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With Divorce, There Are Still Some Damages That Must Be Defined

In Mariscotti v. Tinari, the court found that a finding of Summary judgment was appropriate when Joan K. Mariscotti, the wife in a divorce settlement, made a complaint of loss that was too speculative. 335 Pa. Super. 599, 485 A.2d 56 (1984).

Ms. Mariscotti hired Mr. Nino V. Tinari, Esquire, to handle her divorce. She alleged that Mr. Tinari gave her an incorrect evaluation of the stock owned by her husband, John A. Mariscotti. Mr. Tinari told her that the stock was worthless when in fact, it turned out to be worth significant value.

Ms. Mariscotti admits that she knew her husband's stock holdings were in his name and she did not have title to them, however, she claims that she would have been in a better bargaining position if she had known the value of the stock. Ms. Mariscotti claims that the lawyer's mistake damaged her ability to receive the best possible property settlement after the divorce. Mr. Tinari made a motion for summary judgment. The court granted summary judgment on the ground that the client's loss, if any, was too speculative to allow recovery.

The test is by the court is "whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but deals with the more basic question of whether there are identifiable damages...thus damages are speculative only if the uncertainty concerns the fact of damages rather than the amount."

The court further made clear that an essential element of a client's claim that a lawyer has breached his professional and/or fiduciary obligations is a showing of actual loss. If the client cannot prove actual loss, the claim may be too speculative or remote to survive.

In this case, since Ms. Mariscotti said that she may have been able to achieve a better settlement. As the court but it "her claim, it seems obvious, is based on pure speculation. Whether she could have obtained a better settlement is anyone's guess." The court further goes on to say that figuring out that issue cannot be left to a jury. Due to the speculative nature of the claims, there was not enough for a cause of action and they were dismissed.

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