Christiana Mall, LLC v. Shafkowitz (2024)

Plaintiff Christiana Mall, LLC (the "Mall") brings this action against Defendants David M. Shafkowitz, Esq. and Law Offices of David M. Shafkowitz ("Law Offices"). Plaintiff is the owner of Christiana Mall, a mall located in Newark, Delaware. On December 21, 2011, the Mall entered into a binding lease agreement with tenant MRF Atlantic, LLC a/k/a Mr. Fruz LLC d/b/a Yogen Fruz ("MRF") to operate a yogurt business at the Mall. Pursuant to Articles 14 and 20 ofthe lease agreement, MRF agreed to indemnify and defend the Mall in connection with any liens asserted against the property. See Pl.'s Resp. in Opp'n at Ex. 1.

MRF entered into a construction agreement with an outside contractor, Emory Hill and Company ("Emory"), for work to be performed at the Yogen Fruz store located at the mall. On October 21, 2012, Emory commenced a lawsuit in Delaware state court asserting, inter alia, a mechanic's lien in the amount of $187,984.84 against MRF for the nonpayment of labor and materials in connection with the construction of Yogen Fruz. Emory also asserted a mechanics lien claim against the Mall as the owner of the premises leased by MRF. An employee at MRF, Michael Geonnotti, hired Defendants to resolve the Emory lawsuit.1

The managing agent of the Mall is General Growth Properties ("GGP"). GGP's manager is Frank Francone. On November 9, 2012, after Emory had served its complaint on the Mall, Mr. Francone sent MRF a letter demanding that MRF defend and indemnify the Mall pursuant to the terms of the lease agreement. On behalf of MRF, Mr. Geonnotti signed the defense and indemnification letter in November 2012, forwarded it to Mr. Shafkowitz for review, and returned it to Mr. Francone. Pl.'s Resp. to Defs.' Statement of Material Facts ¶ 50. During this time, Mr. Francone exchanged e-mails with Mr. Shafkowitz about the return of the executed defense and indemnification letter. See Pl.'s Resp. in Opp'n at Ex. 5. Specifically, on November 15, 2012, Mr. Francone sent an e-mail to Mr. Shafkowitz stating as follows:

Id. Mr. Shafkowitz responded to Mr. Francone with several e-mails. In one message, Mr. Shafkowitz stated, "Frank- I am sure it was sent. I will confirm and get back to you. I did get a referral for local counsel." Id. In another e-mail, Mr. Shafkowitz confirmed that the letter was sent via UPS. See id. Mr. Shafkowitz followed up in a third message, stating, "If you don't get the letter tomorrow morning, I will sign the letter on behalf of the client and send it over." Id.

Mr. Francone did not send an e-mail to Mr. Shafkowitz expressly confirming an attorney-client relationship between the Mall and Mr. Shafkowitz. Pl.'s Resp. to Defs.' Statement of Material Facts ¶ 11. The Mall admits that there was no express contractual attorney-client agreement between Mr. Shafkowitz and the Mall. Id. at ¶¶ 12-13.

When communicating with Emory about the lawsuit, Mr. Shafkowitz advised Emory's attorney, Scott Earle, that he represented MRF. Id. at ¶ 16. On November 16, 2012, Mr. Shafkowitz sent an e-mail to Mr. Earle regarding Emory's claims and requested an extension to respond to the lawsuit. See Pl.'s Resp. in Opp'n at Ex. 9. In the e-mail, Mr. Shafkowitz wrote, in relevant part:

Scott- Attached is a spreadsheet showing the amounts already paid by my client with regard to work allegedly done by Emory Hill, the discrepancies from the budget amount as compared to the amounts allegedly incurred or approved and the amounts in dispute. As you will see approximately $90,000 have already been paid to subcontractors, including $20,000 to your client, of which there was no explanation of how it was applied.

. . .

In the meantime, I want to confirm that you agreed to provide the appropriate extension of time to respond to the filing in this case and confirm your representation that all documents that have been filed in this matter have been provided to my office. If for some reason my understanding is incorrect in any way, please advise immediately.

Id. Mr. Shafkowitz also copied Mr. Francone on this November 16, 2012 e-mail.

On November 27, 2012, Mr. Shafkowitz responded to a request for an update from Mr. Francone, and stated: "Looks like [Emory is] reviewing our settlement proposal. [Scott Earle] granted the necessary extensions of time to answer. If we do not have it resolved shortly I expect to have it removed for arbitration. I will keep you posted." Id. On December 11, 2012, Mr. Francone sent Mr. Shafkowitz another e-mail requesting an update on the Emory lawsuit. However, Mr. Shafkowitz did not respond.

Later on December 11, 2012, Mr. Earle sent Mr. Shafkowitz an e-mail on behalf of Emory informing him that MRF's Answer to Emory's Complaint was due on or before December 31, 2012, and also noting that the Mall's time to answer the Complaint had expired. See id. at Ex. 11. Mr. Earle did not copy Mr. Francone on this e-mail and Mr. Shafkowitz did not forward it to Mr. Francone.

On January 30, 2013, Emory filed a Direction for Entry of Default Judgment against the Mall and MRF. On February 13, 2013, the Mall was notified of the default and subsequently hired legal counsel to represent it in the Emory action. On April 26, 2013, the Mall's counsel filed a Motion to Vacate Default Judgment with the Superior Court of Delaware, which the court denied on September 24, 2013. On April 15, 2014, the Supreme Court of Delaware affirmed the Opinion of the Superior Court. The Mall claims that it sustained the following damages as a result: entry of judgment in the amount of $187,884.84 in principal, $8,499.23 in post judgment interest, $69,000 in attorney's fees, and $1,114.58 in costs, totaling $266,598.65.

The Mall commenced the instant action alleging 1) legal malpractice/professional negligence against Mr. Shafkowitz and the Law Offices; 2) negligent misrepresentation against Mr. Shafkowitz; and 3) negligent supervision against the Law Offices. For the following reasons, this Court grants Defendants' Motion for Summary Judgment as to all three counts of Plaintiff's Complaint.

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A "genuine" issue exists where there is a "sufficient evidentiary basis on which a reasonable jury could return a verdict for the non-moving party." Byrne v. Chester Cnty. Hosp., No. 09-889, 2012 WL 4108886, at *2 (E.D. Pa. Sept. 19, 2012) (citing Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)). "A factual dispute is 'material' if it might affect the outcome of the case under governing law." Id. All factual doubts should be resolved and all reasonable inferences drawn in favor of the nonmoving party. Torretti v. Main Line Hosp., Inc., 580 F.3d 168, 172 (3d Cir. 2009) (citing DL Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 216 (3d Cir. 2007)). "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "[U]nsupported assertions, conclusory allegations, or mere suspicions are insufficient to overcome a motion for summary judgment." Byrne, 2012 WL 4108886, at *2. The movant is responsible for "informing the courtof the basis for its motion for summary judgment and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The Mall argues that Mr. Shafkowitz and the Law Offices undertook legal representation of the Mall in the Emory action. Defendants disagree that an attorney-client relationship ever existed between Mr. Shafkowitz and the Mall.