On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1765-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges Grall and Alvarez.
Plaintiff Bruce Holvenstot appeals from an order granting defendants summary judgment and dismissing his complaint seeking damages for legal malpractice and misrepresentation. The defendants are Paul R. Nusbaum and his firm, Nusbaum, Stein, Goldstein, Bronstein & Kron. The malpractice charge is based on services rendered by Nusbaum to plaintiff's mother, Patricia Luz Holvenstot (Holvenstot), prior to her death in December 2000. The misrepresentation charge is based on an allegation that Nusbaum provided false information in opposition to a guardianship action that plaintiff filed in 1993. The evidential materials submitted on the motion demonstrate that defendants are entitled to judgment on both claims as a matter of law. Accordingly, we affirm.
The facts, viewed in the light most favorable to plaintiff, are as follows. In 1969, Nusbaum represented plaintiff in an action in municipal court. Nusbaum prepared a will for Holvenstot in 1984, in which she bequeathed her personal effects and the rest, residue and remainder of her estate to her four children in equal shares and nominated and appointed her daughter Patricia as executrix. Holvenstot suffered a stroke in January 1990. Holvenstot executed a new will prepared by Nusbaum on May 11, 1990, but did not designate a different executrix or provide for a different distribution of her residual estate.
Between September 1992 and May 1993, Holvenstot lived with plaintiff and his family. In May 1993, while Holvenstot was staying with her daughter Patricia, she again sought legal assistance from Nusbaum. On May 27, 1993, she executed a document granting her daughter Patricia power of attorney. In addition, because Holvenstot was not certain whether she had executed a codicil to her May 11, 1990 will while living with plaintiff, she executed a new will, which like her prior wills, named Patricia as the executrix and provided for an equal division of her residual estate among her four children.
On June 24, 1993, plaintiff, represented by Cynthia S. Earl, filed an order to show cause and complaint alleging that his mother was not competent to manage her affairs; he sought to have himself appointed as her guardian. Holvenstot, represented by Dillon, Bitar & Luther, opposed the appointment by asserting her competence. She supported that claim with certifications from medical doctors who had examined her and attested to her competence.
Holvenstot also presented a certification from Nusbaum, who described her state of mind when they met on May 27, 1993. According to Nusbaum, Holvenstot was clear, lucid and had a complete understanding of the issues involved. Recounting Holvenstot's various activities and endeavors over the many years he had known her, Nusbaum observed that although Holvenstot seemed to be "physically weakened as a consequence of her illness," she was as competent as she had been since he first knew her.
Nusbaum's certification, which is dated July 6, 1993, also includes a representation about the will Holvenstot executed on May 27, 1993 that plaintiff now claims is false. Referring to that meeting, Nusbaum stated:
[I]t wasn't clear as to whether [Holvenstot], during the time that she had stayed with her son, [plaintiff,] had executed a Codicil to her Will executed on May 11, 1990 by which [Patricia] had been designated as sole executrix. She informed me that she wanted [Patricia] to be the sole executrix and as a consequence, a new Will was prepared containing the same terms as the 1990 Will and, again, designating [Patricia] as sole executrix. [(Emphasis added).]
Plaintiff contends that Holvenstot executed two wills on May 27, 1993, one consistent with her May 11, 1990 will and one that disinherited him.
On July 9, 1993, three days after Nusbaum signed his certification, Holvenstot handwrote a new will. In that will she leaves her estate to be divided among her three daughters and leaves one penny to her "poor, incompetent and demented son." There is no evidence that Nusbaum had any involvement in or knowledge of the will Holvenstot prepared when it was written.
On September 13, 1993, the judge deciding the competency case vacated the order appointing plaintiff temporary guardian of Holvenstot, revoked the letters of guardianship issued to plaintiff and ordered him to return Holvenstot's personal property in his possession to the office of Dillon, Bitar & Luther. The guardian action ...