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Newell v. Hudson3/16/2005
ttlement agreement alimony amount that is greater than the pendente lite amount and that it is clearly an amount sufficient to cover your expenses and that you know what you're doing.
There's no way that any matrimonial lawyer under these circumstances could ever protect themselves from a legal malpractice case. Indeed and in fact, any matrimonial litigant need only enter into a property settlement agreement getting what's as easy as they can get from their spouse, and the very next day, turn around and try and get more money from their matrimonial lawyer.
I find, therefore, in order to protect essentially the integrity of the judicial system, that here [Hudson] simply changed her mind, that based on the doctrine of estoppel and specifically, judicial estoppel, that this case should be dismissed and I'm going to grant the motion for summary judgment dismissing the counterclaim for legal malpractice for those reasons. Thereafter, Newell moved for summary judgment on his affirmative claim for counsel fees and Hudson cross-moved for summary judgment pursuant to Saffer v. Willoughby, 143 N.J. 256 (1996), asserting Newell was barred from collecting fees for services negligently rendered. Considering that Hudson had not challenged the reasonableness of the time expended by Newell or the amount of his bill, on April 2, 2004 Judge Quinn granted summary judgment in Newell's favor for the outstanding fees, costs, and interest totaling $10,768.51. The judge denied Hudson's cross-motion based on his prior order dismissing her malpractice claim, stating:
If all you needed to do was to make an allegation of malpractice and try and cherry pick specific things that could have or should have been done in connection with a matrimonial case, we'd never have any finality to them and matrimonial lawyers would be in constant litigation because you can always second guess someone and you can always with the benefit of hindsight argue that certain things should have been done.
III.
In support of her appeal of Judge Quinn's orders granting summary judgment on her legal malpractice counterclaim and Newell's collection action, Hudson asserts: (1) there is undisputed material evidence that Newell improperly advised her to settle her divorce action; (2) under Ziegelheim v. Apollo, 128 N.J. 250 (1992), judicial estoppel is not a defense to a lawyer who improperly advises his client to accept a divorce settlement; (3) she relied upon the bad advice she received from Newell and her background as an accountant or knowledge of the Crews decision is irrelevant; (4) her knowledge of her husband's assets and of the Crews decision does not preclude her from suing Newell for negligently advising her to accept an inadequate settlement; and (5) in light of the competent proof that Newell had committed attorney malpractice, his motion for summary judgment for fees and costs should have been denied. We are not persuaded by any of these arguments.
The doctrine of judicial estoppel is well entrenched in New Jersey's jurisprudence. It is"an equitable doctrine precluding a party from asserting a position in a case that contradicts or is inconsistent with a position previously asserted by the party in the case or a related legal proceeding." Tamburelli Properties v. Cresskill, 308 N.J. Super. 326, 335 (App. Div. l998).
Over a hundred years ago the United States Supreme Court set forth the fundamental precepts of the doctrine of judicial estoppel:
It may be laid down as a general proposition that, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have ch
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