                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0387-11T1

PETER INNES and VICTORIA
SOLENNE INNES, by Her
Guardian PETER INNES,                APPROVED FOR PUBLICATION

     Plaintiffs-Respondents,              April 7, 2014

v.                                     APPELLATE DIVISION


MADELINE MARZANO-LESNEVICH,
ESQ., and LESNEVICH &
MARZANO-LESNEVICH, Attorneys
At Law, i/j/s/a,

     Defendants-Appellants/
     Third-Party Plaintiffs,

v.

MITCHELL A. LIEBOWITZ, ESQ.,
PETER VAN AULEN, ESQ. and
MARIA JOSE CARRASCOSA,

     Third-Party Defendants.
_____________________________________________________

         Argued October 8, 2013 – Decided 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

MESSANO, P.J.A.D.

      Plaintiff Peter Innes, individually and on behalf of his

daughter,       Victoria   Solenne   Innes     (Victoria,       and   collectively

plaintiffs),       filed   suit   against     defendants    Madeline        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




1
  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'

2
  The parties' divorce and related actions have resulted in
several previous decisions in our courts, the federal courts and
the courts of Spain.     In our prior decision, we presented a
comprehensive overview and held that New Jersey had subject
matter   jurisdiction   over  the  parties'   divorce,  property
distribution and child custody issues. Innes v. Carrascosa, 391
N.J. Super. 453, 462 (App. Div.), certif. denied, 192 N.J. 73
(2007), cert. denied, 555 U.S. 1129, 129 S. Ct. 981, 173 L. Ed.
2d 167 (2009).    See also Carrascosa v. McGuire, 520 F.3d 249,
263 (3d Cir.) (affirming district court's determination that New
Jersey Superior Court had authority to rule on the child's
custody and to issue orders pertaining to the mother's civil
contempt and incarceration), cert. denied, 555 U.S. 998, 129 S.
Ct. 491, 172 L. Ed. 2d 363 (2008).




                                        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

granted.

        Defendants      also   contend    their     third-party      claim   against

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

judge erred by ultimately dismissing the complaint.                          Lastly,

defendants contest the award of any counsel fees.

        We have considered these arguments in light of the record

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

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


3
  Plaintiffs argue that the appeal should be dismissed as
untimely, having not been filed within forty-five days of the
                                                   (continued)


                                            5                                A-0387-11T1
                                            I.

                                            A.

      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


(continued)
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,


4
  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

BACK[.]"

      In her deposition, Marzano-Lesnevich stated she received

the file from Liebowitz and reviewed the Agreement sometime in

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

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

Carrascosa.      The implication was that Carrascosa had taken the

passport without Marzano-Lesnevich's foreknowledge.

      It was first revealed that Victoria was in Spain during

proceedings     before     the   Family     Part       in    February   2005.      In    a

February 2006 letter to plaintiffs' attorney in this litigation,

Marzano-Lesnevich         claimed   Liebowitz          never    advised   her     of    "a

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

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

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

been repudiated by both parties immediately."                    (Emphasis added).




                                           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

5
  Later testimony revealed that Victoria did not leave the United
States until January 13, 2005, nearly a month after Carrascosa
secured possession of the passport.
6
  Defendants' notice of appeal did not list the November 2010
order denying reconsideration. See R. 2:5-1(f)(3)(A) (requiring
the notice of appeal to include all orders for which review is
sought). Nevertheless, in the interests of justice, we consider
all issues raised regarding the dismissal of the third-party
complaint against Van Aulen.    See Fusco v. Bd. of Educ., 349
N.J. Super. 455, 461 (App. Div.) (recognizing that in some
situations, "the basis for the motion judge's ruling on the
summary judgment and reconsideration motions may be the same.
In such cases, an appeal solely from the grant of summary
judgment or from the denial of reconsideration may be sufficient
for an appellate review of the merits of the case[.]"), certif.
denied, 174 N.J. 544 (2002).



                                  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 (2006).

           [A] determination whether there exists a
           "genuine   issue"   of   material   fact  that
           precludes summary judgment requires the
           motion   judge   to    consider   whether  the
           competent evidential materials presented,
           when viewed in the light most favorable to
           the non-moving party, are sufficient to
           permit a rational factfinder to resolve the
           alleged disputed issue in favor of the 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

plaintiffs.

      "The elements of a cause of action for legal malpractice

are     (1)      the     existence         of   an    attorney-client           relationship

creating      a       duty   of     care   by   the    defendant     attorney,         (2)   the

breach      of    that       duty     by    the      defendant,     and    (3)     proximate

causation of the damages claimed by the plaintiff."                              McGrogan v.

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

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

      Defendants failed to present a prima facie case that Van

Aulen    committed           legal     malpractice       in   his    representation           of

Innes.         When      Van      Aulen    first      moved   for    summary       judgment,

defendants produced no expert report supporting the elements of

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

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




                                                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

Liebowitz.

                                        B.

       Defendants argue the judge erred by denying their motion

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

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

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

representations upon which Innes reasonably relied.7

       In denying defendants' summary judgment motion, the judge

reasoned:




7
   Although not specifically contained in a point heading,
defendants also contend the judge erred by denying them summary
judgment on plaintiffs' alternative causes of action sounding in
breach of contract, bailment, and breach of escrow. We need not
address those issues because ultimately the case was submitted
to the jury only as to the claim that defendants breached their
professional duty.



                                        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
               passport.

The judge also concluded that a fact finder could determine that

defendants should have foreseen Innes would rely upon them to

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

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

passport fall into Carrascosa's hands.

       We agree with defendants that whether a legal duty exists

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

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

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

precisely       to     be    that    since      they    made    no    affirmative

representation to honor the agreement, imposing a duty upon them

to     maintain      possession     of    Victoria's    passport     unreasonably

extends existing precedent.              We disagree.

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

"attach where the attorney had reason to foresee the specific

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

69 (internal quotations omitted).                It was entirely forseeable



                                           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.

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

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

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

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

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

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

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

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

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

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

lease     that      included     a   covenant        for     quiet    enjoyment          while

representing          the     landlords       as     defendants       in        foreclosure

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

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

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

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

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

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

adversely to the best interests of his clients, the [landlords],




                                              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

"repudiated."

       Not only is this obligation entirely consistent with prior

precedent,      it    is    consistent         with    the     Rules     of        Professional

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

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

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

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

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

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

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

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

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

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

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

(noting    that      "the   Rules     of      Professional         Conduct         may   provide

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

       RPC 1.15(a) requires a lawyer to appropriately safeguard

the     property     of     clients      or      third       parties     in    his       or    her

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

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

an    interest.       "Except      as      stated      in    this    Rule      or    otherwise




                                               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.

                                           II.

    We turn to the issues raised regarding the trial itself by

first reviewing some of the testimony.                     Carrascosa was a Spanish

citizen and an attorney admitted to practice in the European

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

Spain.     Innes was concerned that Carrascosa might take Victoria

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

passport, the family used the United States passport whenever it

traveled to Spain.

    Although the Agreement had been executed by both parties,

problems arose immediately.                On November 22, 2004, Carrascosa

obtained a domestic violence temporary restraining order (TRO)

against Innes.          Liebowitz testified that he advised Carrascosa

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

[him] in support of the restraining order."                       The issuance of the




                                             20                                   A-0387-11T1
TRO resulted in the suspension of Innes's parenting time with

Victoria.8

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

including      Victoria's    United    States       passport,         to    defendants.

Efforts to negotiate a parenting time schedule thereafter were

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

took place on November 4, 2004.

      Innes first learned that his daughter was in Spain when

Marzano-Lesnevich disclosed the information to the Family Part

judge during the hearing in February 2005.                       Innes subsequently

was told by law enforcement authorities that Victoria left the

country   on     January    13,    2005,     with       her    maternal     grandfather

aboard    a    British     Airways    Flight       to    London.           She   and   her

grandfather then traveled from England to Spain.

      Innes     retained    a     Spanish       lawyer,       Elena   Zarraluqui,       to

assist with filing a petition to return his daughter and contest

the   annulment     proceedings       that       Carrascosa       had      commenced     in

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


8
  On December 6, 2004, the court dismissed the TRO against Innes
at Carrascosa's request.
9
  Innes filed the application for Victoria's return to New Jersey
under the Hague International Child Abduction Convention, 51
Fed. Reg. 10, 498 (March 26, 1986), its Federal implementing
statute, the International Child Abduction Remedies Act (ICARA),
42 U.S.C.A. §§ 11601 to -11611 (1988), and the New Jersey court
                                                      (continued)


                                           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


(continued)
order. Innes, supra, 391 N.J. Super. at 466. We discussed the
proceedings in the Spanish courts in greater detail in our
earlier decision. Innes, supra, 391 N.J. Super. at 466-72.




                                            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-


10
   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


11
  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

terms.

     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.




12
  On cross-examination, however, DeBartolo acknowledged that our
prior opinion affirmed the enforceability of the Agreement.
There, we said that

            [u]nder New Jersey law and the Hague
            Convention, the October parenting agreement
            was valid, affirmed Carrascosa's intent that
            Innes have custodial rights in the child,
            and when plainly read, demonstrates that the
            removal of the child was wrongful.    Indeed,
            Article 3 of the Convention provides that
            custody rights may arise "by operation of
            law, or by reason of an agreement having
            legal effect under the law of that State."
            The   parenting    agreement   having    been
            voluntarily and knowingly executed by both
            parents, and thus enforceable under the laws
            of New Jersey, Carrascosa's breach of that
            agreement was wrongful and violated Innes'
            custodial rights.

            [Innes, supra, 391 N.J. Super. at 486.]




                                         28                                  A-0387-11T1
                                            A.

     Defendants moved to dismiss the complaint at the close of

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

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

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

motion.      Defendants renewed the argument post-verdict when they

sought a new trial or JNOV, specifically contending that the

finding   of    proximate    cause    was    "against     the    weight    of   the

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

opinion.13     Defendants now renew this argument before us.

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

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

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

supports the position of the party defending against the motion

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

reasonably     and    legitimately    be    deduced     therefrom,     reasonable


13
  In his written opinion, the judge noted that defendants also
sought a new trial or JNOV because "the jury's finding[]
regarding . . . Marzano-Lesnevich's deviation from the standard
of care" was against the weight of the evidence. However, that
contention was not advanced during oral argument on the motion.
To the extent defendants argue that point in their appellate
brief, we reject the contention.   In light of the standards of
review we discuss in this section, the trial testimony and with
our discussion in section I.B., supra, regarding the duty owed
to a non-client demonstrates the argument lacks sufficient merit
to warrant further consideration. R. 2:11-3(e)(1)(E).




                                       29                                 A-0387-11T1
minds could differ, the motion must be denied."                             Verdicchio v.

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

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

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

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

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

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

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

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

regard     to      the    opportunity       of    the    jury    to     pass        upon   the

credibility        of     the   witnesses,        it    clearly       and     convincingly

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

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

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

matters of credibility, generally peculiarly within the jury's

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

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

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

assessment of those factors "which are not transmitted by the

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

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

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

inescapable         conclusion       of     mistake,      passion,      prejudice,          or




                                             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.

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

present evidence to support a finding that defendant's negligent

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

injury, even though there may be other concurrent causes of

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

      Here, the undisputed evidence was that Victoria exited the

country      using    her    United    States     passport.     Whether     Victoria

could       have   used     her    Spanish   passport,   or    even   whether     her

Spanish passport was necessary for her entry into Spain, does

not matter.          Defendants' release of the United States passport

was     a    "substantial         factor"    in   bringing    about   the    damages

plaintiffs claimed to have suffered.




                                             31                             A-0387-11T1
                                           B.

       Defendants moved pre-trial to dismiss plaintiffs' claim for

emotional distress damages, and the judge reserved decision.                         At

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

psychologist, as an expert regarding the effects of parental

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

hearing,     the    judge     precluded    Berson    from     testifying,       finding

that   she    could     not      testify   within     a     reasonable    degree    of

psychological certainty, in part because she had never examined

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

psychological report from Spain.                  Plaintiffs do not challenge

that ruling on appeal.

       At   the     close   of    plaintiffs'      case,     defendants    moved    to

dismiss      Victoria's       emotional     distress        claims.       The     judge

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

concluded that "under traditional tort concepts the loss of the

child's society and companionship could give rise to emotional

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

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

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

compensation," and he concluded that emotional distress damages

could be presumed without evidence of physical injury or expert

psychological testimony.




                                           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.

                                   (i)

    Before us, defendants argue it was error to submit the

issue of emotional distress damages to the jury because in a

legal malpractice action emotional distress damages cannot be

awarded    "in   the   absence    of    medical      evidence    establishing

substantial bodily injury or severe and demonstrable psychiatric

sequelae   proximately   caused    by       the   tortfeasor's   misconduct."

Gautam v. De Luca, 215 N.J. Super. 388, 399 (App. Div.), certif.




                                       33                            A-0387-11T1
denied, 109 N.J. 39 (1987).            Defendants specifically argue that

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

Innes or Victoria.

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

losses which are proximately caused by the attorney's negligence

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

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

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

damages in a legal malpractice case has not been subject to

extensive discussion in reported decisions in New Jersey.

       In   Gautam,   the    plaintiffs         alleged    that   their      attorneys'

malpractice resulted in the dismissal of the plaintiffs' medical

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

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

value of their underlying medical malpractice action.                           Rather,

they   sought    to   recover       damages      for     the   mental   anguish      and

emotional distress allegedly caused by the legal malpractice."

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

psychological problems because of their dashed expectations."

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

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

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

at 394-96, we concluded that a remand was unnecessary because




                                           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,

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

discretion to declare an appropriate trial model").

         We   were    also       "persuaded      that    emotional       distress     damages

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

absence of egregious or extraordinary circumstances."                                 Gautam,

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

context of the traditional concept of proximate cause, or simply

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

damages should be generally limited to recompensing the injured




                                                 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.

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

officer and his wife, filed a legal malpractice claim against

their attorney who had provided them with advice concerning the

legality of operating a club hosting poker games.                     Id. at 399-




                                        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.

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

a legal malpractice claim against his attorney whose alleged

malpractice       resulted   in    an    additional       twenty      months      of

confinement upon conviction.            The plaintiff sought damages for




                                        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

1464.

       Kohn's        holding       that       emotional         distress        damages       are

recoverable        in      a    legal   malpractice            case    where    non-economic

interests      are      at     stake    has      been    described      as     the    "minority

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

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

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

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

law, plaintiffs may recover damages for their alleged emotional

distress        resulting           from      defendant's             negligent        conduct,

notwithstanding            the     undisputed           fact    that      plaintiffs        have

suffered no physical injury or harm to a personal or economic

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

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

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

her       attorney      mishandled         her     divorce       and     thus    caused       her

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

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

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

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

in    a    legal     malpractice           action       involving       representation         in

adoption or custody matters).




                                                 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

negligence."

       McEvoy presents strikingly similar circumstances to this

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

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

divorce     decree,    the     plaintiff         was     awarded       custody       of     the

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

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

temporary       custody,     subject       to    both     parents       delivering          all

passports to the defendant until the child was returned to her

father.     Ibid.     The plaintiff alleged that the defendant failed




                                            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

542.

       The   court   reversed      the     lower       court's     dismissal   of    the

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

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

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

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

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

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

alteration in original).

       We conclude that plaintiffs' claim for emotional distress

damages was clearly appropriate under the facts of this case.

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

in   Gautam,    specifically       that        emotional     distress   damages      are

generally      unavailable    in     a    legal     malpractice       action    absent

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

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

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

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

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

of the Law Governing Lawyers, § 53 comment g. (2000) (emotional




                                           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

Division.

    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

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

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

               foreclose the possibility that a cause of
               action may be brought alleging facts that
               are so outrageous in character, and so
               extreme in degree, as to go beyond all
               possible bounds of decency, and to be
               regarded    as    atrocious,    and    utterly
               intolerable in a civilized community, thus
               satisfying   prong    two   of   the   Buckley
               standard. . . .      As we previously noted,
               cases     involving     prolonged     parental
               abduction, where children are intentionally
               removed to foreign jurisdictions for the
               purpose of frustrating the innocent parent's
               custodial   rights,   or   intentional   false
               accusations of parent/child sexual abuse,
               are but two examples of factual scenarios
               that may satisfy the outrageous conduct
               requirement under Buckley.

               [Id. at 192 (internal quotation marks and
               citation omitted) (emphasis added).]




                                        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

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

stress as a component of emotional distress damages).

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

and     "extraordinary."                 Despite      knowing      of    the         Agreement,

including      that      it    had       been   signed       by   the   parties        and    the

attorneys,       the     already         contentious         nature     of     the    parties'

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

passport, defendants breached their duty and simply gave the

passport to Carrascosa.               They did so without notifying Van Aulen

and   without       seeking         approval      from      the   court.         Defendants'


14
   Because the issue is not before us, we specifically do not
decide whether the deprivation of a liberty interest, like the
facts presented in Lawson, supra, and Snyder, supra, is the kind
of personal interest that would support an award of emotional
distress damages in a legal malpractice action either with, or
without, proof of egregious and extraordinary circumstances.



                                                47                                     A-0387-11T1
conduct    was   sufficiently        "egregious"         and    "extraordinary"          to

permit an award of emotional distress damages in this case.

                                          (ii)

       Defendants    argue     that       plaintiffs      presented       insufficient

evidence of emotional distress damages because they failed to

prove, through expert medical testimony or otherwise, that they

suffered "demonstrable psychiatric sequelae proximately caused"

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

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

of the requirement for this "heightened showing of emotional

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

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

188 N.J. 489 (2006).

       Whether    it    is      alleged          that     the        defendant        acted

intentionally,      recklessly       or    negligently,        the    Court     has   said

that recovery lies only if the plaintiff can prove the emotional

distress     produced   by     the        defendant's     tortious        conduct       was

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

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

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

severe and disabling emotional or mental condition which may be

generally recognized and diagnosed by professionals trained to

do so . . . .'"         Taylor v. Metzger, 152 N.J. 490, 515 (1998)




                                            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.

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

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

work   and       symptoms   of    "nausea        and    diarrhea"       and   depression

sufficiently       severe   to    allow     her    to    proceed       to   trial     on   an

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

       We   acknowledge     that    Innes's       testimony       regarding      his       own

emotional     distress      was   quite     limited,       and    no    expert      medical

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

qualify     as    an   expert     witness      regarding        Victoria's     emotional

distress     claims,     and     there   was      no    proof    otherwise     from        any

witness.

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

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

of plaintiffs' emotional distress was unnecessary.                          Undoubtedly,

that was part of the Court's holding in Rendine.                            However, the




                                            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

distress.

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

distinguished a cause of action in tort or contract seeking

consequential damages for emotional distress from a cause of

action alleging intentional infliction of emotional distress,

holding that only the latter requires a heightened showing of

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

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

with regard to intangible damages for malicious use of process,

apparently    in    the    belief    that       a   normal   person     subjected    to

wrongful litigation would have suffered at least some damages."

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

(internal quotation marks and citation omitted).




                                           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.

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

medical malpractice claim against various doctors based upon the

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

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

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

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

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

distress claims did not apply.        Id. at 450.

            [W]e note a distinction between the judicial
            treatment of claims for parental emotional
            distress arising from negligence directed
            solely at the parents, as here, and claims
            for parental emotional distress arising from
            negligence also directly affecting their
            newborn child. This case falls within the
            former category, and thus squarely within
            Supreme Court precedent recognizing, without
            mention of an enhanced standard of proof,
            parental emotional distress as an element of
            damages   in    other   genetic   counseling
            malpractice contexts.

            [Ibid. (citing Berman v. Allan, 80 N.J. 421
            (1979)).]

We   also   recognized   that   "an   award   of    damages   for   emotional

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

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

      In this case, plaintiffs did not seek emotional distress

damages under the rubric of negligent or intentional infliction



                                      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

responsibility.

      Under the particular facts of this case, plaintiffs were

entitled    to    recover       for     emotional          distress       damages        without

enhanced    proof     based      upon     the       particular,          and     foreseeable,

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

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

bond.     The nature of this particular harm mitigates against the

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

the     elimination       of     spurious          claims.        In          such     "'special

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

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

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

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

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

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

seeking     emotional          distress        damages       as     a     result        of    the

plaintiff's      alleged       breach     of    a    contract       to    perform       funeral

services in strict accordance with orthodox Jewish custom and




                                               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

constituted").

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

plaintiffs' claims for emotional distress damages against the

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

the option to accept or reject a parental relationship with the

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

anguish upon their realization that they had given birth to a

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

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

involving as it does the denial of the opportunity to decide

whether    to     become     the    parents         of   a   handicapped           child,      the

suffering of the parents assumes another, important dimension."




                                               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

Innes.15

       We are, nevertheless, compelled to reach a different result

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

simply no testimony regarding her emotional distress, meaning

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

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

limits on claims for emotional distress, the Court noted that

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

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

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

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

added)).




15
  Defendants have not specifically challenged the amount of the
award.



                                           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.

                                          C.

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

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

that clients could recover reasonable expenses and attorney's

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

explained       that    even     though   plaintiffs       were    not     defendants'

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

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

reliance upon them.

       Defendants       contend     it    was     error     to    award     plaintiffs

attorneys' fees because "the narrow exception to the American




                                          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

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

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

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

persons for exercising their right to litigate a dispute, even

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

      The    Court,    however,        has    "created    carefully     limited       and

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

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

permits the successful plaintiff in a legal malpractice action

to   recover    the    attorneys'       fees      incurred   in    prosecuting       that

action,     because    those     are    damages     proximately      caused    by     the

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

271).

      The    Court     subsequently          "extended    the     limited    exception

allowing the recovery of attorneys' fees in attorney malpractice

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

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


16
  Defendants do not challenge the amount of the fee awards or
the judge's methodology in calculating the awards.



                                             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'

actions.

       The attorney fee award is particularly appropriate in this

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

and knew Innes and his attorney were relying upon the Agreement.




                                              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.

                                 III.

    We next consider defendants' claim that it was error to

sever their third-party complaint against Carrascosa from trial

and to dismiss the complaint with prejudice after trial.           The

trial judge raised the severance issue sua sponte and provided

all parties with an opportunity to address the issue several

months before the trial began.

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

judge decided severance was appropriate "for the convenience of

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

judge noted that defendants were being represented at trial by

Walter Lesnevich, a principal in the Lesnevich firm and husband

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

that Lesnevich was disqualified from representing defendants in

litigation against their former client, Carrascosa.        The judge

concluded that defendants would not be prejudiced by a severance




                                  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

counsel.

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

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

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

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

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

2(a)).

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

represented a client in a matter shall not thereafter represent

another client in the same or substantially related matter in

which    that    client's   interests    are   materially   adverse    to   the

interests of the former client unless the former client gives

informed consent confirmed in writing."               City of Atlantic City

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

"substantially related" if

            (1) the lawyer for whom disqualification is
            sought   received   confidential  information
            from the former client that can be used
            against   that   client  in   the  subsequent
            representation of parties adverse to the
            former client, or




                                        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

(1982)).

      Application       of    this        exception       relies      upon     both      the

foreseeability of the "specific misconduct" and its "adequate

causal relationship" to the duty imposed on the other tortfeasor

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

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

exception where the plaintiff's recovery against a shopping mall

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

foreseeable nor did it bear such a close causal connection to




                                            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    (2004);

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

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

the defendant's hotel was "neither sufficiently foreseeable nor

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

imposing   responsibility       on     [the     hotel]        for     all    of    the

[plaintiff's] injuries").

      Here, the judge correctly held that the Blazovic exception

applied.      Defendants   were      fully    aware     of    the   Agreement      and

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

released the passport to Carrascosa without notice to Innes or

his   attorney,    defendants      failed      to      prevent      the     "specific

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

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

entirely foreseeable.

                                      IV.

      The balance of defendants' arguments lack sufficient merit

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

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

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

discretion in so ruling.          See Koseoglu v. Wry, 431 N.J. Super.




                                       66                                    A-0387-11T1
140, 159 (App. Div.) (quoting Carey v. Lovett, 132 N.J. 44, 64

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

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

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

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

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

      Defendants cannot assert prejudice when they provided the

judge      with      a        proposed      charge     that    contained         an    improper

statement       of       the        law   regarding        proximate        cause,    and    then

commented on it extensively in summation.                              Although the judge

did     not    discern              the   error    until      afterwards,        he    properly

exercised         his         discretion         and   gave     the     jury     a     curative

instruction.

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

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

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

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

do not retain jurisdiction.




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