On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication March 21, 1997.
Before Judges Newman and Villanueva. The opinion of the court was delivered by VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).
The opinion of the court was delivered by: VILLANUEVA
The opinion of the court was delivered by
VILLANUEVA, J.A.D.(retired and temporarily assigned on recall).
This appeal involves claims contained in plaintiff's Third Amended Complaint in which she, as widow of Anthony Mataras, asserts claims against the Mataras defendants (Anthony's sons by his first marriage) and their attorneys arising from two prior actions. The first action involved the probate of the Will of Anthony Mataras, the father of the Mataras defendants, entitled In the Matter of Probate of the Alleged Will of Anthony Mataras. The second action involved the wrongful death action arising from the death of Anthony Mataras in an automobile accident.
In her Third Amended Complaint, plaintiff, through her attorney, alleged that Anthony Mataras' Will was improperly probated and that the subsequent wrongful death action instituted by James Mataras as executor was improperly settled and the proceeds improperly allocated. Plaintiff alleged that: (i) James, Louis, and Dean Mataras were negligent, breached their fiduciary duties, committed theft, and intentionally inflicted emotional distress on plaintiff; (ii) S. George Greenspan ("Greenspan") breached his fiduciary duty, was negligent, and intentionally inflicted emotional distress on plaintiff because he, among other things, failed to investigate the scene of the accident and misinformed her as to her share of property she could take; (iii) Stephen Pellino and Basile, Birchwale & Pellino ("Pellino") breached their fiduciary duty, were negligent, committed theft and caused plaintiff emotional distress in its representation regarding "the probate of James Mataras' estate (sic)"; and (iv) the attorneys from Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein ("Carella Byrne") breached their fiduciary duty, were negligent, committed theft and caused plaintiff emotional distress in their representation in the wrongful death action.
On May 17, 1994, defendant Carella Byrne filed an Answer, Crossclaim for Contribution, and a Third-Party Complaint for contribution and indemnification against plaintiff's then counsel, Robert B. Green ("Green"). Carella Byrne's theory was that Green had been retained by plaintiff as "independent counsel" and thus shared in the fiduciary relationship between plaintiff and Carella Byrne.
Plaintiff filed a Fourth-Party Complaint against Marianne Espinosa Murphy, counsel for Carella Byrne, and counterclaims against the Carella Byrne defendants for their filing the Third-Party Complaint for contribution and indemnification against Green. *fn1
On June 11, 1994, defendant Greenspan filed a cross-motion for summary judgment to dismiss the claims filed against him by plaintiff. Greenspan contended that: (i) he owed no duty to plaintiff because he was never retained to represent plaintiff with respect to either the wrongful death action or plaintiff's potential entitlements under Anthony Mataras' will; (ii) plaintiff's claims pertaining to her entitlement under her husband's will must fail as a matter of law; and (iii) plaintiff's complaints of theft and intentional infliction of emotional distress were without legal and factual basis.
On June 16, 1994, defendants Pellino filed an answer to the Third Amended Complaint and asserted affirmative defenses, cross-claims and a jury demand.
On June 24, 1994, the Mataras defendants filed a motion for summary judgment to dismiss the claims made by plaintiff against them. The Mataras defendants contended that: (i) James Mataras properly administered the estate of the decedent; (ii) plaintiff received the full amount of all probate and estate monies properly due and owing to her; (iii) plaintiff knowingly and with representation of counsel accepted the settlement in the wrongful death action; and (iv) the court properly allocated said settlement proceeds in that wrongful death action.
Also on June 24, 1994, defendant Carella Byrne filed a motion seeking, among other relief: (i) to disqualify plaintiff's counsel (Green); (ii) to dismiss the Fourth-Party Complaint against Marianne Espinosa Murphy; (iii) to dismiss Counts II and IV of plaintiff's Amended Complaint for failure to state a claim; and (iv) to enter summary judgment dismissing plaintiff's Third Amended Complaint. On July 29, 1994, the trial court heard oral argument on the motion, and on August 5, 1994, the trial court entered an order disqualifying Green as attorney for plaintiff. We denied plaintiff's motion for leave to appeal that Order. Leave to appeal to the Supreme Court was denied by Order of October 19, 1994, as was plaintiff's application for reconsideration of that Order. Since that time, plaintiff has proceeded pro se.
On March 30, 1995, the first trial court Judge declined to recuse himself, as plaintiff had requested, and entered his opinion on the record granting the Mataras defendants' motion for summary judgment finding that plaintiff's claims were without merit and legally deficient. The trial court also granted the summary judgment motions filed by Carella Byrne and George Greenspan. The ...