ROCCO PICCIOLO VS. JOHN H. RITTLEY, ESQ. (L-3108-08, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3862-16T3

ROCCO PICCIOLO,

Plaintiff-Appellant/
Cross-Respondent,

v.

JOHN H. RITTLEY, ESQ., and
LAW OFFICES OF JOHN H.
RITTLEY, LLC,

Defendants-Respondents/
Cross-Appellants.
____________________________

Argued October 18, 2018 – Decided May 15, 2019

Before Judges Simonelli, O'Connor and DeAlmeida.

On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-3108-08.

Angela M. Roper argued the cause for appellant/cross-
respondent (Roper & Thyne, LLC, attorneys; Kenneth
S. Thyne, on the briefs).

Meredith Kaplan Stoma argued the cause for
respondents/cross-appellants (Morgan Melhuish
 Abrutyn, attorneys; Meredith Kaplan Stoma, of
counsel; Jeffrey S. Leonard, on the briefs).

PER CURIAM

This legal malpractice action is back to us following a remand. 1 Plaintiff

Rocco Picciolo appeals from the April 19, 2017 Law Division order granting

summary judgment to defendants John H. Rittley, Esq. and the Law Offices of

John H. Rittley, LLC (collectively defendant) and dismissing the complaint with

prejudice. Defendant cross-appeals from the June 2, 2017 order denying his

prior motion for summary judgment. 2 We affirm the April 19, 2017 order and

reverse the June 2, 2017 order for reasons in addition to those expressed by the

motion judge. See Aquilio v. Cont'l Ins. Co. of N.J., 310 N.J. Super. 558, 561

(App. Div. 1998).

Defendant represented plaintiff in a matrimonial matter. On May 29,

2007, adversary counsel sent a settlement offer to defendant's office, which

contained twenty proposed settlement terms (the settlement offer). Among those

terms was the wife's agreement to waive alimony "provided that equitable

1
See Picciolo v. Rittley, No. A- 5007-13 (App. Div. Dec. 3, 2015).
2
The motion judge heard argument on the prior summary judgment motion on
October 28, 2016, but did not enter an order until June 2, 2017.

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distribution is paid to her as set forth [in the settlement offer]." Adversary

counsel made clear that the wife's "waiver of alimony [was] of great value and

therefore the equitable distribution portion [of the settlement offer] is the

consideration she must receive in order to waive that right." (Emphasis added).

The wife sought equitable distribution of the marital home, plaintiff's pension,

and his deferred compensation account.

Defendant was out of the office when the settlement offer arrived, due to

his father's death. On May 31, 2007, defendant's paralegal telephoned plaintiff,

advised him of the settlement offer, faxed him a copy, and asked for his

comments.

The parties disagreed as to what happened next. Plaintiff claimed he

advised the paralegal that he was willing to accept the settlement offer, but the

paralegal instructed him to write down what he thought should be changed.

Defendant claimed that plaintiff telephoned his office and left a message

that the settlement offer was unacceptable and that he was making changes to

the proposed settlement, and wanted defendant to submit a counteroffer to

adversary counsel. In a May 31, 2017 email from plaintiff to the paralegal,

plaintiff stated, "[a]ttached are my comments to [adversary counsel's] proposed

settlement. Not much of a settlement!" Plaintiff disagreed with or questioned

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fourteen of the twenty proposed settlement terms, and provided his desired

changes. Specifically, plaintiff did not agree with the equitable distribution and

custody terms and the terms requiring him to pay one hundred percent of college

expenses for the parties' two children, certain expenses relating to the children

such as clothing, summer camp, and unreimbursed medical, dental, prescription

and optical expenses, and $9500 for his wife's attorney's fees.

On June 5, 2007, defendant emailed to plaintiff a copy of defendant's

proposed counteroffer to adversary counsel, which incorporated plaintiff's

desired changes. The counteroffer indicated that plaintiff accepted certain

settlement terms with modifications and rejected several others, including

custody, equitable distribution, and payment of college expenses. Defendant

advised plaintiff:

[The paralegal] sent me [adversary counsel's] offer,
your written wishes and your feeling that this is a setup.
I agree with you that [the wife] is playing games. This
is a 180 from where we were [two] weeks ago. As we
discussed in April, proposals are not [C]hinese menus
where you get to pick and choose, both of you need to
agree on all the terms. [In line] with our instructions,
our counteroffer will probably not go anywhere but we
need to start the ground work. [Adversary counsel] is
probably awaiting the [Early Settlement Panel].

Please review my letter carefully, it outlines what we
discussed previously [i]ncorporating your comments.
Let me know any changes you want to make–shoot me

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 an email or call either of us on [what] you want, we will
make ourselves available, as I [will] be on the road.
[The paralegal] will send out the proposal if she does
not get any comments from you by close of business
tomorrow. I will then follow [] up with [adversary
counsel] to see if we are any closer to an agreement.

On June 6, 2007, the paralegal telephoned plaintiff and left a message

asking him to submit any changes to the counteroffer by the end of the day.

Receiving no response from plaintiff, defendant sent the counteroffer to

adversary counsel the next day. Plaintiff claimed he received the counteroffer

after defendant had already sent it to adversary counsel and never authorized

defendant to make the counteroffer.

Adversary counsel rejected the counteroffer. The matrimonial litigation

continued, during which plaintiff and his wife continued living together in the

marital home under contentious circumstances. Plaintiff claimed he suffered a

permanent eye injury when his wife assaulted him on October 13, 2007.

Defendant referred plaintiff to a certified civil and criminal attorney who valued

plaintiff's Tevis3 claim at between $20,000 and $30,000.

Over a year after the rejection of the counteroffer, plaintiff and his wife

agreed to a settlement during mediation without their attorneys present. On June

3
Tevis v. Tevis, 79 N.J. 422 (1979).

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13, 2008, they executed a property settlement and support agreement (PSA),

which was incorporated into their dual final judgment of divorce. The terms of

the PSA were similar to the terms of the settlement offer, except plaintiff was

required to pay permanent alimony, which would terminate on the wife's death,

or remarriage, repudiation or modification of the PSA by the parties' mutual

consent, death of plaintiff, or the wife's cohabitation with an unrelated pers on.

The PSA required the wife to pay child support and contribute to the children's

college expenses, which differed from the settlement offer. In addition, there

were certain equitable distribution provisions that differed from the settlement

offer, which were more favorable to plaintiff, and plaintiff paid only $4000 for

his wife's attorney's fees.

Plaintiff subsequently filed a complaint against defendant, alleging

defendant breached his duty of care by failing to advise adversary counsel that

plaintiff wanted to accept the settlement offer, and by rejecting it without

plaintiff's authorization. Plaintiff claimed that as a result of defendant's failure

to accept the settlement offer, plaintiff had to continue living with his wife,

sustained a permanent eye injury when she assaulted him, received a less

favorable settlement requiring him to pay permanent alimony, and incurred

A-3862-16T3
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increased legal fees. Plaintiff also claimed defendant breached his duty of care

by failing to properly evaluate his Tevis claim.

Plaintiff's liability expert, Patrick T. Collins, Esq., acknowledged that the

terms of the PSA were "quite similar" to the settlement offer and some

provisions of the PSA were more beneficial to plaintiff, except for the permanent

alimony provision. Collins had admitted at his deposition that he was not an

expert on damages and did not offer an opinion on damages in his expert's report.

He also admitted that plaintiff had no damages expert 4 and he lacked the

expertise to evaluate plaintiff's Tevis claim.

Nevertheless, Collins testified at his deposition that plaintiff sustained

$114,000 in damages. However, in arriving at this amount, Collins did not

compare the settlement offer to the PSA, and he only considered plaintiff's

payment of permanent alimony and not any of the benefits plaintiff derived from

the PSA to offset the damages amount. For example, Collins did not consider

the $85 per week plaintiff received in child support, the reduced amount of the

wife's attorney's fees plaintiff paid, or the fact that the wife would contribute to

the children's college expenses. Collins also did not analyze the attorney's fees

plaintiff incurred. Collins speculated that plaintiff would pay alimony until age

4
Plaintiff had retained a Tevis expert, but the expert, an attorney, was disbarred.
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sixty-five, and admitted the damages amount was "just [as] good a ballpark

[amount] as [he] could arrive at."

In addition, Collins testified that the settlement offer could not have been

accepted unconditionally but "should have been accepted with qualifications."

For example, Collins testified that the equitable distribution term regarding the

marital home should have been accepted with qualifications because it contained

a flawed valuation methodology. He maintained that with "T crossings and I

dottings that need to happen, the ultimate disposition of many issues [was] fairly

well preordained" and "would be rather certain to lead to a settlement." He

admitted, however, that if plaintiff had accepted that equitable distribution term

with qualifications, adversary counsel could have legally rejected those

qualifications.

Collins also testified that the settlement term requiring plaintiff to pay one

hundred percent of the college expenses "was not a serious one in this case. And

[he could not] envision that it was a position that would have held because that

simply never happens." Collins admitted that adversary counsel could have

rejected plaintiff's acceptance of that specific provision with qualifications.

Collins also acknowledged that

it is an impossibility that [adversary counsel] or [the ex-
wife] truly believed that that was going to be a

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 component of the settlement. That was what . . .
matrimonial attorneys often call a gimmie. You know,
you put something out there that nobody honestly
thinks is going to be a part of the settlement and you
concede to the norm.

Collins concluded that "[t]his case could not possibly have come to resolution

with [the parties] agreeing to [the college expenses] provision. No court could

possibly have adjudicated it and nobody would have agreed to it."

On remand, defendant moved for summary judgment, arguing, in part, that

Collins rendered an inadmissible net opinion.5 The motion judge noted that

Collins's opinion came close to a net opinion and "barely" met the applicable

standard under Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008). However, the judge

concluded "there [was] sufficient information for the fact finder to make a

decision without engaging in any type of speculation on the issue of damages."

Defendant later filed a motion in limine to bar Collins's testimony and to

dismiss the complaint with prejudice for lack of expert evidence. Plaintiff did

not file opposition. Plaintiff's attorney appeared at oral argument and conceded

that Collins testified the settlement offer should have been accepted with

5
Plaintiff had no Tevis expert at the time of the motion. He subsequently
retained a new Tevis expert.

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qualifications and adversary counsel could legally have rejected those

qualifications. 6

After reviewing Collins's deposition testimony, the judge pointed to the

college expenses term and found this was an essential term that Collins agreed

could not be accepted. The judge concluded there was no enforceable settlement

agreement because the settlement offer was an offer that could not have been

accepted, and if it was accepted with qualifications, that was a counteroffer that

could be rejected. The judge did not address damages.

On appeal, plaintiff contends the judge improperly invaded the province

of the jury and engaged in credibility determinations and fact-finding in granting

summary judgment to defendant. Plaintiff argues it was for the jury to determine

whether his acceptance of the settlement offer with qualifications and "tweaks"

6
The attorney did not raise any argument regarding plaintiff's newly retained
Tevis expert, and the expert's report is not in the motion record but is included
in plaintiff's appendix. In his reply brief, plaintiff argues for the first time on
appeal that his Tevis expert established damages. We cannot consider issues
such as this that were not presented to the trial court, are not jurisdictional in
nature, and do not substantially implicate the public interest. Zaman v. Felton,
219 N.J. 199, 226-27 (2014). In addition, we will not consider an issue raised for
the first time in a reply brief that does not present a matter of great public
interest. See Goldsmith v. Camden Cty. Surrogate's Office, 408 N.J. Super. 376,
387 (App. Div. 2009). We also will not consider documents included in the
appendix that were not presented to the trial court. See N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 278 (2007).

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would have resulted in an enforceable settlement agreement that would have

relieved him of the obligation to pay permanent alimony.

The question as to whether the parties have entered into an enforceable

settlement agreement is a question of law for the court to determine. Kaur v.

Assured Lending Corp., 405 N.J. Super. 468, 474 (App. Div. 2009).

Accordingly, the judge did not invade the jury's province in deciding whether

plaintiff's acceptance of the settlement offer with qualifications would have

resulted in an enforceable settlement agreement. We thus consider whether

summary judgment was proper.

"When granting a motion [in limine] will result in the dismissal of a

plaintiff's case or the suppression of a defendant's defenses, the motion is subject

to Rule 4:46, the rule that governs summary judgment motions." Seoung Ouk

Cho v. Trinitas Reg'l Med. Ctr., 443 N.J. Super. 461, 471 (App. Div. 2015).

Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017). Thus, we consider "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." Liberty Surplus Ins. Corp. v. Nowell

A-3862-16T3
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Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 536 (1995)).

[S]ummary judgment [must] be granted "if the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of
law."

[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,
224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).]

"If there is no genuine issue of material fact, we must then 'decide whether

the trial court correctly interpreted the law.'" DepoLink Court Reporting &

Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013)

(quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div.

2007)). We review issues of law de novo and accord no deference to the trial

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Applying the above standards, we discern no reason to reverse.

To establish a claim of legal malpractice, the plaintiff must prove: "(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" of the client's

damages. Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996) (quoting

A-3862-16T3
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Lovett v. Estate of Lovett, 250 N.J. Super. 79, 87 (Ch. Div. 1991)). There is no

dispute as to the first element. At issue are the second and third elements.

To establish the second element, the plaintiff must present expert

testimony, when required, on the issue of breach. Stoeckel v. Twp. of Knowlton,

387 N.J. Super. 1, 14 (App. Div. 2006). "Expert testimony is required in cases

of professional malpractice where the matter to be addressed is so esoteric that

the average juror could not form a valid judgment as to whether the conduct of

the professional was reasonable." Sommers v. McKinney, 287 N.J. Super. 1, 10

(App. Div. 1996). Where "the adequacy of an investigation or the soundness of

an opinion is the issue, a jury will usually require the assistance of an expert

opinion." Id. at 11.

Plaintiff cannot establish the second element. A settlement of a legal

claim between parties is a contract like any other contract. Nolan v. Lee Ho,

120 N.J. 465, 472 (1990). "Where the parties agree upon the essential terms of

a settlement, so that the mechanics can be 'fleshed out' in a writing to be

thereafter executed, the settlement will be enforced notwithstanding the fact the

writing does not materialize because a party later reneges." Lahue v. Pio Costa,

263 N.J. Super. 575, 596 (App. Div. 1993) (quoting Bistricer v. Bistricer, 231

N.J. Super. 143, 145 (Ch. Div. 1987)). There is a settlement only if there is an

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agreement to essential terms. Mosley v. Femina Fashions, Inc., 356 N.J. Super.

118, 126 (App. Div. 2002). However, the court will not enforce a settlement

"where there appears to have been an absence of mutuality of accord between

the parties or their attorneys in some substantial particulars, or the stipulated

agreement is incomplete in some of its material and essential terms." Kupper v.

Barger, 33 N.J. Super. 491, 494 (App. Div. 1955).

"A written contract is formed when there is a 'meeting of the minds'

between the parties evidenced by a written offer and an unconditional, written

acceptance." Morton v. 4 Orchard Land Tr., 180 N.J. 118, 129-30 (2004)

(quoting Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 538-39 (1953)).

To constitute a valid binding contract the proposal of the one party must be met

by an unqualified acceptance by the other party and that the acceptance must

correspond entirely with the essential terms contained in the proposal. Graziano

v. Grant, 326 N.J. Super. 328, 339-40 (App. Div. 1999). A qualified or

conditional acceptance containing terms and conditions not found in the original

proposal may operate as a counteroffer but does not constitute an acceptance

and does not result in the formation of a valid contract binding upon the parties.

Ibid. "A counteroffer operates as a rejection because it implies that the offeree

will not consent to the terms of the original offer and will only enter into the

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transaction on the terms stated in the counteroffer." Berberian v. Lynn, 355 N.J.

Super. 210, 217 (App. Div. 2002). Therefore, there is no binding contract at the

time of a counteroffer. Morton, 180 N.J. at 130.

Plaintiff did not give an unqualified acceptance that corresponded entirely

with the essential terms contained in the settlement offer. Rather, as Collins

testified, the settlement offer could not be accepted unconditionally and "should

have been accepted with qualifications" not found in the settlement offer. Such

a qualified or conditional acceptance operates as a counteroffer, not an

acceptance, and does not result in the formation of a valid, binding contract.

Graziano, 326 N.J. Super. at 339-40. Thus, even if defendant had accepted the

settlement offer with qualifications, that qualified acceptance would not have

resulted in an enforceable settlement agreement. Morton, 180 N.J. at 130.

Further, college expenses and equitable distribution are essential and

material terms in matrimonial matters where these issues are present. Plaintiff's

wife conditioned her waiver of permanent alimony on plaintiff's acceptance of

all of the equitable distribution terms in the settlement offer. Plaintiff did not

agree to the equitable distribution terms or the college expenses term of the

settlement offer without qualifications that would have substantially altered

those terms. Thus, there was no enforceable settlement agreement. Because

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there was no enforceable settlement agreement, plaintiff cannot prove defendant

breached his duty of care, warranting the grant of summary judgment and

dismissal of his complaint with prejudice.

For the sake of completeness, we address the third element of a

malpractice claim. To establish the third element, the plaintiff "must

demonstrate that he or she would have prevailed, or would have won materially

more . . . but for the alleged substandard performance." Lerner v. Laufer, 359

N.J. Super. 201, 221 (App. Div. 2003). The plaintiff must present proof of actual

damages as a result of the breach. Grunwald v. Bronkesh, 131 N.J. 483, 495

(1993). "[T]he measure of damages is ordinarily the amount that the client

would have received [or would not have had to pay] but for his attorney's

negligence." Gautam v. DeLuca, 215 N.J. Super. 388, 397 (App. Div. 1987).

Ordinarily, the measure of damages is what result the client would have obtained

in the absence of attorney negligence. Conklin, 145 N.J. at 417. As we have

stated:

Where a wrong has been committed and damages have
resulted, mere uncertainty as to the amount of damages
will not preclude a recovery even though proof of the
amount of damages is inexact. Evidence which affords
a basis for estimating damages with some reasonable
degree of certainty is sufficient to support an award.

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 [Viviano v. CBS, Inc., 251 N.J. Super. 113, 129 (App.
Div. 1991) (citation omitted).]

However, the "law abhors damages based on mere speculation." Mosley, 356

N.J. Super. at 128 (quoting Caldwell v. Haynes, 136 N.J. 422, 442 (1994)). The

plaintiff must lay a foundation that allows the factfinder to reach a fair and

reasonable estimate of damages with sufficient certainty. Id. at 128-29. A legal

malpractice plaintiff does not satisfy this burden by "mere 'conjecture, surmise

or suspicion.'" 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478,

488 (App. Div. 1994) (quoting Long v. Landy, 35 N.J. 44, 54 (1961)). Damages

must be proven through "competent credible evidence which proves material

facts". Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982).

Because there was no enforceable settlement agreement, plaintiff cannot

prove he would have prevailed. Assuming there was an enforceable settlement

agreement, plaintiff cannot prove actual damages. Collins did not compare the

settlement offer to the PSA and only considered plaintiff's payment of

permanent alimony in calculating damages. Collins did not consider any of the

benefits plaintiff derived from the PSA to offset the damages and did not analyze

plaintiff's attorney's fees. Among other things, Collins did not offset the

alimony amount plaintiff would have to pay against the college expenses he no

longer was obligated to pay or the funds plaintiff would receive from child

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support. Collins merely gave an estimated "ballpark" amount based on

speculation. See 2175 Lemoine Ave. Corp., 272 N.J. Super. at 488.

Accordingly, plaintiff cannot satisfy his burden to prove defendant's alleged

malpractice proximately caused damages.

The April 19, 2017 order is affirmed and the June 2, 2017 order is reversed.7

7
Having reached this conclusion, we need not address whether Puder v.
Buechel, 183 N.J. 428 (2005), barred plaintiff's malpractice claim.
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