Morris Properties, Inc. v. Wheeler, 476 N.J. Super. 448 (App. Div. 2023). This was a legal malpractice case, in which Judge Gummer wrote today’s opinion for the Appellate Division. Plaintiff Morris Properties, Inc. (“MPI”) owned a building in Somers Point that was damaged during Hurricane Sandy. MPI and its president, Kristine Morris, retained defendants to file suit against West American Insurance Company, with whom MPI had insurance covering damage to the building. The case did not go well. Morris, the corporate representative of MPI, gave damaging testimony at her deposition. There were other events adverse to MPI as well. Defendants eventually withdrew as counsel. With new counsel, MPI eventually settled with West American for a small amount.
MPI and Morris then filed this malpractice action. They alleged that defendants had not named an expert or produced an expert report in the coverage case, and that defendants had not prepared Morris for her corporate representative deposition. Plaintiffs contended they had obtained less in settlement with West American than they would have absent defendants’ alleged malpractice.
Plaintiffs supported their claim with a report from an expert, an attorney. The expert stated that he had been “asked to determine whether [defendant’s] representation fell below the standard of care exercised by reasonably prudent attorneys in New Jersey.” He did not say that he had been retained to address proximate causation or the amount of damages. His only statement about proximate causation, a required element of a malpractice claim, was that defendants’ failure to retain an expert “was fatal to [MPI’s] claim.”
Defendants moved for summary judgment on the grounds that MPI had no evidence of proximate causation and that Morris, who was not a client of defendants, had no claim for that reason. The Law Division granted that motion. Plaintiffs appealed, but the Appellate Division affirmed, applying de novo review.
Judge Gummer cited caselaw stating that proximate causation is a required element of a legal malpractice claim, which is “grounded in the tort of negligence.” She stated that “proximate causation ordinarily must be established by expert testimony, except when the causal relationship between the attorney’s legal malpractice and the client’s loss is so obvious that the trier of fact can resolve the issue as a matter of common knowledge.” It was not obvious that MPI would have recovered more than it did, as “many factors could impact the settlement value of or potential jury verdict on MPI’s insurance-coverage claim. Only an expert could show that MPI would have succeeded in obtaining a better result at trial.”
Plaintiffs’ expert, Judge Gummer said, did not do so. His statement that defendants’ failure to retain an expert “was fatal to [MPI’s] claim” was merely a “bald assertion, with nothing more, [and] not an admissible expert opinion on causation.” He did not “give the why and wherefore” for that statement, so it was “an impermissible net opinion with no evidential weight.”
“As for Morris’s individual claim, plaintiffs also failed to demonstrate the first prong of a legal-malpractice claim: the existence of an attorney-client relationship between Morris and defendants.” Though no retainer agreement was in the appellate record, plaintiffs’ Complaint had alleged only that MPI had entered into a “Legal Fee Agreement” with defendants “and that the agreement ‘concern[ed] [MPI’s] right to recover from West American . . . ‘.” And the expert did not opine that Morris had an attorney-client relationship with defendants.
Morris argued that defendants had “interacted directly” with her. But Judge Gummer said that “[m]ere interaction does not establish the existence of an attorney-client relationship.” Nor did plaintiffs’ claim that defendants had purported to represent Morris at her ill-fated deposition hold water. “The motion judge’s finding that Morris was deposed as a corporate representative of MPI is supported by credible and unrebutted evidence in the record.”
Judge Gummer noted that in “carefully circumscribed” circumstances, an attorney can owe a duty to a non-client. But those circumstances were not present here, so defendants owed Morris no duty. Accordingly, the Appellate Division affirmed the summary judgment for defendants.