RALPH DYKE v. JOHN J. PISANO (L-3317-19, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0321-20

RALPH DYKE,

Plaintiff-Appellant,

v.

JOHN J. PISANO, and
STEVEN H. ISAACSON,

Defendants-Respondents.
__________________________

Argued October 28, 2021 – Decided January 13, 2022

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3317-19.

Barbara J. Boyd argued the cause for appellant (Maselli
Warren, PC, attorneys; Paul J. Maselli of counsel and
on the briefs; Shawn D. Edwards and Deanne J.
Lowden, on the briefs.)

Vincent Richard Glorisi argued the cause for
respondents.

PER CURIAM
 In this legal malpractice case, plaintiff Ralph Dyke appeals from a

September 25, 2020 order granting summary judgment to defendants, his former

attorneys, John J. Pisano and Steven H. Isaacson. The judge concluded that

plaintiff's voluntary settlement of his personal injury lawsuit estopped his later

claim that the attorneys' negligence compelled him to settle for less than the full

value of his case. We affirm.

We discern the following facts from the record. Defendant Pisano

represented plaintiff for injuries sustained in a November 13, 2015 hit -and-run

accident. In the underlying case, plaintiff alleged that he was struck by a motor

vehicle as he was walking in the parking lot of an A&P supermark et in

Kenilworth, New Jersey. After being struck by the car, plaintiff did not report

the incident to anyone at the supermarket, nor did he call the police or file a

report with the Kenilworth Police Department.

Two days later, on November 15, 2015, plaintiff presented at the

emergency department of Overlook Medical Center complaining of back and

chest pain. The history recorded in the ER records indicate the mechanism of

the injury was a "mechanical fall." Plaintiff was treated and discharged from

the emergency department with a diagnosis of a rib fracture. The discharge

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instructions advised plaintiff to follow up with Dr. Daniel Preston, his primary

care physician.

In accordance with the discharge instructions, on November 17, 2015,

plaintiff saw Dr. Preston. Dr. Preston's progress note indicates that plaintiff was

seen in a follow-up from the visit to Overlook Medical Center for "injuries

consequent to a fall."

Several weeks after the accident, plaintiff encountered defendant Pisano

on the street. Defendant had previously represented plaintiff in other personal

injury matters.1 During this happenstance encounter, plaintiff advised defendant

that he had been hit by a car and inquired if he was entitled to some type of

disability benefits as a result of the accident because he could no longer work in

his drywall business due to his injuries. Based on defendant's account of being

struck by a hit-and-run vehicle, Pisano assessed that plaintiff may have a claim

for uninsured motorists (UM) benefits under his automobile policy with New

1
These other matters include: a rear end motor vehicle accident in the 1990's
that ultimately settled; a suit against a Home Depot located on Route 22 in
Union, NJ for which he received a settlement; and a worker's compensation case
in which plaintiff fell down some stairs while working in Cranford.
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Jersey Manufacturer's (NJM). Defendant agreed to represent plaintiff on a

contingency basis. 2

After defendant received and reviewed plaintiff's ER records, he voiced

his concern to plaintiff that the records attributed his injuries to a fall and did

not record a history of being hit by a car. Defendant advised plaintiff that the

medical records would undermine his credibility and make this a more difficult

case to prove on the issue of liability.

The matter was scheduled for mandatory arbitration on September 14,

2017. See R. 4:21A-1(a)(2). Codefendant Steven Isaacson was the court-

appointed arbitrator. Isaacson, crediting plaintiff's account that he was struck

by a car, found the hit-and-run driver 100% liable for the accident. Based on

the medical and other proof of damages, Isaacson awarded $95,000 in damages.3

NJM rejected the award and requested a trial de novo.

The case was scheduled for trial on April 23, 2018. Defendant Pisano,

apparently unaware of Isaacson's role as the court-appointed arbitrator, engaged

2
It is disputed whether defendant required plaintiff to sign a written retainer
agreement. Defendant does not allege, however, that the fee charged exceeded
the amount permitted by RPC 1.5.
3
Had the arbitrator disbelieved plaintiff's account, the liability against the
alleged hit-and-run driver would have been zero percent and the case would have
been dismissed at arbitration.
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Isaacson on a per diem basis to meet plaintiff at the courthouse and conference

the case. If Isaacson could not settle the case, he would advise Pisano, and either

Pisano or another attorney would come to the courthouse to try the case.

Although there are many disputes about what occurred on the day of trial,

it is undisputed that the trial judge conducted a settlement conference during

which the insurance company made a final settlement offer of $45,000. Plaintiff

admitted at his deposition that defendant Pisano advised him early in the

representation, and thereafter including on the day of trial, that the case

presented a significant causation issue. Plaintiff has since admitted in response

to Notice to Admit number seven that he authorized the defendants to accept the

$45,000 settlement. The terms of the settlement were not placed on the record,

but they are reflected in the judge's order of dismissal.

It is also undisputed that on June 11, 2018, approximately seven weeks

after the settlement, plaintiff appeared at Pisano's office and executed the

release. Plaintiff admitted that when he signed the release, he was not under any

duress or coerced in any way. He was aware that by signing the release he was

resolving the claim for the agreed-upon amount. Plaintiff also signed a

settlement statement reflecting that after costs, fees, and medical liens his net

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recovery was $28,784,70. Thereafter, Pisano provided plaintiff with the

settlement check and plaintiff deposited the money in his bank account.

On September 23, 2019, approximately one year and three months after

signing the release, plaintiff filed a complaint against defendants for legal

malpractice and breach of contract based on their "settling for far less th[a]n the

fair value of the claims." In that regard, plaintiff's expert opined that the true

value of the case was $95,000, the amount of the arbitration award. Plaintiff

alleged that he felt pressured to settle because defendant would have required

him to pay the expert witness's fee. He alleged that defendant's failure to have

an expert in court on the trial date indicated defendant was not ready to try the

case. Plaintiff also claimed that defendant Pisano did not adequately prepare

him for depositions or trial. He alleged similar complaints against defendant

Isaacson and claimed Isaacson's conferencing the case without advising him of

his role as the arbitrator violated RPC 1.12.

After discovery, defendants moved for summary judgment. On September

25, 2020, the motion judge entered an order granting summary judgment to

defendants. The judge acknowledged the existence of disputed facts that would

defeat summary judgment, absent the circumstances surrounding the settlement

on the trial date and thereafter. The judge therefore declined to resolve whether

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defendants were negligent, stating that he was "satisfied based on [plaintiff's]

allegations that the issue of malpractice is one that should go to a jury . . . ."

Notwithstanding, the judge found plaintiff's voluntary execution of the release

barred his legal malpractice claim.

But I think what all of these cases talk to is the facts of
the matter. And if it were just the facts, as I said, if it
were just the facts of the matter of the settlement that
took place on the trial date I wouldn’t hesitate in
denying summary judgment in this matter. But what do
we know about [plaintiff]? Well [plaintiff] is an
experienced litigant. This wasn’t his first rodeo so to
speak. He had been represented by Mr. Pisano a
number of times. In fact, when you read the papers he
had gotten hurt and was treating – I can't believe anyone
would find Dr. He without being represented but that's
a story for another day. But he was treating and he ran
into him in traffic in Cranford one day, which is maybe
how Mr. Pisano gets a lot of his clients, I don't know.
And he says, hey I got hurt again.

And so here's a guy who knew his way around the
system. He had a number of cases. He had been
represented by Pisano in a number of cases. Then the
settlement takes place on the trial day, and as Mr.
Pisano apparently prepares the settlement papers the
next day, but then [plaintiff] doesn't show up until six
weeks later, I think they said June eleventh. And he
testifies at his deposition, were you under any duress
when you signed those papers? No, I wasn’t under any
duress. So the combination of his experience with
litigation, his experience with Mr. Pisano, the fact that
he waited seven weeks and then went in and signed the
settlement papers, didn’t feel under any duress
whatsoever I think undermines his claim that the

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 settlement was against his will. And based on the
circumstance that took place on the day that took trial.

And I don't think there's any material fact in dispute as
to that. And so for those reasons I do find that despite
a lot of questionable conduct on behalf of Mr. Pisano,
or alleged questionable conduct, that based on the way
the settlement was finalized by this litigant and his
experience with the system that he should be precluded
from proceeding on the legal malpractice case.

On appeal, plaintiff raises the following arguments for our consideration:

POINT I

THE TRIAL COURT MISREPRESENTED THE
HOLDINGS IN [THE] PUDER AND ZIEGELHEIM
CASES IN FINDING THAT [PLAINTIFF] WAS
PRECLUDED FROM PURSUING LEGAL
MALPRACTICE CLAIMS AGAINST THE
DEFENDANTS.

A. The Puder Exception to Ziegelheim Only
Applies under Narrow Circumstances.

B. The Trial Court Failed to Analyze the
Settlement of the Underlying Lawsuit in
Accordance with Ziegelheim and Puder.

POINT II

EVEN IF THE PUDER EXCEPTION APPLIED, THE
TRIAL COURT FAILED TO VIEW THE EVIDENCE
IN A LIGHT MOST FAVORABLE TO DYKE AND
GRANT HIM ALL REASONABLE INFERENCES IN
GRANTING SUMMARY JUDGMENT.

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 A. The Evidence of Record When Viewed in a
Light Most Favorable to Dyke Supports His
Malpractice Claims Against the Respondents.

B. The Trial Court Erred in Marking a Factual
Finding that the Settlement was Entered into
Voluntarily.

C. The Trial Court Judge Erred in Making a
Factual Finding that Dyke was an Experienced
Litigant.

We agree with plaintiff that the motion judge improperly considered his

prior experience as a litigant represented by defendant Pisano as a factor bearing

on the voluntariness of the settlement. The motion judge correctly found,

however, that plaintiff's words and conduct conclusively establish the settlement

was both knowing and voluntary, and plaintiff is therefore barred from pursuing

additional compensation from defendants.

We review a trial court's decision granting summary judgment de novo,

using "the same standard that governs trial courts in reviewing summary

judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.

162, 167 (App. Div. 1998). A court should grant summary judgment when "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

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order as a matter of law." R. 4:46-2(c). "Thus, the movant must show that there

does not exist a 'genuine issue' as to a material fact and not simply one 'of an

insubstantial nature'; a non-movant will be unsuccessful 'merely by pointing to

any fact in dispute.'" Prudential, 307 N.J. Super. at 167 (quoting Brill v.

Guardian Life Ins. Co., 142 N.J. 520, 529-30 (1995)). This court's review is

"based on [its] consideration of the evidence in the light most favorable to the

parties opposing summary judgment." Brill, 142 N.J. at 523.

Malpractice claims are permitted when plaintiffs allege "particular facts

in support of their claims of attorney incompetence . . . ." Ziegelheim v. Apollo,

128 N.J. 250, 267 (1992). The existence of a settlement agreement does not

automatically bar a subsequent malpractice suit against an attorney. Id., at 265.

Such claims may be precluded, however, when a client decides to "settle a case

for less than it is worth . . . and then seek[s] to recoup the difference in a

malpractice action against [the] attorney." Puder v. Buechel, 183 N.J. 428, 443

(2005); see also Guido v. Duane Morris LLP, 202 N.J. 79, 90 (2010). In those

circumstances, a party may be equitably estopped from bringing his or her claim.

See Puder, 183 N.J. at 437; see also Guido, 202 N.J. at 94 ("Puder represents

not a new rule, but an equity-based exception to Ziegelheim's general rule

. . . .").

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 "A settlement is essentially a contract which is to be enforced, as written,

absent a demonstration of fraud or other compelling circumstances."

Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 421 N.J. Super. 445,

451 (App. Div. 2011); see also Kaur v. Assured Lending Corp., 405 N.J. Super.

468, 474-75 (App. Div. 2009) (reviewing the enforcement of a settlement

agreement de novo). "An offeree may manifest assent to the terms of an offer

through words . . . or by conduct[.]" Weichert Co. Realtors v. Ryan, 128 N.J.

427, 436 (1992).

In this case, by both his words and conduct, plaintiff manifested

unequivocal assent to the settlement. His legally binding admission in response

to the seventh Notice to Admit concedes that he authorized the $45,000

settlement on the day of trial. He did so after being advised, repeatedly, of the

significant liability issue due to his failure to report that he had been struck by

a hit-and-run vehicle to anyone in the immediate aftermath of the incident.

Although the settlement was not placed on the record, the central issue is

whether plaintiff received appropriate advice about the liability issue in his case

before choosing to settle. See Puder, 183 N.J. at 437-38. Indisputably, the

advice was appropriate, as conceded by plaintiff's counsel at oral argument.

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 Under analogous facts, in Newell v. Hudson, we upheld the dismissal of

a plaintiff's claim against her former matrimonial attorney alleging that the

attorney's failure to conduct adequate discovery "resulted in her 'accept[ing] a

settlement which was woefully insufficient in terms of both alimony/sp ousal

support and equitable distribution.'" 376 N.J. Super 29, 34 (App. Div. 2005).

Puder, citing Newell with approval, explained:

[a]s we do in this case, the Newell panel also found
Ziegelheim to be distinguishable because, unlike the
plaintiff in Ziegelheim, the Newell plaintiff was not
"misinformed of the criteria to be employed or was
[not] without full knowledge of the attendant facts prior
to adopting" the settlement. Id. at 46. To the contrary,
the plaintiff in Newell was completely aware of the
alleged financial shortcomings of the settlement when
she willingly entered into the agreement. Ibid. . . .

Like the plaintiff in Newell, Mrs. Buechel's
knowing and voluntary acceptance of a settlement that
she stated was a fair compromise bars her from
proceeding with her malpractice claim.

Similarly, plaintiff's words and conduct show he knew his case was weak

and that voluntary settlement was likely the best outcome he could expect. His

belated dissatisfaction with the amount of the settlement is no basis for a

malpractice claim.

Affirmed.

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