New Jersey Appellate Division Outlines Factors for Successful Legal Malpractice Claim

Girard v. Foster, No.  A-5190-16T1, 2018 WL 6518667 (N.J. Super. Ct. App. Div. Dec. 12, 2018).

This case deals with a legal malpractice claim in the probate context.

Plaintiff Anthony J. Girard and his siblings were involved in litigation as to land owned by their mother. Girard and his siblings signed a Consent Order that required the property to be titled to all four siblings as tenants in common.  As part of the Consent Order, Girard  represented to his siblings and the court, that he was unaware of any will executed by his mother.  However, Girard later admitted he knew of, and actually participated in, the creation of a will for his mother. Id. at *2.

Girard’s mother died, and Mr. Girard was appointed executor of her estate pursuant to the previously undisclosed will. He and the siblings engaged in litigation regarding her estate, as a result of which the trial court rendered several rulings against Girard.   Girard then filed a pro se Complaint against the attorney who represented him  in the estate litigation.  He alleged, among other things, that his counsel committed legal malpractice by not engaging an independent accountant to perform a financial review or audit to determine the correct income and expenses of his mother’s property.

The trial court granted summary judgment to Girard’s counsel. Girard appealed.

On appeal Girard argued that material issues of fact precluded summary judgment, and he presented sufficient evidence of damages. The Appellate Division disagreed and affirmed the trial court’s ruling. Id. at *5.

First, the Appellate Division debunked Girard’s assertion that his counsel’s negligence was the cause of an unfavorable result.  In a footnote, the Appellate Division noted that Girard’s outcome was not entirely unfavorable, because the siblings were denied a share of the fair rental value of the property and legal fees associated with the sale.  In addition, Girard was awarded $8,000 in reimbursement expenses. Id.

The Appellate Division outlined the factors needed for a successful legal malpractice action: “(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff.” Id. at *6.  The court concluded that Girard failed to show what injuries were suffered as a proximate consequence of his former counsel’s alleged breach of duty.  In addition, Girard did not demonstrate that he would have prevailed or fared better but for the alleged substandard performance. Id. at *7.  Finally, Girard presented no evidence, expert or otherwise, to explain his damages and losses.  For those reasons the Appellate Division affirmed the grant of summary judgment.