NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1107-23
DESPINA ALICE CHRISTAKOS and HELEN ALEXANDRA CHRISTASKOS,
Plaintiffs-Respondents,
v.
ANTHONY A. BOYADJIS, ESQ.,
Defendant-Appellant. ____________________________
Argued April 24, 2024 – Decided December 5, 2024
Before Judges Vernoia and Walcott-Henderson.
On appeal from an interlocutory order of the Superior Court, Law Division, Morris County, Docket No. L- 0059-20.
Maximilian J. Mescall argued the cause for appellant (Mescall Law, PC, attorneys; James C. Mescall, of counsel; Maximilian J. Mescall, on the briefs).
Michael J. Paragano argued the cause for respondent (Nagel Rice, LLP, attorneys; Jay J. Rice and Michael J. Paragano, of counsel and on the brief). The opinion of the court was delivered by
VERNOIA, P.J.A.D.
By leave granted, defendant Anthony A. Boyajdis appeals from orders
denying his motions for summary judgment on plaintiffs Despina Alice
Christakos's and Helen Alexandra Christakos's legal malpractice claim and for
reconsideration of the order denying his summary judgment motion. Defendant
argues the court erred by: rejecting his contention plaintiff could not sustain
their legal malpractice claim because plaintiffs had never been his clients and
he therefore did not owe any duty to them; finding plaintiffs were not judicially
estopped from asserting he breached a legal duty owed to them based on the
entry of a consent order in a related probate matter; and finding there were
disputed issues of material fact precluding summary judgment based on his
claim defendant's alleged malpractice proximately caused their alleged
damages. Based on our de novo review of the record, the parties' arguments,
and the applicable law, we affirm in part, reverse in part, and remand for further
proceedings.
I.
We summarize the undisputed facts viewed most favorably to plaintiffs as
the parties who opposed defendant's summary judgment motion. Brill v.
A-1107-23 2 Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Defendant is an
attorney in New Jersey who practices estate planning. In July 2017, Helen
emailed defendant asking if he could help her uncles, Peter Christakos and
Nicholas Christakos, "get their affairs in order," noting they may "want to re-do
their wills."1 She explained that eighty-seven-year-old Peter was "highly
intelligent" and lived with ninety-six-year-old Nicholas, who suffered from
dementia and was hard of hearing. She noted the brothers had never married,
did not have children, and relied on neighbors to bring them food and supplies.
Helen said she would be "happy to help facilitate . . . communication or be[] a
trustee . . . if that's what they want." Otherwise, she was "fine being kept out of
the loop if that's what they prefer[red]."
A week later, defendant visited the brothers at their home. Peter showed
defendant his then-extant January 17, 2003 will and explained Nicholas had a
mirror-image will that had been executed on the same date (the 2003 wills). In
Peter's 2003 will, he had left his entire estate to Nicholas and, if Nicholas
predeceased him, Peter left this estate in equal shares to his two other brothers
1 For ease of reference and clarity we will use first names to refer to plaintiffs Despina Alice Christakos and Helen Alexandra Christakos, as well as decedents Peter Christakos and Nicohlas Christakos, because they share the same surname. We intend no disrespect in doing so.
A-1107-23 3 per stirpes. If either of those brothers "die[d] without issue," that brother's share
would pass to the "surviving brother, or their issue, if applicable." As noted,
Nicholas's 2003 will was a mirror image of Peter's, with the only difference
being that Nicholas left his entire estate to Peter in the first instance.
The 2003 wills did not make any provision for Despina, who is Helen's
mother and Peter's and Nicholas's sister-in-law. In the 2003 wills Helen was
designated as the fourth alternate executor and was otherwise a potential
beneficiary as the child of James Christakos, who was one of Peter's and
Nicholas's three other brothers.
When Peter and defendant first met, Peter explained that he and Nicholas
had outlived their remaining siblings and questioned what would happen if one
brother were to predecease the other. Defendant incorrectly advised Peter that
according to the 2003 wills, the children of their deceased siblings would
become the beneficiaries. That advice was incorrect because under the 2003
wills, if one of the two surviving brothers predeceased the other, the deceased
brother's estate would pass to the surviving brother.
During the discussion, Peter was adamant that his nieces and nephews
should not inherit anything. Accordingly, Peter asked defendant to draft new
A-1107-23 4 wills for himself and Nicholas2 so that the surviving brother would be the
primary beneficiary of their respective estates, although he was unsure who he
wanted to designate as the beneficiary of an alternate residuary bequest.
According to defendant, Peter also asked him to serve as executor of the new
wills.
On November 20, 2017, defendant again visited the brothers to further
discuss their new wills. Peter expressed a strong desire to disinherit his nephews
and nieces and considered alternative residuary bequests in equal shares to the
brothers' neighbor, a church, and Despina. But Peter indicated that he wanted
to consider the issue further.
In January 2018, defendant received an urgent call from Peter who , along
with Nicholas, had been admitted to the hospital. Peter implored defendant to
prepare the new wills immediately, explaining the sole beneficiary of the estate
brothers' respective wills should be the surviving brother and the alternate
residuary bequest should be split equally among their neighbor, the church, and
Despina.
2 Although Nicholas was present at the meeting between Peter and defendant, and at subsequent meetings, defendant rarely communicated directly with about Nicholas's intentions. A-1107-23 5 Defendant prepared a new will for each of the brothers and later met with
each at the hospital. On January 3, 2018, Peter executed the new will defendant
had drafted. Peter's 2018 will, however, did not devise his entire estate to
Nicholas as Peter had requested and intended. Instead, the will devised only
Peter's personalty to Nicholas and devised the remainder of the estate in equal
shares to Despina, the neighbor, and the church. The 2018 will named defendant
executor of Peter's estate.
On January 3, 2018, Nicholas did not execute his 2018 will. Defendant
did not present the will to Nicholas for execution because Nicholas was unable
to communicate, was non-responsive, and did not have the capacity to execute
the will that day.
On April 7, 2018 Nicholas executed the 2018 will, which included the
same error in Peter's will. Again, the will did not devise Nicholas's entire estate
to Peter but instead devised only Nicholas's personalty to Peter, with the balance
of his estate devised in equal shares to Despina, the neighbor, and the church.
In his 2018 will, Nicholas designated defendant as the executor of his estate.
Nicholas also executed a power of attorney granting defendant authority to act
on his behalf.
A-1107-23 6 While the brothers were in the hospital, the Passaic County Adult
Protective Services Unit began an investigation to determine whether Nicholas
required a guardianship. Two doctors issued reports recommending a
guardianship because they had found Nicholas had "moderate to severe
cognitive impairment" and was incapable of managing his own affairs.
Peter passed away on April 11, 2018. In the days following Peter's death,
defendant spoke with Despina, reviewed Peter's 2018 will, and advised her that
she would inherit under the will. As noted, although the wills accurately stated
the surviving brother would receive the personalty of the other, the wills did not,
as Peter had intended, provide for the entirety of his estate to pass to Nicholas.
Thus, apart from his personalty, Peter's 2018 will left the three alternate
residuary beneficiaries equal shares of the remainder of his estate.
Despina advised defendant she believed there must be an error because
that "was not what Peter [had] intended and . . . she did not want any money
because she wanted [Nicholas] to be taken care of." Despina explained that
defendant told her "Peter and [Nicholas] were not close and Peter did not intend
for his estate to be left to [Nicholas]." However, defendant later admitted to a
scrivener's error in his preparation of the wills.
A-1107-23 7 Helen filed a caveat challenging Peter's 2018 will for the purpose of
ensuring that Nicholas was designated as the sole beneficiary of Peter's entire
estate. Simultaneous with the proceedings challenging Peter's will,
guardianship proceedings for Nicholas had commenced, and defendant was
considered as his Nicholas's potential guardian. However, Bruce Glatter, a
social worker assigned to Nicholas's case, submitted a certification to the court
expressing concern over "the appropriateness of [defendant's] appointment" as
Nicholas's guardian because defendant had prepared Nicholas's will in which
defendant was appointed executor and the power of attorney "despite the fact
that Nicholas had been suffering from dementia for several months." Glatter
expressed concern Nicholas's 2018 will had "left nothing" to Peter, despite Peter
having told Glatter it was the brothers' intentions to leave their estates to each
other.
In July 2018, defendant filed an order to show cause and verified
complaint seeking reformation of Peter's will to accurately reflect Peter's
testamentary intent. The complaint sought entry of a final order: appointing
defendant as executor of Peter's estate; reforming Peter's 2018 will to provide
that Peter's entire estate would be devised to Nicholas; admitting the proposed
reformed 2018 will to probate; and dismissing Helen's caveat.
A-1107-23 8 In the guardianship proceedings, the court appointed an interim
administrator of Nicholas's estate who met with Nicholas, his neighbors, his
caretakers and aides, defendant, and plaintiffs. The administrator submitted a
report concluding Nicholas lacked capacity to manage his affairs and therefore
required a guardian. The administrator explained that she had met with
Nicholas, he could not remember who defendant was but made it "very clear that
he did not want his family . . . involved in his life or in his home and especially
not his finances" because "they wanted his money."
Nicholas's neighbors recalled the brothers "speaking negatively about
their extended family" and being "adamant that they didn't want family involved
in their financial and personal affairs." Plaintiffs, however, advised the interim
administrator that they strongly believed a family member should be appointed
as Nicholas's guardian, citing fears that fraud and theft had occurred "and must
be uncovered." The administrator concluded that an independent person or
entity should be appointed as Nicholas's guardian because the power of attorney
had been "executed under suspicious circumstances" and Nicholas had clearly
expressed that he did not want Helen or other family members to be involved in
his affairs.
A-1107-23 9 On October 2, 2018, Nicholas passed away. Less than a week later, Helen
filed a caveat opposing the admission of Nicholas's 2018 will to probate. On
November 21, 2018, defendant filed an order to show cause and verified
complaint to probate Nicholas's 2018 will and for reformation of the will in the
same manner he had requested in the action he had filed concerning Peter's will.
The complaint alleged that defendant believed Nicholas had the necessary
testamentary capacity when he signed the 2018 will and sought reformation of
the will, dismissal of Helen's caveat, and admission of the reformed will to
probate.
Helen filed an answer to the complaint, asserting Nicholas did not have
testamentary capacity when he executed the 2018 will and it therefore did "not
reflect Nicholas's last wishes in material and substantial ways" because it had
devised only Nicholas's personalty to Peter. Helen sought: denial of the
defendant's request for admission of the 2018 will to probate; her appointment
as executrix of Nicholas's estate; dismissal of defendant's complaint with
prejudice; leave to assert counterclaims against defendant; an order compelling
the testimony of the witnesses to Nicholas's execution of the will; and an award
of costs and expenses.
A-1107-23 10 During the Probate Part actions concerning Peter's and Nicholas's separate
estates, the court appointed attorney Peter F. Weiss as "Administrator Pendente
Lite" of the estates. On January 18, 2023, the court entered a consent order,
resolving the Probate Part matters.
In pertinent part, the consent order: directed payments of $100,000 to the
neighbor and church referenced in the wills; directed payments to the
Administrator Pendente Lite of the estates; denied defendant's requests to be
appointed as the executor of the estates; and appointed Helen as the
Administrator C.T.A. of the estates. The order also provided that Despina was
the sole residuary beneficiary of each estate, and the summary judgment record
establishes that she received over $700,000 from the estates as a result. The
consent order also admitted to probate Peter's and Nicholas's 2018 wills as
modified by the court's order.
The order further provided that Peter's and Nicholas's claims or causes of
action against defendant were assigned and transferred to Helen. The order also
"specifically preserved" what is described as "Helen's unfettered right to assert
claims against [defendant] on her behalf, [Despina's] behalf, and/or [Peter's and
Nicholas's] behalves."
A-1107-23 11 Plaintiffs, solely in their individual capacities and not on behalf of Peter,
Nicholas, or their estates, later filed a complaint alleging legal malpractice
against defendant. They alleged Despina had suffered damages based on a
"diminution of the estate, due to penalties and expenses, [defendant's] executor
fees and $200,000[] paid to the neighbors and church," and Helen had suffered
damages in the form of "out of pocket litigation costs including attorney's fees
for probate, guardianship and [the] malpractice case of approximately
$429,467.57 as well as ongoing attorney's fees which at present are
approximately $145,071.74."
Plaintiffs alleged defendant had engaged in legal malpractice by: failing
to obtain a signed retainer agreement from Peter and Nicholas; incorrectly
advising Peter that his 2003 will had devised his estate to his nieces and nephews
thereby prompting Peter to execute the 2018 will; negligently preparing Peter's
2018 will in a manner inconsistent with his testamentary intent; and negligently
preparing Nicholas's 2018 will because Nicholas had lacked testamentary
capacity.
Following discovery, defendant moved for summary judgment, arguing
plaintiffs could not sustain their burden of proving legal malpractice because:
he did not owe plaintiffs a duty because they were nonclients; plaintiffs were
A-1107-23 12 judicially estopped from taking contradictory positions in the probate and legal
malpractice actions; and there was no proximate cause between defendant's
alleged errors and plaintiffs' claimed damages.
The court denied defendant's motion, finding defendant owed plaintiffs a
duty "and the issue of breach, proximate cause, and damages is a question of
fact for the jury to decide." Defendant moved for reconsideration of the order
denying the summary judgment motion. The court denied the motion, finding it
simply reprised arguments the court had rejected in the first instance.
Defendant moved for leave to appeal from the court's orders. We granted
defendant's motion. Defendant presents the following arguments for our
consideration:
POINT I:
THE COURT BELOW ERRED WHEN DENYING THE SUMMARY JUDGMENT AND RECONSIDERATION MOTIONS, THEREBY ALLOWING NON-CLIENT PLAINTIFFS TO CONTINUE TO PURSUE A LEGAL MALPRACTICE CLAIM AGAINST [DEFENDANT].
A. Case Law Has Refined the "Foreseeability Test" in Probate Actions, Because Otherwise All Estate Attorneys Owe All Potential Heirs A Duty Which Would Open All Probate Attorneys to Legal Malpractice Claims from All Potentially Disgruntled Heirs.
A-1107-23 13 B. Plaintiffs are Judicially Estopped From Asserting That [Defendant] Misinterpreted The Decedent's Intent When Drafting the 2018 Wills, Because They Probated Those Wills.
C. Plaintiffs Cannot Establish Proximate Cause For Their Damages, Because Non-Clients Are Not Permitted to Seek Legal Fees In A Malpractice Action, Their Sole Damages Are Legal Fees From The Probate Action, and Those Fees Would Not Have Accrued If They Had Not Intervened.
II.
We conduct a de novo review of the denial of a summary judgment
motion, applying the same standard that governs the trial court. Branch v.
Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). We determine "'whether the
evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.'"
Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46
(2007) (quoting Brill, 142 N.J. at 536). We must draw "all legitimate inferences
from the facts" in favor of the non-moving party, R. 4:46-2(c); Globe Motor Co.
v. Igdalev, 225 N.J. 469, 480 (2016), but "summary judgment should be granted
. . . against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party
A-1107-23 14 will bear the burden of proof at trial,'" Friedman v. Martinez, 242 N.J. 449, 472
(2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
Where a defendant moves for summary judgment based on the contention
that the plaintiff lacks evidence sufficient to sustain a claim, analysis of the
motion begins by "identifying the elements of the cause of action and the
standard of proof governing th[e] claim." Bhagat v. Bhagat, 217 N.J. 22, 39
(2014). Defendant moved for summary judgment on plaintiffs' cause of action
for legal malpractice, which is a claim "grounded in the tort of negligence.'"
Nieves v. Off. of the Pub. Def., 241 N.J. 567, 579 (2020) (quoting McGrogan v.
Till, 167 N.J. 414, 425 (2001)).
To prove a legal-malpractice claim a plaintiff must establish "three
essential elements: '(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 the damages claimed by the plaintiff.'"
Morris Props., Inc. v. Wheeler, 476 N.J. Super. 448, 459 (App. Div.
2023) (quoting Jerista v. Murray, 185 N.J. 175, 190-91 (2005)). A plaintiff must
"establish those elements by some competent proof." Ibid. (quoting Davis v.
Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)).
A-1107-23 15 In part, defendant moved for summary judgment based on the contention
plaintiffs lacked evidence he owed a legal duty to them because they were not
his clients. He contends the undisputed facts establish he served only as Peter's
and Nicholas's attorney, plaintiffs were never his clients, and the court therefore
erred as a matter of law by finding he owed plaintiffs a legal duty that supports
their malpractice claim.
"It is well settled that whether a party owes a duty to another party is a
question of law for the court to decide . . . ." Rivera v. Cherry Hill Towers,
LLC, 474 N.J. Super. 234, 240 (App. Div. 2022); see also Davin, L.L.C. v.
Daham, 329 N.J. Super. 54, 73 (App. Div. 2000). Generally, the existence of an
attorney-client relationship creates a duty that is "essential to the assertion of a
cause of action for legal malpractice." Froom v. Perel, 377 N.J. Super. 298, 310
(App. Div. 2005). However, an attorney may owe a duty to a non-client "in
limited circumstances." Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 213
(App. Div. 2014).
A determination of whether an attorney's "duty extends to non-clients is
'necessarily fact-dependent,'" Est. of Albanese v. Lolio, 393 N.J. Super. 355,
368 (App. Div. 2007) (quoting Est. of Fitzgerald v. Linnus, 336 N.J. Super. 458,
473 (App. Div. 2001)), depends on "the circumstances presented," ibid., and "is
A-1107-23 16 not to be considered in a vacuum but with reference to the type of service the
attorney undertakes to perform, ibid. (quoting Est. of Fitzgerald, 366 N.J. Super.
at 467-68).
Our Supreme Court has held that 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" and have been "carefully
circumscribed." Green v. Morgan Properties, 215 N.J. 431, 458 (2013); see also
LoBiondo v. Schwartz, 199 N.J. 62, 101 (2009) (noting "the absence of a direct
relationship between an attorney and a nonclient ordinarily negates the existence
of a duty and, by extension, affords no basis for relief"). For example,
circumstances that may support a finding an attorney owes a duty to exercise
reasonable care to a non-client include those where "the attorneys know, or
should know, that non-clients will rely on the attorney's representations and the
non-clients are not too remote from the attorney's to be entitled to protection."
Petrillo v. Bachenberg, 139 N.J. 472, 483-84 (1995).
Application of the principles explained in Petrillo "has engaged courts in
evaluating whether the attorney invited a non-client's reliance." Banco Popular
North Am. v. Gandi, 184 N.J. 161, 181 (2005). A determination of whether an
attorney owes a duty to a nonclient requires an "inquiry . . . which balances 'the
A-1107-23 17 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.'" Id. at
179 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). And,
as the Court has explained, "[i]f the attorney's actions are intended to induce a
specific non-client's reasonable reliance on [the attorney's] representations, then
there is a relationship between the attorney and the third party" supporting a
finding of a duty, which, if breached, supports a legal malpractice claim. Id. at
180.
We have recognized additional circumstances permitting a determination
that an attorney owes a duty to a non-client that is not dependent on the non-
client's reliance on the attorney's actions. In Estate of Albanese v. Lolio we
explained that "[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
that occurred.'" 393 N.J. Super. at 368-69 (quoting Albright v. Burns, 206 N.J.
625, 633 (App. Div. 1986)).
In Pivnick v. Beck, we observed that some states preclude a beneficiary
under a will from asserting a legal malpractice claim against the attorney who
drafted the will "based upon the lack of privity between the lawyer and the non-
client beneficiary," but we explained that "[i]n New Jersey, such a lack of privity
A-1107-23 18 argument in malpractice actions brought by beneficiaries would have little
currency." 326 N.J. Super. 474, 482 (App. Div. 1999) (citing Petrillo, 139 N.J.
at 483-84), aff'd, 165 N.J. 670, 671 (2000). In Pivnick we further rejected the
defendant-attorney's claim that legal malpractice claims brought by putative
beneficiaries of a trust against the attorney who prepared the trust documents
should be limited to only those involving "a lawyer's negligence inhibiting the
expressed intent of the testamentary document." Id. at 483. We deemed such a
limitation "a drastic course" that "may eliminate worthy suits and cause
injustice. Ibid. Thus, we recognized that an attorney who drafts a testamentary
document that is inconsistent with the decedent's intent breaches a legal duty
owed to a beneficiary who claims they are damaged as a result of the attorney's
error.3
3 In Pivnick we also addressed an issue that is not pertinent here based on the summary judgment record—protecting the sanctity of a testamentary document in a legal malpractice suit in which it is claimed the attorney erred by drafting the document in a manner inconsistent with the decedent's intent. Id. at 484-85. We held that to protect the sanctity of the document and the standards applicable to obtaining a reformation of such a document, a putative beneficiary who sues the attorney-drafter of the document for malpractice must present clear and convincing evidence establishing the document does not reflect the decedent's intent. Id. at 485. Our holding concerning the burden of proof applicable to such a legal malpractice claim is not an issue based on the summary-judgment record because defendant concedes he erred in drafting wills that did not reflect Peter's and Nicholas's testamentary intent. As such, based on the motion record,
A-1107-23 19 The Supreme Court affirmed our holding in Pivnick "substantially for the
reasons stated in [our] opinion." 165 N.J. at 671. The Court also "add[ed] one
additional source of authoritative support" for our holding, explaining the
"Restatement (Third) of the Law Governing Lawyers § 51(3)(a) (Am. Law Inst.
1998)" provided that "a lawyer owes a duty of care 'to a nonclient . . . when the
lawyer knows that a client intends as one of the primary objectives of the
representation that the lawyer's services benefit the nonclient." 4 Ibid.
The duty an attorney owes to a nonclient that the Court in Pivnick found
in the Restatement (Third) (1998) remains in the current version.5 The
Restatement (Third) of the Law Governing Lawyers § 51(3) (Am. Law Inst.
2000) provides that a lawyer owes a duty of care:
there is clear and convincing evidence defendant erred in drafting the wills and that the wills did not reflect decedents' intent. 4 The Court also cited to comment f to Section 51 of the Restatement (Third) (1998), noting that consistent with our holding Pivnick, where the attorney did not "exercise care in preparing a document, such as a will, for which the law imposes formal or evidentiary requirements, the third person must prove the client's intent by evidence that would satisfy the burden of proof applicable to construction or reformation (as the case may be) of the document." Ibid. (quoting Restatement (Third) (1998) § 51 cmt. f). 5 "The Restatement (Third) of The Law Governing Lawyers was adopted by the American Law Institute in 1998 and published in 2000." Banco Popular, 184 N.J. at 179 n.7. A-1107-23 20 to a nonclient when and to the extent that: (a) the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer's services benefit the nonclient; (b) such duty would not significantly impair the lawyer's performance of obligations to the client; and (c) the absence of such a duty would make enforcement of those obligations to the client unlikely.
[Restatement (Third) (2000) § 51(3).]
Comment f to Section 51(3) of the Restatement (Third) (2000) includes
an illustration of an application of the principles set forth in the Subsection (3).
The illustration provides:
Client retains Lawyer to prepare and help in drafting and execution of a will leaving Client's estate to Nonclient. Lawyer arranges for Client to sign the will before the proper number of witnesses, but Nonclient later alleges the Lawyer negligently wrote the will to name someone other than Nonclient as the legatee. Client's intent to benefit nonclient thus does not appear on the face of the will. Nonclient can establish the existence of a duty from Lawyer to Nonclient only by producing clear and convincing evidence that Client communicated to Lawyer Client's intent that Nonclient be the legatee.
[Restatement (Third) (2000) § 51(3) cmt. f, illus. 2.]
Measured against the foregoing principles, we affirm the court's
determination defendant owed Despina a duty to correctly draft Peter's will such
that when he passed away the entirety of his estate—and not just his
A-1107-23 21 personalty—was devised to Nicolas and to correctly draft Nicholas's will to
reflect that if Peter did not survive him, the entirety of his estate was devised in
equal shares to Despina, the neighbor, and the church. We recognize Despina
did not present evidence establishing she had relied on any action, advice, or
communication supporting a finding defendant owed her a duty under the
Petrillo standard. 139 N.J. at 474; see also Banco Popular, 184 N.J. at 180-81.
However, we find defendant owed Despina a duty to prepare the wills in
accordance with Peter's and Nicholas's intentions because defendant had been
requested to draft wills that were intended to benefit Despina and the other
beneficiaries in the precise manner the decedent brothers had intended. Thus,
defendant owed a duty to Despina because defendant "had reason to foresee that
the specific harm"—the loss of her entitlement to her rights as beneficiary in
accordance with the decedent's intentions—claimed by Despina as result of
defendant's errors. See Est. of Albanese, 193 N.J. Super. at 368-69. Defendant
also owed Despina the identical duty we found, and the Supreme Court found,
was due to the plaintiff in Pivnick, see 165 N.J. at 671; 326 N.J. Super. at 482-
83, and is described in the Restatement (Third) (2000) § 51(3).6 The court
6 Although unnecessary to our determination defendant owed a duty to Despina, we agree with the motion court's analysis of factors we found in Stewart v.
A-1107-23 22 therefore correctly rejected defendant's claim he was entitled to summary
judgment on Despina's legal malpractice claim based on any purported lack of a
duty.
The court, however, erred by similarly finding defendant owed a duty to
Helen that supported her legal malpractice claim. Like Despina, Helen was
never defendant's client and she did not present evidence supporting a finding
defendant owed her a duty based on a claim she had relied on any advice,
information, or other actions of defendant. See Petrillo, 139 N.J. at 474; see
also Banco Popular, 184 N.J. at 180-81. Other than referring Peter and Nicholas
to defendant and her involvement in arranging defendant's introduction to them
Sbarro are pertinent to whether an attorney owes a duty to a nonclient. 142 N.J. Super. 581, 593 (App. Div. 1976). The transaction—defendant's drafting of the wills—was intended to benefit Despina as a beneficiary; it was foreseeable an error in drafting the wills in a manner inconsistent with Peter's and Nicholas's intentions would harm Despina; it was certain Despina would suffer harm if she did not obtain the full benefits of Peter's and Nicholas's intentions; and there is a close connection between defendant's errors and the harm Despina claims she suffered as a result of defendant's errors. See ibid. Although we are not persuaded the evidence establishes that any moral blame is attached to defendant's actions, a balancing of the factors, and the policy underlying the imposition of a duty to prevent future harm to beneficiaries of wills who are deprived of the full benefit of a testator's intention, support a finding defendant owed a duty of reasonable care in his preparation of the wills to Despina. See ibid. The court correctly rejected defendant's claim he was entitled to summary judgment on Despina's legal malpractice claim on that basis.
A-1107-23 23 as potential clients, Helen never retained defendant to provide legal services to
her, communicated with him for the purpose of obtaining legal advice, or
received any information, documents, or advice from defendant on which she
could or did rely.
The record is also bereft of evidence that like Despina, Helen was an
intended beneficiary in decedents' 2018 wills. Thus, unlike Despina, there is no
evidence supporting a claim that defendant's alleged negligence in drafting the
wills deprived Helen of a benefit to which she would have been entitled but for
defendant's alleged errors. Thus, her malpractice claim is not founded on the
duty recognized in Pivnick or prescribed in the Restatement (Third) (2000). 165
N.J. at 671; 326 N.J. Super. at 482-83. Nor does the record support a finding
that defendant should have foreseen any injury to Helen resulting from the errors
he made in drafting the wills. See Est. of Albanese, 393 N.J. Super. at 368-69
Indeed, the undisputed evidence established that in 2018 neither Peter nor
Nicholas wanted their nieces and nephews to share in their estates. Thus, even
if defendant had not erred, Helen would not have been a beneficiary of either
Peter's or Nicholas's estates.
Helen claims defendant owed a duty to her because he had misadvised
Peter about the manner in which their estates would have been distributed under
A-1107-23 24 their 2003 wills. She further claims that but for defendant's incorrect advice
about the 2003 wills, decedents would not have executed the 2018 wills. Any
incorrect advice defendant may have given about the 2003 wills was given to
Peter, not Helen, and there is no evidence that Helen relied on it in such a manner
as to support a legal malpractice claim by her, as a nonclient, against defendant
under the Petrillo standard. 139 N.J. at 474; see also Banco Popular, 184 N.J.
at 180-81.
Moreover, any claim that Peter and Nicholas decided in 2018 to change in
their wills and devise their estates first to each other, and then to Despina, the
neighbor, and church based on defendant's erroneous advice about the 2003 wills
is based on pure conjecture. What is undisputed is that irrespective of Peter's
and Nicholas's motivations for changing their wills in 2018, they did not intend
to appoint Helen as the executor of their estates and they did not intend that she
receive any portion of their estates as a beneficiary. Thus, Helen did not
establish defendant owed her a duty under Pivnick or the Restatement (Third)
(2000).
We also disagree with the court's analysis of the Stewart factors in its
assessment of defendant's duty in their application to Helen's legal malpractice
claim. 142 N.J. Super. at 593. Peter's and Nicolas's retention of defendant to
A-1107-23 25 prepare the 2018 was not intended to benefit Helen as a beneficiary or otherwise,
and therefore it was not foreseeable that any error by defendant related to the
wills would harm Helen. To the contrary, and as noted, Peter and Nicholas had
made clear they did not want their nieces or nephews to share in their estates
and therefore it was not foreseeable that any purported errors by defendant
would harm Helen. See ibid. Again, we are not persuaded the evidence
establishes any moral blame attendant to defendant's actions, and in balancing
the factors, we find no evidence supporting a finding defendant owed a duty to
Helen.
For those reasons, we find no basis in the evidence supporting Helen's
claim defendant owed her a duty as non-client such that she could sustain her
burden of proving defendant breached a duty of care owed to her. We reverse
the court's order denying defendant's motion for summary judgment on Helen's
claim and direct entry of an order granting summary judgment to defendant on
the claim.
We next address defendant's remaining arguments as they pertain to
Despina's legal malpractice claim. We note, however, that for purposes of
completeness, our determinations as to the remaining arguments would
otherwise apply to Helen's claim.
A-1107-23 26 Defendant claims he was entitled to summary judgment because plaintiffs'
legal malpractice claim is founded on the contention that he "misinterpreted the
decedents' intentions when drafting the 2018 [w]ills." Defendant argues
plaintiffs are judicially estopped from asserting that the wills did not reflect the
decedent's intentions because plaintiffs agreed to entry of the consent order in
the Probate Part matters admitting the 2018 wills to probate. He claims the court
erred by rejecting his reliance on the doctrine as a basis for his contention he
was entitled to summary judgment.
We review a trial court's decision concerning the application of the
doctrine of judicial estoppel for an abuse of discretion. In re Declaratory
Judgment Actions Filed by Various Muns., Cnty. of Ocean, 446 N.J. Super. 259,
291 (App. Div. 2016). "The doctrine of judicial estoppel operates to 'bar a party
to a legal proceeding from arguing a position inconsistent with the one
previously asserted,'" Cummings v. Bahr, 295 N.J. Super. 374, 385 (App. Div.
1996) (quoting N.M. v. J.G., 255 N.J. Super. 423, 429 (App. Div. 1992)), and
provides that "where a party assumes a certain position in a legal proceeding,
and succeeds in maintaining that position, he may not thereafter, simply because
his interests have changed, assume a contrary position . . . ," ibid. quoting
(Newell v. Hudson, 376 N.J. Super. 29, 38 (App. Div. 2005)). The doctrine
A-1107-23 27 protects "the integrity of the judicial process," Kimball Int'l, Inc. v. Northfield
Metal Prods., 334 N.J. Super. 596, 607 (App. Div. 2000) (quoting Eagle Found.,
Inc. v. Dole, 813 F.2d 798, 810 (7th Cir. 1987)), and "is designed to prevent
litigants from 'playing fast and loose with the courts,'" Tamburelli Props. Ass'n
v. Borough of Cresskill, 308 N.J. Super. 326, 335 (App. Div.
1998) (quoting Scarano v. Cent. R.R. Co., 203 F.2d 510, 513 (3d Cir. 1953)).
We find no basis in the record supporting a finding the court abused its
discretion by rejecting defendant's reliance on the doctrine of judicial estoppel
as grounds for granting summary judgment on the legal malpractice claim.
Defendant argues plaintiffs have taken conflicting positions by "asserting in the
probate action that the modified 2018 [w]ills reflected decedents' intent, while
arguing" in support of their legal malpractice claim that defendant "frustrated
their intent by drafting the 2018 [w]ills."
We reject defendant's argument because it ignores that plaintiffs'
malpractice claim is founded on the contention that the 2018 wills were drafted
in error. They do not contend the 2018 wills, as modified during the probate
cases and as reflected in the consent order, were entered in error. Plaintiffs
argued in the probate actions that defendant erred in drafting the wills—indeed,
Helen filed caveats based on that precise claim—and defendant admitted the
A-1107-23 28 error in the probate action by seeking modification of the wills. The fact that
the consent order corrected the errors, and plaintiffs agreed to its entry, does not
establish anything other than plaintiffs correctly argued in the probate cases, as
they assert in this one, that defendant erred by drafting the two wills in a manner
not in accord with Peter's and Nicholas's intentions. Thus, there is no evidence
that either plaintiff has taken in this action a position here different than one
they had taken and prevailed on in the probate cases.
Additionally, the summary-judgment record lacks any evidence plaintiffs
have taken any action that is inconsistent with the integrity of the judicial system
or have "play[ed] fast and loose" with the court. To the contrary, in addition to
consistently arguing in both proceedings that defendant erred in drafting the
2018 wills, the consent order states directly that Helen and Despina had reserved
their rights to pursue their personal claims against defendant. Most simply
stated, there is nothing in the evidence presented by defendant supporting an
application of the doctrine of judicial estoppel as a bar to the legal malpractice
claim against defendant. The court did not abuse its discretion by rejecting
defendant's argument to the contrary.
We find defendant's remaining argument, that the court erred by rejecting
his claim that plaintiff had failed to present sufficient evidence establishing
A-1107-23 29 Despina suffered damages proximately caused by defendant's alleged
negligence, to be without sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E). We note only that we agree with the motion court that the record
presented reveals genuine issues of material fact precluding summary judgment
based on defendant's claim.
Our disposition of defendant's arguments concerning the summary
judgment order render it unnecessary to address defendant's claim the court
erred by denying his motion for reconsideration.
Affirmed in part, reversed in part, and remanded for further proceedings.
We do not retain jurisdiction.
A-1107-23 30