ROBIN COHEN v. KEITH MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3721-07T13721-07T1

ROBIN COHEN,

Plaintiff-Appellant,

v.

KEITH MILLER, individually and

KEITH MILLER, as Executor of the

Estate of May Gold Miller,

Defendant-Respondent.

_________________________________

ROBIN COHEN,

Plaintiff-Appellant,

v.

JOHN D. CLEMEN, an Attorney at Law

of The State of New Jersey,

Defendant-Respondent,

and

HOOKER, PICCIARELLI & CLEMEN,

Attorneys at Law, State of New Jersey,

Defendant.

_______________________________________________

 

Argued October 1, 2009 - Decided

Before Judges Fisher, Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-1333-04 and L-1689-05.

Richard S. Mazawey argued the cause for appellant.

Jeffrey T. Carney argued the cause for respondent Keith Miller.

Steven J. Tegrar argued the cause for respondent John Clemen (Law Offices of Joseph Carolan, attorneys; Mr. Tegrar and George H. Sly, Jr., on the brief).

PER CURIAM

Plaintiff Robin Cohen commenced two actions, which were later consolidated. The first was brought against her brother, defendant Keith Miller, alleging he breached an agreement to share their late mother's estate with plaintiff. Her second action was brought against an attorney, defendant John Clemen; plaintiff alleged Clemen failed to timely file a caveat against her mother's will or bring suit on her behalf. Both defendants successfully moved for summary judgment and plaintiff appealed. We affirm.

Plaintiff's mother died on April 14, 1999, leaving a will that did not provide for her. Plaintiff was notified by her brother on May 7, 1999 that the will was probated and letters of testamentary had been issued to him. Plaintiff neither filed a caveat nor brought suit to contest the will.

Instead, plaintiff filed suit against her brother on February 17, 2004, and filed suit against Clemen on March 8, 2005. These complaints were consolidated and, after the completion of discovery, both defendants moved for summary judgment. Viewing plaintiff's complaint as alleging an agreement among plaintiff, her brother and their mother, the judge concluded that N.J.S.A. 3B:1-4 precluded its enforcement. And, to the extent the complaint could be viewed as a challenge to the mother's will, the judge found it was time-barred by Rule 4:85-1. The judge granted summary judgment in favor of Clemen because plaintiff failed to serve an expert report to support her claim of legal malpractice.

In appealing, plaintiff argues that the judge misconstrued the nature of the agreement she had alleged and, also, that the judge abused his discretion in failing to permit plaintiff to submit -- on the return date -- additional documents in response to her brother's motion for summary judgment. And she argues that the judge erred in granting summary judgment in favor of Clemen because, in her view, the legal malpractice claim could be sustained without expert testimony. We find insufficient merit in plaintiff's arguments regarding the summary judgment entered in favor of Clemen to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We reject plaintiff's arguments regarding the summary judgment entered in favor of her brother for the following reasons.

As we have observed, the trial judge dismissed the action against plaintiff's brother for two reasons. First, the judge recognized that the complaint could be interpreted as including a claim to set aside the mother's will. The judge was correct in finding the claim to be time-barred by Rule 4:85-1's four-month time-bar because the action plaintiff brought against her brother was commenced nearly five years after she was notified the will had been probated. Second, the judge alternatively interpreted the complaint as alleging an agreement among plaintiff, her brother and her late mother to provide for her despite the mother's conscious decision to bequeath nothing to plaintiff. To that extent, the judge was correct in finding that such an agreement would not be enforceable because of the obstacles imposed by N.J.S.A. 3B:1-4. That is, plaintiff's alleged agreement with her mother could not be enforced absent either: a will provision expressing the contract's material provisions; a reference in the will to a contract and extrinsic evidence proving the terms of the contract; or a writing signed by her mother evidencing the contract. Ibid. There was no evidence to support any of those requirements.

Plaintiff argues, however, that the complaint could be viewed as alleging either of the following contracts: (1) an oral agreement solely with her brother whereby he would hold some part of his inheritance in trust for plaintiff, or (2) an agreement implied by law or morality to provide for her. We agree that a suit based on either the oral or implied agreements she would have us glean from her inartful complaint would not be barred by either Rule 4:85-1 or N.J.S.A. 3B:1-4 because the former governs the time for bringing suit to set aside a probated will and the latter applies only to agreements with a decedent regarding the terms of a will. Plaintiff argues that the judge misconstrued her allegations and that his decision contained no rationale for the dismissal of her allegations of either an oral or implied contract. We agree that the judge's decision does not encompass these other alleged agreements. However, we review orders not opinions, and may, therefore, affirm an order under review on grounds not mentioned or considered by the trial judge. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); Home Props. of N.Y., L.P. v. Ocino, Inc., 341 N.J. Super. 604, 616 (App. Div. 2001).

After carefully reviewing the record, we conclude that summary judgment was appropriate because the alleged oral agreement is unenforceable due to a lack of consideration and because the law would not imply the existence of an agreement between plaintiff and her brother in these circumstances. Plaintiff first argues the existence of an oral contract with her brother by which he agreed to create a trust on her behalf funded by assets received by him from their mother's estate. An oral promise to create a trust may be enforceable, see Restatement (Third) of Trusts 15 comment b (2003), so long as the parties "agree on essential terms and manifest an intention to be bound by those terms," Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (2002). Although the parties dispute the existence of an oral agreement, we will assume -- since plaintiff was the opponent of her brother's summary judgment motion, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) -- that plaintiff's brother did make oral promises regarding the creation of such a trust. The problem with plaintiff's contentions in this regard, which she cannot overcome, is that there is no evidence of "the flow of consideration" to her brother in exchange for his alleged oral promise. See Cont'l Bank of Pa. v. Barclay Riding Acad., 93 N.J. 153, 170, cert. denied, 464 U.S. 994, 104 S. Ct. 488, 78 L. Ed. 2d 684 (1983). The record is bereft of any evidence and permits no inference that plaintiff may have detrimentally relied on her brother's alleged promise or that her brother received anything in exchange for his alleged promise to create and fund a trust on plaintiff's behalf. Absent such evidence, the alleged oral agreement is not enforceable. See, e.g., Friedman v. Tappan Dev. Corp., 22 N.J. 523, 533-38 (1953).

Plaintiff lastly argues that moral considerations warrant the finding and enforcement of her brother's implied agreement to create a trust on her behalf. Not surprisingly, plaintiff has cited no legal authority to suggest an agreement may be implied in these circumstances. The law recognizes no claim against a beneficiary in favor of an excluded relative on moral grounds. See, e.g., Christian v. Canfield, 108 N.J. Eq. 547, 552 (Ch. 1931).

Affirmed.

Not only was plaintiff timely informed after the will was probated, but -- as plaintiff testified at her deposition -- she was aware, prior to her mother's death, that the will did not provide for her:

Q. Before your mother died, what was your understanding of what you were to receive from your mother's estate?

A. Based on what I had learned, I was under the impression I would get nothing because I wasn't in the will.

Plaintiff alleged she was excluded from her mother's will because plaintiff's former husband had incurred debts that she believed would have led to any inheritance being attached by creditors.

By making this assumption, we need not further consider plaintiff's argument that the trial judge abused his discretion by refusing to consider evidence, which she provided to the judge for the first time on the motion's return date, that would bolster plaintiff's contention that her brother promised to create a trust on her behalf. In reviewing the propriety of the summary judgment entered against plaintiff, we have considered her tardy submission to the trial judge even though we find no abuse of discretion in the judge's refusal to consider those items.

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A-3721-07T1

October 20, 2009