On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5775-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2011
Before Judges Payne, Simonelli and Hayden.
Steven J. Tegrar argued the cause for respondents Ronald M. Fraioli and Fraioli & Moore (Law Offices of Joseph Carolan, attorneys; Mr. Tegrar and George H. Sly, Jr., on the brief).
In this legal malpractice action, plaintiff Michael Taffaro appeals from two March 8, 2010 Law Division orders, which granted summary judgment to defendants James R. Connell, Esq. and Dwyer, Connell & Lisbona (collectively "Connell"), and defendants Ronald Fraioli, Esq. and Fraioli & Moore (collectively "Fraioli"), and dismissed the complaint with prejudice.*fn1 We affirm, but for reasons other than those expressed by the trial judge. Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n.8 (App. Div. 2008).
We derive the following facts from the evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Vincent Taffaro (Vincent) was the father of plaintiff and Scott Taffaro (Scott). Following the death of Vincent's wife, he married Dolores Taffaro (Dolores), and they had two children together, Susan Taffaro (Susan) and Vincent Taffaro, Jr. (Vincent Jr.). Vincent died testate on December 18, 1998, devising his house to Dolores.
In late 1999, Susan contacted Connell about drafting a will for Dolores, who had terminal cancer. Connell twice met with Dolores at her home prior to her executing the will to determine her lucidity and discuss the will. Dolores was unsure of whether to include plaintiff in the will because she believed he received disability, unemployment or welfare, and the State would take his inheritance. She also had a strained relationship with plaintiff, believed he drank too much and used drugs, and did not like the way he treated certain family members. However, she was concerned that he would "make trouble" if she disinherited him. She ultimately decided to include plaintiff in her will.
Connell drafted a will and reviewed it with Dolores at her home. She, again, pondered plaintiff's inclusion in the will, but eventually decided to include him, thinking it would be best for the family to do so.
Dolores executed the will on December 2, 1999 (the First Will). Connell believed she did so at his office because his secretaries had witnessed her signature. There is no evidence to the contrary. At the time Dolores executed the First Will, she expressed some misgivings about including plaintiff. However, the First Will named plaintiff as one of the four beneficiaries of Dolores's estate, to be shared equally with Scott, Susan and Vincent Jr.
Dolores was subsequently hospitalized until December 10, 1999. She was readmitted on December 17, 1999, and remained there until her death on December 24, 1999. She telephoned Connell around December 17, 1999, and told him she "rethought everything" and wanted to remove plaintiff from her will. According to Connell, Dolores sounded "mad" but lucid, and called plaintiff "a son of a bitch." She also mentioned that plaintiff "had problems with creditors and some state agency[,]" and she was concerned that he would use his inheritance to fund a lifestyle of substance abuse. Plaintiff also apparently wanted to avoid both any payment to the Internal Revenue Service (IRS) on his share of the estate, and the possibility of a lien being placed on Dolores's house.
Dolores executed a new will on December 20, 1999 (the Second Will), which did not include plaintiff as a beneficiary.
According to Connell, she expressed her intention to exclude plaintiff, was clear and lucid, and acted of her own free will without any outside influence. Connell could not recall where Dolores had executed the Second Will. He believed she did so at his office because he never visited her in the hospital and his secretaries had witnessed her signature presumably ...