Barry Cohen v. Jeff Horn
21-1223
| 3rd Cir. | Jul 13, 2021Background
- After their father died, two wills emerged: a 1999 will creating a trust and a 2009 will leaving assets to Cohen’s mother; the probate court ultimately admitted the 2009 will and vacated the 1999 will.
- Cohen hired Horn Law Group to contest probate matters; relations frayed, Horn withdrew, and Cohen alleges negligent representation thereafter.
- Cohen sued Horn and the firm in state court for malpractice, breach of contract, breach of fiduciary duty, negligence, and sought at least $400,000 (what he claimed he would have received under the 1999 will) plus reimbursement of legal fees; the case was removed to federal court.
- Defendants moved for summary judgment arguing Cohen could not prove proximate causation—the required "suit within a suit" showing that he would have prevailed in the probate action but for counsel’s negligence.
- The District Court granted summary judgment and closed the case; the Third Circuit affirmed summary judgment as to inheritance damages but vacated and remanded as to fee recovery and other possible claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proximate causation / "suit within a suit" (damages tied to inheritance) | Cohen: but for Horn's negligence, the 2009 will would not have been admitted and he would have recovered under the 1999 will | Defendants: Cohen cannot show by preponderance that he would have won the underlying probate action | Held: Affirmed as to inheritance damages—insufficient, non-speculative evidence to show he would have prevailed |
| Testamentary capacity of testator (dementia) | Cohen: father had dementia; thus 2009 will lacked testamentary capacity | Defendants: diagnosis and intake form insufficient; plaintiff must prove lack of capacity by clear and convincing evidence | Held: Evidence too weak to create a genuine dispute; cannot satisfy clear-and-convincing standard |
| Authenticity challenge to the 2009 will | Cohen: Horn should have contested authenticity; drafting attorney kept minimal records; other circumstantial evidence existed | Defendants: record and circumstantial evidence are speculative and would not have established invalidity | Held: Speculative/circumstantial proof insufficient to show the challenge would have succeeded |
| Recovery of legal fees and other non-inheritance claims (breach, fiduciary duty, negligence, failure to supervise) | Cohen: seeks reimbursement of fees and alleges multiple torts/contract claims beyond malpractice | Defendants: did not move on fees below; argue malpractice may subsume other claims on appeal | Held: Vacated in part and remanded—court must consider fee recovery and whether other claims survive; defendants may raise arguments on remand |
Key Cases Cited
- McGrogan v. Till, 771 A.2d 1187 (N.J. 2001) (elements of legal malpractice cause of action)
- Jerista v. Murray, 883 A.2d 350 (N.J. 2005) ("suit within a suit" requirement to prove proximate causation in malpractice actions)
- Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 845 A.2d 602 (N.J. 2004) (evidence that would have been submitted at trial to show underlying victory)
- Cortez v. Gindhart, 90 A.3d 653 (N.J. Super. Ct. App. Div. 2014) (actual damages must be non-speculative; plaintiff’s burden to prove damages)
- Saffer v. Willoughby, 670 A.2d 527 (N.J. 1996) (attorney may not collect fees for services negligently performed)
- Resch v. Krapf’s Coaches, Inc., 785 F.3d 869 (3d Cir. 2015) (standard for summary judgment; genuine dispute requires sufficient evidentiary basis)
- James v. City of Wilkes-Barre, 700 F.3d 675 (3d Cir. 2012) (courts may disregard conclusory legal statements at pleading stage)
- Erickson v. Pardus, 551 U.S. 89 (2007) (pro se complaints are to be construed liberally)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requires more than labels and conclusions)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard and treatment of legal conclusions)