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Newell v. Hudson3/16/2005
deposition. It is immaterial whether Hudson either deliberately lied in the matrimonial action or in the malpractice action; her statements are clearly inconsistent and uttered to obtain judicial advantage.
We agree with Judge Quinn's summary disposition. Hudson's acknowledgements during the voir dire of her divorce settlement bar her inconsistent statements in the malpractice action. Thus Hudson's claim of legal malpractice is barred as a matter of law. If she was honest in the first proceeding and simply changed her mind after the settlement was placed on the record, there was no professional malpractice by Newell. If she intentionally misrepresented in the matrimonial action with"secret intent" to obtain judicial approval of the agreement and a divorce, as she now claims she did, she is subject to judicial estoppel of her legal malpractice claim. Hudson's self-serving behavior is precisely the type of inconsistent judicial position-taking that the doctrine of judicial estoppel is designed to prevent. To permit this litigant to assert a contrary position in the malpractice action presumably to bolster her counterclaim in an effort to defeat Newell's legitimate claim for counsel fees would result in a miscarriage of justice and impugn the integrity of the judicial process. Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606-608 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001).
Even though Judge Quinn need not have addressed Hudson's expert reports in view of his ruling on judicial estoppel, he nonetheless did consider both the attorney's report and the untimely report of the accountant and entertained oral argument on the significance of the reports. The judge commented on the reports in his decision, including his assessment that the report of plaintiff's legal expert"tends to help the other side as opposed to helping ." He gave no credence to the reports, which were purely speculative and contained net opinions, and properly concluded there was no evidence of malpractice on the part of Newell that would preclude the granting of summary judgment in his favor. We reject Hudson's argument that she and her expert witnesses presented sufficient credible proof of Newell's malpractice to withstand summary judgment on her malpractice counterclaim or Newell's affirmative action for fees. R. 2:11-3(e)(1)(E).
Affirmed.
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