A woman left on the hook for $230,000 when she co-signed a loan for her daughter can't sue the daughter's lawyer for failing to warn of the risk, a state appeals court held on Tuesday.
Though the attorney prompted her to sign the loan documents, he owed no duty to the nonclient, the Appellate Division said in Lawrence v. Schenck Price Smith & King, A-3975-11.
Around 2004, Jeremy Garlock, then an associate at Schenck Price Smith & King in Florham Park, was retained by Bonnie and Linda Lawrence to advise their purchase of Buddy's Homemade Ice Cream in Succasunna.
Their mother Gail and now-deceased father previously obtained a $75,000 loan from Valley National Bank to help in the endeavor. But Bonnie and Linda, in need of more funds, sought to borrow an additional $160,000 in their own names, also from Valley.
The lender apparently required a co-signer for the $160,000 loan, and Garlock requested Gail's presence at the February 2005 closing, though he allegedly did not say why. Gail later claimed she believed it had to do with the $75,000 she had already borrowed.
During the closing, Garlock did not discuss the loan or Gail's role as a guarantor with her, did not ask whether she understood the risks, and did not inquire whether she had a lawyer or wanted to consult one before signing.
Garlock read the document titles aloud and passed them around for signatures. Among them was the guarantee, which he handed to Gail. She signed it, thereby agreeing to secure the loan with a lien on her home.
Gail later contended that neither she nor her daughters understood that she would be exposed to financial liability by signing.
Bonnie's fiancé also attended the closing as a guarantor. He, too, later claimed he was unaware of the risks.
Within four years, the business failed. Bonnie and Linda defaulted on the loan and filed for bankruptcy.
Gail became liable for about $230,000: the remaining $133,000 owed on the guarantee — which she paid off by borrowing additional money against her home and refinancing the debt — and $96,720 on the store's lease, which she also co-signed.
In 2009, Gail filed legal malpractice claims against Garlock and Schenck Price.
She also named the bank's counsel, Theodore Schiller of Schiller & Pittenger in Scotch Plains, but they were dismissed.
After discovery, Garlock and the firm moved for summary judgment stipulating that Garlock was the only one at the closing who understood Gail's obligations by co-signing the loan.
In February 2012, Morris County Superior Court Judge Stephan Hansbury granted the motion, finding the defendants owed no duty to Gail.
In her appeal, Gail acknowledged that Garlock did not make any affirmative misrepresentations but claimed she relied on his "reassuring preface" — that the document he handed her was "just the guarantee."
Gail would not have signed, and the situation could have been avoided, if Garlock merely explained the nature of the guarantee, she claimed.
But on Tuesday, Appellate Division Judges Jane Grall and Allison Accurso affirmed.
Even "viewing Garlock's conduct in the light most favorable to plaintiff, passing a guarantee … for signature with the words 'this is just the guarantee' cannot be construed as intending to induce reliance in plaintiff," the court said in its per curiam decision.
The panel noted the "limited reach" of Petrillo v. Bachenberg, 139 N.J. 472 (1995), where the state Supreme Court recognized an attorney's duty to a nonclient to refrain from making misrepresentations if it's known that the third party will rely on the advice to his or her detriment.
The panel also cited Banco Popular N. Am. v. Gandi, 184 N.J. 161 (2005), where the court said, if an attorney does "absolutely nothing to induce reasonable reliance by a third party, there is no relationship to substitute for" the privity of a retainer agreement.
"As Garlock did 'absolutely nothing' to induce plaintiff to reasonably rely upon him, no relationship existed between them which could give rise to any duty on his part to explain the documents to plaintiff," the panel said.
Garlock — who has been with the firm his entire career, beginning in 1999 — became a partner in 2009.
He says, "We are pleased that both the trial court and the appellate court ruled in our favor and that both courts swiftly dismissed the case."
He declines further comment.
Gail's lawyer, Clinton solo Harmon Lookhoff, says a further appeal is unlikely.
"The truth is, we were looking to expand the scope of third-party legal malpractice. … The key to it was whether the court was willing to accept the idea that there was reliance" based solely on Garlock's direction to sign the guarantee, Lookhoff says. "I just think the court wasn't ready to take that step."
"In her time and place of growing up, when a lawyer told you to do something, you did it," Lookhoff adds. "Seems awfully naïve now."
Marshall Bilder of Eckert Seamans in Trenton, who represented Garlock and Schenck on appeal, did not return a call.