff brought suit on behalf of herself and the

estate of her son, who committed suicide while in custody for

motor vehicle offenses. One of the defendants was her son's

court-appointed attorney, who allegedly committed malpractice.

Id. at 1453, 1462. Citing its prior decision in Lawson, supra,

the court again distinguished Gautam, noting that the attorney-

client relationship there was "predicated on an economic

interest, while . . . in the case at bar, the attorney was

retained to provide a defense to a criminal prosecution, thus

making emotional distress, in the latter situation, a reasonably

39 A-0387-11T1 foreseeable consequence of an attorney's malpractice." Id. at

1464.

Kohn's holding that emotional distress damages are

recoverable in a legal malpractice case where non-economic

interests are at stake has been described as the "minority

rule." Leonard v. Walthall, 143 F.3d 466, 468 (8th Cir. 1998).

In Leonard, the plaintiffs alleged negligence in the defendant's

representation of their interests in an adoption. Id. at 467.

The Eighth Circuit was asked to predict "whether, under Arkansas

law, plaintiffs may recover damages for their alleged emotional

distress resulting from defendant's negligent conduct,

notwithstanding the undisputed fact that plaintiffs have

suffered no physical injury or harm to a personal or economic

interest." Id. at 468. Relying upon the decision in Thornton

v. Squyres, 877 S.W.2d 921 (Ark. 1994), which involved the

plaintiff's "claim of outrage . . . based upon allegations that

her attorney mishandled her divorce and thus caused her

temporarily to lose custody of her child," the Leonard court

affirmed dismissal of the plaintiffs' complaint. Ibid.; see

also Taylor v. Paskoff & Tamber, LLP, 908 N.Y.S.2d 861, 863

(Sup. Ct. 2010) (rejecting claims for emotional distress damages

in a legal malpractice action involving representation in

adoption or custody matters).

40 A-0387-11T1 However, nearly a quarter of a century ago, one commentator

recognized "an emerging trend . . . that allows a client to

recover for emotional distress." Kelleher, Joseph J., "An

Attorney's Liability for the Negligent Infliction of Emotional

Distress," 58 Fordham L. Rev. 1309, 1319 (1990). This

"developing trend emphasizes the client's injured interest in

determining the extent of the attorney's liability for emotional

distress damages." Id. at 1320. "Where the attorney is

protecting a pecuniary interest, emotional distress damages are

severely limited[,] [but] [w]here the interest is personal,

. . . courts adopting this view are more willing to compensate

emotional harm." Id. at 1320-21.

In Miranda v. Said, 836 N.W.2d 8, 11-13 (Iowa 2013),

relying upon their attorney's advice, the plaintiffs voluntarily

left their children behind in the United States and returned to

their native Ecuador, from where they intended to emigrate

legally. When they attempted to return, they learned that they

were subject to a ten-year bar because they had voluntarily left

this country. Id. at 12. The Iowa Supreme Court concluded that

the facts presented warranted an exception to the general rule

that denied recovery of emotional distress damages in a legal

malpractice case. Id. at 33. The court noted it "is generally

foreseeable that emotional distress would accompany the

41 A-0387-11T1 prolonged separation of a parent and child." Id. at 32 (citing

McEvoy v. Helikson, 562 P.2d 540, 542, 544 (Or. 1977),

superseded by rule on other grounds, Moore v. Willis, 767 P.2d

62, 64 (Or. 1988); Person v. Behnke, 611 N.E.2d 1350, 1353 (Ill.

App. Ct.), appeal den., 622 N.E.2d 1226 (Ill. 1993)). The

Miranda court concluded such damages are appropriate where

"[t]he relationship involved a transaction charged with emotions

in which negligent conduct by the attorney was very likely to

cause severe emotional distress." Id. at 33.

In Person, supra, 611 N.E.2d at 1353, the Illinois appeals

court recognized "a valid claim . . . for noneconomic damages

resulting from a plaintiff's loss of custody and visitation of

his children which allegedly resulted from an attorney's

negligence."

McEvoy presents strikingly similar circumstances to this

case. The plaintiff-father brought suit against his ex-wife's

attorney. McEvoy, supra, 562 P.2d at 541. Pursuant to the

divorce decree, the plaintiff was awarded custody of the

couple's child. However, a subsequent order, executed by all

parties and the attorneys, gave the mother, a Swiss citizen,

temporary custody, subject to both parents delivering all

passports to the defendant until the child was returned to her

father. Ibid. The plaintiff alleged that the defendant failed

42 A-0387-11T1 to honor the order and gave his daughter's passport to his ex-

wife, permitting the child to be removed to Switzerland. Id. at

542.

The court reversed the lower court's dismissal of the

complaint. Id. at 544. It concluded that "conduct by defendant

which resulted in an infringement of" the plaintiff's right to

custody of his daughter, "if established by evidence on trial,

would entitle [the] plaintiff to recover damages for anguish and

mental [suffering] due to the loss of his minor child, as

alleged in the complaint." Ibid. (citations omitted) (second

alteration in original).

We conclude that plaintiffs' claim for emotional distress

damages was clearly appropriate under the facts of this case.

We do not view this as an unwarranted extension of what we said

in Gautam, specifically that emotional distress damages are

generally unavailable in a legal malpractice action absent

"egregious" and "extraordinary" circumstances. Gautam, supra,

215 N.J. Super. at 399. We used those terms in Gautam to deny a

claim in the context of a "relationship between the parties"

"predicated upon economic interest," where the plaintiffs' loss

"was purely pecuniary." Id. at 400; and see Restatement (Third)

of the Law Governing Lawyers, § 53 comment g. (2000) (emotional

43 A-0387-11T1 distress "damages are inappropriate in types of cases in which

emotional distress is unforeseeable").

However, when the harm caused by an attorney's professional

negligence is personal in nature and emanates from the

fundamental relationship between parent and child, we must

assess whether it was "egregious" and "extraordinary" through a

different prism. The trial judge specifically relied upon our

decision in Segal.

There, a father brought suit on behalf of himself and his

children against the children's mother for intentional

infliction of emotional distress based on alienation of the

children's affections. Segal, supra, 413 N.J. Super. at 176-77.

For essentially two different reasons, we concluded that the

plaintiff's complaint was properly dismissed by the Law

Division.

First, we noted that the suit presented a "litigation tug-

of-war" with the children in the middle. Id. at 189. We were

"satisfied that [the] plaintiff's cause of action . . .

constitute[d] a prima facie case of potential harm to the

children named as parties thereto." Id. at 190-91. "As a

matter of public policy," we concluded that plaintiff's

"grievances" must be brought in the Family Part "as part of an

action for custody or parenting time, where the governing

44 A-0387-11T1 principle for adjudication will be the best interests of these

two children." Id. at 192.

We also concluded that the plaintiff had "not established a

cause of action for intentional infliction of emotional

distress." Id. at 191. We noted that, among other things, the

elements of that tort required a showing that the "defendant's

conduct was 'so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to

be regarded as atrocious, and utterly intolerable in a civilized

community[.]'" Ibid. (quoting Buckley v. Trenton Sav. Fund

Soc., 111 N.J. 355, 366 (1988)). Although the plaintiff failed

to allege such conduct in the case, we specifically did not

foreclose the possibility that a cause of action may be brought alleging facts that are so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community, thus satisfying prong two of the Buckley standard. . . . As we previously noted, cases involving prolonged parental abduction, where children are intentionally removed to foreign jurisdictions for the purpose of frustrating the innocent parent's custodial rights, or intentional false accusations of parent/child sexual abuse, are but two examples of factual scenarios that may satisfy the outrageous conduct requirement under Buckley.

[Id. at 192 (internal quotation marks and citation omitted) (emphasis added).]

45 A-0387-11T1 Defendants contend that applying Segal here would be an

unwarranted "extension of liability for a client's intentional

infliction of emotional distress to the tortfeasor's attorney by

way of a legal malpractice claim[.]" We do not necessarily

agree. However, we need not directly address that contention

because we conclude that Segal does have relevance to the extent

that it explained the kind of "egregious" and "extraordinary"

conduct that, when combined with the personal interests at

stake, permit recovery for emotional distress damages in an

action sounding in legal malpractice.

We hasten to add that most factual situations will not

support such a claim, even when the underlying interests are

non-pecuniary and personal in nature. We view the "egregious"

and "extraordinary" qualifier as a sensible limitation on what

might otherwise become an increasing slew of litigation arising

out of the obviously emotionally-charged proceedings that occur

daily in the Family Part. So, for example, absent egregious and

extraordinary circumstances, a client's claim that his

attorney's malpractice resulted in an order awarding custody to

his adversary or limiting his parenting time would not support

an award of emotional distress damages. In such situations, the

deprivation to the client can be fully redressed by the Family

Court through applications addressed to the sound discretion and

46 A-0387-11T1 equitable powers of the judge, including future modification of

the award. To the extent Kohn suggested otherwise, we

disapprove it.14

Moreover, permitting claims for emotional distress in a

legal malpractice action, even one centered on the client's

personal as opposed to pecuniary interests, might provide

thinly-veiled cover for damage claims attributable to the

unfortunate, but well-recognized, anxiety that accompanies

litigation in all forms. See Picogna v. Bd. of Educ. of Cherry

Hill, 143 N.J. 391, 399 (1996) (denying "litigation-induced"

stress as a component of emotional distress damages).

In this case, however, defendants' actions were "egregious"

and "extraordinary." Despite knowing of the Agreement,

including that it had been signed by the parties and the

attorneys, the already contentious nature of the parties'

separation and Innes's reliance on the safekeeping of Victoria's

passport, defendants breached their duty and simply gave the

passport to Carrascosa. They did so without notifying Van Aulen

and without seeking approval from the court. Defendants'

14 Because the issue is not before us, we specifically do not decide whether the deprivation of a liberty interest, like the facts presented in Lawson, supra, and Snyder, supra, is the kind of personal interest that would support an award of emotional distress damages in a legal malpractice action either with, or without, proof of egregious and extraordinary circumstances.

47 A-0387-11T1 conduct was sufficiently "egregious" and "extraordinary" to

permit an award of emotional distress damages in this case.

(ii)

Defendants argue that plaintiffs presented insufficient

evidence of emotional distress damages because they failed to

prove, through expert medical testimony or otherwise, that they

suffered "demonstrable psychiatric sequelae proximately caused"

by defendants' negligence. Gautam, supra, 215 N.J. Super. at

399. To address this argument, we need to consider the origin

of the requirement for this "heightened showing of emotional

distress." Menorah Chapels at Millburn v. Needle, 386 N.J.

Super. 100, 116 (App. Div.) (citations omitted), certif. denied,

188 N.J. 489 (2006).

Whether it is alleged that the defendant acted

intentionally, recklessly or negligently, the Court has said

that recovery lies only if the plaintiff can prove the emotional

distress produced by the defendant's tortious conduct was

"severe," Buckley, supra, 111 N.J. at 367, or "genuine and

substantial." Decker v. Princeton Packet, Inc., 116 N.J. 418,

430 (1989). "'Severe emotional distress means any type of

severe and disabling emotional or mental condition which may be

generally recognized and diagnosed by professionals trained to

do so . . . .'" Taylor v. Metzger, 152 N.J. 490, 515 (1998)

48 A-0387-11T1 (quoting Poole v. Copland, Inc., 481 S.E.2d 88, 93 (N.C. 1997)).

"Although New Jersey permits recovery for emotional distress

damages in some cases, the potential for fabricated claims

justifies a requirement of enhanced proof to support an award of

such damages." Picogna, supra, 143 N.J. at 396-397.

"By circumscribing the cause of action with an elevated

threshold for liability and damages, courts have authorized

legitimate claims while eliminating those that should not be

compensable." Buckley, supra, 111 N.J. at 367 (emphasis added).

As the Court said in Decker,

While the foreseeability of injurious consequences is a constituent element in a tort action, foreseeability of injury is particularly important in the tort of negligent infliction of emotional harm. This reflects the concern over the genuineness of an injury consisting of emotional distress without consequent physical injury. In these situations, there must be "an especial likelihood of genuine and serious mental distress, arising from special circumstances, which serves as a guarantee that the claim is not spurious." In emotional distress cases, there has been "a constant concern about the genuineness of the claim."

[116 N.J. at 429-30 (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts, § 54 at 362 (5th ed. 1984)) (emphasis added).]

Our courts have recognized two types of tortious conduct

that support a claim for negligent infliction of emotional

49 A-0387-11T1 distress. "A claim of direct, negligent infliction of emotional

distress," can exist where the plaintiff claims proximately-

caused damages as a result of the breach of a duty owed by the

defendant. Lascurain v. City of Newark, 349 N.J. Super. 251,

277 (App. Div. 2002). A second type of claim, first recognized

in Portee v. Jaffee, 84 N.J. 88, 101 (1980), exists if the

plaintiff witnessed the death or serious physical injury of

another, with whom he shares a marital or intimate, familial

relationship, as the result of the defendant's negligence.

McDougall v. Lamm, 211 N.J. 203, 214-215 (citing Portee, supra,

84 N.J. at 101). In both, the plaintiff must demonstrate

"severe emotional distress," id. at 215, or "genuine and

substantial emotional distress." Lascurain, supra, 349 N.J.

Super. at 277.

"'The severity of the emotional distress raises both

questions of law and fact. Thus, the court decides whether as a

matter of law such emotional distress can be found, and the jury

decides whether it has in fact been proved.'" Lascurain, supra,

349 N.J. Super. at 279 (quoting Buckley, supra, 111 N.J. at

367). We have said that "[i]n order to be actionable, the

claimed emotional distress must be sufficiently substantial to

result in physical illness or serious psychological sequelae."

Aly v. Garcia, 333 N.J. Super. 195, 204 (App. Div. 2000).

50 A-0387-11T1 Complaints such as lack of sleep, aggravation, headaches

and depression have been frequently deemed insufficient as a

matter of law. DeAngelis v. Hill, 180 N.J. 1, 20-21 (2004);

Buckley, supra, 111 N.J. at 368; see also Juzwiak v. Doe, 415

N.J. Super. 442, 453 (App. Div. 2010) (finding complaints of

"weight loss, sleeplessness, anxiety and depression" without

"objective documentation of [the] claims" to be insufficient);

Lascurain, supra, 349 N.J. Super. at 280; but see Wigginton v.

Servidio, 324 N.J. Super. 114, 123-24, 132 (App. Div. 1999)

(finding the plaintiff's sixty-day medical leave of absence from

work and symptoms of "nausea and diarrhea" and depression

sufficiently severe to allow her to proceed to trial on an

emotional distress claim), certif. denied, 163 N.J. 11 (2000).

We acknowledge that Innes's testimony regarding his own

emotional distress was quite limited, and no expert medical

evidence was introduced on his behalf. As noted, Berson did not

qualify as an expert witness regarding Victoria's emotional

distress claims, and there was no proof otherwise from any

witness.

The trial judge cited Rendine v. Pantzer, 141 N.J. 292,

312-13 (1995), for the proposition that expert medical evidence

of plaintiffs' emotional distress was unnecessary. Undoubtedly,

that was part of the Court's holding in Rendine. However, the

51 A-0387-11T1 Court's decision in that case was based upon both the broad

remedial purpose of the Law Against Discrimination, (LAD),

N.J.S.A. 10:5-1 to -42, and the then recently-enacted amendment,

N.J.S.A. 10:5-3, that specifically recognized "emotional stress"

as cognizable damages under the statute. Rendine, supra, 141

N.J. at 312. In this case, plaintiffs' claims for emotional

distress damages were allegedly the result of defendants'

negligence. Unlike Rendine, there was no broad, statutorily-

created remedy that necessarily relieved plaintiffs of their

burden to prove "severe" or "genuine and substantial" emotional

distress.

However, in certain circumstances, "[t]he Court has

distinguished a cause of action in tort or contract seeking

consequential damages for emotional distress from a cause of

action alleging intentional infliction of emotional distress,

holding that only the latter requires a heightened showing of

emotional distress." Menorah Chapels, supra, 386 N.J. Super. at

116. For example, "[c]ourts have required little or no proof

with regard to intangible damages for malicious use of process,

apparently in the belief that a normal person subjected to

wrongful litigation would have suffered at least some damages."

Baglini v. Lauletta, 338 N.J. Super. 282, 307 (App. Div. 2001)

(internal quotation marks and citation omitted).

52 A-0387-11T1 We also rejected the need for an enhanced standard of proof

in Geler v. Akawie, 358 N.J. Super. 437 (App. Div.), certif.

denied, 177 N.J. 223 (2003). There, the plaintiffs brought a

medical malpractice claim against various doctors based upon the

"wrongful birth" of their son, who was stricken with Tay-Sachs

disease and died within two years of his birth. Id. at 443.

The trial judge granted the defendant-doctor's motion for JNOV

on the jury's award of emotional distress damages. Id. at 444.

In reversing, we held that the "elevated standard" for emotional

distress claims did not apply. Id. at 450.

[W]e note a distinction between the judicial treatment of claims for parental emotional distress arising from negligence directed solely at the parents, as here, and claims for parental emotional distress arising from negligence also directly affecting their newborn child. This case falls within the former category, and thus squarely within Supreme Court precedent recognizing, without mention of an enhanced standard of proof, parental emotional distress as an element of damages in other genetic counseling malpractice contexts.

[Ibid. (citing Berman v. Allan, 80 N.J. 421 (1979)).]

We also recognized that "an award of damages for emotional

distress . . . [was] one of the few avenues of redress for

tortious conduct in this circumstance." Id. at 451.

In this case, plaintiffs did not seek emotional distress

damages under the rubric of negligent or intentional infliction

53 A-0387-11T1 of emotional distress, torts whose essential elements require a

"heightened showing" of physical or psychological sequelae.

Menorah Chapels, supra, 386 N.J. Super. at 116. Rather,

plaintiffs sought damages as the direct and proximate

consequence of defendants' breach of their professional

responsibility.

Under the particular facts of this case, plaintiffs were

entitled to recover for emotional distress damages without

enhanced proof based upon the particular, and foreseeable,

consequence of defendants' breach of the duty owed, i.e., the

complete, and potentially, permanent rupture of the parent-child

bond. The nature of this particular harm mitigates against the

reason for an enhanced standard of proof in the first instance —

the elimination of spurious claims. In such "'special

circumstances,'" "'an especial likelihood of genuine and serious

mental distress . . . serves as a guarantee that the claim is

not spurious.'" Strachan v. John F. Kennedy Mem. Hosp., 109

N.J. 523, 537 (1988) (quoting Prosser, supra, § 54 at 362).

For example, in Menorah Chapels, supra, 386 N.J. Super. at

106, 116, we reversed dismissal of the defendant's counterclaim

seeking emotional distress damages as a result of the

plaintiff's alleged breach of a contract to perform funeral

services in strict accordance with orthodox Jewish custom and

54 A-0387-11T1 belief. We found it was foreseeable that, because the contract

implicated interests so personal and particular to the

defendant, the plaintiff's breach would result in mental

anguish. Id. at 115-18; and see Muniz v. United Hospitals

Medical Center Presbyterian Hospital, 153 N.J. Super. 79, 82

(App. Div. 1977) (reversing dismissal of the plaintiff's

complaint against the defendant-hospital, noting "a deviation

from the standard of care reasonably to be expected of a

hospital in dealing with corpses and the reasonable

foreseeability that such a deviation would cause emotional and

substantial physical disability with respect to persons normally

constituted").

In Berman, supra, 80 N.J. at 433, the Court recognized the

plaintiffs' claims for emotional distress damages against the

defendant doctors who "directly deprived [the mother] . . . of

the option to accept or reject a parental relationship with the

child[,] and thus caused them to experience mental and emotional

anguish upon their realization that they had given birth to a

child afflicted with Down's Syndrome." Justice Handler wrote

eloquently, "[b]ecause of the unique nature of the tort,

involving as it does the denial of the opportunity to decide

whether to become the parents of a handicapped child, the

suffering of the parents assumes another, important dimension."

55 A-0387-11T1 Id. at 439 (Handler, J., concurring in part, dissenting in

part); see also Portee, supra, 84 N.J. at 101 (where the court

noted that the "interest in personal emotional stability is

worthy of legal protection against unreasonable conduct," when

the "emotional harm follow[s] the perception of the death or

serious injury to a loved one . . . , for few persons travel

through life alone").

In this case, Innes's testimony was sufficient to permit

the jury to award him emotional distress damages proximately

caused by defendants' breach of their duty. Unlike Gautam,

supra, 215 N.J. Super. at 400, where "the relationship between

the parties was predicated upon economic interest[,] [and] [t]he

loss, if one occurred, was purely pecuniary[,]" the loss in this

case was particularly personal in nature - the inability of a

father to see his daughter for many years, and the likely

prospect that he may never see her again. The New Jersey

Supreme Court has long recognized that "'[t]he right to

. . . raise one's children [is an] essential, basic civil

right[,] . . . far more precious than property rights.'" N.J.

Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)

(first alteration in original) (quoting Stanley v. Illinois, 405

U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L.Ed. 2d 551, 558

(1972)). The emotional distress caused by the irreparable

56 A-0387-11T1 severance of the parent-child bond is expected, undoubtedly

genuine and easily appreciated by the average person without the

need for expert testimony.

Furthermore, there is no other form of redress for

defendants' tortious conduct in this case. Geler, supra, 358

N.J. Super. at 451. "Any other ruling would in effect immunize

[defendants] from liability[.]" Berman, supra, 80 N.J. at 432.

We therefore affirm the award of emotional distress damages to

Innes.15

We are, nevertheless, compelled to reach a different result

with respect to the award on Victoria's behalf. There was

simply no testimony regarding her emotional distress, meaning

the jury's award was based upon speculation. See Jablonowska v.

Suther, 195 N.J. 91, 102 (2008) (where, discussing historical

limits on claims for emotional distress, the Court noted that

"[f]rom a policy standpoint, courts . . . feared a 'flood of

litigation[ ] in cases . . . where the damages must rest upon

mere conjecture and speculation'") (quoting Ward v. W. Jersey &

Seashore R.R. Co., 65 N.J.L. 383, 386 (Sup. Ct. 1900) (emphasis

added)).

15 Defendants have not specifically challenged the amount of the award.

57 A-0387-11T1 Although Berson did not testify before the jury, during the

N.J.R.E. 104 hearing, she was asked "what effect, if any, do you

know of that the alienation [from her father] had upon

[Victoria]?" Berson answered, "I don't know this particular

child. So I can't possibly answer that." Plaintiffs contend

that they were denied the opportunity to have Victoria evaluated

because of defendants' actions. We cannot determine on this

record whether that is necessarily true, but the trial judge

rejected that excuse as a reason to permit Berson's testimony.

We therefore reverse that part of the judgment awarding

emotional distress damages to Victoria.

C.

Citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427

(2001), and Saffer, supra, 143 N.J. at 256, the judge observed

that clients could recover reasonable expenses and attorney's

fees as consequential damages for an attorney's negligence. He

explained that even though plaintiffs were not defendants'

clients, defendants owed them a duty to hold Victoria's passport

in trust, and defendants knew or should have known of Inness's

reliance upon them.

Defendants contend it was error to award plaintiffs

attorneys' fees because "the narrow exception to the American

58 A-0387-11T1 Rule in the context of a legal malpractice action" does not

apply since Innes was not defendants' client. We disagree.16

The American Rule prohibits the prevailing party from

recovering counsel fees against the losing party. In re Niles

Trust, 176 N.J. 282, 294 (2003). "The purposes behind the

American Rule are threefold: (1) unrestricted access to the

courts for all persons; (2) ensuring equity by not penalizing

persons for exercising their right to litigate a dispute, even

if they should lose; and (3) administrative convenience." Ibid.

The Court, however, has "created carefully limited and

closely interrelated exceptions to the American Rule[.]" In re

Estate of Vayda, 184 N.J. 115, 121 (2005). One such exception

permits the successful plaintiff in a legal malpractice action

to recover the attorneys' fees incurred in prosecuting that

action, because those are damages proximately caused by the

attorney's negligence. Ibid. (citing Saffer, supra, 143 N.J. at

271).

The Court subsequently "extended the limited exception

allowing the recovery of attorneys' fees in attorney malpractice

actions . . . to include actions for attorney misconduct[.]"

Ibid. (citing Packard-Bamberger, supra, 167 N.J. at 443). In

16 Defendants do not challenge the amount of the fee awards or the judge's methodology in calculating the awards.

59 A-0387-11T1 Packard-Bamberger, the defendant, who was both a corporate

director of, and legal counsel to, the plaintiffs, "committed

intentional misconduct in his role as counsel." Packard-

Bamberger, supra, 167 N.J. at 442. The Court said

[s]tated plainly, an attorney who intentionally violates the duty of loyalty owed to a client commits a more egregious offense than one who negligently breaches the duty of care. A client's claim concerning the defendant-attorney's breach of a fiduciary duty may arise in the legal malpractice context. Nonetheless, if it does not and is instead prosecuted as an independent tort, a claimant is entitled to recover attorneys' fees so long as the claimant proves that the attorney's breach arose from the attorney-client relationship. Accordingly, we hold that a successful claimant in an attorney-misconduct case may recover reasonable counsel fees incurred in prosecuting that action.

[Id. at 443.]

However, the Court also said that "a plaintiff must demonstrate

the existence of an attorney-client relationship as a

prerequisite to recovery." Id. at 443.

The Court subsequently explained the expansion of this

exception to the American Rule as having its "focus on the

recovery of attorneys' fees as damages directly and proximately

arising from the attorney's breach of fiduciary duty to the

plaintiff." Estate of Vayda, supra, 184 N.J. at 122 (emphasis

added). In In re Estate of Stockdale, 196 N.J. 275, 307 (2008),

60 A-0387-11T1 the Court described its holding in Packard-Bamberger as

permitting the recovery of counsel fees "in claims against

attorneys who intentionally violate their fiduciary duties[.]"

(Citing Packard-Bamberger, supra, 167 N.J. at 443). And, in

Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372,

405 (2009), the Court described Saffer and Packard-Bamberger as

examples of "a tightly circumscribed common law exception to the

American Rule that defies ready description, but may be titled

loosely as fiduciary malfeasance cases[.]"

We conclude that although no reported case specifically

extends Saffer's exception to the American Rule to a suit

brought against an attorney by a non-client, attorney's fees

should be awarded in this case as a direct and proximate result

of defendants' actions. Saffer, supra, 143 N.J. at 272;

Lieberman, supra, 84 N.J. at 341. To hold otherwise would

essentially eviscerate the very purpose of the exception to the

American Rule by denying plaintiffs a full award for the

consequential damages suffered as a result of defendants'

actions.

The attorney fee award is particularly appropriate in this

case, since defendants were holding Victoria's passport in trust

and knew Innes and his attorney were relying upon the Agreement.

61 A-0387-11T1 Nevertheless, they intentionally violated the Agreement and gave

the passport to Carrascosa upon her request.

We affirm that portion of the judgment that reflects the

award of counsel fees to Innes. Because we have reversed the

judgment on behalf of Victoria, she is not a prevailing party,

and therefore is not entitled to an award of fees. We vacate

that portion of the judgment.

III.

We next consider defendants' claim that it was error to

sever their third-party complaint against Carrascosa from trial

and to dismiss the complaint with prejudice after trial. The

trial judge raised the severance issue sua sponte and provided

all parties with an opportunity to address the issue several

months before the trial began.

In a short written opinion dated February 18, 2011, the

judge decided severance was appropriate "for the convenience of

the parties, and to avoid prejudice to . . . Carrascosa." The

judge noted that defendants were being represented at trial by

Walter Lesnevich, a principal in the Lesnevich firm and husband

of Marzano-Lesnevich. Relying on RPC 1.9, the judge determined

that Lesnevich was disqualified from representing defendants in

litigation against their former client, Carrascosa. The judge

concluded that defendants would not be prejudiced by a severance

62 A-0387-11T1 because they were able to present their defense at trial, and,

if successful, the contribution claim against Carrascosa would

"evaporate." If unsuccessful, defendants were free to pursue

their contribution claim at a second trial represented by other

counsel.

Rule 4:38-2(a) provides that a court may order a separate

trial of any claim for the convenience of the parties or to

avoid prejudice. "[O]ur Rules vest the determination whether or

not to sever claims to the sound exercise of a trial court's

discretion." Rendine, supra, 141 N.J. at 310 (citing R. 4:38-

2(a)).

"RPC 1.9(a) plainly provides that [a] lawyer who has

represented a client in a matter shall not thereafter represent

another client in the same or substantially related matter in

which that client's interests are materially adverse to the

interests of the former client unless the former client gives

informed consent confirmed in writing." City of Atlantic City

v. Trupos, 201 N.J. 447, 451 (2010). Matters are considered

"substantially related" if

(1) the lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent representation of parties adverse to the former client, or

63 A-0387-11T1 (2) facts relevant to the prior representation are both relevant and material to the subsequent representation.

[Id. at 467.]

Subject to certain exceptions that do not apply here, "[w]hen

lawyers are associated in a firm, none of them shall knowingly

represent a client when any one of them practicing alone would

be prohibited from doing so by . . . RPC 1.9 [.]" RPC 1.10(a).

Here, the judge did not mistakenly exercise his discretion

by severing defendants' contribution claim against Carrascosa.

Lesnevich clearly could not represent defendants in a

"substantially related matter in which" defendants' interests

were "materially adverse" to those of their former client.

In the end, however, the severance decision was immaterial

because the judge ultimately dismissed defendants' contribution

claim against Carrascosa. In his written opinion, citing

Blazovic v. Andrich, 124 N.J. 90 (1991), the judge concluded

that any apportionment of fault was inappropriate because

defendants had a duty to prevent the "specific misconduct" of

their client. As the judge explained:

As a result of the attorney-client relationship between . . . Carrascosa and the defendants, a relationship that derives its genesis from Victoria's passport and the attendant ramifications arising from that document, the Lesnevich firm was also charged with preventing any harm from befalling Peter and Victoria Innes. The

64 A-0387-11T1 jury verdict was issued in accordance with this notion. All of these factors therefore coalesce to place . . . Carrascosa outside the boundaries of the traditional joint tortfeasor realm.

Defendants argue before us that they are entitled to

contribution from Carrascosa under the JTCL. We disagree and

affirm the judge's dismissal of defendants' third-party

complaint for contribution.

Pro rata apportionment of liability among negligent and

intentional tortfeasors is appropriate based upon the

"percentages of fault assigned by the trier of fact." Blazovic,

supra, 124 N.J. at 105, 107-12. However, an exception to the

general rule applies "when the duty of one encompassed the

obligation to prevent the specific misconduct of the other."

Id. at 111 (citing Butler v. Acme Markets, Inc., 89 N.J. 270

(1982)).

Application of this exception relies upon both the

foreseeability of the "specific misconduct" and its "adequate

causal relationship" to the duty imposed on the other tortfeasor

to prevent it. Id. at 112. See e.g., Waldron v. Johnson, 368

N.J. Super. 348, 349-50, 352 (App. Div.) (rejecting the Blazovic

exception where the plaintiff's recovery against a shopping mall

for an assault at an automatic teller machine "was not so

foreseeable nor did it bear such a close causal connection to

65 A-0387-11T1 the [m]all's slow response to the melee that it should justify

imposing upon the [m]all the entire responsibility for [the]

plaintiff's injuries"), certif. denied, 182 N.J. 139 (2004);

Martin v. Prime Hospitality Corp., 345 N.J. Super. 278, 292

(App. Div. 2001) (holding that the plaintiff's sexual assault in

the defendant's hotel was "neither sufficiently foreseeable nor

sufficiently related to [the hotel's] alleged fault to justify

imposing responsibility on [the hotel] for all of the

[plaintiff's] injuries").

Here, the judge correctly held that the Blazovic exception

applied. Defendants were fully aware of the Agreement and

assumed a duty to safeguard Victoria's passport. Because they

released the passport to Carrascosa without notice to Innes or

his attorney, defendants failed to prevent the "specific

misconduct" that enabled Victoria's removal to Spain. Moreover,

based upon the evidence adduced at trial, that specific harm was

entirely foreseeable.

IV.

The balance of defendants' arguments lack sufficient merit

to warrant extensive discussion in a written opinion. R. 2:11-

3(e)(1)(E). Conk was clearly qualified to render the opinions

he gave at trial, and the judge did not mistakenly exercise his

discretion in so ruling. See Koseoglu v. Wry, 431 N.J. Super.

66 A-0387-11T1 140, 159 (App. Div.) (quoting Carey v. Lovett, 132 N.J. 44, 64

(1993)), ("'[T]he competency of a witness to testify as an

expert is remitted to the sound discretion of the trial court.

Absent a clear abuse of discretion, an appellate court will not

interfere with the exercise of that discretion.'"), certif.

denied, 216 N.J. 4 (2013).

Defendants cannot assert prejudice when they provided the

judge with a proposed charge that contained an improper

statement of the law regarding proximate cause, and then

commented on it extensively in summation. Although the judge

did not discern the error until afterwards, he properly

exercised his discretion and gave the jury a curative

instruction.

In sum, we affirm the judgment in all respects as it

applies to Innes. We reverse the judgment in all respects as it

applies to Victoria, and remand the matter to the Law Division

for entry of judgment in defendants' favor as to her claims. We

do not retain jurisdiction.

67 A-0387-11T1