DR. VINCENT PASQUA v. MICHAEL MASONE, RAFF & MASONE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3617-08T33617-08T3

DR. VINCENT PASQUA,

ADMINISTRATOR OF THE ESTATE OF

MADELINE PASQUA,

Plaintiff-Appellant,

V.

MICHAEL MASONE, RAFF & MASONE,

AND ANDREW PASQUA,

Defendants-Respondents.

____________________________________________

 

Argued May 3, 2010 - Decided

Before Judges Rodr guez, Yannotti, and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1122-08.

Angelo R. Bianchi argued the cause for appellant (Law Offices of Angelo R. Bianchi, attorneys; Mr. Bianchi, on the briefs).

Christopher J. Carey argued the cause for respondents Michael Masone and Raff & Masone (Graham Curtin, attorneys; Mr. Carey, of counsel; Adam J. Adrignolo and Theodore H. Hilke, on the brief).

Respondent Andrew Pasqua has not filed a brief.

PER CURIAM

Plaintiff Dr. Vincent Pasqua (Vincent), administrator of the estate of his mother, Madeline Pasqua (Madeline), appeals from a February 20, 2009 order denying reconsideration of the summary judgment dismissal of the estate's complaint against defendants Michael Masone (Masone) and his law firm, Raff & Masone, on the basis that the complaint was barred by the six-year statute of limitations for legal malpractice claims. We affirm.

These are the pertinent facts. According to Vincent's amended complaint, Madeline fell in May 1992 and suffered "traumatic injuries" that left her with "severe and lasting diminish[ed] . . . cognitive functions." Defendant Andrew Pasqua (Andrew) hired Masone to represent Madeline in a tort action. Andrew was a stockbroker and Masone was one of Andrew's clients.

On August 28, 1992, Madeline signed a will, power of attorney, and a management trust/revocable living trust agreement naming Andrew as trustee. Masone prepared the documents for her. A subsequent will was signed on November 28, 1992, naming Andrew as the executor. According to Vincent, "the wills in question resulted in [Andrew's] share of [Madeline's] estate increasing from one-third to fifty percent and his lineal descendants receiving an additional [twenty-five percent]."

On January 8, 1999, Madeline filed a complaint against Andrew, his wife, and his daughter, alleging breach of fiduciary duty and conversion. According to the complaint, Andrew and his family depleted Madeline's bank accounts and other assets.

Madeline died on June 10, 1999. Soon after, Madeline's grandchildren began questioning the disbursements made from her estate. For example, on August 10, 1999, Anthony Pasqua wrote to Masone questioning amounts distributed to Andrew, his daughter, and her spouse:

The . . . disbursements [to Andrew and his family] are inconsistent with [Madeline's] plans and desires as related to me and my family. I am unsettled as to the disbursements and the fact that Andrew and Kathleen Pasqua, as well as [their] daughter Andrea Magner and her spouse, benefited disproportionately from these disbursements.

On November 8, 1999, Andrew filed a complaint to admit the initial August 28, 1992 will into probate. Vincent sought to challenge the will and deposed Masone on January 24, 2002. Vincent's attorney asked Masone numerous questions relating to his relationship with Andrew, as well as questions about Madeline's mental state. Masone conceded that Andrew was his stockbroker and that he had never met Madeline prior to discussing a possible tort action with her in June or July 1992. According to Masone, Madeline said she wanted Andrew to tend to her affairs because she was not able to get around well. Masone discussed various legal options and Madeline presented a February 19, 1987 will and said she wanted to modify it. She also asked Masone to draft the revocable trust for her.

During the deposition, Vincent's attorney continued to press Masone about Madeline's mental status, but Masone said that Madeline understood what he was saying and was able to read the will on her own. The attorney pointed out the discrepancy between the depictions of Madeline's health in hospital records and Masone's claim that she was cognizant and healthy. The attorney also questioned whether Masone was adequately representing Madeline and whether he paid attention to the expenditures from the trust account.

Masone was deposed for a second day on February 27, 2002. During the deposition, Vincent's attorney continued to question the trust disbursements and Madeline's capacity when she met with Masone. Masone said that he sent Vincent's attorney a letter in June 1998, detailing "what we had done, disbursements that were made, and then, ultimately, we just followed it up with the information that they requested." Masone felt these requests were made because "I guess he was making inquiries into whether or not they should be filing some sort of an action. He wanted to know what was [happening]."

On or about November 11, 2004, Andrew filed an order to show cause and verified complaint seeking to admit the November 28, 1992 will to probate and appoint himself as an administrator under the trust. On December 1, 2004, Vincent and his brother, Joseph Pasqua, filed an answer alleging undue influence and lack of testamentary capacity.

Vincent's attorney deposed Masone again on May 18, 2005. The line of questioning this time focused primarily on Madeline's signatures on the second will.

Trial began on August 15, 2005 before Judge Renee J. Weeks. On January 30, 2006, Judge Weeks stated her decision on the record. Judge Weeks was "very concerned" that Madeline's signature appeared on a page by itself separate from the attestation clause and found Masone's explanation "very troubling" and "not believable." Similarly, she found Andrew's testimony about his relationship with Masone to be "very sketchy." In contrast, Judge Weeks believed a medical expert who testified that, with a reasonable degree of medical certainty, Madeline had no ability to truly understand Masone's advice regarding the wills due to her brain injury and other medical conditions.

On February 9, 2006, Judge Weeks entered an order declaring Madeline's last will and testament, as well as the trust, to be null and void. She appointed Vincent as the administrator of the estate.

On February 5, 2008, Vincent sued Masone on behalf of the estate, alleging legal malpractice in connection with Masone's preparation of the wills and trust agreement. The complaint alleged that Masone breached his duty to Madeline by: (a) engaging in a clear conflict of interest caused by dual representation of Andrew and Madeline; (b) permitting Madeline to execute wills, trusts agreements, and a power of attorney when she did not have the capacity to do so; (c) failing to investigate whether Madeline, who was eighty-five years old and had just suffered a brain injury, had the mental capacity to execute a will, trust agreement, and power of attorney; and (d) failing to investigate the reason why Madeline was not using the attorneys who had prepared her earlier will.

Masone moved for summary judgment, arguing that Vincent's action was barred by the six-year statute of limitations for legal malpractice claims. Judge Dennis F. Carey, III, granted the motion, dismissing the estate's claim. The judge found that the complaint was filed beyond the six-year time limitation, concluding that the cause of action accrued, at the latest, at Masone's January 24, 2002 deposition. There was no appeal from this judgment.

Vincent moved for reconsideration. Judge Carey again found that:

[T]he day that [Vincent] became aware of . . . a will that was in [his] belief inconsistent with what they thought it was supposed to be[,] combined with the knowledge that [his] mother was . . . incapacitated at the time the will was made, the argument could . . . be made that that's when the statute began to run.

The judge also concluded that enough information had been exchanged in Masone's January 2002 deposition that "the knowledge required under the discovery rule either existed or should have existed."

Vincent filed a timely appeal, contending that, "the trial court did not correctly analyze and apply the cases of Olds v. Donnelly, 150 N.J. 424 (1997); Grunwald v. Bronkesh, 131 N.J. 483 (1993); and Sullivan v. Aslanides, 374 N.J. Super. 68 (App. Div.), [certif. denied, 183 N.J. 218 (2005)]." We are not persuaded.

The statute of limitations for a legal malpractice action is six years. N.J.S.A. 2A:14-1. Vincent argues the statute of limitations did not begin to run until Judge Weeks entered the February 9, 2006 order nullifying both of Madeline's wills. Specifically, Vincent maintains "the [p]robate [c]ourt did make a decision, which did create ascertainable loss when it awarded counsel fees to be paid by the [e]state that had just been formed as a result of [Judge Weeks'] decision. Up until that point, there was no evidence that there were any ascertainable damages sustained." We disagree.

"The discovery rule triggers the accrual of the statute of limitations for legal malpractice claims." Olds v. Donnelly, supra, 150 N.J. at 436. It involves two elements: actual injury and knowledge of fault. Ibid. The statute of limitations begins to run "when a plaintiff knows or should know the facts underlying [injury and fault], not necessarily when a plaintiff learns the legal effect of those facts." Ibid.

Vincent argues that "[m]ere knowledge of an attorney's negligence does not cause a legal malpractice claim to accrue. The client must sustain actual damages." Id. at 437. However, "[t]o trigger the statute of limitations, only the fact, not the amount of damages need be certain." Id. at 439.

We use the same summary judgment standard that is used by trial courts. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). We determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party are sufficient to permit a reasonable factfinder to resolve the alleged dispute in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). All favorable inferences are given the nonmoving party. Id. at 536. If the evidence "is so one-sided that one party must prevail," then summary judgment is appropriate. Id. at 540. We give no deference to a "trial court's interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995).

Applying this standard here, we conclude that Judge Carey correctly found that Vincent knew or should have known of Masone's alleged malpractice by the January 24, 2002 deposition at the very latest. During the deposition, Vincent's attorney asked Masone numerous questions about Madeline's mental status at the time she signed the August 1992 power of attorney, will, and trust agreement. This exchange is illustrative:

Q. [Madeline] was discharged on August the 6th - -

A. Right.

Q. - - 1992.

A. Right.

Q. That would have meant, she would had to have come out of the hospital to visit you in June or July of 1992, as you have testified to?

. . .

A. I said to you that it would be prior to the date that she executed it. Okay. Probably in June or July. But I couldn't give a specific time frame.

Now, it is quite possible it was after she was discharged or it might have been while she was still at the hospital. I really couldn't tell you.

Q. If she was still at the hospital and she came to you - -

A. Right, right.

Q. - - based upon the records of that hospital, she wouldn't be able to talk to you. She wouldn't be able to respond to your questions. She certainly wouldn't be able to make a determination about the disposition of an estate, would she?

. . .

A. All I can tell you is the day that she came in to discuss the drawing of the wills, the woman was very cognizant. Was articulate. Understood what it is she wanted to have happen. Spoke about all types of events including the fact that she owned a jewelry store in Newark at one point in time. How she was a successful business woman.

Masone also conceded during the deposition that he met Madeline through Andrew, who was his stockbroker. This fact, coupled with Vincent's knowledge that Madeline was actually suffering from injuries that "resulted in severe and lasting diminishment of Madeline's cognitive functions" during the timeframe she allegedly signed the papers should have informed Vincent that Masone had not properly handled Madeline's estate matter.

We reject Vincent's argument that no damages had occurred until Judge Weeks's decision. Vincent and his family members began questioning disbursements from Madeline's bank accounts as early as 1999. In January 1999, a suit was brought on Madeline's behalf against Andrew, his wife, and his daughter. According to the complaint, Andrew and his family depleted Madeline's bank accounts and other assets.

The estate's complaint rests not only on the malpractice relating to the two wills, but also relating to the power of attorney and trust agreement. Based on the above, Vincent clearly knew Andrew was abusing his position as trustee by January 1999 at the latest. Then, during the January 24, 2002 deposition, Vincent learned that Masone may have had a conflict of interest because of his business relationship with Andrew. Masone's testimony about Madeline's health status was at complete odds with what Vincent knew to be the truth. This combined knowledge satisfies the discovery rule elements of actual injury and knowledge of fault. Olds v. Donnelly, supra, 150 N.J. at 436. Thus the statute of limitations began to run at the January 24, 2002 deposition at the latest and Vincent's action is time-barred.

Vincent additionally argues that "the trial court's focus on the August 28, 1992 will and not considering appellant's continuous course of representation argument was in error." We are not persuaded. Vincent argues that Judge Carey did not address his "continuous course of representation" argument. However, the record indicates that the judge did address the argument and found there was no legal support for it. We agree.

Vincent also argues that the November 28, 1992 will is the basis for his complaint. However, the complaint clearly refers to malpractice regarding the August 28, 1992 will, the power of attorney, and the trust agreement, as well as the November 28, 1992 will. As discussed above, Vincent knew that Madeline's assets were being depleted as a result of Andrew's role as trustee and he became aware of Masone's malpractice through the January 24, 2002 deposition at the latest. Such knowledge satisfies the discovery rule and begins the statute of limitations period. Olds v. Donnelly, supra, 150 N.J. at 436.

Vincent also contends that "the court erred in not considering the February 27, 2002 deposition of Masone in calculating the running of the statute of limitations." Vincent presents a theory that during the January 24, 2002 Masone deposition, all the questioning related to whether a fake "Madeline" signed the documents. Vincent argues that he did not have the facts necessary to support his malpractice action because it was not until the February 27, 2002 deposition that Masone actually identified the real Madeline. We reject this argument. Vincent still knew as of January 24, 2002, at the latest, that Masone's testimony about Madeline's condition differed drastically from what Vincent knew her condition to actually be. He also knew of the potential conflict of interest and Andrew's alleged depletion of the trust account.

Vincent further contends that "the statute of limitations did not begin to run until the appointment of an administrator." We disagree. Vincent argues that the claim could not be brought on behalf of the estate until Judge Weeks's February 9, 2006 decision that appointed an administrator. However, Vincent cites no authority to support this argument. The record shows that there has been ongoing litigation involving the estate, with the same attorney representing Vincent throughout, since 1999. Vincent knew of the depletion of Madeline's accounts due to Andrew's appointment as trustee of her trust, and, as of January 24, 2002, he knew of Masone's alleged malpractice. Therefore, Judge Carey correctly concluded that the six-year statute of limitations had expired by the time Vincent filed his February 5, 2008 complaint.

Finally, Vincent contends that "the trial court failed to take into consideration or make any determination concerning the issue of tolling and estoppels." The record reveals, however, that the court heard Vincent's argument and responded to them. In his decision on Vincent's motion for reconsideration, Judge Carey stated:

The Court is somewhat troubled by the fact that Mr. Masone apparently concealed the second will and that that caused the delay in the probate case. And from a practical point of view it appears that . . . this legal malpractice case . . . may have been filed within the statute of limitations had he not concealed the second will. That's purely speculation. We don't know what that would or wouldn't have been the case. But nevertheless, despite the fact that the Court is troubled by that I don't think that it stops the tolling of the statute of limitations.

I understand the argument as articulated and it's a very persuasive argument[,] but it's contrary I believe to the case law.

We agree. Moreover, it is clear that the judge did consider Masone's tolling and estoppels argument when making his decision.

 
Affirmed.

While the legal malpractice issue is the subject of this appeal, the summary judgment order dismissed all counts against all defendants, as all claims were time-barred.

The current status of this complaint is unclear, but at the time that the subject summary judgment motion was filed the matter was still pending.

Vincent amended his complaint on July 2, 2008, adding Andrew as a defendant.

(continued)

(continued)

15

A-3617-08T3

August 19, 2010