BRENDA LEE VARELLI VS. JENNIFER WHITE (L-1405-11, GLOUCESTER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 18, 2019
• Docket: A-4675-16T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4675-16T3 BRENDA LEE VARELLI, KYLE A. BRADFORD, LYLE J. BRADFORD, and ESTATE OF JANET E. BRADFORD, as a nominal plaintiff,

Plaintiffs-Respondents/ Cross-Appellants,

v.

JENNIFER WHITE, JACQUELYNE MCGLINCHEY, FIDELITY ESTATE PLANNING, LLC, ADAM BAALS, CEO, and ADAM BAALS, individually, and MELODIE WHITE,

Defendants,

and

DONALD L. KINGETT, ESQ., RABIL, ROPKA, KINGETT & STEWART, LLC, and RABIL, KINGETT & STEWART, LLC,

Defendants-Appellants/ Cross-Respondents, ____________________________________ Argued February 28, 2019 – Decided July 18, 2019

Before Judges Simonelli, Whipple and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1405-11.

John L. Slimm argued the cause for appellants/cross- respondents (Marshall Dennehey Warner Coleman & Goggin, attorneys; John L. Slimm, on the briefs).

Jeffrey V. Puff argued the cause for respondents/cross- appellants (Puff & Cockerill, LLC, attorneys; Jeffrey V. Puff, on the briefs).

PER CURIAM

Defendants Donald L. Kingett, Esquire, Rabil, Ropka, Kingett and

Stewart, LLC, and Rabil, Kingett and Stewart, LLC appeal, and plaintiffs,

Brenda Lee Varelli, Kyle A. Bradford, and Lyle J. Bradford cross-appeal from

a jury verdict rendered on April 2, 2016 finding Kingett deviated from the

standard of care required of an attorney which was a proximate cause of losses

sustained by plaintiffs in this estate and negligence case. Defendants also appeal

from a May 2, 2016 order denying their motion for a judgment notwithstanding

the verdict, and all parties appeal the award of counsel fees to plaintiffs. For the

reasons that follow, we reverse and remand for a new jury trial.

A-4675-16T3 2 I.

On June 23, 2008, plaintiffs filed a verified complaint and order to show

cause (OTSC) in the Probate Part in connection with the estate of their mother

(decedent) who died on February 6, 2008.1 She executed Wills in 1996 and

2007. The complaint alleges that in September 2007, decedent had diminished

capacity and was unduly influenced to change her estate plan by her

granddaughter, Jennifer White, her primary caretaker. The judge entered

plaintiffs' OTSC placing restraints on the estate's real and personal assets.

Decedent was diagnosed with Alzheimer's disease and dementia. She had

four children: Brenda, Lyle, Kyle, and Melodie, who is Jennifer's mother. The

decedent's original 1996 Will provided for a four-way equal distribution of her

assets to her children. Because decedent lacked cognitive ability, a previous

attorney advised Brenda, Jennifer, and Kyle to file a guardianship action and he

declined to prepare a power-of-attorney (POA) as requested by plaintiffs

because of decedent's condition. A guardianship action was never pursued.

In March 2007, decedent fell in her home and was transported to Cooper

Hospital where she was again diagnosed with dementia and later transferred to

1 Parties who share a last name with other parties are referred to by their first names for the ease of reference. By doing so, we intend no disrespect.

A-4675-16T3 3 ManorCare. After being released on April 12, 2007, she went home and the

White family resided with her in conditions described by Brenda as a "pigsty."

After decedent's prescription medication insurance expired in April 2007,

Jennifer sent a letter to decedent's insurance company asking for reinstatement

of her prescription medication insurance because her grandmother was "slowly

slip[ping] away into Alzheimer's." In May 2007, Dr. John Gartland was treating

decedent for dementia and Alzheimer's disease. By July 2007, decedent was

deteriorating mentally, thought she was a student, could not hold a thirty-second

conversation, and became a "shell" of a person according to Brenda.

On July 16, 2007, Jacquelyne McGlinchey a self-employed estate planner

affiliated with Fidelity Estate Planning, LLC (FEP), met with decedent at her

home. Plaintiffs argue that McGlinchey was a "salesperson" who signed up

elderly clients for "estate planning." Ostensibly, decedent expressed to

McGlinchey that she wanted Jennifer to inherit her estate because she cared for

her and decedent's own children did nothing for her. McGlinchey believed

decedent was competent because she freely answered questions. Based upon

her observation of decedent, McGlinchey had her execute an estate planning

services contract. McGlinchey created a client workbook and recorded

information about decedent. At a later time, McGlinchey changed her story and

A-4675-16T3 4 testified that decedent could not understand one hundred percent of what they

discussed.

McGlinchey recommended placing decedent's home into a revocable

living trust (RLT), naming decedent and Jennifer as co-trustees, and establishing

life estates for Woodrow and William, Jennifer's brothers, and Melodie. The

RLT was recommended to avoid probate, and Jennifer would be named

executrix, POA, and appointed as decedent's health care representative. After

the initial meeting, McGlinchey provided attorney Kingett (defendant) with her

client workbook. Thereafter, Kingett prepared a retainer agreement that

provided his legal services would include "a personal interview, either in

[defendant's] office . . . or via telephone to discuss [the client's] estate plan."

The retainer specified certain limitations on the scope of legal representation .

For example, defendant would not supervise the execution of legal documents

unless decedent appeared in his office. The retainer agreement also included

information about FEP's services. Decedent paid FEP a total of $1695, $450

was defendant's fee. The remaining $1245 was shared between McGlinchey and

Adam Baals, who served as the chief executive officer (CEO) of FEP.

On July 31, 2007, decedent purportedly signed the retainer agreement, but

defendant later conceded he did not know whether she personally signed it or if

A-4675-16T3 5 somebody else signed it on her behalf. Defendant never discussed any

limitations of his representation with decedent.

On August 1, 2007, decedent purportedly signed an application to

purchase an annuity naming Jennifer and Melodie as beneficiaries. Thereafter,

McGlinchey invested decedent's assets into annuities with Old Mutual and

shared the commissions with Baals. Plaintiffs allege defendant and Baals

formed FEP "to sell to unsuspecting clients unnecessary revocable trusts and

annuities to generate legal fees and large commissions."

Defendant ostensibly spoke to decedent on August 18, 2017, over the

telephone for eight minutes about revising her estate plan, but he never met with

her in person. He conceded that since he never met her or knew her personally,

and he could not confirm he actually spoke to her. According to Jennifer,

defendant called decedent on a cellular phone while Jennifer listened in on a

speaker phone. He drafted a new Will and RLT naming defendant and Jennifer

as trustees, a healthcare directive, and a living Will. Upon decedent's death, the

four members of the White family would each receive twenty percent of her

estate, and Brenda, Kyle, and Lyle would share the remaining twenty percent.

Defendant claims he asked decedent if she wanted to meet him at his office

or if she preferred to have the documents sent to her home. During that brief

A-4675-16T3 6 phone call, defendant claimed that he reviewed with decedent all matters

relevant to her estate, including her Will, RLT, POA, and health care directive.

Defendant described decedent as sounding like an older female who was clear

and concise. After the trial, it was revealed that the person speaking on the

phone to defendant was not the decedent but was actually her daughter Melodie.

On September 18, 2007, McGlinchey again went to decedent's home and

notarized her testamentary documents purportedly in the presence of two

witnesses, a neighbor, and McGlinchey's spouse. In the early stages of the

litigation, McGlinchey contended that on that day, decedent was incapable of

signing because she was incoherent, and Jennifer signed the documents, as well

as the earlier executed retainer agreement. In December 2007, Jennifer informed

plaintiffs that decedent's estate plan had changed. Decedent passed away on

February 6, 2008. Brenda, Kyle, and Lyle each received a $5000 check from

Jennifer.

Plaintiffs amended their complaint on October 23, 2008, adding

allegations against Jennifer, McGlinchey, Melodie, FEP, and defendant

claiming they participated in a "trust mill." In 2008 and 2009, plaintiffs

amended their complaint to add allegations against defendant and his law firm,

A-4675-16T3 7 Rabil, Kingett & Stewart, LLC 2 (collectively, defendants). In April 2010,

plaintiffs again amended their complaint to add claims against Baals, in his

capacity as CEO of FEP (collectively, with the financial planner and the

financial planning company, financial defendants).

On March 24, 2011, the probate judge sua sponte appointed Brenda Lee

Eustler, an attorney, as administrator of decedent's estate, and the judge ordered

the probate matter be severed from the professional negligence and other claims

against defendants and the financial defendants. These claims were transferred

to the Law Division. At the summary judgment hearing on July 29, 2011 in the

Probate Part, the judge found decedent lacked testamentary capacity to revise

her estate plan and Jennifer unduly influenced her with respect to estate

documents decedent executed.

At the September 26, 2011 trial, Jennifer and the financial defendants did

not appear; the probate court made a final determination that in September 2007,

decedent had diminished capacity and was unduly influenced by Jennifer. The

probate court nullified the decedent's 2007 estate planning documents and

2 Formerly known as Rabil, Kingett, Ropka & Stewart, LLC.

A-4675-16T3 8 ordered Jennifer to return the assets she confiscated to the estate.3 The 1996

Will was not probated and the judge distributed the assets in accordance with

the intestacy statute, N.J.S.A. 3B:5-4, resulting in a $256,298.61 recovery for

plaintiffs. The judge awarded plaintiffs $156,073.30 in counsel fees. This

determination is not challenged on appeal.

On September 28, 2011, defendants filed for summary judgment in the

Law Division. As of June 2012, Baals was still offering estate planning services

with defendant providing legal representation to Baal's clients. On June 5, 2012,

the judge partially granted defendants' motion, dismissed plaintiffs' consumer

fraud claims 4 against defendants, and named the estate as a nominal plaintiff. In

so doing, the judge stated:

[O]nly [Eustler] as the administrator for the estate can decide whether to participate as an active plaintiff prosecuting the claims put forth by [plaintiffs] . . . . [Eustler] is the decision maker and personification of the [e]state; she alone is charged with deciding what litigation to pursue[.]

....

[Eustler] has provided no response or input into the present motions. This court has no idea what her

3 The record indicates that Jennifer filed a petition in bankruptcy at some point during these proceedings. 4 N.J.S.A. 56:8-1 to -20. A-4675-16T3 9 position may be . . . . Since she is the decision maker[,] . . . this court must respect her decision to stay in a neutral position.

Notwithstanding the above, it is clear that this litigation will directly affect and impact the [e]state.

This court finds the estate an indispensable party.

Under [Rule] 4:28-1, joinder of the [e]state is generally as plaintiff, but if the [e]state refuses, the entity may be joined as a defendant. The court directs [Eustler] within [fifteen] days . . . [to] indicate whether she is refusing to be joined as a nominal plaintiff . . . . If no "refusal" is timely filed[,] then the estate shall be included as a nominal party plaintiff but with the estate not being construed to be adopting the affirmative claims pursued by [plaintiffs].

Until [Eustler] indicates on her own application to this court, the [e]state will be a nominal party plaintiff not directly pursuing [plaintiffs'] claims.

In July 2012, plaintiffs amended their complaint to add Baals as a

defendant in his individual capacity. On November 18, 2012, the judge ruled

that the parties were collaterally estopped from re-litigating matters determined

by the probate court. On January 30, 2013, plaintiffs filed a motion seeking to

A-4675-16T3 10 void defendant's limited scope retainer agreement; the judge denied the motion,

stating that the validity of the retainer agreement was a fact question for the jury.

On January 30, 2015, McGlinchey signed an affidavit stating that

decedent was not competent when the testamentary documents were signed, and

that Jennifer unduly influenced her grandmother. Eustler originally determined

the value of the estate's assets were as follows:

 Decedent's residence - $169,700

 Individual Retirement Account (IRA) and cash - $231,530.14

 Life Insurance annuities - $222,044.58

The sale of the residence yielded only $86,920, the sale of the qualified

annuities was $118,378.61, and the sale of the nonqualified annuities amounted

to $51,000 instead of the projected $113,653.92 Thus, the total amount Eustler

received for the estate was $256,298 and plaintiffs recovered this amount. The

loss to the estate was approximately $200,000. In her 2015 certification, Eustler

clarified that she chose not to bring an action on behalf of the estate to avoid

further depleting the estate's assets, given plaintiffs brought the action and they

were authorized to do so.

On February 12, 2015, plaintiffs filed a motion in the Law Division

requesting the judge confirm the allocation of damages and counsel fees. The

A-4675-16T3 11 motion was denied because the judge ruled the issue of allocation would have

to abide by the jury's verdict. On March 27, 2015, plaintiffs amended their

complaint.

On May 6, 2015, the parties stipulated that plaintiffs' compensatory

damages were $244,000 and, following the jury verdict, the court would mold

the verdict and apportion the percentages of liability for each party. Plaintiffs

moved for leave to file and serve a seventh amended complaint, seeking to add

a count asserting a joint enterprise, which was granted on June 8, 2015. On

September 18, 2015, defendants moved for partial summary judgment seeking

to dismiss the joint enterprise count, which was denied on March 3, 2016.5

In the interim, defendants made an offer of judgment 6 on November 4,

2016, for $244,000, inclusive of costs and fees, which plaintiffs rejected. Two

days later, plaintiffs moved to amend the status of the estate from a nominal to

a formal plaintiff. Eustler certified that she authorized plaintiffs to litigate any

claim that the estate could have brought. Defendants cross-moved to disqualify

plaintiffs' counsel because of a purported conflict of interest in his representing

5 The order was incorrectly dated 2015. 6 R. 4:58-1 to -6.

A-4675-16T3 12 both plaintiffs and the estate, and in response, plaintiffs withdrew their motion

to name the estate as a formal plaintiff.

On March 8, 2016, the judge denied plaintiffs' motion for summary

judgment on the issue of whether defendant deviated from acceptable standards

of legal practice. On March 30, 2016, the judge denied plaintiffs' request to

amend their complaint to add a count asserting that an agency relationship

existed between defendant and the financial defendants. 7

In limine, the judge ruled that plaintiffs had a right to rely on defendant

to conform with the standard of care in his profession; whether the retainer

agreement was enforceable as to plaintiffs, who were not clients, was a fact

question for the jury to determine; civil conspiracy could be presented to the

jury;8 and any liability attributable to defendant would also be attributable to his

law firm. The judge dismissed plaintiffs' breach of fiduciary duty claim, finding

that plaintiffs did not sustain their burden of proof on that issue.

Vincent Micciche, an expert in financial services, testified at trial that

there was a fiduciary relationship between the financial defendants and

7 As a result of a settlement, Melodie was dismissed from the case. 8 The civil conspiracy claim was later voluntarily dismissed.

A-4675-16T3 13 decedent. Micciche also testified that when McGlinchey recognized that

decedent lacked testamentary capacity to sign the documents, McGlinchey

should have brought the matter to her supervisor.

Plaintiffs' expert on the issue of elder law and estates, Thomas D. Begley,

III, Esq., opined at trial that all attorneys are required to demonstrate a

reasonable degree of knowledge and skill; but a specialist in a specific area of

the law is held to a higher standard, citing Cellucci v. Bronstein, 277 N.J. Super.

506 (App. Div. 1994). Here, defendant held himself out as a specialist in estate

planning.

Begley cited to the New Jersey Rules of Professional Conduct (RPC) as

well as the Model Rules of Professional Conduct (MRPC), which provide

objective standards against which attorney conduct can be measured. According

to Begley, when an attorney undertakes a duty to one other than his client, he

may be liable for damages caused by a breach of that duty, citing Stewart v.

Sbarro, 142 N.J. Super. 581 (App. Div. 1976); lawyers also have a duty to a non-

client when the lawyer knows that his or her client intended the lawyer's services

to benefit a non-client, citing Restatement (Third) of The Law Governing

Lawyers § 51 (Am. Law Inst. 2000). Defendant's deposition testimony indicated

that in his practice, he generally complied with the standard of care applicable

A-4675-16T3 14 to estate attorneys by meeting with his clients without others present, confirming

that the estate plan represented the wishes of the testator, explaining documents,

and supervising the execution of documents.

Begley opined that defendant deviated from his own general practice with

respect to decedent since he could not attest to her competency or conclusively

identify that she was the person he spoke to on the phone, he could not screen

for the presence of undue influence, had no knowledge as to who was with h er

during the telephone conversation, he could not have adequately explained

everything to her during the short phone call, and he failed to explain or oversee

execution of the documents. Begley cited MRPC 1.3 and 1.4, RPC 1.4, and

Ziegelheim v. Apollo, 128 N.J. 250 (1992), which all require a lawyer to keep a

client informed and he testified defendant failed to do so here. Also, RPC 5.3

requires proper supervision of non-lawyers, and Begley opined that defendant

failed to supervise McGlinchey. In addition, RPC 5.4 prohibits an attorney from

sharing fees with a non-lawyer, and defendant shared fees with FEP.

According to Begley, RPC 1.2 permits a limited scope retainer when the

client gives informed consent, but defendant's limited scope retainer agreement

was improper because it provided that defendant would not explain documents

A-4675-16T3 15 or supervise their execution. And, defendant did not make the relatively simple

attempt to ascertain whether decedent had capacity.

Begley relied upon the following facts relevant to his conclusion that

defendant had not met the standard of care for an estates attorney: defendant

held himself out as an expert on estate matters; the phone call to decedent lasted

only eight minutes; defendant could not ascertain that he was speaking with

decedent; defendant did not supervise the execution of the documents; defendant

ratified McGlinchey's actions by relying on her to obtain information at the

initial meeting with decedent; decedent did not provide informed consent for

defendant's limited representation; defendant did not determine whether

decedent had capacity; and the attorney at the prior law firm understood that

decedent needed a guardianship because she had Alzheimer's.

Begley cited cases from other jurisdictions including Biakanja v. Irving,

320 P.2d 16, 19 (Cal. 1958) (holding whether a defendant is liable to third person

not in privity involves balancing of various factors, including the extent to which

the transaction was intended to affect plaintiff, foreseeability of harm to him,

the degree of certainty that plaintiff suffered injury, closeness of connection

between the defendant's conduct and injury suffered, moral blame attached to

the defendant's conduct, and a policy of preventing future harm), and Lucas v.

A-4675-16T3 16 Hamm, 364 P.2d 685, 689 (Cal. 1961) (where attorney negligently prepared

Will, beneficiaries were entitled to recover as third-party beneficiaries). Begley

also cited Rathblott v. Levin, 697 F. Supp. 817, 819 (D.N.J. 1988) (discussing

whether an attorney who drafts a Will could invoke lack of privity as a defense

where his negligence caused a beneficiary to spend funds defending a Will

contest).

Glenn A. Henkel, Esq., defendants' expert in estate planning and

administration, and a former colleague at a law firm where both he and

defendant were employed, opined defendant met the standard of care for any

attorney with respect to decedent, and defendant owed no duty of care to

plaintiffs. Henkel also opined an attorney's violation of an RPC does not

constitute malpractice per se, and that McGlinchey properly notarized the

document, even if the witnesses did not see decedent sign it. Henkel testified

that an attorney does not need to meet a client face-to-face. Henkel testified that

defendant could have adequately reviewed with decedent all of the relevant

information in an eight-minute phone call.

Following a nine-day trial, the jury returned a verdict in plaintiffs' favor,

finding that defendant deviated from accepted standards of professional care,

and his negligence proximately resulted in twenty-five percent of plaintiffs'

A-4675-16T3 17 damages. Seventy-five percent of liability was allocated amongst the other

defendants. The jury also found Jennifer and the financial defendants breached

their fiduciary duties to the estate, committed consumer fraud and common law

fraud, and they, along with defendant, participated in a joint enterprise. The

judge entered judgment against the financial defendants for consumer fraud,

including treble damages and attorney's fees.

Defendants timely moved for a judgment notwithstanding the verdict

(JNOV),9 attorney's fees, and costs. Thereafter, plaintiffs requested fees in the

amount of $1,053,137.10 Defendants filed opposition and argued the sum of

$901,929.60 was improperly billed, reducing the amount of fees for

consideration to $103,543.65.

On August 31, 2016, the judge granted defendants' motion for a stay

pending appeal; and the following day, he denied defendants' motion for JNOV,

ruling that the issue of joint enterprise was properly submitted to the jury. In

the final judgment order dated March 1, 2017, the judge reconsidered and

determined the evidence did not support the jury's finding of joint enterprise and

9 R. 4:40-2. 10 Plaintiffs' billing statement exceeded 800 pages and is not included in its entirety in this appendix. A-4675-16T3 18 the issue should not have been submitted to the jury. That same day, the judge

entered a final judgment against defendants comprised of $61,000 in damages,

$534,756 in counsel fees, and against the financial defendants in excess of $1

million each. The judge allocated damages and counsel fees in accordance with

the percentages assigned by the jury amongst the defendants.

Plaintiffs filed a motion for reconsideration under Rule 4:49-2 with

respect to the joint enterprise ruling, which was denied on April 13, 2017. In

his opinion, the judge stated: "I will note for the record that my decisions with

regard to the joint enterprise issue and how I finally handled it and the judgment

are inconsistent." On May 22, 2017, the judge denied a motion to vacate the

final judgment against Baals. On July 7, 2017, nunc pro tunc to April 20, 2016,

the judge denied defendants' motions for involuntary dismissal and for

judgment.

On appeal, defendants argue that the judge erred in: finding plaintiffs had

an attorney-client relationship with defendant, granting plaintiffs leave to file

and serve a seventh amended complaint to assert a theory of joint enterprise, and

thereafter, denying defendants' motion for summary judgment seeking to

dismiss that claim, and denying defendants' motions for involuntary dismissal

and JNOV.

A-4675-16T3 19 In their cross-appeal, plaintiffs argue the judge erred in: dismissing the

estate's claim for breach of fiduciary duty to decedent; dismissing the claim of

joint enterprise by acting as a seventh juror; improperly allocating damages and

fees; and not declaring the retainer agreement void as a matter of law on

summary judgment. The award of attorney's fees is challenged by defendants

and plaintiffs.11

II.

We first examine the dismissal of the breach of fiduciary claim. Lawyers

owe a fiduciary responsibility to their clients. Cohen v. Radio-Elecs. Officers

Union, 146 N.J. 140, 155 (1996). "The attorney-client relationship is a fiduciary

one, involving the highest trust and confidence." In re Brown, 88 N.J. 443, 448

(1982). An attorney's fiduciary role requires that he or she attend to and look

out for the client's best interests. Estate of Spencer v. Gavin, 400 N.J. Super.

220, 242 (App. Div. 2008). Although New Jersey law imposes duties of fairness,

good faith, and fidelity upon all fiduciaries, "an attorney is held to an even

higher degree of responsibility in these matters than is required of all others."

Ibid. (quoting In re Honig, 10 N.J. 74, 78 (1952)).

11 At oral argument, we permitted both counsel to submit post-argument briefs as to the applicability of our recent decision in Jacobs v. Mark Lindsay & Son Plumbing & Heating, Inc., 458 N.J. Super. 194 (App. Div. 2019). A-4675-16T3 20 In F.G. v. MacDonell, 150 N.J. 550, 563 (1997), a clergy malpractice case,

our Supreme Court described a fiduciary relationship as follows:

The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position. A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship.

However, "[t]he exact limits of the term 'fiduciary relation' are impossible of

statement. Depending upon the circumstances of the particular case or

transaction, certain business, public or social relationships may or may not

create or involve a fiduciary character." Id. at 564 (alteration in original)

(quoting Bogert, Trusts and Trustees § 481 (2d ed. 1978)). "The fiduciary's

obligations to the dependent party include a duty of loyalty and a duty to

exercise reasonable skill and care. Accordingly, the fiduciary is liable for harm

resulting from a breach of the duties imposed by the existence of such a

relationship." Ibid. (citation omitted).

The Restatement (Second) of Torts § 874 (Am. Law Inst. 1979) provides:

"One standing in a fiduciary relation with another is subject to liability to the

other for harm resulting from a breach of duty imposed by the relation." A

breach of fiduciary duty is a tort. Ibid. At common law, certain torts were

considered personal, such as invasion of privacy and libel and they did not

A-4675-16T3 21 survive the death of the person who had been damaged by the tortfeasor. Weller

v. Home News Pub. Co., 112 N.J. Super. 502, 506-07 (Law Div. 1970).

However, that changed with the passage of the "survival statute," N.J.S.A.

2A:15-3, which provides, in pertinent part, as follows:

Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, and recover their damages as their testator or intestate would have had if he was living.

Further, "[a] personal representative may ratify and accept acts on behalf

of the estate done by others where the acts would have been proper for a personal

representative." N.J.S.A. 3B:10-20.

Restatement (Third) of Agency § 4.01 (Am. Law Inst. 2006) provides:

(1) Ratification is the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority.

(2) A person ratifies an act by

(a) manifesting assent that the act shall affect the person's legal relations, or

(b) conduct that justifies a reasonable assumption that the person so consents.

Generally, an attorney is not liable to third parties who are not his or her

clients for negligence in the performance of professional duties. Stewart, 142

A-4675-16T3 22 N.J. Super. at 593. But where an attorney assumes a fiduciary obligation, the

attorney has a duty to others who the attorney has or should have reason to

believe would be relying on him. Ibid. The determination of whether the duty

undertaken by an attorney extends to a third party not in privity with the attorney

involves a balancing of factors such as: (1) "the extent to which the transaction

was intended to affect the plaintiff"; (2) the foreseeability of harm to the

plaintiff; (3) "the degree of certainty that the plaintiff suffered injury"; (4) "the

closeness of the connection between the defendant's conduct and the injury

suffered"; (5) "the moral blame attached to the defendant's conduct"; and (6)

"the policy of preventing future harm." Ibid. (quoting Biakanja, 320 P.2d at

16).

Applying the Stewart factors here, the following considerations may be

drawn by the fact-finder: (1) defendant's drafting of decedent's Will was

intended to benefit the beneficiaries of the Will, i.e., plaintiffs; (2) it was

foreseeable that drafting a Will for a person that lacked capacity and was unduly

influenced would cause harm to plaintiffs; (3) it was a certainty that plaintiffs

suffered harm inasmuch as the parties stipulated that the estate lost $244,000

and plaintiffs had to engage in costly, protracted litigation to recover those

assets; (4) there was a connection between defendant's drafting of the Will and

A-4675-16T3 23 the loss to the estate, but it is unclear how close the connection was , given that

Jennifer, an intentional tortfeasor, depleted the assets of the estate; (5) it is

unclear whether moral blame should be attached to defendant's conduct, given

that Jennifer was the primary reason why the estate suffered a loss; and (6) it is

unclear how this matter would affect the policy of preventing future losses. We

conclude it is a fact question for the jury as to whether defendant breached his

fiduciary duty here.

Plaintiffs argue that we should exercise original jurisdiction and find that

defendant breached his fiduciary duty to the estate and the beneficiaries. We

decline to do so because whether defendant breached his fiduciary duty is a fact

question for the jury and will be determined on remand.

Plaintiffs further argue that the improper dismissal of their breach of

fiduciary duty claim resulted in: defendant not being responsible for the entire

amount of the compensatory damages and the reasonable attorney's fees; the jury

not assigning a higher percentage of liability to defendant; and a lower award of

fees. A finding by the jury that defendant breached his fiduciary duty might

affect the jury's allocation of liability and the court's award of fees.

Plaintiffs argue the judge agreed defendant had a fiduciary duty to

decedent, but erred in dismissing that claim prior to trial because they were

A-4675-16T3 24 authorized by Eustler to bring claims against defendants on behalf of the estate.

We agree. The judge acknowledged that Eustler validly transferred the estate's

rights to plaintiffs to pursue claims against defendants, stating:

[P]laintiffs have stood in the shoes of the estate throughout the litigation. [Eustler], the appointed administrator, . . . could not make clearer . . . that "plaintiffs in this matter have been authorized by [her] to bring all of the claims that the [e]state can make against any and all of the defendants in this litigation."

[(Third alteration in original).]

The judge found Eustler's authorization was valid with respect to pursuing

the legal malpractice claim, but he improvidently analyzed the breach of

fiduciary duty claim. Although finding defendant owed a fiduciary duty to

decedent, the judge held nothing in the record indicated plaintiffs knew

defendant or that they personally placed trust and confidence in him; therefore,

the judge concluded plaintiffs could not bring a claim against defendant for

breach of fiduciary duty. We disagree.

In Petrillo v. Bachenberg, 139 N.J. 472, 482-85 (1995), our Supreme

Court held that an attorney owes an independent duty of care to a non-client

when the attorney "intended or should have foreseen that the [non-client] would

rely on the [attorney's] work" or when the attorney "know[s], or should know,

that non-clients will rely on the attorney['s] representations and the non-clients

A-4675-16T3 25 are not too remote from the attorney[] to be entitled to protection." To sustain

a malpractice claim, a non-client must show reliance on the attorney's actions or

representations was reasonably foreseeable by the attorney, as it is the

reasonably foreseeable reliance by the non-client on the attorney's

representation that imposes the duty of care. Id. at 483-84. As our Supreme

Court further clarified in Banco Popular North America v. Gandi, 184 N.J. 161,

180 (2005):

If the attorney['s] actions are intended to induce a specific non-client['s] reasonable reliance on his or her representations, then there is a relationship between the attorney and the third party. Contrariwise, if the attorney does absolutely nothing to induce reasonable reliance by a third party, there is no relationship to substitute for the privity requirement.

We "review the trial court's grant of summary judgment de novo under the

same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for summary

judgment should be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). The evidence must be viewed in "the light most favorable to the non -

A-4675-16T3 26 moving party[.]" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524

(2012).

Determining whether there is a genuine issue for trial "does not require a

court to turn a blind eye to the weight of the evidence; the 'opponent must do

more than simply show that there is some metaphysical doubt as to the material

facts.'" Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super. 517, 523-24 (App. Div.

2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,

1363 (3d Cir. 1992)). Opposition to a motion for summary judgment requires

"competent evidential material" beyond mere "speculation" and "fanciful

arguments[.]" Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J.

Super. 556, 563 (App. Div. 2005). To survive summary judgment, the opposing

party must, with the benefit of all favorable inferences, show a rational

factfinder could determine the plaintiff met her burden of proof. Globe Motor

Co. v. Igdalev, 225 N.J. 469, 481 (2016).

Thus, even though there was no retainer agreement between plaintiffs and

defendant, summary judgment on this issue was properly denied and the issue

was appropriately submitted to the jury because Eustler authorized plaintiffs to

bring such a claim on behalf of the estate. The judge inexplicably departed from

Eustler's assignment of claims that plaintiffs could pursue by dismissing their

A-4675-16T3 27 breach of fiduciary duty claim. The judge erred by concluding the breach of

fiduciary claim was not proven because defendant presumably did not actually

handle decedent's assets. Therefore, we reverse the judge's ruling and remand

for a new trial, and the breach of fiduciary claim shall be submitted to the jury

for a determination.

III.

We next address defendants' argument that the judge erred by granting

plaintiffs leave to file and serve a seventh amended complaint to assert a theory

of joint enterprise, and denying defendants' motion for summary judgment

seeking to dismiss that claim.

In June 2015, the judge permitted plaintiffs to file a seventh amended

complaint adding an allegation for joint enterprise, and the judge subsequently

denied defendants' motion seeking to summarily dismiss the seventh count. The

jury ultimately found a joint enterprise existed between defendant, Jennifer and

the financial defendants. Initially, the judge denied defendants' motion for

JNOV on the joint enterprise issue. But in March 2017, when rendering final

judgment, the judge stated that even though he was initially persuaded by the

joint enterprise argument, he now concluded that the allocation of responsibility

among the defendants should instead be guided by the principles enunciated in

A-4675-16T3 28 Blazovic v. Andrich, 124 N.J. 90, 106-12 (1991), and Grubbs v. Knoll, 376 N.J.

Super. 420, 431 (App. Div. 2005), i.e., that liability should be imposed in

proportion to fault, and not jointly and severally. The judge reasoned that even

though defendant might have had some control over McGlinchey, he had no

control over Jennifer, "the dominating force in the perfect storm[.]" Thus, the

judge determined that defendant should not be held jointly and severally

responsible for all damages and attorney's fees, given that Jennifer's undue

influence was a significant factor in causing the damages.

A trial court has broad discretion to permit an amendment to pleadings,

and such discretion should be liberally construed. Kernan v. One Wash. Park

Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998). When an issue has been

injected into the case even in a deficient manner, the opposing party will be

deemed to have been on notice that the issue is included in the matters to be

resolved. Winslow v. Corp. Express, Inc., 364 N.J. Super. 128, 140-41 (App.

Div. 2003) (quoting Teilhaber v. Greene, 320 N.J. Super. 453, 466 (App. Div.

1999) ("[A] 'deficient' complaint that omits a specific legal theory may be

remedied at trial by showing the appropriate proofs for the omitted theory.");

68th St. Apts., Inc. v. Lauricella, 142 N.J. Super. 546, 561 n.3 (Law Div. 1976)

A-4675-16T3 29 (noting that even when theory was not advanced in pleadings, it is properly

before the court if it was fully aired at trial and in post-trial briefs).

A motion to amend pleadings pursuant to Rule 4:9-1 should be freely

granted by the court so long as no prejudice results to the non-moving party.

Zacharias v. Whatman PLC, 345 N.J. Super. 218, 226 (App. Div. 2001).

However, when the motion is filed late and lacks apparent merit, the court

generally denies it. Fox v. Mercedes-Benz Credit Corp., 281 N.J. Super. 476,

483 (App. Div. 1995).

Defendants argue the judge erred in permitting plaintiffs leave to file and

serve a seventh amended complaint because the judge had already denied their

request that defendants be held jointly and severally liable, and the seventh

amended complaint was actually a motion for reconsideration in the guise of a

motion to amend the pleadings. We disagree.

Here, defendants have shown no prejudice that resulted from the subject

amendment. Moreover, the judge noted that the issue of joint enterprise had

already been injected into the case and had been discussed long before the court

permitted the amendment to the pleadings. Further, when the judge denied

plaintiffs' motion for a ruling on joint and several liability, it noted that its

"[d]ecision as to [the] extent of liability, joint [and] several, has to await [the]

A-4675-16T3 30 jury verdict." This holding was not contradicted by the court's subsequent

permission for plaintiffs to amend the pleadings to include a count for joint

enterprise.

A joint enterprise is an undertaking described in Restatement of the Law

(Second) of Torts § 876 (Am. Law Inst. 1979):

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

The judge erred here in setting aside the jury finding of a joint enterprise.

Whether defendants conspired to revise decedent's estate planning to change her

original intent to leave her assets equally to her four children, and whether

defendants worked in concert to generate unnecessary fees is a question of fact

for the jury. On remand, we direct the judge to allow the seventh amended

A-4675-16T3 31 pleading on the theory of joint enterprise to stand and the issue to be presented

to the jury.

IV.

Plaintiffs argue in their cross-appeal that because the court should not

have dismissed the breach of fiduciary duty claim, the jury's allocation of

liability for damages was incorrect.

The jury found the financial defendants and Jennifer breached their

fiduciary duties to decedent, and committed other torts, and determined that

those parties were liable for seventy-five percent of the estate's losses. The jury

found that defendants had committed legal malpractice and were liable for

twenty-five percent of the losses to the estate, but, as noted, did not consider

whether defendant had breached his fiduciary duty to decedent.

The Comparative Negligence Act requires a fact finder to apportion

liability amongst numerous tortfeasors. N.J.S.A. 2A:15-5.1 to -5.8. The court

should mold the verdict based on the findings of the trier of fact. N.J.S.A.

2A:15-5.2(d). If a tortfeasor is found to be sixty percent responsible for

damages, the injured party may recover full damages from that person. N.J.S.A.

2A:15-5.3.

A-4675-16T3 32 In Blazovic, the issue before the Supreme Court was the apportionment of

liability among a restaurant, plaintiff, and tortfeasors who had attacked plaintiff

in the restaurant parking lot, where the lighting was dim because of the

restaurant's negligence. 124 N.J. at 106-12 (1991). The Supreme Court held

that the apportionment of liability should include the proportion of fault among

intentional and negligent tortfeasors, id. at 107, but recognized that

apportionment of fault can be precluded between two tortfeasors "when the duty

of one encompassed the obligation to prevent the specific misconduct of the

other." Id. at 111.

In Grubbs, we noted that a negligent attorney was responsible for the

reasonable legal expenses and attorney's fees incurred by a former client in

prosecuting a legal malpractice action. 376 N.J. Super. at 431. There was no

requirement of proportionality between the damages recovered and the fees

awarded. Id. at 432. Nevertheless, the amount a plaintiff recovers in damages

is a relevant factor in determining whether the fees sought are reasonable. Ibid.

Also, legal malpractice cases are not an exception to the rule enunciated in

Blazovic pertaining to the apportionment of fault. Id. at 442.

Plaintiffs argue that pursuant to Blazovic, there should have been no

apportionment of liability because defendant's neglect of his duties was the

A-4675-16T3 33 lynchpin that caused the siphoning of decedent's estate. We disagree. Although

defendant deviated from accepted standards of care, Jennifer, an intentional

tortfeasor, depleted the estate. Therefore, pursuant to Blazovic, apportionment

of liability was appropriate.

Plaintiffs further argue that there should have been no apportionment

because all the defendants were jointly and severally liable and were involved

in a joint enterprise. Alternatively, plaintiffs argue there should be a new trial

on allocation. In light of our decision that the claim for breach of fiduciary duty

was improperly dismissed, it is impossible to know the allocation of liability

that would have been imposed by the jury, had it considered the fiduciary duty

claim. Thus, the issue of allocation will be addressed at the retrial.

Defendants argue that the judge erred in denying their motion for

involuntary dismissal pursuant to Rule 4:37-2(b), in denying their motion for

judgment pursuant to Rule 4:40-1, and in denying their motion for JNOV

pursuant to Rule 4:40-2. On September 1, 2016, the judge denied defendants'

motion for JNOV. On July 7, 2017, nunc pro tunc to April 20, 2016, the judge

denied defendants' motions for involuntary dismissal and for judgment.

A-4675-16T3 34 The standard for granting a JNOV under Rule 4:40-2 and a directed verdict

under Rule 4:40-1 is the same as that governing the determination of a motion

for involuntary dismissal under Rule 4:37-2(b), namely that the court must

accept as true all the evidence which supports the party defending against the

motion and must give all legitimate inferences to that party. We apply the same

standard as the trial court. Boyle v. Ford Motor Co., 399 N.J. Super. 18, 40

(App. Div. 2008).

Defendants argue that the judge should have dismissed the legal

malpractice claim because plaintiffs did not represent decedent or the estate, and

Eustler never filed a complaint on behalf of the estate, but as we already stated,

Eustler authorized plaintiffs to bring the malpractice action on behalf of the

estate. Therefore, defendants' argument is devoid of merit. A personal

representative may ratify and accept acts on behalf of the estate done by others

where the acts would have been proper for a personal representative. N.J.S.A.

3B:10-20. Here, Eustler's assignment of rights was proper and defendants were

notified of it. Plaintiffs were authorized to bring the malpractice action on

behalf of the estate, and the legal malpractice claim shall stand.

Defendants argue that Begley's opinion went beyond the recognized legal

standard in New Jersey, and his opinion was "untenable," as discussed in

A-4675-16T3 35 Cellucci. 277 N.J. Super. at 506. In Cellucci, the court found the expert's

opinion untenable when the expert opined that the lawyer was liable for an

exercise of poor judgment, even though the lawyer had not deviated from the

standard of care of an attorney. Id. at 522. The court held that an error in

judgment does not constitute malpractice. Ibid.

Here, had defendant met with decedent and judged her to be competent,

or not unduly influenced, that would have constituted an error in judgment, but

might not have supported a claim for malpractice. Instead, defendant took no

steps whatsoever to determine decedent's competency or whether she was

unduly influenced. Thus, it is not his judgment that is at issue here, but his

failure to comply with the standard of care of an estate attorney.

We disagree with defendants' characterization of Begley's opinion. He

cited numerous RPCs that indicated defendant failed to comply with the standard

of care, as well as defendant's own testimony that defendant generally complied

with this standard, but failed to do so with decedent. Instead, Begley's opinion

was that defendant failed to take the basic steps to insure that decedent had

capacity, was not unduly influenced, understood the changes to her estate plan

and that the documents were properly executed.

A-4675-16T3 36 Defendants cite Villanueva v. Brown, 103 F.3d 1128 (3d Cir. 1997), for

the notion that where a notary is involved, there can be no liability for the

attorney. But here, defendant's liability was not solely based upon the fact that

he did not supervise the execution of the documents.

VI.

We next address defendant's arguments relative to the plaintiffs' legal

malpractice claim. Defendants argue that because they owed no duty to

plaintiffs, the judge erred in denying their motion for judgment on this issue.

We disagree.

"[A]n attorney is obligated to exercise that degree of reasonable

knowledge and skill that lawyers of ordinary ability and skill possess and

exercise." St. Pius X House of Retreats, Salvatorian Fathers v. Diocese of

Camden, 88 N.J. 571, 588 (1982). In representing a client, an attorney impliedly

represents that (1) he or she possesses the requisite degree of learning, skill, and

ability which others in the profession ordinarily possess; (2) he or she will use

his or her best judgment in representing the client; and (3) he or she will exercise

reasonable and ordinary care and diligence. Ibid.

To present a prima facie legal malpractice claim, a plaintiff must establish

the existence of an attorney-client relationship creating a duty of care by the

A-4675-16T3 37 attorney, breach of that duty and proximate causation of damages. Jerista v.

Murray, 185 N.J. 175, 190-91 (2005). Proximate cause is established by

showing that the negligent conduct was a "substantial contributing factor" in

causing damages. Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982).

An attorney owes a duty to a client identified in the retainer agreement.

RPC 1.2. However, whether a duty exists to a third party depends on a balancing

test between the attorney's duty to vigorously represent a client and the duty not

to provide misleading information that others may foreseeably rely upon. Estate

of Albanese v. Lolio, 393 N.J. Super. 355, 368 (App. Div. 2007). "To determine

if a duty exists, the court conducts an 'inquiry [that] involves weighing the

relationship of the parties, the nature of the risk, and the public interest in the

proposed solution.'" Id. at 369 (alteration in original) (quoting Barner v.

Sheldon, 292 N.J. Super. 258, 261 (Law Div. 1995)). "The primary question is

one of fairness." Ibid. Privity is not necessary between an attorney and a non-

client "where the attorney had reason to foresee the specific harm which

occurred." Id. at 368-69 (quoting Albright v. Burns, 206 N.J. Super. 625, 633

(App. Div. 1986)).

"The absence of an attorney-client relationship does not necessarily bar a

legal malpractice claim by a non-client where an independent duty is owed."

A-4675-16T3 38 Fitzgerald v. Linnus, 336 N.J. Super. 458, 468 (App. Div. 2001). For example,

a lawyer may have a duty to a beneficiary when a duty has been undertaken, or

where egregious circumstances exist. Barner, 292 N.J. Super. at 266. But when

"a beneficiary's interest is adversarial to the interest of the estate and contrary

to the Will of the testator, then no such duty shall be imposed upon the attorney."

Ibid.

Fitzgerald and Barner involved claims that the attorney was remiss in

administering an estate by failing to tell the clients to disclaim part of the

decedents' estates for tax purposes. Both courts agreed that post-mortem tax

planning for the benefit of the executor of the estate was not included in the

retainer for drafting the decedent's Will. Fitzgerald, 336 N.J. Super. at 473;

Barner, 292 N.J. Super. at 260-61, 266.

Some states preclude a beneficiary of the Will from asserting a

malpractice claim against the drafter of the Will based on a lack of privity

between the lawyer and the non-client beneficiary. Pivnick v. Beck, 326 N.J.

Super. 474, 482 (App. Div. 1999). Others permit malpractice claims by

beneficiaries if the attorney's professional negligence resulted in a frustration of

the testamentary intent expressed in the Will, or permit recovery only on

negligence or third-party beneficiary theories. Id. at 482-83.

A-4675-16T3 39 Defendants argue they had no duty to plaintiffs because they never signed

a retainer agreement with them and the court should have granted summary

judgment. The judge determined that defendant had a duty to plaintiffs, given

that they were the beneficiaries of decedent's estate up until the point that

defendant aided decedent in changing her estate plan. Giving all favorable

inferences to plaintiffs, the judge accepted plaintiffs' argument that defendant

had deviated from the standard of care by: failing to properly identify decedent

as the person expressing the desire for a change to her estate plan; abrogating

his responsibilities to McGlinchey to compile decedent's asset portfolio, to

determine the bequests and to distribute assets; failing to review documents with

decedent to make sure she understood what she was doing; and failing to

evaluate decedent to make sure she was competent and not unduly influenced.

The experts disagreed about whether defendant owed a duty to plaintiffs. The

jury ultimately found that defendant had a duty to plaintiffs and he deviated from

the accepted standards of legal practice.

Even though defendant did not sign a retainer agreement with plaintiffs,

the judge properly denied summary judgment on the question of whether he had

a duty to plaintiffs. A testator intends his or her attorney to protect the interests

of beneficiaries of his or her estate. Restatement (Third) of The Law Governing

A-4675-16T3 40 Lawyers § 51 (Am. Law Inst. 2000). As beneficiaries of the estate, plaintiffs

were entitled to rely on defendant to comply with the standards of the profession.

The record supports a finding that defendant failed to meet the standards of the

legal profession inasmuch as he never met with decedent, did not ascertain that

she had capacity to change her estate plan and was not unduly influenced, was

not sure that the person he spoke with on the phone was her, and did not

supervise the execution of testamentary documents or explain to decedent the

nature of the documents.

The test of testamentary capacity is whether a person can comprehend his

or her property, the objects of his or her bounty, the meaning of the business that

he [or she] is engaged in, and the relationship of these factors to the others and

the manner of distribution set forth in the Will. In re Will of Liebl, 260 N.J.

Super. 519, 524 (App. Div. 1992). Capacity should be tested on the date the

Will is executed. Ibid. Whether an attorney has complied with a standard of

care is a fact question for the jury. Cellucci, 277 N.J. Super. at 524.

Defendants cite Barner and Fitzgerald for the proposition that an attorney

who drafts a Will does not owe a duty to beneficiaries of the Will. But, those

cases are distinguished because they addressed whether the attorney's obligation

extended to post-mortem tax planning. Fitzgerald, 336 N.J. Super. at 473;

A-4675-16T3 41 Barner, 292 N.J. Super. at 260-61, 266. Here, plaintiffs were not requesting

post-mortem services, and they expected defendant to comply with the standards

of care of an estates attorney by ascertaining that decedent had capacity to

change her estate plan, was not unduly influenced and understood the changes

she was making.

Defendants cite three unpublished cases to support their argument that

they had no duty to plaintiffs. An unpublished opinion does not constitute

precedent nor is it binding upon the appellate court. R. 1:36-3. "The rule does

. . . permit unpublished opinions to be called to" a court's attention as secondary

research. Falcon v. Am. Cyanamid, 221 N.J. Super. 252, 261 n.2 (App. Div.

1987) (quoting R. 1:36-3).

Defendants cite Torban v. Obermayer Rebmann Maxwell & Hippel, No.

A-3660-05 (App. Div. June 27, 2007) (slip op. at 3-5), where the plaintiff was

the executor of his parents' Wills and he sued the scrivener for malpractice,

claiming that he paid higher estate tax because of the attorney's negligence. The

court held that the attorney-client relationship terminated at the point that the

decedents executed their Wills, especially given that they had rejected the

attorney's advice about tax planning. Id. at 6-7. Torban is not on point because

the claimed malpractice in that case involved liability for additional estate taxes,

A-4675-16T3 42 but the defendants had refused to follow the scrivener's tax advice. Ibid. Here,

the liability is based upon defendant preparing testamentary documents for a

testator without complying with the standard of care for estates attorneys.

Defendants also cite to Holvenstot v. Nusbaum, No. A-2987-08 (App.

Div. Sept. 21, 2010) (slip op. at 2-6), where a court, in a guardianship action,

determined the testator was competent to manage her affairs and the testator

changed her Will to disinherit her son. After the testator's death, the son sued

the attorney scrivener for malpractice. Ibid. The court held that the attorney's

duty was not as to the potential beneficiary, but to the testator who had been

adjudicated competent. Id. at 6-10. Holvenstot is distinguishable because here,

the proofs showed decedent was not competent to change her estate plan when

defendant drafted her testamentary documents.

Defendants cite to Taffaro v. Connell, No. A-4928-09 (App. Div. Sept.

30, 2011) (slip op. at 3-5), where shortly after being adjudicated as competent

by the court, the testator disinherited her stepson. The court held that the

attorney's duty was only to the testator and not the potential beneficiary when

he prepared a Will "in accordance with her expressed intention." Id. at 7-8.

Once again, this case can be distinguished because decedent here was not

competent to express her intention as to her estate plan.

A-4675-16T3 43 Defendants argue that their expert, Henkel, relied on Albanese to find no

duty and that plaintiffs' expert, Begley, could cite no New Jersey case law to

support his opinion that defendants owed a duty to plaintiffs. We disagree

because Begley cited numerous RPCs and MRPCs and expressed opinions

accepted by the jury as to the standard of care applicable to an estate attorney.

While violations of ethical standards do not per se give rise to tortious claims, the standards set the minimum level of competency which must be displayed by all attorneys. Where an attorney fails to meet the minimum standard of competence governing the profession, such failure can be considered evidence of malpractice.

[Albright, 206 N.J. Super. at 634 (citations omitted).]

Begley also cited Rothblatt, a federal case that applied New Jersey law and

numerous cases from other jurisdictions that supported the notion that an

attorney may be sued for professional malpractice by beneficiaries of an estate

who have suffered a loss from the attorney's negligence even though they were

not in privity with the attorney. In addition, Begley cited the Restatement

(Third) of The Law Governing Lawyers § 51 (Am. Law Inst. 2000), stating that

lawyers have a duty to a non-client when the lawyer knows that a client intended

the lawyer's services to benefit a non-client. Begley described the importance

of an attorney overseeing the execution of documents as evidenced by the

A-4675-16T3 44 American College of Trust and Estate Counsel Foundation (ACTEC), and he

noted that it would have been relatively simple for defendant to ascertain that

decedent had no capacity, and did not even know the names of her children, but

defendant made no attempt to learn this information. Therefore, Begley

provided a sufficient basis to support his expert opinion and defendants'

argument is devoid of merit.

VII.

Next, we address the issue of counsel fees. In their appeal, defendants

argue that the judge erred in not awarding fees to them since plaintiffs did not

prevail on all of their claims and they only recovered $61,000 in damages.

Plaintiffs argue that the fees awarded were appropriate but they should not have

been allocated because defendants should have been responsible for all of the

fees. Because we are remanding the matter for a new trial, the counsel fee award

is reversed and the judge will consider the issue of counsel fees after the

conclusion of the new trial. We add the following comments.

The judge considered the statutory factors and awarded fees in the amount

of $534,756.19 to plaintiffs and denied fees to defendants. The judge made the

following findings: the time plaintiffs' counsel spent was reasonable; the matter

involved extensive discovery, motion practice and knowledge of numerous legal

A-4675-16T3 45 issues; the hourly rates plaintiffs' counsel requested, i.e., $300 per hour, were

reasonable; the result obtained was the recovery of $244,000 in damages, but

involved the expenditure of approximately $1.7 million in costs and fees;

plaintiffs' counsel spent seventy-one percent of their time litigating against

defendants who were responsible for only twenty-five percent of the damages,

and only twenty-nine percent of their time litigating against Jennifer and the

financial defendants; the disparity in the amount recovered relative to the fees

and costs expended was the "overriding factor in reducing the fee award sought

by plaintiffs." The judge also found Eustler's delegation to plaintiffs the claims

of the estate supported fee shifting pursuant to Saffer v. Willoughby, 143 N.J.

256, 260 (1996); fees should be apportioned pursuant to Grubbs; the award of

$534,756.19 included twenty-five percent of the total fees and costs expended

up until trial, plus one hundred percent of the time devoted to litigating against

defendants after trial; plaintiffs were not entitled to a fee enhancement;

defendants were not entitled to fees pursuant to the offer of judgment rule;

plaintiffs' fees as of April 2016 totaled $1,743,116.

An award of counsel fees is discretionary with the court and will not be

reversed absent a demonstration of manifest abuse of discretion. In re Prob. of

Alleged Will of Landsman, 319 N.J. Super. 252, 271 (App. Div. 1999). New

A-4675-16T3 46 Jersey abides by the American Rule that parties are responsible for their own

attorney fees, except for specific situations enumerated in Rule 4:42-9. For

example, an award of attorney's fees is permitted for the following types of

actions: family, out of court fund, probate, mortgage foreclosure, tax certificate

foreclosure, liability or indemnity policy of insurance, and as expressly provided

by rules where attorney's fees are permitted by statute. R. 4:42-9(a).

In In re Estate of Vayda, 184 N.J. 115, 121 (2005), the Court discussed

New Jersey's limited exceptions to the American Rule. For example, Saffer

permitted a legal malpractice plaintiff to recover, as consequential damages, the

attorney's fees incurred in prosecuting the malpractice action against a negligent

attorney. 143 N.J. at 271-72. Packard–Bamberger & Co. v. Collier, 167 N.J.

427, 443-44 (2001), extended the exception to include actions for attorney

misconduct, such as breach of a fiduciary duty, so long as the attorney's breach

arose from the attorney-client relationship. In In re Estate of Lash, 169 N.J. 20,

26-27 (2001), our Supreme Court held that if a plaintiff was forced because of

the wrongful conduct of a tortfeasor to institute litigation against a third party,

the plaintiff can recover the fees incurred in that litigation from the tortfeasor.

However, the Court specifically limited its holding to cases of attorney breach

of fiduciary duty, explaining "that the fact that a person owes another a fiduciary

A-4675-16T3 47 duty, in and of itself, does not justify an award of fees unless the wrongful

conduct arose out of an attorney-client relationship." Id. at 34.

In In re Niles Trust, 176 N.J. 282, 296-99 (2003), our Supreme Court held

that when an executor or trustee commits the "pernicious tort" of undue

influence, it should result in an award of all reasonable counsel fees and costs.

In DiMisa v. Acquaviva, 198 N.J. 547, 553-54 (2009), the Court permitted an

attorney fee to be recovered by a party required to litigate as a result of a third -

party's tort. In Innes v. Marzano-Lesnevich, 224 N.J. 584, 598 (2016), the court

permitted fees to a non-client for an attorney's intentional breach of a fiduciary

duty, reaffirming past precedent.

The first step in the analysis of an attorney's fee award is for the court to

determine the lodestar, which is the appropriate hourly fee multiplied by the

number of hours that were reasonably expended. Rendine v. Pantzer, 141 N.J.

292, 334-35 (1995). Hours that are "excessive, redundant, or otherwise

unnecessary" should be excluded. Id. at 335 (quoting Rode v. Dellarciprete, 892

F.2d 1177, 1183 (3d Cir. 1990)). The court may also reduce the lodestar "if the

level of success achieved in the litigation is limited as compared to the relief

sought." Id. at 336. The court is required to make findings on each element of

the lodestar fee. See R.M. v. Supreme Court of N.J., 190 N.J. 1, 9-11 (2007).

A-4675-16T3 48 RPC 1.5(a) provides that the following factors pertain to whether an

attorney fee is reasonable: the time and labor required; the novelty and difficulty

of the questions involved; the skill requisite to perform the legal service

properly; whether acceptance of the employment precluded other employment

by the lawyer; the fee customarily charged in the locality for similar legal

services; and the amount involved and the results obtained.

Defendants argue the award of fees is contrary to the holding in Innes that

a counsel fee may only be awarded to a non-client in a legal malpractice matter

upon a finding that the attorney intentionally breached a fiduciary duty to the

non-client. 224 N.J. at 597-98. Defendants claim they had no fiduciary duty to

plaintiffs and the court dismissed plaintiffs' breach of fiduciary duty claims, so

an attorney fee should not have been awarded.

But the court did not base its award of fees on an intentional breach of

fiduciary duty as was discussed in Innes. Rather, the judge held that fee-shifting

was permitted under Saffer, because plaintiffs essentially stepped into the shoes

of the estate and the estate delegated its claims to plaintiffs, and as a result,

plaintiffs could recover against defendants for their negligent representation of

decedent.

A-4675-16T3 49 We note that the estate never filed a complaint. Nevertheless, Eustler

allowed plaintiffs to represent the estate at their sole "risk and expense" and

defense counsel never objected to the estate being included as a nominal

plaintiff. The judge accepted Eustler's representation that plaintiffs brought the

claims on behalf of the estate. As noted, N.J.S.A. 3B:10-20 provides that a

personal representative may ratify and accept acts on behalf of the estate that

were done by others. The judge was correct by determining that plaintiffs

stepped into the shoes of the estate. According to Saffer, a negligent attorney is

responsible for reasonable attorney's fees incurred by a former client in

prosecuting a legal malpractice action. 143 N.J. at 272. Thus, had the estate

filed a complaint for legal malpractice, defendants might have been liable for

fees.

Defendants claim that the judge erred in finding this case similar to Niles

because there, the executor and the trustee were negligent, but not the attorney,

and that case did not include a claim for malpractice, but rather for undue

influence. The judge compared this matter to Niles, inasmuch as the tortfeasors

in that case gained complete control over the estate both before and after the

decedent's death, and, here, Jennifer was also able to accomplish this; in Niles a

former beneficiary of the estate brought the action and that occurred here as

A-4675-16T3 50 well; and in Niles as well as here, tort-based damages were sought. The judge

duly noted that but for the actions of plaintiffs, no one else would have filed the

complaint, because the estate would have been completely depleted if it had filed

the complaint. In any event the court relied on Saffer, and not Niles, in awarding

Defendants distinguish Lash because that case involved misappropriation

of assets by an estate administrator where the defendant was not an estate

administrator. 169 N.J. at 26. Lash stands for the proposition that one, who

through the tort of another, is required to litigate to protect his interests, is

entitled to recover reasonable attorney's fees from the tortfeasor. Ibid.

Defendants take issue with the amount of the court's award, given that the

court awarded $534,756, but defendants' responsibility for damages was only

$61,000, citing Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 366

(1995), for the proposition that when fees are disproportionate to the damages,

the court must carefully review the application. Defendants question numerous

entries in the billings, such as those from associate Susan Carpenter, who billed

at $175 and eventually $225 per hour: she appears to have billed on October 17,

2008, for drafting or researching a "new Will"; researched two cases for 3.5

hours; on three separate days in January 2009, she spent 3.75, 5.75 and 5.40

A-4675-16T3 51 hours drafting interrogatories and modifying interrogatories responses; she

spent an hour sending out interrogatories; she spent 4.25 hours researching

insurance and securities issues; and in March 2009, she spent 4.2 and 1.75 hours

amending a complaint.

The judge noted that attorney's fees should not be awarded for most of

plaintiffs' claims against defendants, including fraud, conspiracy, injunctive

relief and punitive damages, because those claims were not intended to make

the estate whole. But because of the thousands of billing entries, the judge

concluded that it could not separate out the claims where attorney's fees would

be permitted. Instead, the court awarded fees pursuant to Grubbs, i.e.,

defendants were responsible for twenty-five percent of the fees expended in

preparation for trial, in conformity with defendants' allocation of liability, and

one-hundred percent of the fees incurred after trial because the other defendants

did not participate in the post-trial litigation.

The judge stated:

This court has great difficulty questioning the legitimacy of the entries of tasks and time presented by plaintiff[s'] counsel. There is no way this court knows to question whether counsel spent [one] hour or [two] on a particular task. From its review the itemization of tasks appear to be necessary to litigating the multiple and varied claims against defendants. The time, though high, appears to be within reason for the task, and the

A-4675-16T3 52 tasks appear to be necessary for the litigation. While it is clear that plaintiff[s'] counsel allowed no stone to be unturned (perhaps two or three times), it is no easy task for this court to take what are literally thousands of entries and second guess their veracity. This court has accepted the entries for purposes of the lodestar review.

Defendants also argue that because plaintiffs only recovered $61,000, the

judge should have awarded fees to them pursuant to the offer of judgment rule.

Defendants contend that they made an offer of judgment to plaintiffs for

$244,000, but plaintiffs refused the offer and the jury ultimately found that

defendants were only liable for damages of $61,000. According to defendants,

plaintiffs were not successful in recovering from defendants seventy-five

percent of their losses, or $195,200. Thus, defendants argue that they were

entitled to fees under the offer of judgment rule.

The offer of judgment rule provides that when a party makes an offer to a

claimant, and the claimant rejects the offer, and thereafter, the party obtains a

favorable monetary judgment, the party is entitled to attorney's fees. R. 4:58-3.

However, no attorney's fee shall be permitted when: the claimant's claim is

dismissed; a no-cause verdict is returned; only nominal damages are awarded; a

fee allowance would conflict with a statute or court rule; or an allowance would

impose undue hardship. R. 4:58-3(c). A plaintiff asserting multiple defendants

are jointly and severally liable is not subject to the financial consequences of

A-4675-16T3 53 Rule 4:58-3 for rejecting an offer by a single defendant to settle its share of

liability. Schettino v. Roizman Dev., Inc., 158 N.J. 476, 484 (1999).

Here, defendants' offer of judgment for $244,000 included damages, costs

and fees, and plaintiffs' fees totaled more than one million dollars, significantly

higher than the offer of judgment made by defendants.

In their cross-appeal, plaintiffs argue that fees were appropriate but they

should not have been allocated. Plaintiffs argue that the jury found a joint

enterprise existed and defendant should therefore have been liable for all of the

fees. Plaintiffs also argue that the judge's findings were inadequate because

their detailed description of the work performed by each attorney was not

considered. Plaintiffs also argue that the judge wrongly labeled their efforts as

partially successful, when in fact, they successfully obtained an award pursuant

to the New Jersey Consumer Fraud Act against the financial defendants, and

recovered assets in the probate proceeding. We note that plaintiffs recovered

assets of the estate, but they also pursued claims against defendants that were

unsuccessful, such as civil conspiracy and fraud.

Plaintiffs argue that the amount recovered was not disproportionate to the

fees requested because the assets brought back into the estate ($256,298), plus

the $61,000 (defendants' share of the liability to the estate), plus the attorney's

A-4675-16T3 54 fees award ($534,769), totaled $852,067 ($256,298 plus $61,000 plus $534,769

= $852,067), or one-half of the $1.7 million in attorney's fees requested. The

attorney's fees that were already awarded by the probate court in retrieving

assets to the estate was approximately $156,000. Following the new trial, the

judge shall consider all of these issues anew as well as the issue of allocation of

fees, which will abide the proofs and percentages of liability, if any, apportioned

by the jury.

Finally, in their cross-appeal, plaintiffs argue that the judge erred when

denying their motion for summary judgment with respect to the retainer

agreement and argue that the agreement should have been void as a matter of

law. We disagree because that is a fact question for the jury.

Plaintiffs argue that RPC 1.0 requires informed consent after an attorney

has explained the risks and alternatives to a proposed course of conduct.

Plaintiffs further argue that the retainer agreement was signed before defendant

ever spoke with decedent, and therefore, defendant could not have obtained her

informed consent, making the retainer agreement null and void because decedent

was incapacitated at the time it was signed on July 31, 2007. The judge correctly

found that this was a fact question for the jury and the proofs at trial were

necessary to make a determination.

A-4675-16T3 55 We conclude that the remaining arguments—to the extent we have not

addressed them—lack sufficient merit to warrant any further discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded for a new jury trial and further proceedings

consistent with this opinion. We do not retain jurisdiction.

A-4675-16T3 56