Peter Innes v. Madeline Marzano-Lesnevich, Esq. v. Mitchell A. Liebowitz, Esq. ( 2014 )

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0387-11T1
         Plaintiffs-Respondents,              April 7, 2014
    v.                                     APPELLATE DIVISION
    ESQ., and LESNEVICH &
    At Law, i/j/s/a,
         Third-Party Plaintiffs,
         Third-Party Defendants.
             Argued October 8, 2013 – Decided April 7, 2014
             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).
                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
          Plaintiff Peter Innes, individually and on behalf of his
    daughter,       Victoria   Solenne   Innes     (Victoria,       and   collectively
    plaintiffs),       filed   suit   against     defendants    Madeline        Marzano-
    Lesnevich, an attorney, and her law firm, Lesnevich & Marzano-
    Lesnevich    (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
      Separate counsel represented Innes and his daughter in the Law
    Division and on appeal, although plaintiffs filed a joint brief.
                                             2                                  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' third-
    party complaint against Carrascosa.
        Immediately before trial, defendants moved to exclude any
    claim for counsel fees, and to bar the testimony of plaintiffs'
      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
                                            3                              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 pre-
    judgment 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
                                                 4                                         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
            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
      Plaintiffs argue that the appeal should be dismissed as
    untimely, having not been filed within forty-five days of the
                                                5                                A-0387-11T1
          We first consider defendants' arguments regarding the pre-
    trial 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
    July 18, 2011 amended judgment.   R. 2:4-1(a).   However, it was
    not until September 2, 2011, that the court dismissed the third-
    party 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).
                                           6                                 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,
      Jacobs' prior surname was "Tremml."                      The documentary evidence
    at trial bore that name.
                                                  7                                         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
          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).
                                               8                                    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
                                                 9                               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
      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.
      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.
    174 N.J. 544
                                      10                           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
               [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 non-
               moving 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'
                                        11                                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
          "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.
    167 N.J. 414
    ,    425    (2001)     (citing      Conklin      v.    Hannoch
    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
                                                    12                                     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).
                                             13                                    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
                                                     14                                       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
           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
       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.
                                            15                                     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
    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
                                               16                              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.
    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],
                                                  17                                    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
                                          18                                  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
           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
                                                   19                                        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.
        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
                                                 20                                   A-0387-11T1
    TRO resulted in the suspension of Innes's parenting time with
          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
      On December 6, 2004, the court dismissed the TRO against Innes
    at Carrascosa's request.
      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
                                               21                                    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
    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.
                                                22                                 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 high-
    rise 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
                                                  23                                   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 Marzano-
    Lesnevich (Francesca),10 who told Carrascosa "they had spoken to
    . . . Van Aulen on the phone and everything was okay."                        In an e-
       We apologize for the informality of using                       a    first      name;
    however, it is necessary to avoid confusion.
                                             24                                    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
      The trial judge was not the judge who had heard and decided
    the pre-trial motions.
                                             25                                    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
         Marzano-Lesnevich               described          the     passport         as     "simply
    abandoned     by    .    .    .   Liebowitz       and    placed       in    a   file."        She
                                                  26                                        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 Marzano-
    Lesnevich 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.
                                              27                                  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.
      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.]
                                             28                                  A-0387-11T1
         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
      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).
                                           29                                 A-0387-11T1
    minds could differ, the motion must be denied."                             Verdicchio v.
    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
                                                 30                                      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.
    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
          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.
                                                 31                             A-0387-11T1
           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.
                                               32                               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.
        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.
                                           33                            A-0387-11T1
    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
                                               34                                  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,
    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
                                                     35                                   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.
    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-
                                            36                                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
                                                  37                                      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.
    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
                                            38                                 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 attorney-
    client     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
                                            39                                     A-0387-11T1
    foreseeable consequence of an attorney's malpractice."                                   Id. at
           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).
                                                     40                                     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
                                                 41                                       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
           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
                                                42                                       A-0387-11T1
    to honor the order and gave his daughter's passport to his ex-
    wife, permitting the child to be removed to Switzerland.                        Id. at
           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
                                               43                                  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
        First, we noted that the suit presented a "litigation tug-
    of-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
                                                 44                                      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
    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).]
                                            45                                 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
                                          46                                 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
    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'
       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.
                                                    47                                     A-0387-11T1
    conduct    was   sufficiently        "egregious"         and    "extraordinary"          to
    permit an award of emotional distress damages in this case.
           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
           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)
                                                48                                   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
                                             49                             A-0387-11T1
    distress.     "A claim of direct, negligent infliction of emotional
    distress,"        can    exist     where      the    plaintiff     claims    proximately-
    caused 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).
                                                    50                               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.
    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
           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
           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
                                                51                                      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, statutorily-
    created    remedy    that      necessarily      relieved     plaintiffs     of    their
    burden to prove "severe" or "genuine and substantial" emotional
           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).
                                               52                                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.
    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
    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
                                          53                             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
          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
                                                   54                                       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
           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."
                                                   55                                       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
                                                   56                                        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
           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.
    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
      Defendants have not specifically challenged the amount of the
                                               57                              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.
           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
                                              58                                  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
    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
          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
      Defendants do not challenge the amount of the fee awards or
    the judge's methodology in calculating the awards.
                                                 59                                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."           Packard-
    Bamberger, 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),
                                                 60                                     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'
           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.
                                                  61                                       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.
        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
                                      62                         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
        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-
        "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
                                            63                            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
                                          64                              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
          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
                                                65                                     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
    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.
          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. 66
    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.
    216 N.J. 4
          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
          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.
                                                      67                                    A-0387-11T1