Anthony P. Volpe, M.D., Etc. v. Feeney and Dixon, LLP

• Court: New Jersey Superior Court Appellate Division
• Decided: November 19, 2024
• Docket: A-1364-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1364-22

ANTHONY P. VOLPE, M.D., individually and as guardian of the person and property of MARY T. VOLPE,

Plaintiff-Appellant,

v.

FEENEY AND DIXON, LLP, and JOSEPH VOLPE,

Defendants-Respondents,

and

FRANK VOLPE, OLIVIA VETRANO, and JOHN VOLPE,

Defendants. ______________________________

Argued October 23, 2024 – Decided November 19, 2024

Before Judges Rose and Puglisi.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3706-18. Scott B. Piekarsky argued the cause for appellant (Offit Kurman, PA, attorneys; Scott B. Piekarsky, of counsel and on the briefs).

Benjamin J. DiLorenzo argued the cause for respondent Feeney & Dixon, LLP (Bressler, Amery & Ross, attorneys; Diana C. Manning and Benjamin J. DiLorenzo, on the brief).

Gary Wm. Moylen argued the cause for respondent Joseph Volpe.

PER CURIAM

This appeal arises from a protracted and contentious dispute among

siblings. After he was appointed guardian of their mother, Mary T. Volpe,

plaintiff Anthony P. Volpe, M.D., individually, and on her behalf, filed the

present Law Division action for conversion and fraud against all but one of his

siblings (individual defendants) and Feeney and Dixon, LLP (F&D), the law

firm that represented his parents in the April 2017 sale of their home. The

complaint also asserted a legal malpractice claim against F&D. Pertinent to this

appeal, Mary died while the present action was pending.1

1 Because many of the parties share the same surname, following the initial mention of their full names, we use their first names for clarity. We intend no disrespect in doing so.

A-1364-22 2 Plaintiff now appeals from a December 12, 2022 Law Division order,

denying reconsideration of two June 24, 2022 orders that granted the summary

judgment dismissal of his amended complaint against defendants Feeney and

Dixon, LLP (F&D) and Joseph Volpe. 2 The motion judge determined, upon

Mary's death, plaintiff lacked standing to act on her behalf and his individual

claims were not supported by the facts alleged in the complaint. The judge also

rejected plaintiff's malpractice claim against F&D on the merits. After de novo

review of the motion record, Comprehensive Neurosurgical, P.C. v. Valley

Hosp., 257 N.J. 33, 71 (2024), we affirm.

I.

Although the motion record is voluminous, the pertinent events are easily

summarized. We therefore highlight the relevant facts in the light most

favorable to plaintiff as the non-moving party. See ibid.

2 The December 12, 2022 order also granted the separate motions of plaintiff's brothers John Volpe and Frank Volpe, dismissing the complaint against them. We glean from the record, "the remaining claims against all remaining defendants" were dismissed when plaintiff failed to appear for the June 27, 2022 trial date. John, Frank, and Vetrano are not parties to this appeal. A-1364-22 3 In June 2016, Mary and her husband, the parties' father, John Volpe, Sr.,

were moved into a nursing home after Mary suffered a fall in their Nutley home. 3

Thereafter, Vetrano, Joseph, and Frank moved their parents to Vetrano's home

in Manahawkin. Plaintiff opposed the move, opining his mother needed full-

time care.

In February 2017, Frank retained F&D to assist in the sale of his parents'

Nutley home. There is no evidence to suggest F&D ever met with, or spoke to,

Mary or John Sr. Instead, F&D prepared durable powers of attorney (POA),

permitting Frank to facilitate the sale as his parents' attorney-in-fact. The POAs

gave Frank broad power to conduct affairs on his parents' behalf, including to

"sell and convey real or personal property" and "deposit and withdraw funds"

from their bank accounts. The POAs are dated February 17, 2017, signed by

Mary and John Sr. before two witnesses, and notarized. Frank presented the

executed POAs to F&D at a later date. It is undisputed that F&D did not witness

or otherwise participate in the execution of the POAs.

3 John Sr. predeceased Mary while the action was pending; he was not a party to the present action. John Sr.'s full name appears in the record as John M. Volpe and John Louis Volpe. Consistent with the parties' briefs, we use John Sr. to avoid confusion with his son, defendant John Volpe, although there is no indication in the record that father and son used Sr. and Jr. designations. A-1364-22 4 Pursuant to the POAs, Frank signed the contract of sale for his parents'

home on February 23, 2017, and executed the closing documents after the sale

in April 2017. The proceeds were made payable to John Sr. and Mary and

deposited into their joint bank account, over which Frank had access.

Concerned about Mary's healthcare while she resided in Vetrano's home,

and her capacity to execute the POA, plaintiff and his brother, Michael Volpe,

filed a petition for guardianship in the Chancery Division in June 2017.4

Following receipt of the report of Mary's court-appointed attorney, in February

2018, the Chancery judge entered a judgment of incapacity and appointed

plaintiff guardian of Mary and her estate. Among other provisions, the

guardianship judgment revoked Mary's prior POAs and permitted plaintiff to

file a Medicaid application on Mary's behalf.

Plaintiff filed his initial complaint in May 2018 and an amended complaint

the following month, adding factual allegations. Plaintiff asserted the individual

defendants misappropriated "large sums" of Mary's funds "without proper

authorizations for their personal use" while Mary was living with Vetrano.

4 Michael was not a party in the present action and, as such, he is not a party to this appeal. A-1364-22 5 Further, plaintiff alleged F&D failed to verify the POAs' validity, enabling the

individual defendants to sell their parents' home.

In January 2019, plaintiff applied for Medicaid benefits on Mary's behalf.

Medicaid approved the application in September 2020, but placed a $108,168

lien on Mary's estate. Plaintiff agreed to make a voluntary payment toward the

lien if the present lawsuit resolved in his favor.

On March 31, 2021, Mary died leaving no assets in her estate. Thereafter,

plaintiff sought to probate a will Mary executed on March 24, 1997. The will

bequeathed Mary's estate to John Sr., but provided should John Sr. predecease

Mary, her estate would pass to all her children. Unbeknownst to plaintiff, twenty

years later, on March 23, 2017, Mary executed another will: revoking the 1997

will; removing plaintiff and Michael as beneficiaries; removing plaintiff as an

executor; and naming Joseph, Frank, John Jr., and Vetrano as co-executors of

Mary's estate.

Plaintiff filed a complaint in probate court in August 2021, seeking among

other relief, to: serve as the temporary administrator of Mary's estate; continue

the present lawsuit; invalidate the 2017 will based on Mary's "lack of capacity

or as the product of undue influence"; and admit the 1997 will to probate.

A-1364-22 6 Having failed to prevail in the will contest, plaintiff is not the personal

representative of Mary's estate.

After the close of discovery, F&D and Joseph separately moved for

summary judgment, asserting Mary's death terminated plaintiff's standing to

pursue any claims on his mother's behalf as the guardianship terminated as a

matter of law upon her death. F&D further argued it owed no duty to plaintiff.

Following oral argument, the motion judge issued cogent statements of

reasons that accompanied the June 24, 2022 orders granting summary judgment.

The judge squarely addressed the issues raised in view of well-established legal

principles. The same judge thereafter denied plaintiff's reconsideration motion

after hearing argument. The judge issued a well-reasoned rider and

memorializing order on December 12, 2022. 5

On appeal, plaintiff maintains he had standing to sue on Mary's behalf

because as her guardian, he was obligated to continue "to account for [her] funds

and assets" after her death according to N.J.S.A. 3B:12-64(b), especially in view

of the Medicaid lien against her estate. He also argues he had standing to sue

5 Joseph moved to intervene as co-executor of Mary's estate to pursue the legal malpractice claim against F&D, but his motion was denied. Joseph did not appeal from the January 4, 2023 order. The Estate and its personal representatives are not parties to this appeal. A-1364-22 7 F&D in his individual capacity because "it was foreseeable" he would rely on

F&D's advice or be affected by the firm's work. Citing various factual

"disputes" among the parties, plaintiff claims summary judgment was

prematurely granted. Plaintiff asserts no specific challenges to the judge's

reconsideration determination.

We review a decision on summary judgment employing the same standard

as the motion court. We therefore review the record to determine whether there

are material factual disputes and, if not, whether the undisputed facts viewed in

the light most non-moving party, nonetheless entitle the movant to judgment as

a matter of law. Comprehensive Neurosurgical, 257 N.J. at 71; see also Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 541 (1995); R. 4:46-2(c). We owe

no deference to the trial court's legal analysis. Comprehensive Neurosurgical,

257 N.J. at 74.

Based on our de novo review of the record, we reject plaintiff's argument

that he had standing to pursue the present action following Mary's death. Simply

stated, a guardian's authority and responsibility terminate upon the death of the

ward. N.J.S.A. 3B:12-64(a)(2); see also Kingsdorf v. Kingsdorf, 351 N.J. Super.

144, 153 (2002) (concluding the guardian had standing to file a divorce

complaint on the ward's behalf, but lacked standing to sign the final consent

A-1364-22 8 judgment of divorce because the ward's death during the pendency of the

litigation terminated the guardianship).

Further, following the ward's death, the decedent's personal representative

– not the guardian – is conferred with the same standing as the decedent to sue

and be sued on all claims that survive death. N.J.S.A. 3B:10-25; see also

N.J.S.A. 3B:1-2 (including executors and administrators within the definition of

"[p]ersonal representative"). We conclude, as did the motion judge, plaintiff –

who was not appointed Mary's personal representative following her death –

lacked standing to pursue her complaint upon her death.

Nor are we convinced by plaintiff's contention that his duty as guardian to

account for Mary's assets after her death conferred a right to pursue the

complaint, individually and on her behalf, notwithstanding the termination of

the guardianship by operation of law. A guardian's powers and duties following

the ward's death are limited. Specifically, "termination does not affect the

guardian's liability for prior acts, nor the guardian's obligation to account for

funds and assets of the ward." N.J.S.A. 3B:12-64(b). "Upon termination of the

guardianship, pursuant to N.J.S.3B:12-64 the guardian, after the allowance of

his final account, shall pay over and distribute all funds and properties of the

former ward or to the estate of the former ward in accordance with the order of

A-1364-22 9 the court." N.J.S.A. 3B:12-63; see also Gay v. Stengel, 61 N.J. Super. 411, 420

(App. Div. 1960) (holding the death of the ward "terminated the powers and

duties as guardian, except to account and turn over to [the ward's] personal

representative the balance remaining in his hands after the accounting had been

approved by the Chancery Division").

Although Mary's death did not absolve plaintiff from liability for a final

accounting and distribution of her remaining funds to her personal

representative under N.J.S.A. 3B:12-64(b), the statute did not confer authority

to pursue the present action as her guardian. Nor did plaintiff's obligation to

account to Medicaid on Mary's behalf during the guardianship confer an

individual right of standing upon plaintiff following Mary's death. Any claim

to recover or expend funds must be made by the executor or personal

representative of Mary's estate. See N.J.S.A. 3B:10-25; N.J.S.A. 3B:1-2; see

also R. 4:26-1 (stating the "real party in interest" must bring a claim before the

court).

We also reject plaintiff's argument that he had standing to sue F&D in his

individual capacity because "it was foreseeable" he would rely on F&D's advice

or be affected by the firm's work. Similar to the motion judge, we conclude the

record is devoid of any evidence establishing a duty of care by F&D.

A-1364-22 10 To present a prima facie legal malpractice claim, a plaintiff must establish

"(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 damages the damages claimed by the plaintiff." Jerista

v. Murray, 185 N.J. 175, 190-91 (2005) (quoting McGrogan v. Till, 167 N.J.

414, 425 (2001)). The imposition of a duty to a non-client is construed narrowly.

See Green v. Morgan Props., 215 N.J. 431, 458 (2013) (holding "the grounds on

which any plaintiff may pursue a malpractice claim against an attorney with

whom there was no attorney-client relationship are exceedingly narrow").

Whether a legal duty exists is a matter of law for the court to decide.

Petrillo v. Bachenberg, 139 N.J. 472, 479 (1995). In making this determination,

"the court must identify, weigh and balance the following factors: the

relationship of the parties; the nature of the attendant risk; the opportunity and

ability to exercise care; and the public interest in the proposed solution." Davin,

L.L.C. v. Daham, 329 N.J. Super. 54, 73 (App. Div. 2000); Est. of Fitzgerald v.

Linnus, 336 N.J. Super. 458, 473 (App. Div. 2001) (finding that whether a duty

extends to a non-client is "necessarily fact-dependent"). The ultimate question

is one of fairness. Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 213 (App.

Div. 2014).

A-1364-22 11 We have recognized "[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.'" Ibid. (quoting Est. of Albanese v. Lolio, 393

N.J. Super. 355, 368-69 (App. Div. 2007)). In limited circumstances, a duty to

a non-client has been found when the attorney knew, or should have known, the

non-client would rely on the attorney's representation and the non-client was

"not too remote from the attorneys to be entitled to protection." Ibid. (quoting

Petrillo, 139 N.J. at 483-84).

For example, we have imposed third-party liability on attorneys for

negligent acts or omissions when third-party reliance on such acts was

foreseeable. See, e.g., Atl. Paradise Assocs., Inc. v. Perskie, Nehmad & Zeltner,

284 N.J. Super. 678, 685-86 (App. Div. 1995) (recognizing a cause of action by

the plaintiff-purchasers against the defendant law firm where the plaintiffs relied

on misrepresentations in public offering statement). As the Court has made

clear, however, if the attorney does nothing to induce reliance by a third party,

there is no relationship between the attorney and non-client. Banco Popular N.

Am. v. Gandi, 184 N.J. 161, 181 (2005).

In the present matter, there is no basis for plaintiff's legal malpractice

claim against F&D. The law firm neither represented plaintiff nor undertook

A-1364-22 12 any action to induce his reliance in the performance of its representation of

Mary. At deposition, plaintiff acknowledged he never spoke with anyone from

F&D. He was not involved in the sale of the Nutley home and he had no interest

in the sale proceeds, which were paid to Mary and John Sr. The harm plaintiff

alleges in his individual capacity are costs for Mary's medical care, which he

rendered voluntarily, and legal fees in the ensuing actions he brought. As

plaintiff is "too remote" from F&D "to be entitled to [their] protection," Lolio,

393 N.J. Super. at 368-69, we conclude as did the motion judge "at no point in

time did F&D owe a legal duty to [p]laintiff."

To the extent not addressed, any remaining arguments lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-1364-22 13