Peter Innes v. Madeline Marzano-Lesnevich, Esq. v. Mitchell A. Liebowitz, Esq.
435 N.J. Super. 198
| N.J. Super. Ct. App. Div. | 2014Background
- Peter Innes sued attorney Madeline Marzano-Lesnevich and her firm for releasing Victoria's US passport to Carrascosa, leading to Victoria's removal to Spain during custody proceedings.
- Pretrial posture: Van Aulen and Liebowitz were granted summary judgment; the main complaint remained against the Lesnevich firm; third-party complaint against Carrascosa was severed and later dismissed.
- Trial events: Plaintiff sought to exclude counsel fees and Conk as expert; the jury awarded damages of $700,000 to Innes and $250,000 to Victoria; judgments included pre- and post-judgment interest and attorney fees.
- Legal questions at trial: whether a duty to non-clients existed, whether emotional distress damages were recoverable, and whether the third-party claim against Carrascosa could yield contribution.
- Trial court allowed emotional distress damages for Innes but not for Victoria; the court later awarded counsel fees to Innes and vacated Victoria’s fee award, and severance shaped the third-party contribution outcome.
- Appellate posture: the court affirmed Innes’s emotional distress award, reversed Victoria’s, and remanded for judgment in defendants’ favor for Victoria; upheld some pretrial orders and severance approach while remanding others for correction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court properly grant summary judgment for Van Aulen and Liebowitz? | Plaintiffs contend a duty to non-clients and foreseeability supported liability. | Defendants argued no duty or proximate cause; undisputed facts negate joint tortfeasor status. | Summary judgments affirmed; no prima facie duty or proximate cause found for those parties. |
| Whether the jury could award emotional distress damages for Innes in a legal malpractice action. | Emotional distress damages are recoverable where the harm is personal and egregious. | Emotional distress requires egregious/extraordinary conduct with medical proof; no such proof for Victoria and limited for Innes. | Emotional distress damages awarded to Innes affirmed; the circumstances were egregious and personal enough to permit such damages. |
| Whether Victoria's emotional distress damages were properly awarded. | Victoria's emotional distress arises from parental alienation due to passport mishandling. | Insufficient evidence of Victoria's distress; lack of medical or expert proof. | Victoria's emotional distress award reversed for lack of evidence of her distress; remand for possible alternative relief. |
| Was the attorney fees/fee-shifting award proper under the American Rule exception for attorney misconduct. | Saffer/Packard-Bamberger exceptions allow fees where the attorney’s breach caused the plaintiff's damages and a fiduciary duty exists. | No client-attorney relationship with non-clients; no fee recovery should be allowed. | Fees awarded to Innes affirmed as a direct and proximate result of defendants' actions; Victoria's fee award vacated. |
Key Cases Cited
- Gautam v. De Luca, 215 N.J. Super. 388 (App. Div. 1987) (emotional distress generally limited in legal malpractice absent egregious circumstances)
- Segal v. Lynch, 413 N.J. Super. 171 (App. Div. 2010) (parabolic parent-child disputes; limits on emotional distress claims in custody contexts)
- Buckley v. Trenton Sav. Fund Soc., 111 N.J. 355 (1988) (requires showing of severe emotional distress in some tort contexts)
- Decker v. Princeton Packet, Inc., 116 N.J. 418 (1989) (foreseeability and special circumstances in emotional distress; heightened proof concerns)
- Packard-Bamberger & Co. v. Collier, 167 N.J. 427 (2001) (fiduciary malfeasance exception to the American Rule; admissible fee recovery when attorney misconduct)
- Petrillo v. Bachenberg, 139 N.J. 472 (1995) (duty analysis for non-clients; foreseeability and proximity considerations)