Opinion
DOCKET NO. A-3173-13T4
08-27-2015
ERIC TEVROW and PATRICIA TEVROW, Plaintiffs-Appellants, v. DELE AROWOLO, A/K/A DELE A. AROWOLO; TUNDE ADEDOYIN A/K/A TUNDE A. ADEDOYIN A/K/A BABATUNDE ADEDOYIN A/K/A BABATUNDE A. ADEDOYIN; and OMOLOLA S. AROWOLO A/K/A OMOLOLA AROWOLA A/K/A LOLA S. AROWOLO A/K/A LOLA AROWOLO A/K/A OMOLOLA AKOWOLO, Defendants, and H. RUTHERFORD LIVENGOOD, ESQ. A/K/A H. RUTHERFORD LIVENGOOD A/K/A FORD LIVENGOOD, ESQ. A/K/A FORD LIVENGOOD A/K/A H. RUTHERFORD LIVENGOOD, ESQ. LLC, Defendant-Respondent.
Wayne S. Augenstein argued the cause for appellant. Melissa H. Raksa, Assistant Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Raksa, of counsel; James A. McGhee, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1701-11. Wayne S. Augenstein argued the cause for appellant. Melissa H. Raksa, Assistant Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Raksa, of counsel; James A. McGhee, Deputy Attorney General, on the brief). PER CURIAM
Plaintiffs Eric and Patricia Tevrow appeal the Law Division's order granting summary judgment in favor of defendant H. Rutherford Livengood, a pool attorney for the Office of the Public Defender, who had represented plaintiffs' former employee, defendant Omolola Arowolo in a criminal action. They also appeal from the court's subsequent order denying plaintiffs' motion for reconsideration.
Plaintiffs' claims arise from Arowolo's embezzlement of $129,405.22 from plaintiffs for which she pled guilty to a criminal offense and was sentenced to probation. During her plea negotiations, plaintiffs agreed to not oppose Arowolo being sentenced to probation if she could provide a satisfactory agreement for repayment of the embezzled funds, co-signed by her father, defendant Dele Arowolo and her fiancé, defendant Tunde Adedoyin. Livengood witnessed and acknowledged their signatures to the parties' ultimate agreement, but the signature of Dele and Adedoyin turned out be fraudulent.
We use Dele Arowolo's first name to distinguish him from his daughter. No disrespect is intended.
Plaintiffs filed a complaint alleging, among other claims, Livengood committed legal malpractice or breached a duty owed as a notary to plaintiffs. The trial court disagreed and dismissed their claims. On appeal, plaintiffs challenge the court's determination that Livengood did not owe them any duty as an attorney because they never entered into an attorney-client relationship with him. Plaintiffs argue that relationship is not always a required element of a legal malpractice claim. They also contend the motion judge should have barred Livengood from asserting, as a defense, the non-existence of a duty because it was not specifically pled by him. Also, they disagree with the court's conclusion that Livengood did not breach his duty while acting as a notary public. Finally, they disagree with the motion judge's conclusion that Livengood was not a proximate cause of their loss.
We have considered plaintiffs' arguments in light of our review of the record and applicable legal principles. We affirm.
I.
We discern the salient facts from the motion record, considering them in the light most favorable to plaintiffs. Robinson v. Vivirito, 217 N.J. 199, 203 (2014).
Shortly after Arowolo's plea hearing, she and plaintiffs entered into negotiations for a restitution agreement. Plaintiffs' attorney drafted the final contract, which required a $20,000 down payment and monthly installments of $2,000 continuing until the entire embezzled amount was satisfied. Arowolo, Dele, and Adedoyin were to sign the contract. The contract stated their performance was not contingent on Arowolo actually being sentenced to probation, as plaintiffs explicitly acknowledged they had "no control over the Judge or Prosecutor." Arowolo understood restitution would be a condition of her probation.
According to Livengood, when Arowolo brought him the contract in July 2010, it was signed by her, Dele, and Adedoyin, but the area for a witness's signature and an acknowledgement were blank. Livengood signed as a witness and acknowledged Arowolo's signature after she attested to her signature. He told her that he would have to meet personally with Dele and Adedoyin to have them attest to their signatures before he could witness and acknowledge their signatures.
Arowolo called an individual who she represented was Dele and handed the phone to Livengood. Livengood described the man's voice as very deep and heavily accented. When he asked the man claiming to be Dele if he signed the contract, the man asked, "How is the name spelled?" When Livengood told him the spelling, the man said that he signed it. Livengood thought it was unusual that the man was asking how his own name was spelled.
Livengood arranged to meet Dele. At the meeting, the man stated he was Dele and produced an employee identification card from the New York City Housing Authority. Livengood believed, but was not certain, the identification had a photograph. He could not remember if the identification had a signature, and he did not specifically request an identification bearing a signature. Livengood asked the man if the signature on the contract was his and the man said, "[y]es, that is my signature." Livengood signed the agreement as a witness and acknowledged Dele's purported signature.
Livengood also spoke to Adedoyin by phone and arranged to meet him as well. A man purporting to be Adedoyin appeared at the meeting and produced a driver's license as identification. Livengood recalled the identification having a picture and that he matched the picture to the man before him. The man acknowledged that it was his signature on the contract. Livengood admitted that he did not recall attempting to match the signature on the license to the signature on the contract. The two men discussed the man's upcoming job interview and his engagement to Arowolo. Livengood witnessed and acknowledged Adedoyin's signature.
Immediately prior to sentencing, Arowolo's mother paid the $20,000 down payment and Arowolo paid a $2000 installment. After Arowolo was sentenced in July 2010, no other payments were made.
Plaintiffs originally filed their complaint against Arowolo, Dele, and Adedoyin. In their answers, Dele and Adedoyin denied ever signing the contract. Plaintiffs filed an amended complaint, adding a legal malpractice claim against Livengood alleging he either acted intentionally or negligently when acknowledging the signatures. Livengood filed an answer asserting plaintiffs failed to state a claim upon which relief could be granted.
At depositions, both Dele and Adedoyin denied signing the contract. In his testimony, Livengood described Dele as being "medium-height, dark-skinned, heavyset." When Dele personally appeared at the deposition, Livengood did not recognize him and could not positively identify him as the man with whom he met. Dele denied ever meeting Livengood before the deposition.
Livengood moved for summary judgment. He argued that his "acts or omissions were not the proximate cause of damages to [p]laintiff[s] and he did not owe a duty to [p]laintiff[s]." He also argued the case should be dismissed for lack of notice pursuant to the Tort Claims Act N.J.S.A. 59:8-7 (Title 59). Plaintiffs cross-moved for summary judgment, arguing Livengood's position constituted an affirmative defense which he failed to plead in his answer, and therefore waived.
Judge Mark P. Ciarrocca granted summary judgment in favor of Livengood, dismissing the complaints against him with prejudice. Although the judge denied Livengood's motion to dismiss pursuant to the Tort Claims Act, as he did not raise that defense in a timely manner, the judge found plaintiffs could not maintain a negligence claim because no duty existed between Livengood and plaintiffs, who were not Livengood's clients.
Plaintiffs moved for reconsideration and after considering oral argument, Judge Ciarrocca denied plaintiffs' motion.
After a bench trial before a different judge, which resulted in the dismissal of all claims against Dele and Adedoyin and the entry of a judgment against Arowolo in favor of plaintiffs in the amount of $216,314.62, plaintiffs appealed from the orders dismissing their complaint as to Livengood.
II.
Plaintiffs argue on appeal that Judge Ciarrocca should have denied Livengood's summary judgment motion and granted their cross-motion for summary judgment because plaintiffs established that Livengood owed them a duty, breached that duty, and caused their damages. In making this argument, plaintiffs essentially present two theories of negligence. First, plaintiffs assert they can maintain a legal malpractice claim against Livengood even though they were not his clients. Alternatively, plaintiffs claim Livengood was acting as a notary public and, as such, he breached a duty owed to them, resulting in their loss. We disagree.
We review the entry of summary judgment de novo, applying the same standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Summary judgment is mandated where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We determine "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 non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact . . . ." Ibid.
The trial court's factual findings "are entitled to substantial deference on appellate review, and are not overturned if they are supported by 'adequate, substantial, and credible evidence.'" Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013) (quoting Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002)). However, a "'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Plaintiffs' initial argument on appeal raises a purely legal issue because "[t]he determination of the existence of a duty is a question of law for the court." Petrillo v. Bachenberg, 139 N.J. 472, 479 (1995). They argue that an attorney-client relationship is not necessary to sustain a claim of legal malpractice because courts have found, in certain circumstances, that an attorney owes a duty to a non-client. Plaintiffs assert the fact that the restitution agreement arose out of a criminal matter is a "distinction without a difference." Although plaintiffs acknowledge there is no authority in which a court found that a criminal defense attorney owed a duty to anyone other than his client, they state that "[t]here is no reason to carve out a new 'criminal law' exception to well-established precedent," and permitting non-client's to recover from attorneys.
"[T]he usual principles of negligence apply to legal malpractice." Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996). "The requisite elements of a cause of action for legal malpractice are: (1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation." Ibid. (citation and internal quotation marks omitted); accord Jerista v. Murray, 185 N.J. 175, 190-91 (2005); McGrogan v. Till, 167 N.J. 414, 425 (2001); Froom v. Perel, 377 N.J. Super. 298, 310 (App. Div.) ("The existence of an attorney-client relationship is, of course, essential to the assertion of a cause of action for legal malpractice."), certif. denied, 185 N.J. 267 (2005). The plaintiff bears the burden of establishing each element of a legal malpractice claim. Sommers v. McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996); c.f. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (stating the plaintiff bears the burden of establishing all elements of a negligence claim).
An attorney could have "a limited duty" to a non-client "in some circumstances [where] an attorney knows or reasonably should know that a nonclient will rely on the attorney's representation or opinion," LoBiondo v. Schwartz, 199 N.J. 62, 101 (2009), or, for example, where "'an attorney . . . 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.'" Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 213 (App. Div.) (quoting Lobiondo, supra, 199 N.J. at 102), certif. granted, 220 N.J. 39 (2014). "'Privity 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.'" Ibid. (quoting Estate of Albanese v. Lolio, 393 N.J. Super. 355, 368-69 (App. Div.)(citation and internal quotation marks omitted), certif. denied, 192 N.J. 597 (2007)).
"Whether an attorney owes a duty to a non-client third party depends on balancing the attorney's duty to represent clients vigorously, with the duty not to provide misleading information on which third parties foreseeably will rely." Petrillo, supra, 139 N.J. at 479 (citations omitted); accord Davin, L.L.C. v. Daham, 329 N.J. Super. 54, 76 (App. Div. 2000) ("When considering the imposition of a duty upon an attorney, we must . . . consider the impact that duty will have upon the public, in general, and the attorney's client's right to vigorous and effective representation."). "Ultimately, in determining whether a duty exists, the primary question is one of fairness." Innes, supra, 435 N.J. Super. at 213 (citation and internal quotation marks omitted).
Finding an attorney owes a duty to a non-client "has been applied rather sparingly," in "carefully circumscribed" holdings, LoBiondo, supra, 199 N.J. at 102, because the Court's "ordinary reluctance to permit non-clients to sue attorneys remains unchanged." Green, supra, 215 N.J. at 460. Therefore, "the grounds on which any plaintiff may pursue a malpractice claim against an attorney with whom there was no attorney-client relationship [remain] exceedingly narrow." Id. at 458.
Plaintiffs concede there are no New Jersey cases in which our courts held a criminal defense attorney owes a duty to a non-client. We located one opinion from outside New Jersey, in which a California court rejected a similar contention. In De Luca v. Whatley, 117 Cal. Rptr. 63, 64 (Ct. App. 1974), a criminal defendant's attorney called the plaintiff to testify as a witness on his client's behalf, knowing — or he should have known — that the plaintiff would incriminate himself, without advising the plaintiff of the likelihood he would be prosecuted for his testimony. Ibid. In the ensuing action against the attorney, the plaintiff sought to extend "the applicable law now found in cases involving attorneys who have been negligent in the preparation of Wills and other matters that have caused harm to third party beneficiaries where the attorney could foresee some detrimental harm to those particular beneficiaries." Ibid. The court affirmed the judgment in favor of the attorney, analyzing the case in only two sentences: "To state the problem is to decide this case. When an attorney defends a person accused of crime he has but one intended beneficiary -- his client." Ibid. (citations omitted).
Plaintiffs rely upon several civil cases in support of their argument, none of which are analogous to the facts here. See, e.g., Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (attorney owed a duty to a non-client where the attorney prepared an opinion letter, which "contained misstatements of material facts on which [he] knew or should have known the [third-party] would rely"); Petrillo, supra, 139 N.J. at 487 (attorney for the seller of real estate owed a duty to buyer where attorney himself created a misleading report about the property knowing it would be delivered to potential buyers); Davin, supra, 329 N.J. Super. at 77 (attorney owed a duty to tenants when he incorporated a quiet enjoyment clause into a lease, despite knowing about an impending foreclosure); R. J. Longo Constr. Co. v. Schragger, 218 N.J. Super. 206, 208 (App. Div. 1987) (township attorneys had a duty to plaintiff third-party beneficiary of a contract where they "negligently permitted plaintiff to begin construction work without the easements necessary for completion, contrary to explicit language in the contract"); Albright v. Burns, 206 N.J. Super. 625, 632 (App. Div. 1986) (finding attorney liable after establishing that there existed an attorney-client relationship despite the lack of a formal contract). These cases all concerned transactions in a strictly commercial context or circumstances in which the attorney overtly induced reliance or intentionally participated in wrongful behavior.
Plaintiffs argue that despite the dissimilarities in the factual circumstances, the cited cases require a court to allow a non-client to bring a malpractice action against an attorney if the attorney knew or should have known that the non-client would rely on his representation. However, this expansive view of the case law ignores the required balancing of an attorney's duties, as discussed in Petrillo, supra, 139 N.J. at 479, and our courts' insistence that its holdings be "carefully circumscribed" to the facts of those cases. See Green, supra, 215 N.J. at 458. As the Petrillo court stated, "the point is to cabin the lawyer's duty, so the resulting obligation is fair to both lawyers and the public." Petrillo, supra, 139 N.J. at 484 (1995) (emphasis added).
The facts of this case do not fit into the narrow circumstances in which a court has allowed a legal malpractice claim by a non-client. Here, plaintiffs do not allege that Livengood conspired with Arowolo to commit fraud or that he had any knowledge that the individuals purporting to be Dele and Adedoyin were imposters. Similarly, there are no facts to support an assertion that Livengood did anything in the performance of his duties as an attorney to induce plaintiffs to rely on his actions as an attorney.
Plaintiffs failed to demonstrate that this case comports with "any of the narrow grounds that would give rise to a cause of action against an attorney with whom one has no attorney-client relationship." Green, supra, 215 N.J. at 460. Accordingly, we agree with Judge Ciarrocca that plaintiffs were not owed a duty by Livengood in the performance of his obligations as Arowolo's attorney.
III.
Even if Livengood owed a duty to plaintiffs, their claims still fail as they cannot demonstrate that Livengood was the proximate cause of their loss. "The first and most basic concept 'buried' within proximate cause is that of causation in fact." Conklin, supra, 145 N.J. at 417. "To recover in tort, [a] plaintiff must prove that [the] defendant's conduct constituted a cause in fact of his injuries and loss. An act or omission is not regarded as a cause of an event if the event would have occurred without it." Del Tufo v. Twp. of Old Bridge, 147 N.J. 90, 124 (1996) (citation and internal quotation marks omitted). "The simplest understanding of cause in fact in attorney malpractice cases arises from the case-within-a-case concept." Conklin, supra, 145 N.J. at 417. This "approach aims to clarify what would have taken place but for the attorney's malpractice." Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358 (2004). "[T]he measure of damages is ordinarily the amount that the client would have received but for [the] attorney's negligence." Ibid. (first alteration in original) (quoting Gautam v. De Luca, 215 N.J. Super. 388, 397 (App. Div.), certif. denied, 109 N.J. 39 (1987)).
"More complex are cases in which the attorney's negligent conduct combines with other causes that lead to the client's injury." Conklin, supra, 145 N.J. at 417. In those cases, causation is "expressed in terms of whether the negligent conduct may be considered a substantial factor contributing to the loss." Id. at 419. As the Conklin Court explained,
[t]he substantial factor test accounts for the fact that there can be any number of intervening causes between the initial wrongful act and the final injurious consequence and does not require an unsevered connecting link between the negligent conduct and the ultimate harm. The test is thus suited for legal malpractice cases in which inadequate or inaccurate legal advice is alleged to be a concurrent cause of harm. To relate the concepts to the facts, a court might instruct the jury to consider whether a reasonably competent transactional lawyer would have advised the clients of the economic risks that they took and whether the lack of the benefit of that advice was a substantial factor in causing them harm.
[Id. at 420.]
A plaintiff bears the burden of proving the defendant's conduct was a substantial factor contributing to their loss. "That burden must be sustained by a preponderance of the competent, credible evidence and is not satisfied by mere 'conjecture, surmise or suspicion.'" 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 488 (App. Div.) (quoting Long v. Landy, 35 N.J. 44, 54 (1961)), certif. denied, 137 N.J. 311, 54 (1994).
Plaintiffs' loss was clearly caused by Aworolo's embezzlement. They attempt to overcome that fact by asserting that Livengood's alleged negligent actions resulted in plaintiffs' inability to collect from Dele and Adedoyin the money owed to them by Arowolo. In order for plaintiffs' argument to succeed, they would need to prove that Livengood's negligent witnessing of the signatures was a substantial factor that led to their inability to collect the restitution. There are no facts in the record, however, to support such a contention. If Livengood had refused to acknowledge the signatures in question, plaintiffs would still not have collected the debt owed by Arowolo. In fact, as plaintiffs state, we "will never know what would have happened if the signatures were rejected."
Nevertheless, plaintiffs argue had Livengood rejected the signatures, they could have compelled further negotiations leading to securing different obligors. They offer no proof, however, that any other obligors were available to Arowolo. According to plaintiffs, they would not have agreed to a repayment plan with just Arowolo and Adedoyin as obligors, since neither had any assets. They accepted the contract with Dele as a co-signer since he "owned real estate . . . and had a good job as an architect at the NY City Housing Authority." Plaintiffs have offered no evidence that further negotiations would have led to another potential co-signer or any other source of repayment was available to Arowolo.
Plaintiffs also state that if Dele had not agreed to be a co-signer, plaintiffs "would have asked for substantially more up-front money [or that] the . . . judge . . . incarcerate [Arowolo] for as long as possible." However, they acknowledge that the only individuals willing to sign the restitution agreement - Arowolo and Adedoyin - had no money or assets. They offer no evidence as to where this additional "up-front" money would have come from. They also overstate their control of Arowolo's sentence. Even if the prosecutor committed to abiding by their wishes in his recommendation, sentencing "is within the sole discretion of the judge, subject to applicable statute or court rule." State v. Interest of D.S., 289 N.J. Super. 413, 420 (App. Div. 1996); see also R. 3:9-3(e). In the contract, plaintiffs explicitly acknowledged their lack of "control over the Judge or Prosecutor." Moreover, it is unclear how plaintiffs' ability to request Arowolo be sentenced to prison would have improved plaintiffs' position, as that option would have resulted in no repayment. Last, because Arowolo's probation was contingent on repayment, with or without Dele's or any other co-signor's signature, plaintiffs benefited from the fact that the court could have incarcerated Arowolo if she failed to make payments.
In sum, plaintiffs' arguments as to causation improperly rest "upon a foundation of pure conjecture, speculation, surmise or guess." See Long, 35 N.J. at 54 (citation omitted). Thus, when viewing these facts in the light most favorable to plaintiffs, no rational factfinder could find that Livengood's actions constituted a significant factor in causing plaintiffs' damages.
IV.
Plaintiffs also argue that Livengood's acknowledgment of Dele and Adedoyin's signatures was outside the scope of his duties as a criminal defense lawyer, and therefore an attorney-client relationship was not an element of proof to establish his negligence. Judge Ciarrocca rejected this argument, stating that the entirety of the transaction occurred while Livengood, as assigned counsel, was representing Arowolo in a criminal matter. All of the evidence supported that conclusion as there was no dispute that Livengood only represented Arowolo in the criminal action and assisted her in securing a plea agreement, which included Arowolo entering into an agreement to make restitution. Also, plaintiffs' involvement with Livengood, through their own counsel, only related to the criminal prosecution — they agreed to not oppose a sentence of probation at sentencing in exchange for an agreement to pay restitution — and did not include relying on anything Livengood said or did in his capacity as Arowolo's attorney.
Plaintiffs alternatively argue that Livengood was acting as a notary, not a criminal defense attorney, and as such, he owed a duty to plaintiffs. Even if plaintiffs' claims are considered from that perspective, plaintiffs would still be required to show that he breached that duty and caused their loss. Because plaintiffs have failed to establish causation, their claim fails and summary judgment in favor of Livengood was still warranted. See Villaneuva v. Brown, 103 F.3d 1128, 1137 (3d Cir. 1997) ("A causal relationship between the notary's negligence and [a plaintiff's] loss must be shown.").
Also, plaintiffs could not have established Livengood breached his duty. Attorneys, like notary publics, are authorized by law to acknowledge signatures. N.J.S.A. 46:14-6.1(a). A notary, as a public officer, "has a duty to refrain from acts or omissions which constitute negligence, a duty which he owes not only to persons with whom he has privity but also to any member of the public who, in reasonable contemplation, might rely upon the officer's certification." Immerman v. Ostertag, 83 N.J. Super. 364, 369 (Law Div. 1964). However, "a notary is not an insurer, and is not liable except for negligence." Commercial Union Ins. Co., supra, 54 N.J. at 81.
The Supreme Court "has approvingly cited Immerman as articulating the general rule with respect to notaries." H. Rosenblum, Inc. v. Adler, 93 N.J. 324, 336 (1983); accord Commercial Union Ins. Co. v. Burt Thomas-Aitken Constr. Co., 54 N.J. 76, 81 (1969). --------
The only duty owed by a notary to the general public is to use ordinary or reasonable care in the performance of his functions. With respect to the identities of signers, the law requires nothing more of the notary than the use of a reasonable care to satisfy himself or, in other words, to become satisfied in his own conscience that the signers are the persons they purport to be.
[Immerman, supra, 83 N.J. Super. at 370.]
In Immerman, the notary did not ask signatories to a mortgage, who were strangers to him, for any type of identification. Id. at 367, 371. Instead, he relied on a business acquaintance's identification of the signors as being his parents. Id. at 367. At that time, the notary had no reason to doubt the business acquaintance's veracity. Id. at 371. After defaulting on the mortgage, it was discovered that the signatories were not the man's parents, but imposters. Id. at 368. The court found that the notary "clearly met the requisite standard of care" because it was commonplace to "learn the identities of strangers through introductions by mutual acquaintances." Id. at 371. The court emphasized "[a]cknowledgment-taking officers are held to no higher standard than that of ordinary mankind." Ibid.
In Villanueva, supra, 103 F.3d at 1128, cited by plaintiffs, a notary public admitted notarizing a signature as a favor to an accountant, even though she did not witness the signature, the signatory did not appear before her, and was not known to her. The court found the notary was "clearly negligent and breached the duty that . . . [she] owed to the public as a notary" because she failed to take "any steps reasonably calculated to insure the genuineness of the signature." Id. at 1137.
Here, plaintiffs claim that "[s]ince defendant . . . was acting as a notary, [Villanueva] makes him liable." However, Livengood's actions did not fall below the requisite standard of care for a notary. Unlike the notary in Villanueva, Livengood required the signatories to personally appear before him before he would witness and acknowledge their signatures. Unlike the notary in Immerman, he maintained that he asked each signor to provide identification to show that they were the persons they purported to be. Further, he had each confirm that they in fact signed the agreement.
Under the circumstances, we conclude plaintiff failed to establish Livengood breached any duty while acknowledging the signatures to the restitution agreement.
V.
In their motion for reconsideration, plaintiffs argued the trial judge erred by failing to consider their claim that Livengood's "affirmative defense was entered late." According to plaintiffs, Livengood should have been barred from arguing that he owed no duty to plaintiffs as that argument constituted an affirmative defense, which needed to be pleaded in Livengood's answer. Judge Ciarrocca stated that he considered these arguments and found no failure by Livengood to raise an affirmative defense. He explained that Livengood's challenge to the existence of duty, a necessary element to plaintiffs' negligence cause of action, did not equate to an affirmative defense.
A trial court's decision regarding a motion for reconsideration is reviewed under the abuse of discretion standard. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). Granting a motion for reconsideration "is a matter within the sound discretion of the Court, to be exercised in the interest of justice." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citation and internal quotation marks omitted).
It is not appropriate merely because a litigant is dissatisfied with a decision of
the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Ibid. (citation and internal quotation marks omitted).]
Plaintiffs maintain our holding in Buteas v. Raritan Lodge #61 F. & A.M., 248 N.J. Super. 351, 364 (App. Div. 1991), supports their position since assertion of non-duty is an "avoidance of liability" rather than a deficiency in a pleading. In support of their argument, plaintiffs also cite to Rule 4:5-4, which lists examples of affirmative defenses. Plaintiffs suggest that since some of the affirmative defenses share the same language as certain elements of claims, non-existence of duty should be deemed an affirmative defense as well. Again, we disagree.
Plaintiffs' argument regarding Livengood's obligation to plead the lack of any duty owed to plaintiffs ignores the distinction between a general defense and an affirmative defense. A general "defense goes to the legal sufficiency of the pleading, ordinarily connoting the failure of the complaint to state either a cognizable cause of action or all of the elements of a cognizable cause of action." Buteas, supra, 248 N.J. Super. at 363; see also R. 4:6-2(e). Such defense may be raised at any time, including during trial. Id. at 363.
In contrast, an affirmative defense does not negate the essential elements of a plaintiff's cause of action; instead, it assumes its legal sufficiency but seeks to bar the claim. Id. at 363-64; see, e.g., Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 48-49 (1959) (explaining where assumption of risk is asserted as an affirmative defense, it is a defense "to an established breach of duty"); Pearlstein v. Leeds, 52 N.J. Super. 450, 456 (App. Div. 1958) (noting the case dealt with "an absence of a necessary element of the [land] occupier's duty and breach thereof," as opposed to an affirmative defense, such as assumption of risk or contributory negligence), certif. denied, 29 N.J. 354 (1959). An affirmative defense is "a matter of avoidance of liability for culpable conduct for which [a] defendant would have been answerable but for the particular facts of the transactional relationship between the parties." Buteas, supra, 248 N.J. Super. at 364. Unlike a general defense, "[a]n affirmative defense is ordinarily waived if not pleaded or otherwise timely raised." Id. at 363.
Livengood did not seek to avoid liability for culpable conduct. Rather, he directly attacked the legal sufficiency of the negligence cause of action, a defense he could raise at any time, and argued that plaintiffs could not maintain a negligence action against him because he did not owe a duty to plaintiffs and his actions were not the proximate cause of their injuries. Throughout the course of the litigation, Livengood maintained he acted reasonably in having Adedoyin and Dele appear before him and acknowledge their signatures and no matter what happened regarding their signatures, plaintiffs' loss was not the result of any of his actions or omissions. The requirement that an affirmative defense must be pled simply did not apply to these circumstances.
Plaintiff's reliance on Rule 4:5-4 does not alter our view. Plaintiffs' theory is that non-existence of duty could be asserted in a "secondary sense" as an affirmative defense. While it is true courts have found that certain negligence defenses can be asserted in different forms, they limit the requirement to plead the defense to those cases where, again, there is an attempt to bar liability rather than challenge culpability. See Del Tufo, supra, 147 N.J. at 112-13; Meistrich, supra, 31 N.J. at 48-49. For example, in addressing the affirmative defense of assumption of risk, the Court stated:
assumption of risk has two distinct meanings. In one sense (sometimes called its "primary" sense), it is an alternate expression for the proposition that defendant was not negligent, i.e., either owed no duty or did not breach the duty
owed. In its other sense (sometimes called "secondary"), assumption of risk is an affirmative defense to an established breach of duty. In its primary sense, it is accurate to say plaintiff assumed the risk whether or not he was "at fault," for the truth thereby expressed in alternate terminology is that defendant was not negligent. But in its secondary sense, i.e., as an affirmative defense to an established breach of defendant's duty, it is incorrect to say plaintiff assumed the risk whether or not he was at fault.
[Meistrich, supra, 31 N.J. at 48-49.]
Even if we were to accept plaintiffs' theory, they fail to explain how it would apply here, as Livengood plainly asserted the lack of a duty owed only in the primary sense (i.e., that he was not negligent as he owed no duty). He never maintained that even if he was culpable, plaintiffs' claim was barred by operation of law or otherwise.
Accordingly, we do not find plaintiffs established that the trial judge's decision rested upon "a palpably incorrect or irrational basis," or failed to consider or appreciate "the significance of probative, competent evidence." See Palombi, supra, 414 N.J. Super. at 288.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION