NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0387-11T1

PETER INNES and VICTORIA

SOLENNE INNES, by Her 

Guardian PETER INNES,

Plaintiffs-Respondents,

v.

MADELINE MARZANO-LESNEVICH,

ESQ., and LESNEVICH & 

MARZANO-LESNEVICH, Attorneys

At Law, i/j/s/a,

Defendants-Appellants/

Third-Party Plaintiffs,

v.

MITCHELL A. LIEBOWITZ, ESQ.,

PETER VAN AULEN, ESQ. and

MARIA JOSE CARRASCOSA,

Third-Party Defendants.

_____________________________________________________

Argued October 8, 2013 – Decided

Before Judges Messano, Hayden and Rothstadt.

On appeal from the Superior Court of New 

Jersey, Law Division, Bergen County, Docket 

No. L-7739-07.

Christopher J. Carey argued the cause for 

appellant Madeline Marzano-Lesnevich, Esq. 

(Graham Curtin, P.A., and Lesnevich & 

Marzano-Lesnevich, LLC, attorneys; Michael 

R. Mildner, on the brief).

APPROVED FOR PUBLICATION

April 7, 2014

APPELLATE DIVISION

April 7, 2014
2 A-0387-11T1

James H. Waller argued the cause for 

respondents Peter and Victoria Innes (Mr. 

Waller, attorney; Mr. Waller and Michael A. 

Casale, on the brief).

Steven J. Tegrar argued the cause for 

respondent Peter Van Aulen (Law Offices of 

Joseph Carolan, attorneys; Mr. Tegrar and 

George H. Sly, Jr., on the brief).

William F. O'Connor, Jr., argued the cause 

for respondent Mitchell A. Liebowitz, Esq. 

(McElroy, Deutsch, Mulvaney & Carpenter, 

L.L.P., attorneys; Mr. O'Connor, of counsel; 

Lawrence S. Cutalo, on the brief).

Respondent Maria A. Carrascosa has not filed 

a brief.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Plaintiff Peter Innes, individually and on behalf of his 

daughter, Victoria Solenne Innes (Victoria, and collectively 

plaintiffs), filed suit against defendants Madeline MarzanoLesnevich, an attorney, and her law firm, Lesnevich & MarzanoLesnevich (the Lesnevich firm, and collectively defendants).1 

The complaint stemmed from defendants' allegedly improper 

release of Victoria's United States passport to her mother, 

Maria Jose Carrascosa, during the prelude to contentious 

 

1 Separate counsel represented Innes and his daughter in the Law 

Division and on appeal, although plaintiffs filed a joint brief.
3 A-0387-11T1

matrimonial proceedings between Innes and Carrascosa.

2 Innes 

alleged that Carrascosa used the passport in 2005 to "abduct" 

Victoria and bring her to Spain, where the child remains with 

her maternal grandparents, beyond the reach of her father.

Defendants filed an answer and third-party complaint 

seeking contribution against (1) Carrascosa, their former 

client; (2) Peter Van Aulen, the attorney for Innes in the 

matrimonial dispute; and (3) Mitchell Liebowitz, the attorney 

who initially represented Carrascosa. Before trial, Van Aulen

and Liebowitz were granted summary judgment, while defendants' 

motions seeking summary judgment dismissing the complaint were 

denied. The court also sua sponte severed defendants' thirdparty complaint against Carrascosa. 

Immediately before trial, defendants moved to exclude any 

claim for counsel fees, and to bar the testimony of plaintiffs' 

 

2 The parties' divorce and related actions have resulted in 

several previous decisions in our courts, the federal courts and 

the courts of Spain. In our prior decision, we presented a 

comprehensive overview and held that New Jersey had subject 

matter jurisdiction over the parties' divorce, property 

distribution and child custody issues. Innes v. Carrascosa, 391 

N.J. Super. 453, 462 (App. Div.), certif. denied, 192 N.J. 73 

(2007), cert. denied, 555 U.S. 1129, 129 S. Ct. 981, 173 L. Ed.

2d 167 (2009). See also Carrascosa v. McGuire, 520 F.3d 249, 

263 (3d Cir.) (affirming district court's determination that New 

Jersey Superior Court had authority to rule on the child's 

custody and to issue orders pertaining to the mother's civil 

contempt and incarceration), cert. denied, 555 U.S. 998, 129 S.

Ct. 491, 172 L. Ed. 2d 363 (2008).
4 A-0387-11T1

professional expert, attorney George Conk. The judge denied 

both requests. The judge reserved decision on defendants' 

motion to bar plaintiffs' claims for emotional distress damages. 

At the close of plaintiffs' case, defendants moved to 

dismiss the complaint for failure to establish proximate cause, 

and to dismiss plaintiffs' claims for emotional distress 

damages. The judge denied both requests. 

The jury returned a verdict in favor of plaintiffs and 

awarded damages of $700,000 to Innes and $250,000 to Victoria. 

On May 20, 2011, judgment was entered that also included prejudgment interest of $133,815.07 for Innes and $47,791.09 for 

Victoria. On June 28, 2011, the judge entered an amended order 

for judgment that additionally included counsel fees and costs

for Innes and Victoria in the amounts of $158,517.70 and 

$126,397.07, respectively.

Defendants moved for a new trial or for judgment 

notwithstanding the verdict (JNOV), which the judge denied after 

initially reserving decision. The judge granted a stay of 

judgment pending disposition of the third-party complaint 

against Carrascosa. 

On July 18, 2011, plaintiffs filed a motion seeking to 

participate in the trial of defendants' third-party complaint 

against Carrascosa and to "bar[] the allocation of fault at 
5 A-0387-11T1

. . . trial." In a written opinion, the judge dismissed 

defendants' third-party complaint with prejudice, concluding 

essentially that defendants were not entitled to contribution 

from Carrascosa. This appeal followed.

Defendants raise myriad arguments regarding the 

interlocutory orders denying their pre-trial motion for summary 

judgment seeking dismissal of the complaint, as well as the 

orders granting Van Aulen and Liebowitz summary judgment. As to 

the trial itself, defendants contend the judge erred by 

permitting Conk to testify, allowing the jury to award emotional 

distress damages without any medical testimony and amending his 

charge to the jury after defendants' summation. Defendants also 

argue their motions for judgment and JNOV should have been 

granted.

Defendants also contend their third-party claim against 

Carrascosa should not have been severed from the trial, and the 

judge erred by ultimately dismissing the complaint. Lastly, 

defendants contest the award of any counsel fees. 

We have considered these arguments in light of the record 

and applicable legal standards. We affirm in part, reverse in 

part, and remand for entry of an amended judgment.3

 

3 Plaintiffs argue that the appeal should be dismissed as 

untimely, having not been filed within forty-five days of the 

(continued)
6 A-0387-11T1

I.

A.

We first consider defendants' arguments regarding the pretrial orders granting Van Aulen and Liebowitz summary judgment. 

We need not set forth the entire factual history between Innes 

and Carrascosa, which was detailed in our prior opinion, see

Innes, supra, 391 N.J. Super. at 461-65, and we limit our 

consideration as necessary to the motion record that existed 

when the orders were entered. See, e.g., Ji v. Palmer, 333 N.J. 

Super. 451, 463-64 (App. Div. 2000) ("In reviewing a summary 

judgment, we can consider the case only as it had been unfolded 

to that point and the evidential material submitted on that 

motion.") (citations omitted).

In October 2004, Innes and Carrascosa were separated but 

neither had filed a divorce complaint. Innes was represented by 

Van Aulen, and Carrascosa was represented by Liebowitz. 

Victoria was four and one-half years old and resided with 

 

(continued)

July 18, 2011 amended judgment. R. 2:4-1(a). However, it was 

not until September 2, 2011, that the court dismissed the thirdparty complaint with prejudice, adopting the argument that 

plaintiffs made in their motion to intervene. Defendants' 

notice of appeal was timely filed thereafter. Plaintiffs' 

argument lacks sufficient merit to warrant further discussion. 

R. 2:11-3(e)(1)(E).

 

 

 
7 A-0387-11T1

Carrascosa after the separation. It suffices to say that the 

instant litigation centered on the October 2004 agreement (the 

Agreement) executed by Innes and Carrascosa as it related to 

restrictions upon travel with Victoria. Innes, supra, 391 N.J. 

Super. at 462. Specifically, the Agreement, drafted by 

Liebowitz on his letterhead, provided in relevant part:

Neither . . . Carrascosa nor . . . Innes 

may travel outside of the United States 

with Victoria . . . without the written 

permission of the other party. To that end, 

Victoria['s] . . . United States and Spanish 

passport [sic] shall be held in trust by 

Mitchell A. Liebowitz, Esq. Victoria['s] 

. . . Spanish passport has been lost and not 

replaced, and its loss was reported to the 

Spanish Consulate in New York. . . . 

Carascosa [sic] will file an application for 

a replacement Spanish passport within

[twenty] days of today.

On November 23, 2004, Liebowitz responded to a letter 

written by Sarah J. Jacobs, an associate with the Lesnevich 

firm, advising that Carrascosa had retained them and seeking 

release of the file.4 Liebowitz wrote: "As you may know, I am 

holding her daughter's United States Passport. I would prefer 

if you arranged for the original file to be picked up by 

messenger with the messenger acknowledging receipt of the 

passport." On November 24, Jacobs wrote to Van Aulen, 

 

4 Jacobs' prior surname was "Tremml." The documentary evidence 

at trial bore that name.
8 A-0387-11T1

indicating the Lesnevich firm's representation of Carrascosa and 

noting that, despite having signed the Agreement, Carrascosa 

"ha[d] grave concerns" regarding provisions dealing with Innes' 

parenting time. Notes taken by Jacobs during an office 

conference with Carrascosa on November 18, 2004, were filed in 

support of both Van Aulen's and Liebowitz's summary judgment 

motions. The notes contained the following: "Spanish passport 

stole[n.] American passport turned over to attorney[.] GET 

BACK[.]"

In her deposition, Marzano-Lesnevich stated she received 

the file from Liebowitz and reviewed the Agreement sometime in 

December. Victoria's United States passport was in the file at 

the time, but it was missing after a December meeting with 

Carrascosa. The implication was that Carrascosa had taken the 

passport without Marzano-Lesnevich's foreknowledge. 

It was first revealed that Victoria was in Spain during 

proceedings before the Family Part in February 2005. In a 

February 2006 letter to plaintiffs' attorney in this litigation, 

Marzano-Lesnevich claimed Liebowitz never advised her of "a 

requirement to hold [the passport] in trust." She also wrote: 

"At the time we turned over the passport to the mother, the 

[A]greement between the parties was moot[,]" because "it had 

been repudiated by both parties immediately." (Emphasis added).
9 A-0387-11T1

On this motion record, in December 2009, the judge granted 

Van Aulen summary judgment and dismissed the third-party claim 

against him. Defendants moved for reconsideration in August 

2010 after securing the expert report of attorney John F. 

DeBartolo. In November 2010, the judge denied the motion for 

reconsideration. In his written opinion, the judge explained: 

"Based on the facts herein, Van Aulen cannot be classified as a 

joint tortfeasor because he did not breach his duty to Innes and 

did not have a duty to anticipate that [defendants] would 

violate a fiduciary obligation."

Liebowitz sought summary judgment in August 2010. In 

support, he attached defendants' answers to interrogatories in 

which they claimed that Carrascosa "took her daughter's 

passport. No one [at the firm] 'gave it' to her or 'turned it 

over to her.'" They also denied knowing that Carrascosa 

intended to "remove Victoria . . . from the jurisdiction o[f] 

New Jersey."

By the time Liebowitz's motion was filed, Jacobs had been 

deposed. She testified that Marzano-Lesnevich told her that she 

(Marzano-Lesnevich) gave Victoria's passport to Carrascosa. 

Carrascosa had also been deposed and testified that she always 

had Victoria's Spanish passport and it was never lost or stolen. 

Carrascosa asked the Lesnevich firm for Victoria's United States 
10 A-0387-11T1

passport and picked it up the day before her daughter travelled 

to Spain with her grandparents.5 Carrascosa also stated that she 

told the firm "we were going to travel." 

In November 2010, the judge granted summary judgment to 

Liebowitz. In his written opinion, the judge concluded that 

after Carrascosa discharged him, Liebowitz could not have 

reasonably anticipated that Innes would continue to rely on his 

(Liebowitz's) actions or representations. Liebowitz did not owe 

a duty of care to Innes after transferring his file containing 

the passport to the Lesnevich firm. 

Defendants argue the judge erred by denying their motion 

for reconsideration of the prior summary judgment granted to Van 

Aulen and by granting Liebowitz summary judgment.6 "In an appeal 

of an order granting summary judgment, appellate courts 'employ 

 

5 Later testimony revealed that Victoria did not leave the United 

States until January 13, 2005, nearly a month after Carrascosa 

secured possession of the passport.

6 Defendants' notice of appeal did not list the November 2010 

order denying reconsideration. See R. 2:5-1(f)(3)(A) (requiring 

the notice of appeal to include all orders for which review is 

sought). Nevertheless, in the interests of justice, we consider 

all issues raised regarding the dismissal of the third-party 

complaint against Van Aulen. See Fusco v. Bd. of Educ., 349 

N.J. Super. 455, 461 (App. Div.) (recognizing that in some 

situations, "the basis for the motion judge's ruling on the 

summary judgment and reconsideration motions may be the same. 

In such cases, an appeal solely from the grant of summary 

judgment or from the denial of reconsideration may be sufficient 

for an appellate review of the merits of the case[.]"), certif. 

denied, 174 N.J. 544 (2002). 
11 A-0387-11T1

the same standard [of review] that governs the trial court.'" 

Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) 

(alteration in original) (quoting Busciglio v. DellaFave, 366 

N.J. Super. 135, 139 (App. Div. 2004)). We first determine 

whether the moving party has demonstrated there were no genuine 

disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside 

Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), 

certif. denied, 189 N.J. 104 (2006). 

[A] 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 nonmoving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540 (1995).]

We then decide "whether the motion judge's application of the 

law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 

231. We conduct our review de novo. Gere v. Louis, 209 N.J.

486, 499 (2012). 

Defendants were entitled to contribution from Van Aulen or 

Liebowitz only if either respectively was a joint tortfeasor, 

pursuant to the Joint Tortfeasors Contribution Law, N.J.S.A.

2A:53A-1 to -5 (JTCL). Under the JTCL, "'joint tortfeasors' 
12 A-0387-11T1

means two or more persons jointly or severally liable in tort 

for the same injury." N.J.S.A. 2A:53A-1. "'It is common 

liability at the time of the accrual of plaintiff's cause of 

action which is the Sine qua non of defendant's contribution 

right.'" Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 72 

(2004) (quoting Markey v. Skog, 129 N.J. Super. 192, 200 (Law 

Div. 1974)). Since plaintiffs never asserted any claim against 

either Van Aulen or Liebowitz, the inquiry is whether defendants 

presented a prima facie case that either was liable to 

plaintiffs. 

"The elements of a cause of action for legal malpractice 

are (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." McGrogan v. 

Till, 167 N.J. 414, 425 (2001) (citing Conklin v. Hannoch

Weisman, 145 N.J. 395, 416 (1996)). 

Defendants failed to present a prima facie case that Van 

Aulen committed legal malpractice in his representation of 

Innes. When Van Aulen first moved for summary judgment, 

defendants produced no expert report supporting the elements of 

professional negligence. See e.g., Buchanan v. Leonard, 428 

N.J. Super. 277, 288-289 (App. Div. 2012) ("As 'the duties a 
13 A-0387-11T1

lawyer owes to his client are not known by the average juror,' 

expert testimony must necessarily set forth that duty and 

explain the breach.") (quoting Carbis Sales, Inc. v. Eisenberg, 

397 N.J. Super. 64, 78 (App. Div. 2007)). 

When defendants sought reconsideration, they furnished 

DeBartolo's report. While the report proposed some 

"straightforward and prudent steps" Van Aulen might have taken, 

it did not state that he breached any professional standards or 

that proximately-caused damages resulted. Indeed, DeBartolo 

opined that, because Carriscosa was solely responsible for 

removing Victoria from the United States, defendants themselves 

were not a proximate cause of plaintiffs' damages.

The record also fails to support a claim that Liebowitz, 

who was not Innes's attorney, could be liable for breaching a 

duty owed to a non-client. Although our courts are generally 

reluctant to permit a non-client to sue an adversary's attorney, 

LoBiondo v. Schwartz, 199 N.J. 62, 100 (2009), in limited 

circumstances, "attorneys may owe a duty of care to non-clients 

when the attorneys know, or should know, that non-clients will 

rely on the attorneys' representations and the non-clients are 

not too remote from the attorneys to be entitled to protection." 

Petrillo v. Bachenberg, 139 N.J. 472, 483-84 (1995). 
14 A-0387-11T1

"[T]he rule announced in Petrillo has been applied rather 

sparingly, . . . [but] [i]t is not . . . the only basis on which 

[the Court] ha[s] recognized the potential for a direct claim 

against an attorney by a nonclient." LoBiondo, supra, 199 N.J.

at 102. The Court has "authorized in principle a claim against 

an attorney who participated in a civil conspiracy with the goal 

of assisting a client to engage in a fraudulent transfer of 

assets to the detriment of a lender." Ibid. (citing Banco 

Popular N. Am. v. Gandi, 184 N.J. 161, 177-78 (2005)).

We have also recognized that "[p]rivity between an attorney 

and a non-client is not necessary for a duty to attach 'where 

the attorney had reason to foresee the specific harm which 

occurred.'" Estate of Albanese v. Lolio, 393 N.J. Super. 355, 

368-69 (App. Div.) (quoting Albright v. Burns, 206 N.J. Super.

625, 633 (App. Div. 1986)). Ultimately, in determining whether 

a duty exists, "[t]he primary question . . . is one of 

fairness." Id. at 369.

In this case, Innes knew that Liebowitz had been 

discharged, and that defendants were now representing 

Carrascosa. At that point, he could no longer reasonably rely 

upon Liebowitz's agreement to retain Victoria's passport. 

Absent such reliance, Liebowitz owed no duty of care to 

plaintiffs. Petrillo, supra, 139 N.J. at 482. Liebowitz could 
15 A-0387-11T1

not reasonably foresee that, armed with full knowledge of the 

agreement and his expressed caution regarding the passport, 

defendants would simply turn it over to Carrascosa. Absent any 

reliance by Innes upon Liebowitz's continued retention of the 

passport, it would be patently unfair to extend a duty to 

Liebowitz to safeguard the passport after he was discharged by 

Carrascosa. Albanese, supra, 393 N.J. Super. at 369.

Summary judgment was properly granted dismissing 

defendants' third-party complaint against Van Aulen and 

Liebowitz.

B.

Defendants argue the judge erred by denying their motion 

for summary judgment before trial. In essence, they contend the 

motion record failed to establish, and the judge did not find, 

that defendants owed Innes any duty, or that they made any 

representations upon which Innes reasonably relied.7 

In denying defendants' summary judgment motion, the judge 

reasoned: 

 

7 Although not specifically contained in a point heading, 

defendants also contend the judge erred by denying them summary 

judgment on plaintiffs' alternative causes of action sounding in 

breach of contract, bailment, and breach of escrow. We need not 

address those issues because ultimately the case was submitted 

to the jury only as to the claim that defendants breached their 

professional duty. 
16 A-0387-11T1

[L]iability may be imposed on [defendants], 

not merely because [defendants] violated an 

RPC, but because of the affirmative acts of 

[defendants], specifically, the letters 

[defendants] sent to Liebowitz, 

[defendants'] awareness of the Agreement 

regarding Victoria's United States passport, 

accepting the passport with Carrascosa's 

file, and the notes and deposition testimony 

of the [defendants'] associates referencing 

the importance of the United States 

passport. 

The judge also concluded that a fact finder could determine that 

defendants should have foreseen Innes would rely upon them to 

retain Victoria's passport, return it to Liebowitz if they were 

not going to honor the agreement, or at least not let the 

passport fall into Carrascosa's hands. 

We agree with defendants that whether a legal duty exists 

is a matter of law for the court. Petrillo, supra, 139 N.J. at

479. But, contrary to defendants' assertions, the motion judge 

decided there was a duty. We discern defendants' argument more 

precisely to be that since they made no affirmative 

representation to honor the agreement, imposing a duty upon them 

to maintain possession of Victoria's passport unreasonably 

extends existing precedent. We disagree.

As already noted, we have held a duty to a non-client may 

"attach where the attorney had reason to foresee the specific 

harm which occurred." Albanese, supra, 393 N.J. Super. at 368-

69 (internal quotations omitted). It was entirely forseeable 
17 A-0387-11T1

that Carrascosa's possession of Victoria's passport would 

facilitate her ability to remove her daughter from the country.

A lawyer may also be liable to a non-client third party 

"where an independent duty is owed." Estate of Fitzgerald v. 

Linnus, 336 N.J. Super. 458, 468 (App. Div. 2001) (citing Davin, 

L.L.C., v. Daham, 329 N.J. Super. 54, 73-75 (App. Div. 2000); 

DeAngelis v. Rose, 320 N.J. Super. 263, 274-76 (App. Div. 

1999)). "[E]ven absent an attorney-client relationship, an 

attorney 'owes a fiduciary duty to persons, though not strictly 

clients, who he knows or should know rely on him in his 

professional capacity.'" R. J. Longo Constr. Co. v. Schragger, 

218 N.J. Super. 206, 209 (App. Div. 1987) (quoting Albright, 

supra, 206 N.J. Super. at 632-33). 

In Davin, for example, attorney Jaffe prepared a multi-year 

lease that included a covenant for quiet enjoyment while 

representing the landlords as defendants in foreclosure 

proceedings involving the property. Davin, supra, 329 N.J. 

Super. at 63-64. Neither the landlords nor Jaffe advised the 

defendants-tenants of the foreclosure proceedings. Id. at 64. 

The motion judge granted summary judgment, "conclud[ing] that 

Jaffe owed no duty to [the] defendants since he had never 

represented them or spoke to them, and would have been acting 

adversely to the best interests of his clients, the [landlords], 
18 A-0387-11T1

if he advised [the] defendants of the [landlords'] financial 

difficulties. Id. at 73. 

In reversing summary judgment, we said:

The practice of law is a profession, not a 

business. An attorney is not merely a hired 

gun, but, rather, a professional required to 

act with candor and honesty. . . . Jaffe, 

as an attorney who participated to the 

extent he did in the efforts to stave off 

foreclosure, had an affirmative obligation 

to be fair and candid with [the] defendants. 

Moreover, he had an obligation not to insert 

the covenant of quiet enjoyment in the 

lease. He had an obligation to advise his 

clients . . . that they should disclose to 

defendants the fact that the property was in 

foreclosure. He also had a duty to advise 

his clients that the lease should not 

contain a covenant of quiet enjoyment in 

light of the fact that it was highly 

unlikely that [the] defendants would obtain 

the benefits of the covenant in light of the 

foreclosure. If they failed to follow his 

advice, he had the right, if not the duty, 

to cease representing them.

[Id. at 76-77, 78.]

We held that "the lawyer's duty of effective and vigorous 

representation of his client is tempered by his corresponding 

duty to be fair, candid and forthright." Id. at 78.

In denying defendants' summary judgment motion here, the 

judge properly concluded that, despite the lack of any 

affirmative representation, defendants owed a duty to Innes. If 

they were unwilling to abide by the agreement, they were 

obligated to so advise Van Aulen or Liebowitz. Simply giving 
19 A-0387-11T1

the passport to Carrascosa was a breach of defendants' duty, 

even if they believed in good faith that the Agreement had been 

"repudiated." 

Not only is this obligation entirely consistent with prior 

precedent, it is consistent with the Rules of Professional 

Conduct (RPC). While "a cause of action for malpractice cannot 

be based exclusively on the asserted breach of" an RPC, "it is 

clear that the [RPCs] may be relied on as prescribing the 

requisite standard of care and the scope of the attorney's duty 

to the client." Gilles v. Wiley, Malehorn & Sirota, 345 N.J. 

Super. 119, 125 (App. Div. 2001) (citing Baxt v. Liloia, 155 

N.J. 190, 201 (1998)); Davin, supra, 329 N.J. Super. at 74 n.3). 

Therefore, a breach of an RPC "is evidential of [a] defendant's 

failure to comply with the required standard of care." Id. at 

125-26 (citation omitted); see also Johnson v. Schragger, 

Lavine, Nagy & Krasny, 340 N.J. Super. 84, 90 (App. Div. 2001) 

(noting that "the Rules of Professional Conduct may provide 

guidance to the court in determining whether a duty exists").

RPC 1.15(a) requires a lawyer to appropriately safeguard 

the property of clients or third parties in his or her 

possession. RPC 1.15(b) obligates a lawyer to promptly notify a 

third party of receipt of property in which the third party has 

an interest. "Except as stated in this Rule or otherwise 
20 A-0387-11T1

permitted by law or by agreement with the client, a lawyer shall 

promptly deliver to the client or third person any . . .

property that the client or third person is entitled to 

receive." Ibid. The clear import of these RPCs is that, in 

light of the Agreement and Innes's competing claim to the 

passport as Victoria's father, defendants were not free to 

dispose of the passport as they saw fit. The judge properly 

denied defendants' motion for summary judgment.

II.

We turn to the issues raised regarding the trial itself by 

first reviewing some of the testimony. Carrascosa was a Spanish 

citizen and an attorney admitted to practice in the European 

Union. Victoria was a citizen of both the United States and 

Spain. Innes was concerned that Carrascosa might take Victoria 

to Spain, and he noted that, while Victoria also had a Spanish 

passport, the family used the United States passport whenever it

traveled to Spain.

Although the Agreement had been executed by both parties, 

problems arose immediately. On November 22, 2004, Carrascosa 

obtained a domestic violence temporary restraining order (TRO) 

against Innes. Liebowitz testified that he advised Carrascosa 

against the filing, "given [the] facts she was presenting to 

[him] in support of the restraining order." The issuance of the 
21 A-0387-11T1

TRO resulted in the suspension of Innes's parenting time with 

Victoria.8 

On December 8, 2004, Liebowitz transferred his entire file, 

including Victoria's United States passport, to defendants. 

Efforts to negotiate a parenting time schedule thereafter were 

contentious and fruitless. Innes's last visit with his daughter 

took place on November 4, 2004. 

Innes first learned that his daughter was in Spain when 

Marzano-Lesnevich disclosed the information to the Family Part 

judge during the hearing in February 2005. Innes subsequently 

was told by law enforcement authorities that Victoria left the 

country on January 13, 2005, with her maternal grandfather 

aboard a British Airways Flight to London. She and her 

grandfather then traveled from England to Spain. 

Innes retained a Spanish lawyer, Elena Zarraluqui, to 

assist with filing a petition to return his daughter and contest 

the annulment proceedings that Carrascosa had commenced in 

Spain.

9 Innes went to Spain for a hearing in June 2005. The 

 

8 On December 6, 2004, the court dismissed the TRO against Innes 

at Carrascosa's request.

9 Innes filed the application for Victoria's return to New Jersey 

under the Hague International Child Abduction Convention, 51 

Fed. Reg. 10, 498 (March 26, 1986), its Federal implementing 

statute, the International Child Abduction Remedies Act (ICARA), 

42 U.S.C.A. §§ 11601 to -11611 (1988), and the New Jersey court 

(continued)
22 A-0387-11T1

Spanish court denied Innes's petition and ordered Victoria to 

remain in Spain until age eighteen. Innes, through Zarraluqui, 

filed several unsuccessful appeals. 

Innes returned to Spain in fall 2005 for the nullity 

proceeding in which Carrascosa sought, among other relief, 

termination of his parental rights. According to Innes, at the 

time of the trial in this case, the issue remained undecided.

During both trips to Spain, Innes briefly saw Victoria. 

Zarraluqui testified that she asked Carrascosa's lawyer if Innes 

and Victoria could speak to each other. Carrascosa initially 

agreed, but then tried to prevent Victoria from going to her 

father, and Carrascosa's lawyer had to intervene. Zarraluqui 

said that Victoria was "really kind with him," that Innes kissed 

her and started crying when Carrascosa ended the meeting after 

five or ten minutes. Zarraluqui described the scene as "very 

hard, emotional." 

Innes never returned to Spain again, explaining that 

fourteen criminal complaints had been filed against him and 

three were still pending. He denied committing any crime or 

abusing Carrascosa or Victoria. Given the notoriety of the case 

 

(continued)

order. Innes, supra, 391 N.J. Super. at 466. We discussed the 

proceedings in the Spanish courts in greater detail in our 

earlier decision. Innes, supra, 391 N.J. Super. at 466-72.
23 A-0387-11T1

and the wealth and position of Carrascosa's family, Innes 

believed he would be unjustly accused and imprisoned if he 

returned. Innes' attempts to maintain a relationship with 

Victoria were rebuffed by Carrascosa's family. Aside from a 

brief telephone conversation in 2007, he has not spoken to her 

since their 2005 meeting in the courthouse. The family refuses 

to accept delivery of the Christmas and birthday gifts Innes 

sends every year.

Innes testified extensively regarding his relationship with 

his daughter prior to her leaving the country in January 2005. 

He moved his office to the ground floor of the couple's highrise apartment building so he could be close to home and see her 

frequently. After the couple separated, he saw Victoria nearly 

every day until Carrascosa ordered him to stay away. 

Innes also stated that he thinks about "this whole 

situation" every day, cannot sleep and his business suffered. 

He received treatment from his doctor for anxiety, and he saw a 

therapist, who "helped [him] learn how to grieve the loss of 

[his] daughter," although he admitted seeing the therapist 

infrequently in 2009 and not at all since. 

In 2006, Carrascosa returned to the United States for the 

divorce trial, leaving Victoria in Spain with her grandparents. 

On August 24, 2006, the Family Part granted the parties a 
24 A-0387-11T1

divorce, awarded Innes sole legal and residential custody of 

Victoria, ordered Carrascosa to dismiss all actions in Spain and 

return Victoria to New Jersey within ten days. The court

imposed sanctions of $148,000 in favor of Innes. Carrascosa did 

not comply with any of these provisions.

Carrascosa was arrested in New York City in November 2006

and subsequently indicted. She was found guilty and sentenced 

to a prison term of fourteen years. At the time of trial, 

Carrascosa remained incarcerated and testified via video 

conference. She accused Innes of attempting to murder Victoria 

and said she filed the TRO because of Innes's "relentless 

stalking, abuse, [and] battering." She claimed that she signed 

the Agreement under duress and repudiated it "the very next 

day," something she told Marzano-Lesnevich.

Carrascosa claimed that she asked Jacobs to retrieve 

Victoria's passport from Liebowitz because she wanted to travel 

with her daughter. She told Innes about her plans, and he 

replied: "All right. Go ahead. Get on the boat." She also 

told another associate at the Lesnevich firm, Francesca MarzanoLesnevich (Francesca),

10 who told Carrascosa "they had spoken to 

. . . Van Aulen on the phone and everything was okay." In an e-

 

10 We apologize for the informality of using a first name;

however, it is necessary to avoid confusion.
25 A-0387-11T1

mail dated January 11, 2005, Carrascosa notified the Lesnevich 

firm that she was going to stop by. She then arrived in the 

reception area where Francesca gave her the passport.

Carrascosa confirmed that she had never lost Victoria's Spanish 

passport, and that her daughter was still in Spain.

The judge conducted a N.J.R.E. 104 hearing and denied 

defendants' request to bar Conk as an expert witness.11 

Succinctly stated, Conk rendered the following opinion:

It was the duty of Marzano-Lesnevich as 

successor in fact to the possessory right of 

Liebowitz to inform Innes via his attorney 

and Liebowitz, who reasonably expected 

Marzano-Lesnevich to abide by the agreement, 

that she intended to dispose of the passport 

as her client sought fit and that she was 

renouncing any obligation to operate under 

the constraints imposed by the agreement on 

her predecessor . . . attorney. If adequate 

notice of such intention had been given[,]

Liebowitz could have retaken possession and 

Innes or his attorney could have sought the 

assistance of a court if a . . . new escrow 

agent, could not be agreed upon.

Thomas Kilbride, who worked for the Department of Homeland 

Security Immigration and Customs Enforcement (ICE), testified 

that he received a request from the Bergen County Prosecutor's 

Office to determine Victoria's travel history to and from the 

United States. His examination of ICE's database showed 

 

11 The trial judge was not the judge who had heard and decided 

the pre-trial motions.
26 A-0387-11T1

Victoria left the country from Newark Liberty International 

Airport on January 13, 2005, using her United States passport, 

as she had on September 12, and December 11, 2003, and January 

8, 2004. Kilbride acknowledged that a person with dual 

citizenship could depart the United States using a foreign 

passport, but his search failed to reveal any record of Victoria

ever leaving the United States using her Spanish passport. 

Plaintiffs read Marzano-Lesnevich's deposition testimony 

and defendants' interrogatory answers to the jury that implied 

Carrascosa took the passport without the firm's foreknowledge. 

However, Jacobs testified that Marzano-Lesnevich said she gave 

the passport to Carrascosa. 

In her testimony before the jury, Marzano-Lesnevich 

admitted that she did not notify Innes or Van Aulen before 

giving Carrascosa her daughter's passport. She believed that 

because neither she nor Liebowitz held the passport in trust, 

Carrascosa, the parent with primary residential custody, had the

right to safeguard the passport herself. Marzano-Lesnevich knew 

of the Agreement and that Carrascosa had signed it, but she 

maintained it was repudiated because no one had followed its 

terms. 

Marzano-Lesnevich described the passport as "simply 

abandoned by . . . Liebowitz and placed in a file." She 
27 A-0387-11T1

maintained that she did not have the right to hold the passport 

absent a court order or successor agreement. Marzano-Lesnevich 

also testified that Victoria could have traveled using her 

Spanish passport and that an itinerary Carrascosa sent to the 

firm indicated mother and daughter intended to return to this 

country. However, the Spanish courts ordered Victoria to remain 

in Spain until she turned eighteen. 

Marzano-Lesnevich acknowledged on cross-examination that 

her firm's strategy was to focus initially on jurisdiction,

explaining that proceedings already had begun in Spain and it 

was important for Carrascosa to receive an ecclesiastical 

nullity of her marriage. She acknowledged that Carrascosa

wanted the matter heard in Spain. 

DeBartolo testified as an expert in the fields of family 

law and ethics. He opined that Liebowitz "should have notified 

. . . Van Aulen that he was seeking to terminate his role as 

escrow agent, he should have notified his client, he should have 

notified any successor attorney, he should have asked to be 

relieved of the obligations that he voluntarily undertook as an 

escrow agent, as a trustee." He also concluded that MarzanoLesnevich did not violate professional standards by returning 

the passport to Carrascosa because she was not bound by the 

Agreement and never agreed to become trustee of the passport. 
28 A-0387-11T1

In DeBartolo's opinion, Marzano-Lesnevich properly relied on 

Carrascosa's representations that the agreement had been 

repudiated, and that Carrascosa had the superior property 

interest in the passport as the primary custodial parent.

12 

DeBartolo also opined that Carrascosa, not defendants, was 

the proximate cause of any damages. Even if Liebowitz had 

retained the passport in trust or properly obtained a substitute 

trustee, DeBartolo believed Carrascosa could have easily 

traveled with Victoria using her Spanish passport.

 

 

12 On cross-examination, however, DeBartolo acknowledged that our 

prior opinion affirmed the enforceability of the Agreement. 

There, we said that

[u]nder New Jersey law and the Hague 

Convention, the October parenting agreement 

was valid, affirmed Carrascosa's intent that 

Innes have custodial rights in the child, 

and when plainly read, demonstrates that the 

removal of the child was wrongful. Indeed, 

Article 3 of the Convention provides that 

custody rights may arise "by operation of 

law, or by reason of an agreement having 

legal effect under the law of that State." 

The parenting agreement having been 

voluntarily and knowingly executed by both 

parents, and thus enforceable under the laws 

of New Jersey, Carrascosa's breach of that 

agreement was wrongful and violated Innes' 

custodial rights.

[Innes, supra, 391 N.J. Super. at 486.]
29 A-0387-11T1

A.

Defendants moved to dismiss the complaint at the close of 

plaintiffs' case. See R. 4:37-2(b). They argued plaintiffs 

failed to prove the release of Victoria's United States passport 

was a proximate cause of any damages. The judge denied the 

motion. Defendants renewed the argument post-verdict when they 

sought a new trial or JNOV, specifically contending that the 

finding of proximate cause was "against the weight of the 

evidence[.]" The judge denied the motion in a brief written 

opinion.13 Defendants now renew this argument before us.

Motions for involuntary dismissal, Rule 4:37-2(b), and 

JNOV, Rule 4:40-2(b), are "governed by the same evidential 

standard: [I]f, accepting as true all the evidence which 

supports the position of the party defending against the motion 

and according [her] the benefit of all inferences which can 

reasonably and legitimately be deduced therefrom, reasonable 

 

13 In his written opinion, the judge noted that defendants also 

sought a new trial or JNOV because "the jury's finding[] 

regarding . . . Marzano-Lesnevich's deviation from the standard 

of care" was against the weight of the evidence. However, that 

contention was not advanced during oral argument on the motion. 

To the extent defendants argue that point in their appellate 

brief, we reject the contention. In light of the standards of 

review we discuss in this section, the trial testimony and with 

our discussion in section I.B., supra, regarding the duty owed 

to a non-client demonstrates the argument lacks sufficient merit 

to warrant further consideration. R. 2:11-3(e)(1)(E).
30 A-0387-11T1

minds could differ, the motion must be denied." Verdicchio v. 

Ricca, 179 N.J. 1, 30 (2004) (first alteration in original) 

(citations omitted). We apply the same standard on review. 

Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000). 

"The trial judge's obligation on a motion for a new trial 

because the verdict is said to be against the weight of the 

evidence is quite a different and more difficult one." Dolson 

v. Anastasia, 55 N.J. 2, 6 (1969). Under Rule 4:49-1(a), a 

court shall grant a motion for a new trial "if, having given due 

regard to the opportunity of the jury to pass upon the 

credibility of the witnesses, it clearly and convincingly 

appears that there was a miscarriage of justice under the law." 

Ibid. The judge must take into account "not only tangible 

factors . . . as shown by the record, but also appropriate 

matters of credibility, generally peculiarly within the jury's 

domain, . . . and the intangible 'feel of the case' . . . gained 

by presiding over the trial." Dolson, supra, 55 N.J. at 6. We 

apply a similar standard, deferring to the trial court's 

assessment of those factors "which are not transmitted by the 

written record." Id. at 7. Thus, "[a]n appellate court may 

overturn a jury verdict 'only if [that] verdict is so far 

contrary to the weight of the evidence as to give rise to the 

inescapable conclusion of mistake, passion, prejudice, or 
31 A-0387-11T1

partiality.'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J.

130, 134 (1990) (quoting Wytupeck v. City of Camden, 25 N.J.

450, 466 (1957)).

To prevail at trial, plaintiffs needed to establish that 

defendants' breach of their professional duty was a proximate 

cause of their damages. Conklin, supra, 145 N.J. at 416. When 

there are concurrent independent causes of harm, the jury must 

determine whether the negligence was a substantial factor in 

bringing about the ultimate harm. Id. at 422; see also Froom v. 

Perel, 377 N.J. Super. 298, 313 (App. Div.) ("plaintiff must 

present evidence to support a finding that defendant's negligent 

conduct was a 'substantial factor' in bringing about plaintiff's 

injury, even though there may be other concurrent causes of 

harm"), certif. denied, 185 N.J. 267 (2005).

Here, the undisputed evidence was that Victoria exited the 

country using her United States passport. Whether Victoria 

could have used her Spanish passport, or even whether her 

Spanish passport was necessary for her entry into Spain, does 

not matter. Defendants' release of the United States passport 

was a "substantial factor" in bringing about the damages 

plaintiffs claimed to have suffered. 
32 A-0387-11T1

B.

Defendants moved pre-trial to dismiss plaintiffs' claim for 

emotional distress damages, and the judge reserved decision. At 

trial, plaintiffs called Janet S. Berson, a licensed clinical 

psychologist, as an expert regarding the effects of parental 

alienation on Innes and Victoria. However, following a Rule 104 

hearing, the judge precluded Berson from testifying, finding 

that she could not testify within a reasonable degree of 

psychological certainty, in part because she had never examined 

Victoria and her opinions were based on an out-of-date 

psychological report from Spain. Plaintiffs do not challenge 

that ruling on appeal.

At the close of plaintiffs' case, defendants moved to 

dismiss Victoria's emotional distress claims. The judge 

considered the motion as if it applied to both plaintiffs. He 

concluded that "under traditional tort concepts the loss of the 

child's society and companionship could give rise to emotional 

distress." Citing our decision in Segal v. Lynch, 413 N.J. 

Super. 171 (App. Div.), certif. denied, 203 N.J. 96 (2010), the 

judge noted such circumstances "clearly engender[] a right to 

compensation," and he concluded that emotional distress damages 

could be presumed without evidence of physical injury or expert 

psychological testimony. 
33 A-0387-11T1

Following lengthy debate during the charge conference, the 

judge provided the following instruction to the jury: 

If you find in favor of the plaintiffs, the 

law recognizes as a proper item for recovery 

the mental suffering and distress that a 

person may endure as a result of the 

wrongful conduct of a defendant in a case 

such as the one before you. Since a parent 

is entitled to the services and 

companionship of a minor child, until that 

child reaches majority, you may award 

damages to . . . Innes for the loss of his 

daughter's companionship and society for as 

long as you reasonably and rationally 

conclude it has and will last. The measure 

of damages is what a reasonable person would 

consider to be adequate and just under all 

of the circumstances.

Likewise, Victoria . . . is entitled to 

damages for the mental suffering and 

distress which she may endure as a result of 

being separated from her father.

When they moved for a new trial or JNOV, defendants reiterated 

the argument, which the judge rejected.

(i)

Before us, defendants argue it was error to submit the 

issue of emotional distress damages to the jury because in a 

legal malpractice action emotional distress damages cannot be 

awarded "in the absence of medical evidence establishing 

substantial bodily injury or severe and demonstrable psychiatric 

sequelae proximately caused by the tortfeasor's misconduct." 

Gautam v. De Luca, 215 N.J. Super. 388, 399 (App. Div.), certif. 
34 A-0387-11T1

denied, 109 N.J. 39 (1987). Defendants specifically argue that 

there was no such medical evidence in this case as to either 

Innes or Victoria.

It is well-established that a plaintiff "'may recover for 

losses which are proximately caused by the attorney's negligence 

or malpractice.'" Saffer v. Willoughby, 143 N.J. 256, 271 

(1996) (quoting Lieberman v. Employers Ins. of Wausau, 84 N.J.

325, 341 (1980)). The availability of emotional distress

damages in a legal malpractice case has not been subject to 

extensive discussion in reported decisions in New Jersey. 

In Gautam, the plaintiffs alleged that their attorneys' 

malpractice resulted in the dismissal of the plaintiffs' medical 

negligence claim. Gautam, supra, 215 N.J. Super. at 391-92. 

The "[p]laintiffs made no effort to establish the viability or 

value of their underlying medical malpractice action. Rather, 

they sought to recover damages for the mental anguish and 

emotional distress allegedly caused by the legal malpractice." 

Id. at 390. Plaintiffs testified "that they developed various 

psychological problems because of their dashed expectations." 

Id. at 392. The jury awarded both compensatory and punitive 

damages against the defendants. Id. at 394. Although we 

reversed because of the inadequacy of the jury instructions, id.

at 394-96, we concluded that a remand was unnecessary because 
35 A-0387-11T1

"the evidence was wholly insufficient to support a recovery of 

either compensatory or punitive damages." Id. at 396. 

We began by noting "[t]he general rule is that an attorney 

is responsible for the loss proximately caused the client by his 

negligence." Id. at 397. "[T]he measure of damages is 

ordinarily the amount that the client would have received but 

for his attorney's negligence." Ibid. (citing Lieberman, supra,

84 N.J. at 342). We recognized that damages would often be 

proven by the "suit within a suit" method, that is "by 

introducing evidence establishing the viability and worth of the 

claim that was irredeemably lost." Ibid. However, we also 

recognized the Court "eschewed rigid application of the 'suit 

within a suit' principle in favor of a more flexible rule." Id.

at 398; see also Garcia v. Kozlov, Seaton, Romanini & Brooks, 

P.C., 179 N.J. 343, 361 (2004) (leaving it to the "court's 

discretion to declare an appropriate trial model").

We were also "persuaded that emotional distress damages 

should not be awarded in legal malpractice cases at least in the 

absence of egregious or extraordinary circumstances." Gautam, 

supra, 215 N.J. Super. at 399. "Whether viewed within the 

context of the traditional concept of proximate cause, or simply 

as a matter of sound public policy, we are convinced that 

damages should be generally limited to recompensing the injured 
36 A-0387-11T1

party for his economic loss." Ibid. (internal citations 

omitted) (emphasis added). We observed that "the relationship 

between the parties was predicated upon economic interest[,] 

[and] [t]he loss, if one occurred, was purely pecuniary." Id.

at 400. 

We further noted that "[e]ven if emotional distress damages 

were recoverable in legal malpractice actions, such awards would 

be impermissible in the absence of medical evidence establishing 

substantial bodily injury or severe and demonstrable psychiatric 

sequelae proximately caused by the tortfeasor's misconduct." 

Id. at 399. "Aggravation, annoyance and frustration, however 

real and justified, constitute unfortunate products of daily 

living. Damages for idiosyncratic psychiatric reactions should 

not be permitted." Id. at 400. We also acknowledged that "the 

outer-most boundaries of the law dealing with emotional distress 

damages are not yet visible," but the facts of the case did not 

permit such an award. Ibid. 

We continued to recognize Gautam's general principles in 

Winstock v. Galasso, 430 N.J. Super. 391 (App. Div.), certif. 

denied, 215 N.J. 487 (2013). There, the plaintiffs, a police 

officer and his wife, filed a legal malpractice claim against 

their attorney who had provided them with advice concerning the 

legality of operating a club hosting poker games. Id. at 399-
37 A-0387-11T1

401. The plaintiffs were subsequently arrested and criminally 

charged with perjury and various gambling offenses. Id. at 408. 

As part of a global plea agreement with the State, the husband 

entered a guilty plea and his wife entered the Pre-Trial 

Intervention Program. Id. at 395. As a result, the husband 

forfeited his position as a police officer. Id. at 409.

Although we reversed summary judgment dismissing the 

plaintiffs' complaint, we affirmed the motion judge's dismissal 

of the plaintiffs' emotional distress claim. Citing Gautam, 

supra, 215 N.J. Super. at 399, we noted, "[t]here is nothing in 

the record before us that substantiates a finding of 'egregious

or extraordinary circumstances' warranting this form of relief." 

Id. at 418-19.

The only other reported decision from our courts that 

directly addresses the issue is Kohn v. Schiappa, 281 N.J. 

Super. 235, 236-37 (Law Div. 1995), in which the court 

considered whether damages for emotional distress were 

recoverable when the attorney was retained to pursue the purely 

non-economic interests of his clients. In that case, the 

plaintiffs retained defendant to assist them in adopting a 

child. Id. at 241. They alleged that the attorney erroneously 

disclosed confidential information in the adoption complaint and 

claimed this breach caused them to suffer severe emotional 
38 A-0387-11T1

distress. Id. at 237. The court denied the defendant's motion 

for summary judgment and distinguished Gautam:

While Gautam held that damages should be 

limited to recompensating the injured party 

for his economic loss, . . . that court was 

not asked to consider, nor did it address, 

whether damages for emotional distress were 

recoverable in cases involving non-economic 

claims where the "suit within a suit"

framework is inapplicable. Consequently, it 

cannot be said that Gautam forecloses a 

plaintiff from alleging severe emotional 

distress where the underlying representation 

was for non-economic purposes.

[Id. at 241 (internal quotation marks and 

citation omitted).]

The Law Division explained that, in an adoption or similar 

proceeding, such as contested child custody disputes, attorneys

would have virtual immunity for their negligence if plaintiffs 

had no ability to seek emotional distress damages. Id. at 238-

39, 241-42.

Two reported federal district court decisions also have 

distinguished Gautam so as to permit the assertion of emotional 

distress damages in a legal malpractice claim when the client's 

interest was non-pecuniary in nature. First, in Lawson v. 

Nugent, 702 F.Supp. 91, 92 (D.N.J. 1988), the plaintiff brought 

a legal malpractice claim against his attorney whose alleged 

malpractice resulted in an additional twenty months of 

confinement upon conviction. The plaintiff sought damages for 
39 A-0387-11T1

the "emotional anguish he sustained" as a result. Ibid. The 

court distinguished the case from Gautam, noting "[t]he 

relationship between plaintiff-client and defendant-attorney was 

not necessarily predicated upon economic interest." Id. at 93. 

The court observed that because this was a "diversity case," it 

"must decide the issues in accordance with the law of New 

Jersey." Id. at 94. Further noting that "[d]amages for 

emotional distress have been allowed by New Jersey courts in an 

increasing number and variety of contexts," ibid., the court 

concluded that the "plaintiff should be allowed to prove damages 

for emotional distress attributable to the extra twenty months 

of confinement in a maximum security penitentiary." Id. at 95.

In Snyder v. Baumecker, 708 F.Supp. 1451, 1453 (D.N.J. 

1989), the plaintiff brought suit on behalf of herself and the 

estate of her son, who committed suicide while in custody for 

motor vehicle offenses. One of the defendants was her son's 

court-appointed attorney, who allegedly committed malpractice. 

Id. at 1453, 1462. Citing its prior decision in Lawson, supra,

the court again distinguished Gautam, noting that the attorneyclient relationship there was "predicated on an economic 

interest, while . . . in the case at bar, the attorney was 

retained to provide a defense to a criminal prosecution, thus 

making emotional distress, in the latter situation, a reasonably 
40 A-0387-11T1

foreseeable consequence of an attorney's malpractice." Id. at 

1464. 

Kohn's holding that emotional distress damages are 

recoverable in a legal malpractice case where non-economic 

interests are at stake has been described as the "minority 

rule." Leonard v. Walthall, 143 F.3d 466, 468 (8th Cir. 1998). 

In Leonard, the plaintiffs alleged negligence in the defendant's 

representation of their interests in an adoption. Id. at 467. 

The Eighth Circuit was asked to predict "whether, under Arkansas 

law, plaintiffs may recover damages for their alleged emotional 

distress resulting from defendant's negligent conduct, 

notwithstanding the undisputed fact that plaintiffs have 

suffered no physical injury or harm to a personal or economic 

interest." Id. at 468. Relying upon the decision in Thornton 

v. Squyres, 877 S.W.2d 921 (Ark. 1994), which involved the 

plaintiff's "claim of outrage . . . based upon allegations that 

her attorney mishandled her divorce and thus caused her 

temporarily to lose custody of her child," the Leonard court 

affirmed dismissal of the plaintiffs' complaint. Ibid.; see

also Taylor v. Paskoff & Tamber, LLP, 908 N.Y.S.2d 861, 863 

(Sup. Ct. 2010) (rejecting claims for emotional distress damages 

in a legal malpractice action involving representation in 

adoption or custody matters).
41 A-0387-11T1

However, nearly a quarter of a century ago, one commentator 

recognized "an emerging trend . . . that allows a client to 

recover for emotional distress." Kelleher, Joseph J., "An

Attorney's Liability for the Negligent Infliction of Emotional 

Distress," 58 Fordham L. Rev. 1309, 1319 (1990). This 

"developing trend emphasizes the client's injured interest in 

determining the extent of the attorney's liability for emotional 

distress damages." Id. at 1320. "Where the attorney is 

protecting a pecuniary interest, emotional distress damages are 

severely limited[,] [but] [w]here the interest is personal, 

. . . courts adopting this view are more willing to compensate 

emotional harm." Id. at 1320-21.

In Miranda v. Said, 836 N.W.2d 8, 11-13 (Iowa 2013), 

relying upon their attorney's advice, the plaintiffs voluntarily 

left their children behind in the United States and returned to 

their native Ecuador, from where they intended to emigrate 

legally. When they attempted to return, they learned that they 

were subject to a ten-year bar because they had voluntarily left 

this country. Id. at 12. The Iowa Supreme Court concluded that 

the facts presented warranted an exception to the general rule 

that denied recovery of emotional distress damages in a legal 

malpractice case. Id. at 33. The court noted it "is generally 

foreseeable that emotional distress would accompany the 
42 A-0387-11T1

prolonged separation of a parent and child." Id. at 32 (citing 

McEvoy v. Helikson, 562 P.2d 540, 542, 544 (Or. 1977),

superseded by rule on other grounds, Moore v. Willis, 767 P.2d 

62, 64 (Or. 1988); Person v. Behnke, 611 N.E.2d 1350, 1353 (Ill. 

App. Ct.), appeal den., 622 N.E.2d 1226 (Ill. 1993)). The 

Miranda court concluded such damages are appropriate where 

"[t]he relationship involved a transaction charged with emotions 

in which negligent conduct by the attorney was very likely to 

cause severe emotional distress." Id. at 33.

In Person, supra, 611 N.E.2d at 1353, the Illinois appeals 

court recognized "a valid claim . . . for noneconomic damages 

resulting from a plaintiff's loss of custody and visitation of 

his children which allegedly resulted from an attorney's 

negligence."

McEvoy presents strikingly similar circumstances to this 

case. The plaintiff-father brought suit against his ex-wife's 

attorney. McEvoy, supra, 562 P.2d at 541. Pursuant to the 

divorce decree, the plaintiff was awarded custody of the 

couple's child. However, a subsequent order, executed by all 

parties and the attorneys, gave the mother, a Swiss citizen, 

temporary custody, subject to both parents delivering all 

passports to the defendant until the child was returned to her 

father. Ibid. The plaintiff alleged that the defendant failed 
43 A-0387-11T1

to honor the order and gave his daughter's passport to his exwife, permitting the child to be removed to Switzerland. Id. at 

542.

The court reversed the lower court's dismissal of the 

complaint. Id. at 544. It concluded that "conduct by defendant 

which resulted in an infringement of" the plaintiff's right to 

custody of his daughter, "if established by evidence on trial, 

would entitle [the] plaintiff to recover damages for anguish and 

mental [suffering] due to the loss of his minor child, as 

alleged in the complaint." Ibid. (citations omitted) (second 

alteration in original).

We conclude that plaintiffs' claim for emotional distress 

damages was clearly appropriate under the facts of this case. 

We do not view this as an unwarranted extension of what we said 

in Gautam, specifically that emotional distress damages are 

generally unavailable in a legal malpractice action absent 

"egregious" and "extraordinary" circumstances. Gautam, supra, 

215 N.J. Super. at 399. We used those terms in Gautam to deny a 

claim in the context of a "relationship between the parties" 

"predicated upon economic interest," where the plaintiffs' loss 

"was purely pecuniary." Id. at 400; and see Restatement (Third) 

of the Law Governing Lawyers, § 53 comment g. (2000) (emotional 
44 A-0387-11T1

distress "damages are inappropriate in types of cases in which 

emotional distress is unforeseeable").

However, when the harm caused by an attorney's professional 

negligence is personal in nature and emanates from the 

fundamental relationship between parent and child, we must 

assess whether it was "egregious" and "extraordinary" through a 

different prism. The trial judge specifically relied upon our 

decision in Segal.

There, a father brought suit on behalf of himself and his 

children against the children's mother for intentional 

infliction of emotional distress based on alienation of the 

children's affections. Segal, supra, 413 N.J. Super. at 176-77. 

For essentially two different reasons, we concluded that the 

plaintiff's complaint was properly dismissed by the Law 

Division. 

First, we noted that the suit presented a "litigation tugof-war" with the children in the middle. Id. at 189. We were 

"satisfied that [the] plaintiff's cause of action . . . 

constitute[d] a prima facie case of potential harm to the 

children named as parties thereto." Id. at 190-91. "As a 

matter of public policy," we concluded that plaintiff's 

"grievances" must be brought in the Family Part "as part of an 

action for custody or parenting time, where the governing 
45 A-0387-11T1

principle for adjudication will be the best interests of these 

two children." Id. at 192.

We also concluded that the plaintiff had "not established a 

cause of action for intentional infliction of emotional 

distress." Id. at 191. We noted that, among other things, the 

elements of that tort required a showing that the "defendant's 

conduct was 'so outrageous in character, and so extreme in 

degree, as to go beyond all possible bounds of decency, and to 

be regarded as atrocious, and utterly intolerable in a civilized 

community[.]'" Ibid. (quoting Buckley v. Trenton Sav. Fund 

Soc., 111 N.J. 355, 366 (1988)). Although the plaintiff failed 

to allege such conduct in the case, we specifically did not 

foreclose the possibility that a cause of 

action may be brought alleging facts that 

are so outrageous in character, and so 

extreme in degree, as to go beyond all 

possible bounds of decency, and to be 

regarded as atrocious, and utterly 

intolerable in a civilized community, thus 

satisfying prong two of the Buckley

standard. . . . As we previously noted, 

cases involving prolonged parental 

abduction, where children are intentionally 

removed to foreign jurisdictions for the 

purpose of frustrating the innocent parent's 

custodial rights, or intentional false 

accusations of parent/child sexual abuse, 

are but two examples of factual scenarios 

that may satisfy the outrageous conduct 

requirement under Buckley.

[Id. at 192 (internal quotation marks and 

citation omitted) (emphasis added).]
46 A-0387-11T1

Defendants contend that applying Segal here would be an 

unwarranted "extension of liability for a client's intentional 

infliction of emotional distress to the tortfeasor's attorney by 

way of a legal malpractice claim[.]" We do not necessarily 

agree. However, we need not directly address that contention 

because we conclude that Segal does have relevance to the extent 

that it explained the kind of "egregious" and "extraordinary" 

conduct that, when combined with the personal interests at 

stake, permit recovery for emotional distress damages in an 

action sounding in legal malpractice.

We hasten to add that most factual situations will not 

support such a claim, even when the underlying interests are 

non-pecuniary and personal in nature. We view the "egregious" 

and "extraordinary" qualifier as a sensible limitation on what 

might otherwise become an increasing slew of litigation arising 

out of the obviously emotionally-charged proceedings that occur 

daily in the Family Part. So, for example, absent egregious and 

extraordinary circumstances, a client's claim that his 

attorney's malpractice resulted in an order awarding custody to 

his adversary or limiting his parenting time would not support 

an award of emotional distress damages. In such situations, the 

deprivation to the client can be fully redressed by the Family 

Court through applications addressed to the sound discretion and 
47 A-0387-11T1

equitable powers of the judge, including future modification of 

the award. To the extent Kohn suggested otherwise, we 

disapprove it.14 

Moreover, permitting claims for emotional distress in a 

legal malpractice action, even one centered on the client's 

personal as opposed to pecuniary interests, might provide 

thinly-veiled cover for damage claims attributable to the 

unfortunate, but well-recognized, anxiety that accompanies 

litigation in all forms. See Picogna v. Bd. of Educ. of Cherry 

Hill, 143 N.J. 391, 399 (1996) (denying "litigation-induced" 

stress as a component of emotional distress damages). 

In this case, however, defendants' actions were "egregious" 

and "extraordinary." Despite knowing of the Agreement, 

including that it had been signed by the parties and the 

attorneys, the already contentious nature of the parties' 

separation and Innes's reliance on the safekeeping of Victoria's

passport, defendants breached their duty and simply gave the 

passport to Carrascosa. They did so without notifying Van Aulen 

and without seeking approval from the court. Defendants' 

 

14 Because the issue is not before us, we specifically do not 

decide whether the deprivation of a liberty interest, like the 

facts presented in Lawson, supra, and Snyder, supra, is the kind 

of personal interest that would support an award of emotional 

distress damages in a legal malpractice action either with, or 

without, proof of egregious and extraordinary circumstances.
48 A-0387-11T1

conduct was sufficiently "egregious" and "extraordinary" to 

permit an award of emotional distress damages in this case.

(ii)

Defendants argue that plaintiffs presented insufficient 

evidence of emotional distress damages because they failed to 

prove, through expert medical testimony or otherwise, that they 

suffered "demonstrable psychiatric sequelae proximately caused" 

by defendants' negligence. Gautam, supra, 215 N.J. Super. at 

399. To address this argument, we need to consider the origin 

of the requirement for this "heightened showing of emotional 

distress." Menorah Chapels at Millburn v. Needle, 386 N.J. 

Super. 100, 116 (App. Div.) (citations omitted), certif. denied, 

188 N.J. 489 (2006).

Whether it is alleged that the defendant acted 

intentionally, recklessly or negligently, the Court has said 

that recovery lies only if the plaintiff can prove the emotional 

distress produced by the defendant's tortious conduct was 

"severe," Buckley, supra, 111 N.J. at 367, or "genuine and 

substantial." Decker v. Princeton Packet, Inc., 116 N.J. 418, 

430 (1989). "'Severe emotional distress means any type of 

severe and disabling emotional or mental condition which may be 

generally recognized and diagnosed by professionals trained to 

do so . . . .'" Taylor v. Metzger, 152 N.J. 490, 515 (1998) 
49 A-0387-11T1

(quoting Poole v. Copland, Inc., 481 S.E.2d 88, 93 (N.C. 1997)). 

"Although New Jersey permits recovery for emotional distress 

damages in some cases, the potential for fabricated claims 

justifies a requirement of enhanced proof to support an award of 

such damages." Picogna, supra, 143 N.J. at 396-397.

"By circumscribing the cause of action with an elevated 

threshold for liability and damages, courts have authorized 

legitimate claims while eliminating those that should not be 

compensable." Buckley, supra, 111 N.J. at 367 (emphasis added). 

As the Court said in Decker, 

While the foreseeability of injurious 

consequences is a constituent element in a 

tort action, foreseeability of injury is 

particularly important in the tort of 

negligent infliction of emotional harm. 

This reflects the concern over the 

genuineness of an injury consisting of 

emotional distress without consequent 

physical injury. In these situations, there 

must be "an especial likelihood of genuine 

and serious mental distress, arising from 

special circumstances, which serves as a 

guarantee that the claim is not spurious." 

In emotional distress cases, there has been 

"a constant concern about the genuineness of 

the claim."

[116 N.J. at 429-30 (quoting W. Keeton, D. 

Dobbs, R. Keeton & D. Owen, Prosser and 

Keeton on the Law of Torts, § 54 at 362 (5th 

ed. 1984)) (emphasis added).]

Our courts have recognized two types of tortious conduct 

that support a claim for negligent infliction of emotional 
50 A-0387-11T1

distress. "A claim of direct, negligent infliction of emotional 

distress," can exist where the plaintiff claims proximatelycaused damages as a result of the breach of a duty owed by the 

defendant. Lascurain v. City of Newark, 349 N.J. Super. 251, 

277 (App. Div. 2002). A second type of claim, first recognized 

in Portee v. Jaffee, 84 N.J. 88, 101 (1980), exists if the 

plaintiff witnessed the death or serious physical injury of 

another, with whom he shares a marital or intimate, familial 

relationship, as the result of the defendant's negligence. 

McDougall v. Lamm, 211 N.J. 203, 214-215 (citing Portee, supra, 

84 N.J. at 101). In both, the plaintiff must demonstrate 

"severe emotional distress," id. at 215, or "genuine and 

substantial emotional distress." Lascurain, supra, 349 N.J. 

Super. at 277. 

"'The severity of the emotional distress raises both 

questions of law and fact. Thus, the court decides whether as a 

matter of law such emotional distress can be found, and the jury 

decides whether it has in fact been proved.'" Lascurain, supra, 

349 N.J. Super. at 279 (quoting Buckley, supra, 111 N.J. at 

367). We have said that "[i]n order to be actionable, the 

claimed emotional distress must be sufficiently substantial to 

result in physical illness or serious psychological sequelae." 

Aly v. Garcia, 333 N.J. Super. 195, 204 (App. Div. 2000).
51 A-0387-11T1

Complaints such as lack of sleep, aggravation, headaches 

and depression have been frequently deemed insufficient as a 

matter of law. DeAngelis v. Hill, 180 N.J. 1, 20-21 (2004); 

Buckley, supra, 111 N.J. at 368; see also Juzwiak v. Doe, 415 

N.J. Super. 442, 453 (App. Div. 2010) (finding complaints of 

"weight loss, sleeplessness, anxiety and depression" without 

"objective documentation of [the] claims" to be insufficient); 

Lascurain, supra, 349 N.J. Super. at 280; but see Wigginton v. 

Servidio, 324 N.J. Super. 114, 123-24, 132 (App. Div. 1999)

(finding the plaintiff's sixty-day medical leave of absence from 

work and symptoms of "nausea and diarrhea" and depression 

sufficiently severe to allow her to proceed to trial on an 

emotional distress claim), certif. denied, 163 N.J. 11 (2000).

We acknowledge that Innes's testimony regarding his own 

emotional distress was quite limited, and no expert medical 

evidence was introduced on his behalf. As noted, Berson did not 

qualify as an expert witness regarding Victoria's emotional 

distress claims, and there was no proof otherwise from any 

witness.

The trial judge cited Rendine v. Pantzer, 141 N.J. 292, 

312-13 (1995), for the proposition that expert medical evidence 

of plaintiffs' emotional distress was unnecessary. Undoubtedly, 

that was part of the Court's holding in Rendine. However, the 
52 A-0387-11T1

Court's decision in that case was based upon both the broad 

remedial purpose of the Law Against Discrimination, (LAD), 

N.J.S.A. 10:5-1 to -42, and the then recently-enacted amendment, 

N.J.S.A. 10:5-3, that specifically recognized "emotional stress" 

as cognizable damages under the statute. Rendine, supra, 141 

N.J. at 312. In this case, plaintiffs' claims for emotional 

distress damages were allegedly the result of defendants' 

negligence. Unlike Rendine, there was no broad, statutorilycreated remedy that necessarily relieved plaintiffs of their 

burden to prove "severe" or "genuine and substantial" emotional 

distress.

However, in certain circumstances, "[t]he Court has 

distinguished a cause of action in tort or contract seeking 

consequential damages for emotional distress from a cause of 

action alleging intentional infliction of emotional distress, 

holding that only the latter requires a heightened showing of 

emotional distress." Menorah Chapels, supra, 386 N.J. Super. at 

116. For example, "[c]ourts have required little or no proof 

with regard to intangible damages for malicious use of process, 

apparently in the belief that a normal person subjected to 

wrongful litigation would have suffered at least some damages." 

Baglini v. Lauletta, 338 N.J. Super. 282, 307 (App. Div. 2001) 

(internal quotation marks and citation omitted).
53 A-0387-11T1

We also rejected the need for an enhanced standard of proof 

in Geler v. Akawie, 358 N.J. Super. 437 (App. Div.), certif. 

denied, 177 N.J. 223 (2003). There, the plaintiffs brought a 

medical malpractice claim against various doctors based upon the 

"wrongful birth" of their son, who was stricken with Tay-Sachs 

disease and died within two years of his birth. Id. at 443. 

The trial judge granted the defendant-doctor's motion for JNOV 

on the jury's award of emotional distress damages. Id. at 444. 

In reversing, we held that the "elevated standard" for emotional 

distress claims did not apply. Id. at 450. 

[W]e note a distinction between the judicial 

treatment of claims for parental emotional 

distress arising from negligence directed 

solely at the parents, as here, and claims 

for parental emotional distress arising from 

negligence also directly affecting their 

newborn child. This case falls within the 

former category, and thus squarely within 

Supreme Court precedent recognizing, without 

mention of an enhanced standard of proof, 

parental emotional distress as an element of 

damages in other genetic counseling 

malpractice contexts.

[Ibid. (citing Berman v. Allan, 80 N.J. 421 

(1979)).]

We also recognized that "an award of damages for emotional 

distress . . . [was] one of the few avenues of redress for 

tortious conduct in this circumstance." Id. at 451.

In this case, plaintiffs did not seek emotional distress 

damages under the rubric of negligent or intentional infliction 
54 A-0387-11T1

of emotional distress, torts whose essential elements require a 

"heightened showing" of physical or psychological sequelae. 

Menorah Chapels, supra, 386 N.J. Super. at 116. Rather, 

plaintiffs sought damages as the direct and proximate 

consequence of defendants' breach of their professional 

responsibility. 

Under the particular facts of this case, plaintiffs were 

entitled to recover for emotional distress damages without 

enhanced proof based upon the particular, and foreseeable, 

consequence of defendants' breach of the duty owed, i.e., the 

complete, and potentially, permanent rupture of the parent-child 

bond. The nature of this particular harm mitigates against the 

reason for an enhanced standard of proof in the first instance —

the elimination of spurious claims. In such "'special 

circumstances,'" "'an especial likelihood of genuine and serious 

mental distress . . . serves as a guarantee that the claim is 

not spurious.'" Strachan v. John F. Kennedy Mem. Hosp., 109 

N.J. 523, 537 (1988) (quoting Prosser, supra, § 54 at 362). 

For example, in Menorah Chapels, supra, 386 N.J. Super. at 

106, 116, we reversed dismissal of the defendant's counterclaim 

seeking emotional distress damages as a result of the 

plaintiff's alleged breach of a contract to perform funeral 

services in strict accordance with orthodox Jewish custom and 
55 A-0387-11T1

belief. We found it was foreseeable that, because the contract 

implicated interests so personal and particular to the 

defendant, the plaintiff's breach would result in mental 

anguish. Id. at 115-18; and see Muniz v. United Hospitals 

Medical Center Presbyterian Hospital, 153 N.J. Super. 79, 82 

(App. Div. 1977) (reversing dismissal of the plaintiff's 

complaint against the defendant-hospital, noting "a deviation 

from the standard of care reasonably to be expected of a 

hospital in dealing with corpses and the reasonable 

foreseeability that such a deviation would cause emotional and 

substantial physical disability with respect to persons normally 

constituted").

In Berman, supra, 80 N.J. at 433, the Court recognized the 

plaintiffs' claims for emotional distress damages against the 

defendant doctors who "directly deprived [the mother] . . . of 

the option to accept or reject a parental relationship with the 

child[,] and thus caused them to experience mental and emotional 

anguish upon their realization that they had given birth to a 

child afflicted with Down's Syndrome." Justice Handler wrote 

eloquently, "[b]ecause of the unique nature of the tort, 

involving as it does the denial of the opportunity to decide 

whether to become the parents of a handicapped child, the 

suffering of the parents assumes another, important dimension." 
56 A-0387-11T1

Id. at 439 (Handler, J., concurring in part, dissenting in 

part); see also Portee, supra, 84 N.J. at 101 (where the court 

noted that the "interest in personal emotional stability is 

worthy of legal protection against unreasonable conduct," when 

the "emotional harm follow[s] the perception of the death or 

serious injury to a loved one . . . , for few persons travel 

through life alone").

In this case, Innes's testimony was sufficient to permit 

the jury to award him emotional distress damages proximately 

caused by defendants' breach of their duty. Unlike Gautam, 

supra, 215 N.J. Super. at 400, where "the relationship between 

the parties was predicated upon economic interest[,] [and] [t]he 

loss, if one occurred, was purely pecuniary[,]" the loss in this 

case was particularly personal in nature - the inability of a 

father to see his daughter for many years, and the likely 

prospect that he may never see her again. The New Jersey 

Supreme Court has long recognized that "'[t]he right to 

. . . raise one's children [is an] essential, basic civil 

right[,] . . . far more precious than property rights.'" N.J. 

Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)

(first alteration in original) (quoting Stanley v. Illinois, 405 

U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L.Ed. 2d 551, 558 

(1972)). The emotional distress caused by the irreparable 
57 A-0387-11T1

severance of the parent-child bond is expected, undoubtedly 

genuine and easily appreciated by the average person without the 

need for expert testimony. 

Furthermore, there is no other form of redress for 

defendants' tortious conduct in this case. Geler, supra, 358 

N.J. Super. at 451. "Any other ruling would in effect immunize 

[defendants] from liability[.]" Berman, supra, 80 N.J. at 432. 

We therefore affirm the award of emotional distress damages to 

Innes.15

We are, nevertheless, compelled to reach a different result 

with respect to the award on Victoria's behalf. There was 

simply no testimony regarding her emotional distress, meaning 

the jury's award was based upon speculation. See Jablonowska v. 

Suther, 195 N.J. 91, 102 (2008) (where, discussing historical 

limits on claims for emotional distress, the Court noted that 

"[f]rom a policy standpoint, courts . . . feared a 'flood of 

litigation[ ] in cases . . . where the damages must rest upon 

mere conjecture and speculation'") (quoting Ward v. W. Jersey & 

Seashore R.R. Co., 65 N.J.L. 383, 386 (Sup. Ct. 1900) (emphasis 

added)).

 

15 Defendants have not specifically challenged the amount of the 

award.
58 A-0387-11T1

Although Berson did not testify before the jury, during the 

N.J.R.E. 104 hearing, she was asked "what effect, if any, do you 

know of that the alienation [from her father] had upon 

[Victoria]?" Berson answered, "I don't know this particular 

child. So I can't possibly answer that." Plaintiffs contend 

that they were denied the opportunity to have Victoria evaluated 

because of defendants' actions. We cannot determine on this 

record whether that is necessarily true, but the trial judge 

rejected that excuse as a reason to permit Berson's testimony. 

We therefore reverse that part of the judgment awarding 

emotional distress damages to Victoria.

C.

Citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427 

(2001), and Saffer, supra, 143 N.J. at 256, the judge observed 

that clients could recover reasonable expenses and attorney's 

fees as consequential damages for an attorney's negligence. He 

explained that even though plaintiffs were not defendants' 

clients, defendants owed them a duty to hold Victoria's passport 

in trust, and defendants knew or should have known of Inness's 

reliance upon them. 

Defendants contend it was error to award plaintiffs

attorneys' fees because "the narrow exception to the American 
59 A-0387-11T1

Rule in the context of a legal malpractice action" does not 

apply since Innes was not defendants' client. We disagree.16

The American Rule prohibits the prevailing party from 

recovering counsel fees against the losing party. In re Niles

Trust, 176 N.J. 282, 294 (2003). "The purposes behind the 

American Rule are threefold: (1) unrestricted access to the 

courts for all persons; (2) ensuring equity by not penalizing 

persons for exercising their right to litigate a dispute, even 

if they should lose; and (3) administrative convenience." Ibid. 

The Court, however, has "created carefully limited and 

closely interrelated exceptions to the American Rule[.]" In re 

Estate of Vayda, 184 N.J. 115, 121 (2005). One such exception 

permits the successful plaintiff in a legal malpractice action 

to recover the attorneys' fees incurred in prosecuting that 

action, because those are damages proximately caused by the 

attorney's negligence. Ibid. (citing Saffer, supra, 143 N.J. at 

271).

The Court subsequently "extended the limited exception 

allowing the recovery of attorneys' fees in attorney malpractice 

actions . . . to include actions for attorney misconduct[.]" 

Ibid. (citing Packard-Bamberger, supra, 167 N.J. at 443). In 

 

16 Defendants do not challenge the amount of the fee awards or 

the judge's methodology in calculating the awards. 
60 A-0387-11T1

Packard-Bamberger, the defendant, who was both a corporate 

director of, and legal counsel to, the plaintiffs, "committed 

intentional misconduct in his role as counsel." PackardBamberger, supra, 167 N.J. at 442. The Court said

[s]tated plainly, an attorney who 

intentionally violates the duty of loyalty 

owed to a client commits a more egregious 

offense than one who negligently breaches 

the duty of care. A client's claim 

concerning the defendant-attorney's breach 

of a fiduciary duty may arise in the legal 

malpractice context. Nonetheless, if it 

does not and is instead prosecuted as an 

independent tort, a claimant is entitled to 

recover attorneys' fees so long as the 

claimant proves that the attorney's breach 

arose from the attorney-client relationship. 

Accordingly, we hold that a successful 

claimant in an attorney-misconduct case may 

recover reasonable counsel fees incurred in 

prosecuting that action.

[Id. at 443.]

However, the Court also said that "a plaintiff must demonstrate 

the existence of an attorney-client relationship as a 

prerequisite to recovery." Id. at 443. 

The Court subsequently explained the expansion of this 

exception to the American Rule as having its "focus on the 

recovery of attorneys' fees as damages directly and proximately 

arising from the attorney's breach of fiduciary duty to the 

plaintiff." Estate of Vayda, supra, 184 N.J. at 122 (emphasis 

added). In In re Estate of Stockdale, 196 N.J. 275, 307 (2008), 
61 A-0387-11T1

the Court described its holding in Packard-Bamberger as 

permitting the recovery of counsel fees "in claims against 

attorneys who intentionally violate their fiduciary duties[.]" 

(Citing Packard-Bamberger, supra, 167 N.J. at 443). And, in 

Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372, 

405 (2009), the Court described Saffer and Packard-Bamberger as 

examples of "a tightly circumscribed common law exception to the 

American Rule that defies ready description, but may be titled 

loosely as fiduciary malfeasance cases[.]" 

We conclude that although no reported case specifically 

extends Saffer's exception to the American Rule to a suit 

brought against an attorney by a non-client, attorney's fees 

should be awarded in this case as a direct and proximate result 

of defendants' actions. Saffer, supra, 143 N.J. at 272; 

Lieberman, supra, 84 N.J. at 341. To hold otherwise would 

essentially eviscerate the very purpose of the exception to the 

American Rule by denying plaintiffs a full award for the 

consequential damages suffered as a result of defendants' 

actions.

The attorney fee award is particularly appropriate in this 

case, since defendants were holding Victoria's passport in trust 

and knew Innes and his attorney were relying upon the Agreement. 
62 A-0387-11T1

Nevertheless, they intentionally violated the Agreement and gave 

the passport to Carrascosa upon her request. 

We affirm that portion of the judgment that reflects the 

award of counsel fees to Innes. Because we have reversed the 

judgment on behalf of Victoria, she is not a prevailing party, 

and therefore is not entitled to an award of fees. We vacate 

that portion of the judgment.

III.

We next consider defendants' claim that it was error to 

sever their third-party complaint against Carrascosa from trial 

and to dismiss the complaint with prejudice after trial. The 

trial judge raised the severance issue sua sponte and provided 

all parties with an opportunity to address the issue several 

months before the trial began. 

In a short written opinion dated February 18, 2011, the 

judge decided severance was appropriate "for the convenience of 

the parties, and to avoid prejudice to . . . Carrascosa." The 

judge noted that defendants were being represented at trial by 

Walter Lesnevich, a principal in the Lesnevich firm and husband 

of Marzano-Lesnevich. Relying on RPC 1.9, the judge determined 

that Lesnevich was disqualified from representing defendants in 

litigation against their former client, Carrascosa. The judge 

concluded that defendants would not be prejudiced by a severance 
63 A-0387-11T1

because they were able to present their defense at trial, and, 

if successful, the contribution claim against Carrascosa would 

"evaporate." If unsuccessful, defendants were free to pursue 

their contribution claim at a second trial represented by other 

counsel.

Rule 4:38-2(a) provides that a court may order a separate 

trial of any claim for the convenience of the parties or to 

avoid prejudice. "[O]ur Rules vest the determination whether or 

not to sever claims to the sound exercise of a trial court's 

discretion." Rendine, supra, 141 N.J. at 310 (citing R. 4:38-

2(a)). 

"RPC 1.9(a) plainly provides that [a] lawyer who has 

represented a client in a matter shall not thereafter represent 

another client in the same or substantially related matter in 

which that client's interests are materially adverse to the 

interests of the former client unless the former client gives 

informed consent confirmed in writing." City of Atlantic City 

v. Trupos, 201 N.J. 447, 451 (2010). Matters are considered 

"substantially related" if

(1) the lawyer for whom disqualification is 

sought received confidential information 

from the former client that can be used 

against that client in the subsequent 

representation of parties adverse to the 

former client, or 
64 A-0387-11T1

(2) facts relevant to the prior 

representation are both relevant and 

material to the subsequent representation. 

[Id. at 467.]

Subject to certain exceptions that do not apply here, "[w]hen 

lawyers are associated in a firm, none of them shall knowingly 

represent a client when any one of them practicing alone would 

be prohibited from doing so by . . . RPC 1.9 [.]" RPC 1.10(a).

Here, the judge did not mistakenly exercise his discretion 

by severing defendants' contribution claim against Carrascosa. 

Lesnevich clearly could not represent defendants in a 

"substantially related matter in which" defendants' interests 

were "materially adverse" to those of their former client. 

In the end, however, the severance decision was immaterial 

because the judge ultimately dismissed defendants' contribution 

claim against Carrascosa. In his written opinion, citing 

Blazovic v. Andrich, 124 N.J. 90 (1991), the judge concluded 

that any apportionment of fault was inappropriate because 

defendants had a duty to prevent the "specific misconduct" of 

their client. As the judge explained:

As a result of the attorney-client 

relationship between . . . Carrascosa and 

the defendants, a relationship that derives 

its genesis from Victoria's passport and the 

attendant ramifications arising from that 

document, the Lesnevich firm was also 

charged with preventing any harm from 

befalling Peter and Victoria Innes. The 
65 A-0387-11T1

jury verdict was issued in accordance with 

this notion. All of these factors therefore 

coalesce to place . . . Carrascosa outside 

the boundaries of the traditional joint 

tortfeasor realm. 

Defendants argue before us that they are entitled to 

contribution from Carrascosa under the JTCL. We disagree and 

affirm the judge's dismissal of defendants' third-party 

complaint for contribution.

Pro rata apportionment of liability among negligent and 

intentional tortfeasors is appropriate based upon the 

"percentages of fault assigned by the trier of fact." Blazovic, 

supra, 124 N.J. at 105, 107-12. However, an exception to the 

general rule applies "when the duty of one encompassed the 

obligation to prevent the specific misconduct of the other." 

Id. at 111 (citing Butler v. Acme Markets, Inc., 89 N.J. 270

(1982)). 

Application of this exception relies upon both the 

foreseeability of the "specific misconduct" and its "adequate 

causal relationship" to the duty imposed on the other tortfeasor 

to prevent it. Id. at 112. See e.g., Waldron v. Johnson, 368 

N.J. Super. 348, 349-50, 352 (App. Div.) (rejecting the Blazovic

exception where the plaintiff's recovery against a shopping mall 

for an assault at an automatic teller machine "was not so 

foreseeable nor did it bear such a close causal connection to 
66 A-0387-11T1

the [m]all's slow response to the melee that it should justify 

imposing upon the [m]all the entire responsibility for [the] 

plaintiff's injuries"), certif. denied, 182 N.J. 139 (2004); 

Martin v. Prime Hospitality Corp., 345 N.J. Super. 278, 292 

(App. Div. 2001) (holding that the plaintiff's sexual assault in 

the defendant's hotel was "neither sufficiently foreseeable nor 

sufficiently related to [the hotel's] alleged fault to justify 

imposing responsibility on [the hotel] for all of the 

[plaintiff's] injuries"). 

Here, the judge correctly held that the Blazovic exception 

applied. Defendants were fully aware of the Agreement and 

assumed a duty to safeguard Victoria's passport. Because they 

released the passport to Carrascosa without notice to Innes or 

his attorney, defendants failed to prevent the "specific 

misconduct" that enabled Victoria's removal to Spain. Moreover, 

based upon the evidence adduced at trial, that specific harm was 

entirely foreseeable.

IV.

The balance of defendants' arguments lack sufficient merit 

to warrant extensive discussion in a written opinion. R. 2:11-

3(e)(1)(E). Conk was clearly qualified to render the opinions 

he gave at trial, and the judge did not mistakenly exercise his 

discretion in so ruling. See Koseoglu v. Wry, 431 N.J. Super.
67 A-0387-11T1

140, 159 (App. Div.) (quoting Carey v. Lovett, 132 N.J. 44, 64

(1993)), ("'[T]he competency of a witness to testify as an 

expert is remitted to the sound discretion of the trial court. 

Absent a clear abuse of discretion, an appellate court will not 

interfere with the exercise of that discretion.'"), certif. 

denied, 216 N.J. 4 (2013).

Defendants cannot assert prejudice when they provided the 

judge with a proposed charge that contained an improper 

statement of the law regarding proximate cause, and then 

commented on it extensively in summation. Although the judge 

did not discern the error until afterwards, he properly 

exercised his discretion and gave the jury a curative 

instruction.

In sum, we affirm the judgment in all respects as it 

applies to Innes. We reverse the judgment in all respects as it 

applies to Victoria, and remand the matter to the Law Division 

for entry of judgment in defendants' favor as to her claims. We 

do not retain jurisdiction.