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Devino v. Torre

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 23, 2009

JOSEPH DEVINO, JR., PLAINTIFF-APPELLANT,
v.
GERALD R. DELLA TORRE, ESQ., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-0072-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 2, 2008

Before Judges Fuentes and Chambers.

In this legal malpractice case, plaintiff Joseph DeVino,*fn1 Jr., appeals from the order of December 19, 2007, granting summary judgment to defendant Gerald R. Della Torre, Esq.

Plaintiff contends that defendant committed malpractice when representing plaintiff's father, Joseph DeVino, Sr., in connection with the latter's estate planning. Plaintiff's father executed a power of attorney in favor of his daughter Deborah Giordano on May 22, 2002, and he executed a Last Will and Testament, naming his three children, plaintiff, Deborah Giordano and Theresa Martinelli as equal beneficiaries, on May 30, 2002. Thereafter, on January 23, 2003, the father executed a Codicil disinheriting plaintiff, and plaintiff was a witness to this Codicil. The next day the father signed a Deed conveying his real estate to his daughter Deborah Giordano. All of these documents were prepared by defendant and executed in defendant's presence at his office, and according to defendant, the documents were prepared at the father's request. During his life, the father withdrew the balance from his annuity plan, totaling $118,664.17, and divided the proceeds between his two daughters, giving none of these funds to plaintiff. Defendant was not involved in the transaction regarding the annuity.

When the father died on April 23, 2003, probate litigation ensued in which plaintiff challenged his disinheritance. That litigation settled, with plaintiff receiving a settlement of $265,000.

Plaintiff then brought this legal malpractice action against his father's attorney. He contended that the sum he received in settlement of the estate litigation was less than one-third of the value of his father's estate. He sought to recover the difference from defendant plus attorneys' fees, attributing his loss to defendant's legal malpractice. The trial judge granted defendant's motion for summary judgment, setting forth his reasons in a twenty-three page written decision.

On appeal, plaintiff contends that the trial court erred in granting summary judgment. He asserts that material issues of fact are in dispute, that defendant committed malpractice in connection with the codicil and deed, that the trial court placed the burden of proof on the wrong party and applied the wrong standard of proof, that defendant's motion relied on inadmissible hearsay, and that plaintiff sustained damages due to defendant's negligence.

After a careful review of the record and arguments of counsel, we conclude that plaintiff has failed to articulate a viable legal malpractice claim against defendant. We affirm for substantially the reasons set forth by Judge Rand in his comprehensive opinion. The arguments made by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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