Legal Malpractice

Legal Malpractice: A Case Within a Case, Within a Case, Within ...

By (Andrew Lavoott Bluestone)

This is the type of case that gives litigation [and especially legal malpractice litigation] a bad name.  Phung v. Summerville is a well written, reasoned NJ decision which discusses an inexplicable situation.  Plaintiff has a nice 12 unit building in Elizabeth NJ.  She agrees to sell, but then makes unreasonable demands of the buyers.  They refuse to close.  She finds other buyers, but at closing demands that the buyers pay back taxes on the building.  They refuse, and eventually win a specific performance action.

Then things really go bad.  The story line is a sad tale.  Look at how much time was wasted by all:

"Plaintiff claimed that Espinosa committed legal malpractice in his handling of both the Rodriguez and Abreu matters. Espinosa denied any deviation from the standards of care. He contended that both matters ended unfavorably for plaintiff because of her own statements and actions. His account of the events diverged substantially from plaintiff's.

Plaintiff initially retained Ambrosio to sue Espinosa for legal malpractice. Ambrosio brought such a lawsuit on plaintiff's behalf in September 1996 in the Law Division in Union County. As the case progressed, plaintiff had disagreements with Ambrosio. The disagreements led Ambrosio to withdraw from plaintiff's representation and to disclaim any fee. Ambrosio arranged, with plaintiff's assent, to have Summerville substitute for him as her counsel in the litigation. At the time of the substitution, the discovery period had not yet elapsed.

Plaintiff then had disagreements with Summerville. One of their disputes concerned her firing of a real estate expert, William Ard, who Summerville had arranged to prepare a valuation of the subject property. The purpose of Ard's valuation was to attempt to show that plaintiff had suffered damages in the real estate transactions that Espinosa handled. Four months after succeeding Ambrosio, Summerville moved to withdraw as plaintiff's counsel, but the court denied his application.

Prior to the scheduled trial in Union County in the fall of 1998, the Law Division granted Espinosa's motion to dismiss plaintiff's legal malpractice case against him, with prejudice. Among other things, the dismissal was based on plaintiff's failure to have an expert who could demonstrate at trial that any alleged malpractice by Espinosa had caused her actual damage in the forced sale of the premises. The dismissal was also predicated on the court's application of principles of collateral estoppel against plaintiff, stemming from the Chancery judge's express findings in 1995 that (1) plaintiff had proper notice of the Abreus' specific performance case, and (2) the plain meaning of the Abreus' contract did not require them, as buyers, to pay the outstanding realty taxes.
Plaintiff retained a new attorney and appealed the dismissal order. We affirmed the order in a per curiam opinion in July 2000. Phung v. Espinosa, No. A-2884-98 (App. Div. July 27, 2000).

Subsequently, plaintiff filed the present legal malpractice action in the Law Division in Hudson County against Ambrosio, Summerville, and their respective law firms. She was represented in the case by another attorney, who was replaced by yet another attorney before trial.

Before trial, the court granted Ambrosio summary judgment for lack of proof of causation, because both Summerville and plaintiff's legal malpractice expert conceded that Summerville had ample time to prepare the case against Espinosa after Ambrosio withdrew. The summary judgment was memorialized in an order dated June 7, 2006.

The case proceeded to trial in Hudson County solely against Summerville and his firm. Plaintiff testified on her own behalf, and also presented testimony from a legal malpractice expert and a real estate broker. Summerville testified for the defense, along with Espinosa, Ard, and a competing legal malpractice expert.

After about thirty minutes of deliberations, the jury returned a verdict for the defendants. On the corresponding verdict sheet, the jury unanimously decided that plaintiff had failed to meet her burden of proving that Espinosa deviated from the standards of care in both the Rodriguez and Abreu matters. Those threshold determinations made it unnecessary for the jury to reach secondary questions on the verdict sheet concerning Summerville's own alleged deviations.

Plaintiff moved for a new trial, alleging that the verdict was against the weight of the evidence. The

Full post as published by New York Attorney Malpractice Blog on June 16, 2008 (boomark / email).