ALEX PEREZ VS. SUSAN ADLER, ESQ. (L-8488-11, BERGEN COUNTY AND STATEWIDE)
A-4103-14T4
| N.J. Super. Ct. App. Div. | Oct 17, 2017Background
- Plaintiffs Alex and Cathy Perez filed suit arising from installation defects to an in-ground pool; initial litigation produced mixed results and ultimately a Supreme Court decision foreclosing CFA attorney-fee recovery.
- Plaintiffs later sued former counsel (Tesser & Cohen and Gary Moore) and their engineering expert (Porcello Engineering/Fred Porcello) for negligence, malpractice, breach of fiduciary duty, and breach of contract.
- Porcello prepared an expert report in the underlying case estimating repairs; plaintiffs retained architect Peter Wasem and attorney-expert Jeffrey Strauss to critique Porcello and opine on legal malpractice, respectively.
- Trial judge granted summary judgment to Porcello, Tesser & Cohen, and Moore after finding Wasem's report an inadmissible "net opinion" and Strauss's report insufficient on proximate cause (partly because it relied on Wasem).
- Plaintiffs' reconsideration motion and Tesser & Cohen's cross-motion were denied; plaintiffs appealed and Tesser & Cohen cross-appealed.
- Appellate Division affirmed all summary judgments and dismissed the cross-appeal, holding plaintiffs lacked admissible expert proof of standard of care and causation; claims based on speculation were insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Wasem's expert report against Porcello | Wasem (architect/engineer) identified statutory/regulatory sources and factual bases; his report shows Porcello understated damages and omitted key analysis | Wasem failed to identify an applicable engineering standard or explain the "why and wherefore"; his opinions are net opinions lacking objective support | Wasem's report is an inadmissible net opinion; Porcello entitled to summary judgment |
| Legal malpractice claim vs. Tesser & Cohen | Strauss opined firm failed to plead/disclose/protect CFA claims and failed to retain experts; these breaches caused damages | Strauss's causation opinion relies on Wasem (inadmissible) and is therefore a net opinion without admissible factual support | Strauss's proximate-cause opinion is a net opinion; Tesser & Cohen entitled to summary judgment |
| Legal malpractice claim vs. Moore (trial representation) | Moore was negligent for not calling surveyor Almonte; Strauss opined this failure undermined plaintiffs' case | Moore's decision not to call Almonte was trial strategy and, in any event, plaintiffs offer only speculation that Almonte's testimony would have changed outcome | Claim fails for lack of admissible expert proof of breach-causing damages; Moore entitled to summary judgment |
| Denial of jury trial right | Excluding net-opinion evidence and granting summary judgment deprived plaintiffs of jury trial | Summary judgment is appropriate where plaintiff fails to present sufficient admissible evidence to submit issues to a jury | Rejected; failure to adduce competent evidence is equivalent to waiver of jury trial on those claims |
Key Cases Cited
- Globe Motor Co. v. Igdalev, 225 N.J. 469 (2016) (standard of review for summary judgment)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995) (summary judgment standard and jury-right discussion)
- Pomerantz Paper Corp. v. New Comm. Corp., 207 N.J. 344 (2011) (net-opinion rule and requirement for evidential support)
- Polzo v. County of Essex, 196 N.J. 569 (2008) (expert opinion must provide "why and wherefore")
- Buckelew v. Grossbard, 87 N.J. 512 (1981) (expert testimony standards and net-opinion exclusion)
- Davis v. Brickman Landscaping, Ltd., 219 N.J. 395 (2014) (when expert testimony is required to establish standard of care)
- Perez v. Professionally Green, LLC, 215 N.J. 388 (2013) (Supreme Court decision on CFA attorney-fee entitlement)
- Jerista v. Murray, 185 N.J. 175 (2005) (elements of legal malpractice claim)