Opinion
DOCKET NO. A-4573-10T2
01-06-2012
EUGENE KIRBY and ELIZABETH KIRBY, Plaintiffs-Appellants, v. CHASE HOME FINANCE, LLC, U.S. MORTGAGE CORPORATION, AMERICAN TITLE & SETTLEMENT, LLC, and CHICAGO TITLE INSURANCE COMPANY, Defendants, and JANET RINALDI and JANET RINALDI ATTORNEY AT LAW, LLC, Defendants-Respondents.
Lessie Hill argued the cause for appellant. Robert C. Neff, Jr., argued the cause for respondent (Wilson, Elser, Moskowitz, Edelman & Dicker LLP, attorneys; Kurt W. Krauss, of counsel and on the brief; Mr. Neff, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3210-09.
Lessie Hill argued the cause for appellant.
Robert C. Neff, Jr., argued the cause for respondent (Wilson, Elser, Moskowitz, Edelman & Dicker LLP, attorneys; Kurt W. Krauss, of counsel and on the brief; Mr. Neff, on the brief). PER CURIAM
Plaintiffs Eugene Kirby and Elizabeth Kirby appeal from an order granting summary judgment in favor of defendants Janet Rinaldi (Rinaldi) and her law firm, Janet Rinaldi, Attorney at Law, LLC (defendants), dismissing all claims of legal malpractice and fraud against defendants, and an order denying plaintiffs' cross-motion for partial summary judgment. We affirm.
On May 22, 2006, plaintiffs refinanced their home without retaining legal representation. The refinance closing occurred at plaintiffs' home and was conducted by a representative of the mortgage company, U.S. Mortgage Corporation. At the closing, Elizabeth Kirby signed refinance documents. Janet Rinaldi was not present.
American Title & Settlement, LLC (American Title) acted as settlement agent, created a HUD settlement statement, received wire transfer funds, and handled the disbursements. At the time, American Title employed Rinaldi and her law firm to generate new business. Rinaldi also performed notary services for American Title, but did not have check signing authority.
At some point after the closing, Rinaldi allowed a notary employed by American Title to use her attorney signature stamp to notarize the disbursement of settlement funds. The notary affixed the signature stamp on the HUD document with limited permission to verify the disbursements.
Later, plaintiffs learned that their refinance terms, including taxes and interest, were not what they had expected. On September 21, 2009, they filed an eight-count second amended complaint against Chicago Title Insurance Company, Chase Home Finance, LLC, U.S. Mortgage, American Title, and Rinaldi and her law firm. Generally, plaintiffs alleged that they did not understand the details of their refinance agreement due to procedural and substantive fraud or irregularity in the closing and closing documents. Against Rinaldi and her law firm, plaintiffs alleged legal malpractice and fraud.
Plaintiffs settled with Chicago Title Insurance Company, and the court dismissed plaintiffs' claims against Chase Home Finance, LLC, and stayed those against U.S. Mortgage and American Title due to those companies' bankruptcies. Because this appeal does not concern these entities, our reference to "defendants" includes only Rinaldi and her law firm.
In her deposition, Rinaldi testified that she never communicated or met with the Kirbys, agreed to represent them, entered a retainer agreement with them, or received an attorney review fee in connection with their refinance. She also testified that she never saw Elizabeth Kirby sign the HUD document, and that the document "was not stamped as a witness to her signature. It was stamped to verify a true and accurate statement of the disbursements."
In her own deposition, Elizabeth Kirby testified that she had never met Rinaldi, did not know who she was, had no retainer agreement with her, and paid no retainer. Elizabeth Kirby further testified that at the time of the closing she was not represented by counsel or told that an attorney would be provided for her. Also, she admitted that several of her interrogatory answers had no factual basis for suggesting that she knew Rinaldi.
In his own deposition, Eugene Kirby denied seeing or answering interrogatories and that it was his signature on the certification page.
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In April 2011, defendants moved for summary judgment, and plaintiffs cross-moved for partial summary judgment. On May 13, 2011, the motion judge conducted oral argument and issued an oral opinion. By two separate orders on that same date, the judge granted defendants' summary judgment motion, dismissed with prejudice all plaintiffs' claims against defendants, and denied plaintiffs' partial summary judgment motion. This appeal followed.
On appeal, plaintiffs contend that the judge erred by granting defendants summary judgment because a factual dispute exists as to whether there was an attorney-client relationship. They argue that Elizabeth Kirby's signature on the HUD document indicates their reliance upon Rinaldi, and that Rinaldi's signature stamp on the HUD document and the stamp's identification of Rinaldi as an attorney at law also created such reliance, and thereby an attorney-client relationship. We disagree.
Summary judgment is appropriate when no genuine issue of material fact exists. Rule 4:46-2(c). The "determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Thus, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
We review the disposition of a summary judgment motion de novo and apply the same standard as the trial court. LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 6 (App. Div. 2011) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We first consider whether a genuine issue of material fact exists and then whether the trial court correctly applied the law. Henry v. N.J. Dep't of Human Serv., 204 N.J. 320, 330 (2010) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)).
Here, both parties filed motions for summary judgment. Because the court granted defendants' motion, we consider the facts of record most favorably to plaintiffs. Liberty Surplus Ins. Corp., supra, 189 N.J. at 445. We ask "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 445-46 (internal quotation marks omitted) (quoting Brill, supra, 142 N.J. at 536).
"'The requisite elements of a cause of action for legal malpractice are: (1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation.'" Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996) (quoting Lovett v. Estate of Lovett, 250 N.J. Super. 79, 87 (Ch. Div. 1991)). Plaintiffs must sustain their burden "by a preponderance of the competent, credible evidence," not "mere 'conjecture, surmise or suspicion.'" 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 488 (App. Div.) (quoting Long v. Landy, 35 N.J. 44, 54 (1961)), certif. denied, 137 N.J. 311 (1994). "The existence of an attorney-client relationship is, of course, essential to the assertion of a cause of action for legal malpractice." Froom v. Perel, 377 N.J. Super. 298, 310 (App. Div.) (citing Conklin, supra, 145 N.J. at 416), certif. denied, 185 N.J. 267 (2005). "Generally, an attorney owes a duty only to his or her client, and the client is identified in the retainer agreement." Estate of Albanese v. Lolio, 393 N.J. Super. 355, 368-69 (App. Div.), certif. denied, 192 N.J. 597 (2007).
Here, the motion judge found that "despite vigorous argument to the contrary, what is clear is that in this transaction the Kirbys were not represented by counsel at all and there was not a scintilla of cognizable evidence that this [c]ourt accepts that indicates that they were represented by counsel and, in fact, represented by counsel Janet Rinaldi." The judge found in this regard:
The Rinaldi defendants, meaning Janet Rinaldi and her law firm, were employed by American Title at the time and she never stopped being an employee of American Title throughout the relevant time here.
American Title was not the law firm for the Kirbys. American Title did not represent the Kirbys . . . .
The Kirbys never met Janet Rinaldi, did not know who she is and never received a retainer agreement from her[] and had no retainer agreement with Janet Rinaldi, and what is clear is that . . . the Kirbys were not represented by an attorney at any time during the course of closing the refinance mortgage with U.S. Mortgage.
We discern no reason to disturb these findings. Plaintiffs cannot establish that defendants owed them a duty of care. Their legal malpractice claim rests principally on the limited use of Rinaldi's signature stamp to notarize the accuracy of disbursements. However, it is undisputed that Rinaldi did not attend the closing, had no communication with plaintiffs, never entered into a retainer agreement with them, and was never paid an attorney review fee. Moreover, Rinaldi's signature stamp was not placed on any documents until after the closing. Plaintiffs' asserted reliance on the blank form documents pertaining to legal representation and provided to them at the closing with the other closing papers does nothing to help plaintiffs build an attorney-client relationship with Rinaldi, whose name did not even appear on those documents.
In their depositions, plaintiffs admitted that they never met, spoke to, signed a retainer agreement with, or were represented by Rinaldi. Also, in their second amended complaint, plaintiffs allege that they "were not represented by an attorney at any time during the transactions with defendants, nor were they advised to obtain an attorney." Furthermore, although plaintiffs repeatedly draw our attention to their allegations that the closing and refinance were procedurally and substantively improper, these contentions are misplaced. The motion judge properly found that any "impropriety [in notarization] is not at issue in this particular proceeding."
The appropriate question is whether plaintiffs can establish "'the existence of an attorney-client relationship creating a duty of care upon the attorney.'" Conklin, supra, 145 N.J. at 416 (quoting Lovett, supra, 250 N.J. Super. at 87). Our review of the record reveals that they cannot. As a matter of law, therefore, the legal malpractice claim must fail, and the motion judge correctly granted defendants motion for summary judgment as to that count.
Next, plaintiffs contend that Rinaldi's signature stamp on the HUD document constitutes material misrepresentation, and that Elizabeth Kirby's signature shows reliance on the HUD form. We disagree.
To establish common law fraud, a plaintiff must prove five elements: "'(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005) (quoting Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997)).
Here, Rinaldi could not have made any misrepresentations to plaintiffs because plaintiffs did not know Rinaldi. Between them, there was no communication, retainer agreement, or attorney-client relationship. Furthermore, the signature stamp was not placed on the closing documents until after the closing. Thus, plaintiffs cannot establish reliance, without which their fraud claim must fail. Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 249 (App. Div. 2007). We conclude that the motion judge properly granted summary judgment in favor of defendants on the fraud claim.
We further conclude that plaintiffs' remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION