*1 250 possession possession for with intent to distribute. * * * charge jury specific on what judge trial should possession findings possession and of
substances [its] Thus, recog- we predicated.” be Ibid. intent distribute jury relied on presuming nized the unfairness for each conviction. different facts as basis had found that this defendant presume jury To unfair, wrongdoings than one is tanta- engaged in two rather crime. In the guilty a second presuming mount defendant indicating the same act jury of a verdict whether absence conviction, indulge the for each we would formed basis guilty wrongdoing. presumption is one See that defendant Thus, if Williams, supra, NJ.Super. 213 A.2d 265. homicide, possession again for the his defendant is convicted merge. should conviction part; part; reversal
For affirmance Justice WILENTZ and Justices remandment —Chief POLLOCK, O’HERN, HANDLER, CLIFFORD, GARIBALDI and STEIN—7. JJ., STEIN, dissenting part.
CLIFFORD 607 A.2d ZIEGELHEIM, AND PLAINTIFF-RESPONDENT CROSS- MIRIAM APOLLO, APPELLANT, AND v. STEPHEN INDIVIDUALLY APOLLO, CORPORATION, DE A PROFESSIONAL STEPHEN AND CROSS-RESPONDENTS. FENDANTS-APPELLANTS February 3, 1992.
Argued 1992 Decided June *4 and cross- argued appellants the cause for P. Anelli James (Friedman P. Siegelbaum, attorneys; James respondents briefs). Maniscalco, on the and Mark C. Anelli argued respondent the cause for Robert A. Baron cross- (Baron Baron, appellant attorneys). & opinion by of the Court was delivered HANDLER, J.
In this case attorney we must decide what duties an owes a client negotiating when a settlement and whether a client’s negotiated recovering to a settlement bars her from negligent handling from her for the of her case.
I Ziegelheim, plaintiff, Ziegelheim Miriam and Irwin were mar- September 11, 1955, ried on were divorced a final decree August During early years dated 1983. of their mar- riage, Ziegelheim gainfully Mrs. employed, assisting her working husband his business ventures and employ- other Ziegelheims ers as well. After adopted two infant sons she couple separated became a full-time homemaker. The in Au- gust 1979. defendant, September Ziegelheim Mrs. retained at-
torney Stephen Apollo, represent anticipated her in her divorce action. appeal Because this relates to the trial court’s granting summary judgment against plaintiff, we assume purposes for the alleges of our decision that all of the facts she relating Apollo’s handling of her divorce are true. Accord- ing Ziegelheim, Apollo to Mrs. she and met on several occasions plan aspects various of her case. She told him about all of separate aware, the marital and assets of which she was they suspicion discussed her the Mr. was either concealing dissipating partic- or certain other assets as well. In ular, Apollo told thought that she her husband $500,000 savings had hidden the form of cash and bonds. Accordingly, thorough inquiry she asked to make a into assets, cash, including bonds, stocks, patents, husband’s insurance, pensions, profit-sharing plans, life and real estate. *5 Ziegelheim Apollo, she also was aware When Mrs. contacted deficiency by tax that had assessed the Internal of a been against joint their Ziegelheims the returns. Revenue Service specifically any property her desire that advised She responsibility for the her of settlement absolve the end with her deficiency. She also insisted that divorce clear, Ziegel- home, with Mr. retention of the marital free $45,630per assuming mortgage; that she be awarded heim inflation); (with alimony and that Mr. year adjustments in the policy life amount Ziegelheim obtain a insurance $500,000 alimony. payment secure to in the September Irwin filed for divorce Court, Apollo, Through Mrs. Zie- Superior Chancery Division. counterclaim. Because both gelheim filed answer and a marriage, their Ziegelheim sought to terminate Mr. and Mrs. only trial were the to be resolved at the consolidated issues property, marital alimony, the identification of the payment of property. equitable of that distribution impor- to Ziegelheim, Apollo failed discover According to Mrs. entering her husband’s assets before tant information about Ziegelheim’s attorney, Mr. negotiations into settlement Apollo hired an accountant who valued Liebowitz. Sheldon $2,413,000. at approximately marital estate substantially underestimated claims that the accountant including oversights by Apollo, his of several estate because Ziegelheim; Mr. owned to failure to locate a bank vault bonds; municipal his tax-free the value of locate or determine plan profit-sharing at Pilot Woodwork- verify value of his to shareholder; primary he to ing, company which $500,000 savings; contact estimated search for an verify existence of certain Patent Office United States held; $1,000,000 insurance inquire into a life patents he verify beneficiary; as naming an of his policy associate property; verify and to the value certain lake-front the value of Apollo made alleges had holdings. She of his stock marital apparent that the inquiry, it have been proper would *6 $2,562,000, $149,000 approximately estate was worth or about more than the accountant found. 4, 1982, Apollo, Ziegelheim, Mrs. and her
On November Liebowitz, commenced discussions with accountant settlement Ziegelheim, Ziegelheim’s pro- Mr. and Mr. accountant. Several counter-proposals days, posals and were made over several and 8, 1982, the discussions culminated on November when the parties property agreement governing entered settlement into arrangements distribution of the marital estate as well as for payment alimony. day, orally Later that the was judge presiding entered into the record before the over the divorce action. recited to the court he Liebowitz what under- settlement, asking Apollo stood to be the terms of the interrupt if any Apollo the recitation contained errors. never interrupted thought representa- to indicate that he Liebowitz’s agreement, Ziegelheim tions inaccurate. Mrs. were Under granted alimony years, totalling approximately for fifteen was $330,000 $22,000 averaging approximately per year. Mrs. Ziegelheim Ziegelheim received the marital home and Mr. re- (The couple’s parties subsequently ceived the lake house. disagreed mortgage over which of them was to assume the home; transcripts hearing the marital two differed on point. subsequent hearing, The conflict was resolved at a recordings in which court determined that audio of Liebow- Ziegelheim itz’s recitation revealed that Mrs. to assume the was mortgage.) Ziegelheim’s personal property other also was Ziegelheim allocated between them. Mrs. received shares in Woodworking, company Pilot which the would redeem accord- schedule, ing Ziegelheim promised to a set and Mr. to contrib- per year purchase life ute toward the of a term insurance $400 policy. Ziegelheim agreed indemnify Ziegel- Mr. also Mrs. 1979, 1980, any years heim tax for liabilities incurred for the “except Ziegelheim.” and 1981 created Mrs. liabilities sum, $333,000 Ziegelheim approximately Mrs. was to receive $6,000 costs, $324,- alimony, contributions to insurance property, figure representing approximately 000 in the last (as appraised by percent value of estate fourteen accountant). to receive Apollo Ziegelheim Mr. was $2,088,000 eighty-six property, approximately approximately percent of the value of estate. immediately the settle- the court after testifying
When before record, Ziegelheim and Mr. into the both Mrs. ment was read they agreement, understood stated that fair, it they into voluntar- they thought it and that entered however, asserts, accepted that she ily. now her that wives could agreement only advised after twenty percent ten expect to no more than receive Apollo’s they claims that estate if went to trial. She marital *7 comport the unduly and did not pessimistic estimate was given reasonably competent a would have advice that competently, Had she been advised under the circumstances. accepted the not have settlement. says, she she would 2, August Ac- until 1983. settlement was not finalized The agreement to Ziegelheim, failed cording to Mrs. the written indemnify in it did not agreement conform with the oral hus- she claims her former her tax for which deficiencies the nine- also claims that wholly responsible. She band was form delay agreement into final written putting in the month year’s to one it caused her lose unnecessary, and that was $75,000 to the stock- pursuant to her first owed interest redemption clause. against Ziegelheim malpractice a action
In filed Mrs. sought the divorce reopen contemporaneously Apollo and motion property settlement. While and set aside the decree malpractice action pending, the settlement was to set aside the malpractice prema- action was Because the was called trial. reopen ruling on the motion of a ture in the absence against action decree, voluntarily dismissed the she divorce malprac- a subsequently filed second April 1987 and Apollo in her motion to family denied against court him. tice claim record concluding that the agreement, the settlement set aside plaintiff unequivocally demonstrated and that “both defendant accepted agreement July and felt that it fair.” In was affirmed, stating parties Division that the negotiations” had “entered into settlement after extensive and unequivocally accepted that “defendant she stated that decision, settlement without coercion.” As a result of that Mrs. only against Apollo, case was left with her the case us before now. complaint against filed a Apollo. five-count count, alleged negligent
Under the first was in she that he handling delayed securing her case he in because final written thereby settlement and her to caused lose interest on settlement; payments due under because the written settle- wanted; ment not the tax did contain indemnification clause she require Ziegel- did Mr. because written settlement not large heim to make to the life as contribution insurance costs as alleged she wanted. In the second and third counts she negligent handling per- defendant was in her case because he it to mitted settle for less than it should have. the fourth alleged negligent count she was handling that defendant case permitted because he the case to settle under circum- outcome; stances that an unfair he ensured because failed case; proper procedures preparing use negotiating accept because he convinced her to an that a reasonably prudent attorney against accept- have would advised ing. alleged In the negligent fifth count she that he *8 handling her complex case he to reduce the because failed proposal compromising writing, ability settlement to her to give its understand terms to informed and reasoned con- sent to them.
Apollo summary judgment. moved for Each side relied reports them prepared by experts support for outside of their positions, respective although report neither side’s was formal- (Nevertheless, ly report entered into evidence. of Mrs. Ziegelheim’s expert appendix her filed included with Division, disposition which referred to it in its case.) During deposition, Ziegelheim her asserted that expect to no more
Apollo had told her that she could receive if took her case to twenty percent of the marital estate she than expert’s Al- report. quoted trial. Her statement was her evidence, report into though neither side’s was admitted him, although making statement attributed to Apollo denied assessing his motion for purpose for the Apollo assumed Ziegelheim summary that he had told Mrs. that judgment represented she agreement the most that would settlement if matter were tried. receive It on all counts. ruled in favor of defendant The trial court record that she that Mrs. had stated on the noted terms, thought the its that she understood the settlement and fair, settling. had not been coerced into terms were and that she policy respect relating to to the life insurance With her claims indemnification, Apollo the court found that could and the tax persuade adversary agree to a to an not be faulted for failure Similarly, respect to her terms his client desired. to the unnecessarily delayed in the execution of Apollo claim that it can take considerable agreement, the court observed settlements, re- the record complete and that time to written Apollo have the made an effort vealed that her claim that timely respect With executed in a fashion. the court ruled investigate properly, her case Apollo failed to Chancery findings that the precluded that her claim was Part, attempted re-open Division, Family made when she no Noting family court had found that the settlement itself. assets, ruled that trial court evidence of concealed concealed assets his failure to discover could not be faulted for that did not exist. relating to opinion subject Apollo’s controversial
On the receive more would probability that Mrs. trial, stated: the court disposition if case went favorable guarantor of his an is not in New It is well established Jersey giving about a settlement. be held liable an opinion and could not opinions (App.Div. A. 2d 985] v. Cilio, N.J.Super. Procenik [Procanik ] 132, 154 [543 v. Camden N.J. 1988); 588 [443 Dio[cese], X House Retreats St Pius *9 260 (1932). insurer, attorney .2d guarantor A An is not an he’s not of 1052] opinions litigation soundness of his of success of the outcome of the in which employed judgment he’s to conduct. not He’s for error answerable of in the every practice. conduct of the case or for mistake which occur in McCul Sullivan, 381, lough (E. 1926). v. 102 384 N.J.L. A. A. [132 102] [&] case, present Ziegelheim voluntarily In the entered into the settlement agreement. stated on She the record that she the settlement understood and its terms, thought just, that she the settlement in all terms its were and that she settling. was not try coerced into also She stated she understood could she matter if so desired. record, now, plaintiff With hindsight, these statements on the could not
bring against attorney unhappy an action her former because she’s with the participated negotiation terms of the settlement. Plaintiff the settlement represented to the Court she understood the terms and not was coerced into settling. Apollo may differently While it is true that Mr. have advised than another attorney, give legal malpractice. attorneys this does not rise Different will give differing opinions. protects attorney That is with the law an when [sic] he gives opinion. an Division trial respect affirmed the court with except all claims the claim under count four in which Mrs. Ziegelheim alleged negligent that defendant in handling her case he accept because convinced her to an reasonably prudent attorney against would have advised accepting.
Cross-petitions granted. for certification were 126 N.J. (1991). 2d 599 A. 166
II
professionals,
most
lawyers
Like
duty
owe a
to their
to provide
clients
their
knowledge,
services with reasonable
skill,
diligence.
St.
XPius House Retreats v. Diocese
Camden,
571, 588,
(1982).
N.J.
In
the
to
the
a
permits,
of
client to the extent the law
even when
goals
are unwise or ill-
lawyer
the client’s desires
believes
Wausau, 84
Employers
v.
Ins.
N.J.
considered. Lieberman
of
(1980).
time,
325, 340,
At the same
because the
In Mrs. made this divorce, the trial court dismissed handling of her Apollo’s As summary judgment. for we Apollo’s motion of them all rulings court’s on several that the trial explain, we believe were erroneous. her claims cases, cases, summary in legal malpractice as other dispute genuine there is no
disposition appropriate only is when Co., 17 Peoples Trust N.J. v. Bank & of material fact. Judson (1954). right proceed 74, litigant 67, 24 A has 110 A.2d as the facts.” slightest doubt is the there trial “where 499, Co., 189 A. 2d Casualty 39 N.J. v. American Ruvolo party favor of the (1963). drawn in All inferences are 204 opposing summary Judson, the motion judgment. supra, at 24. N.J. A 2d Ziegelheim’s Mrs. negligently
On claim that ad respect winning greater vised her with to her chances trial, proportion proceeded of the marital estate if she we conclude, Division, genu as did the that there awas dispute regarding appropriate ine advice that an give According should expert cases like hers. to the retained Ziegelheim, position women are relative —who *11 health, ly poor earning have little capacity, and been have dependent wholly upwards their husbands —often receive of fifty percent of the expert marital estate. The said that Mrs. Ziegelheim’s winning large of chances such a of the fraction gone estate had she especially good to trial would been have couple because the enjoyed high living had a of standard while they together were earning capacity and because her husband’s was “tremendous” and would remain for so some time. Her opinion expert’s brought attention, to the trial court’s as expert report Ziegelheim. plaintiff’s was the Mr. If expert’s of opinion credited, were it should been purposes as have for of judgment, summary Apollo very then well could have been negligent advising found in her expect that she could to win only twenty percent ten to of the marital estate.
Apollo urges adopt by us to rule enunciated Pennsylvania Supreme Court in Strassburger, Muhammad v. McKenna, Messer, Gutnick, 541, Shilobod and 526 Pa. 587 (1991), litigant A .2d 1346 that a dissatisfied not recover or malpractice from his for negotiating in a that litigant accepted settlement has unless litigant can prove part attorney. actual fraud on the Under that rule, no cause of action can negligence be made based on or principles against contract an attorney malpractice nego for in tiating Pennsylvania Supreme a settlement. The Court ration explaining “longstanding alized its severe rule that it had a
263 Id,., A.2d at policy encourages settlements.” 587 public which 1348. too, encourages longstanding policy a that Jersey,
New
has
settlements,
Pennsylva-
reject
espoused by
rule
but we
settlements, we
Supreme
Although
encourage
we
nia
Court.
advice
recognize
litigants rely heavily
professional
on the
accept
reject
or
offers
they decide whether
of counsel when
settlement,
lawyers of our state advise
and we insist that the
of
skill,
knowl-
respect to
same
clients with
settlements
legal
diligence
they pursue all other
edge,
with which
Attorneys
supposed to know the likelihood
suc-
tasks.
are
they
they
supposed
are
types
of cases
handle
cess
in
possible awards
those cases.
range
to know the
246,
Co,
noted in
N.J.
As we
Levine v. Wiss &
(1984),
to render services
2d 397
“One who undertakes
A.
required
is
exercise the skill
profession
or trade
practice of
profes
knowledge normally possessed by
of that
members
found
standing
in similar communities.” We have
good
sion
variety
professionals
that deviation
involving great
in cases
will
professional care
result
accepted
from
standards of
rule
negligence.
subject
Professionals
liability for
doctors,
Hospital, Betenbaugh
Princeton
e.g.,
include
v.
dentists,
(1967);
e.g.,
v. Rosen
Ill.App.3d
93 Ill.Dec.
N.E.2d
72,
(1964);
Milling
655
Ishmael v.
Haley, 238 Ark.
378 S. W.2d
520,
(1966).
all,
After
ton,
Cal.App.2d
Cal.Rptr.
50
592
most
and most
negotiation of settlements is one of the
basic
lawyers perform.
undertaken tasks that
frequently
argues
inappropri
Apollo
that the
Division
Ziegelheim’s
report prepared by
ex
ately considered
noted,
judgment.
the trial court’s
As
pert when it reversed
parties produced expert reports at the trial level. The
both
prelimi
reports is unclear. We should state as a
status of the
conflicting
nary
that had the court not considered the
matter
parties’ reports,
factual contentions contained within the
against
plaintiff
court
have been in error to rule
would
incomplete record. A trial court should consider
the basis of an
evaluating
information it knows to be available when
all of the
summary judgment.
It should assure itself that the
claims
parties
opportunity
have had a reasonable
to obtain and submit
court, and,
appropriate
information to the
circum
material
stances,
presentation
it should insist on the
of such evidence.
Co.,
N.J.Super.
Cyanamid
See Sholtis v. American
(App.Div.1989).
The record in this case makes
568 A.2d
however,
plain,
that the trial court was
fact aware of the
point
Ziegelheim’s expert’s report,
though
basic
of Mrs.
even
report closely.
the court did not examine the
The trial court’s
opinion
summary judgment
Apollo
awarded to
reveals that
contention, supported by specific
notwithstanding plaintiff’s
allegations,
improper
rendered
advice.
factual
Moreover, Apollo's lawyer had informed the court that
too,
that,
defense,
expert’s report.
admitting
had secured an
genuine dispute
virtually
the defense
conceded that there was a
propriety
Apollo’s
Summary judgment
over the
advice.
granted
moving party
demonstrates
should not be
when
through
genuine dispute
that there is a
its own submissions
fact, regardless
presence
or absence of
over material
Judson,
opposing party.
supra, 17 N.J. at
submissions
75,
Although the reversed the trial court on Division advice, Ziegelheim’s Apollo’s it affirmed relating Mrs. claim Apollo’s on the issue of the trial court all other claims. On investigation alleged proper Ziegel- failure a into Mr. to make assets, litigation that heim’s the trial court ruled that issue family that precluded by the court’s determination was equitable. family settlement was fair and We conclude that Ziegelheim Mrs. court’s determination should not have barred litigating from that claim. or preclusion, estop of issue collateral doctrine any actually
pel, relitigation of issue which was deter “bars action, parties, prior generally mined in a between the same involving a claim or cause of action.” v. Gonza different State 181, 186, (1977). case, Apollo lez, .2d In this 380 A 75 N.J. applied properly Ziegel was to Mrs. argues that doctrine claims, though Apollo party himself was not heim’s even prior litigation, party to the prior because she was litigation, allegations and was unfair fully Mr. had concealed certain assets were and that litigated longer true no fairly in that case. It is that we preclusion exclusively doctrine to cases application limit issue prior parties proceeding, in the in which both were involved requirement longer impose “mutuality” an no ironclad that we 188-91, A.2d 1128. doctrine. Id. at application against a may applied in certain circumstances The doctrine be applied against party even when it could not be party so, we not believe that seeking application. its Ibid. Even do applied this case. should have been the doctrine “fair settlement that was party The fact that a received a necessarily party’s attorney does mean equitable” not party would not have received a competent or that incompetent attorney party’s had favorable settlement more Thus, case, notwithstanding family in this competent. been against decision, proceed still court’s negligence action. Apollo in her *14 alleged professional incom- Moreover, aspect another settlement acceptance of the improvident led to the petence that marital discover hidden failure to attorney’s own was her divorce sought reopen to Mrs. When assets. with the obser- settlement, her motion family court denied discovery,” and for full existed “[a]mple opportunity that vation counsel.” as well as own accountants parties “the had their that definitively that Mr. did not determine The court assets, “suspected it that instead that stated had hidden no but earlier parties.” The known to everything to be known was indeed, and, competence of counsel implicate the ruling did not competence of counsel. premised presumptive on the was ruling Hence, that now to bar cannot invoke defendant Ziegelheim should have been challenge competence. Mrs. to his negligently failed to discover prove Apollo allowed to by her former husband. concealed certain assets trial court’s affirmed the Appellate Division also Apollo negligently claims that Ziegelheim’s Mrs. dismissal of settle and that the written finalizing the settlement delayed Ziegelheim’s lawyer. recited Mr. from the one ment differed litigate have allowed to that she should been Again we conclude sure, lawyers generally To be on the merits. those claims persuade opposing for their failure be held liable cannot terms, Ziegelheim alleges here that Mrs. parties agree to but Apollo simply and that failed agreed to terms the two sides had may put writing. Apollo be the terms were into to see to it that account, he should not have her factual but to refute able genuine dis summary judgment, for there were prevailed on accuracy the written version and concerning the putes finalizing delay in it. nine month reason for the negli claim is that Ziegelheim’s final prior to writing the terms of the settlement gent in not down approved recited and hearing in the settlement was which competent that a Ziegelheim. She asserts by her and Mr. could down so that she written them attorney would have review them and make an informed and reasoned assessment may prove their fairness. At trial she be able to that she would accepted the presented not have settlement offer had it been demonstrate, writing her in for her review. She be able example, Apollo’s presentation oral of the settlement obscured the fact that it did not include the tax and insurance provisions she the merits of desired. We cannot determine allegations speculate possi- those and decline to on defendant’s *15 record, simply ble refutation of them. We observe that on this claim, too, presents genuine her final issues of material fact summary judgment. and should not been resolved on have holding today, open In as we do we do not the door to malpractice any party every suits and dissatisfied to a if Many settlement. such claims could be averted settlements explained open proceed in in were as a matter of record court ings reflecting understanding parties. and assent of the the Further, allege support in plaintiffs particular must facts of litigate attorney incompetence may and not their claims containing generalized malprac complaints mere assertions of attorneys that cannot held liable tice. We are mindful be persuading oppos in an simply they because are not successful acknowledge ing accept Similarly, certain terms. we party to strategies handling in attorneys pursue reasonable that who clients their and render reasonable advice to their cases who strategies for the failure of their or for cannot be held liable their clients took any unprofitable outcomes that result because attorneys The demands that handle their their advice. law skill, knowledge, diligence, but it does not cases with infallible, or and it does not they perfect that be demand for their they always optimum secure outcomes demand that clients.
Ill part is affirmed Division judgement in accordance part and the matter is remanded and reversed opinion. this CLIFFORD, J., dissenting in part. settled, beyond necessity for citation
I take to be prima authority, proposition establish a case that to facie that legal malpractice plaintiff must demonstrate professional to standard of lawyer failed meet the defendant causing loss or legal community, thereby in the performance re- damage plaintiff. Equally established is the well testimony expert demonstrate both the stan- quirement for In case defendant’s deviation therefrom. this dard expert motion for plaintiff report no on defendant’s submitted summary judgment; granted the mo- therefore the trial court correctly, my view. tion— parties experts’ reports hip pockets in their
That both had is reports of those that the court have been aware trial expert’s report did not mark her of moment. Plaintiff even .no fact, identification, report is mind in never evidence. wholly plaintiff's included only us because before it— improperly, of court—in record submitted without leave does, ante declare, at To as the Appellate Division. Court reports is 2d at status of A. “[t]he reports parties “produced expert at unclear” and both with the record liberties that can be trial level” is take *16 pithy generously only as “unwarranted.” In the characterized Smith, commenting Alfred in 1936 on Franklin expression of E. (as “baloney” is it is in: “No presidency, what D. Roosevelt’s it, baloney.” still Gorton & you slice it’s Carruth matter how Quotations Harper American Ehrlich, Book of Eugene (That position represent not (1988). Smith’s did 187.136 Gov. § attention.) escaped And my has not majority view either now-meandering parenthesis, I I think am still this while opinions sully not slang judicial in our does resort occasional literary figure Carl them, slang, according to no less a than sleeves, up spits its on its Sandburg, language “a that rolls is Quota- Peter, Peter’s J. goes to work.” Laurence hands tions, (1987)). suggest, Our Time To as Ideas for court ante at does, 607 A.2d at trial Court “did not examine report closely” heights is to ascend new flummery. report, The trial court even never saw the much plaintiffs less “examined” it. And so proof submissions of simply were not sufficient to withstand defendant’s motion for summary judgment.
A agree entirely final note. I party’s with the Court that a expression of satisfaction with the terms of the settlement of a is, standing matrimonial action does not end the matter —that alone it does malpractice not constitute an absolute to a bar against lawyer. action I unwilling But am to bend the structure of our summary-judgment jurisprudence by sensible substituting goes for our beyond review a new record that “settlement” issue and then to decide the case on that record rather than on the one created at trial. judgment
I dissent from so much the Court’s as affirms summary judgment Division’s reversal of Count Four. joins opinion.
Justice GARIBALDI in this part, part For reversal affirmance remandment —Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O’HERN and STEIN—5.
For reversal and remandment —Justices CLIFFORD and GARIBALDI—2.