NO CAUSATION BETWEEN ALLEGED LEGAL MALPRACTICE AND DAMAGES:

http://www.njlawjournal.com/id=1202720336435/Court-Upholds-Dismissal-of-Legal-Mal-Suit-Over-Home-Sale?et=editorial&bu=New%20Jersey%20Law%20Journal&cn=20150311&src=EMC-Email&pt=Breaking%20News Court Upholds Dismissal of Legal Mal Suit Over Home Sale David Gialanella, New Jersey Law Journal March 11, 2015 | 0 Comments SHARE PRINT REPRINTS Sebastian Lombardi Sebastian Lombardi Carmen Natale A litigant looking to pin a real estate transaction gone awry on her lawyers—a deal that eventually went through for $350,000 less than the original sale price—has come up empty. Essex County Superior Court Judge Sebastian Lombardi properly dismissed the legal malpractice case against Bogart Keane Ryan of Jersey City, New Jersey, the Appellate Division said March 11. The panel was “satisfied the trial court properly exercised its discretion when it concluded [the plaintiff’s expert’s] opinions lacked the requisite causal connection between the alleged legal malpractice and the damages plaintiffs claimed, and thus were inadmissible net opinions.” According to the opinion, Beverly Giordano in 2004 appointed her daughter, Melissa Giordano, as her attorney-in-fact and executed a deed transferring her home to her daughter. Beverly Giordano—who at the time was in her 70s and blind, and is now deceased—lived in the home. The home was located in Short Hills, New Jersey, according to Thomas Quinn, a lawyer involved in the case. In 2007, Melissa Giordano sought to sell the home to a developer, Galaga Developers, and executed a sales contract attesting to the title’s validity. She retained John Hamill and Marc Keane of Bogart Keane to handle the sale. Soon after, however, Beverly Giordano learned of the proposed sale and engaged an attorney, Mark Brancato, to attempt to stop it, the opinion said. Brancato wrote letters to Bogart Keane, seeking to revoke the power-of-attorney and advising of Beverly Giordano’s intent to challenge the deed, which she claimed she didn’t knowingly transfer to her daughter. Brancato also wrote to Galaga’s attorney, who in turn demanded that Melissa Giordano demonstrate that the deed issue had been cleared before moving ahead with the closing, scheduled for October 2007, the opinion said. The closing didn’t occur, after which Melissa Giordano was sued by Beverly Giordano, who sought return of the property to her. Galaga filed its own suit, against both mother and daughter. The developer sought a declaration that Melissa Giordano held a valid title that was free and clear, a judgment conveying the title to it, and monetary damages from both, according to the opinion. The parties settled in June 2008 with Melissa Giordano acknowledging that she held a valid title. The agreement, which provided for the same sale price of $1.35 million, required Beverly Giordano to vacate the home by that November, the opinion said. But Beverly Giordano wouldn’t sign the subsequent consent agreement, and the court appointed a special fiscal agent who could sell the home, buy Beverly Giordano a new home, and create a special needs trust for her, according to the opinion. In November 2008, a different buyer offered $999,999 for the property—an offer that Galaga agreed to match, in addition to withdrawing its claims for a purported $200,000 in damages. Melissa Giordano fired Bogart Keane and obtained new counsel, after which Beverly Giordano eventually moved out and the sale went through, the opinion stated. Melissa Giordano in 2010 filed a complaint alleging that Bogart Keane committed legal malpractice, causing her to lose out on the higher sale price of $1.35 million. Her expert, attorney Anthony Ambrosio, opined that Bogart Keane negligently failed to advise Galaga of Beverly Giordano’s lawsuit, prompted Melissa Giordano to violate the sale contract by advising her not to proceed with the October 2007 closing, and failed to seek settlement of the mother-daughter dispute or expedite the litigation in advance of the scheduled closing, according to the opinion. Bogart Keane moved for summary judgment, claiming that Ambrosio offered net opinions unsupported by fact, and Lombardi, after hearing oral arguments, agreed—finding no proximate cause between the alleged malpractice and the damages Melissa Giordano suffered. Lombardi found that Galaga was aware of the challenge to the deed, and the deed dispute, as well as Galaga’s reluctance to finalize the deal, would have prevented the closing even if the firm advised her to move forward. Lombardi said Ambrosio’s contention—that the sale could have progressed with the parties placing the proceeds in escrow—was speculative. He also found no legal authority for the court to have compelled the closing. Lombardi also rejected the idea that Bogart Keane failed to expedite the litigation, noting that the firm had no control over the tanking real estate market or the pace of litigation. He noted that the parties settled eight months after the initial planned closing, at which time Galaga was still willing to pay the higher price, and the deal did not unravel until Beverly Giordano refused to vacate the home. Melissa Giordano appealed, but Appellate Division Judges Jose Fuentes and Amy O’Connor agreed, adopting Lombardi’s decision. “Without expert testimony, plaintiff cannot establish a prima facie case of legal malpractice against defendants,” the panel noted in the per curiam decision. Quinn, of Wilson, Elser, Moskowitz, Edelman & Dicker in Florham Park, New Jersey, Bogart Keane’s counsel, said Lombardi was “absolutely correct that there was just nothing there to suggest proximate cause.” “I think courts are looking hard at issues with net opinions in legal malpractice cases,” Quinn added. “If there’s a lesson to be learned, it’s that.” Keane didn’t return a call seeking comment. Neither did Hamill, who left the firm several years ago, was temporarily suspended in 2013, and indicted last November on charges that he stole about $470,000 from two relatives’ estates. The criminal matter was still pending as of March 11, according to the Monmouth County Prosecutor’s Office. Melissa Giordano’s counsel, Montclair, New Jersey, solo Edward Grossi, also didn’t return a call seeking comment. Ambrosio, a Bloomfield, New Jersey, solo, also didn’t return a call. Welcome to your ALM digital membership! Enjoy access to 5 free articles* every 30 days from across the ALM network, plus other benefits. TELL ME MORE *May exclude some premium content Read more: http://www.njlawjournal.com/id=1202720336435/Court-Upholds-Dismissal-of-Legal-Mal-Suit-Over-Home-Sale#ixzz3U85IHCKr