ROSE T. JAMES v. DOREEN CORINO, ESQUIRE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROSE T. JAMES,

Plaintiff-Appellant,

and

DELLA MARIE DIPASQUALE,

Plaintiff-Respondent,

v.

DOREEN CORINO, ESQUIRE and MARIE

BRITTON,

Defendants-Respondents.

__________________________________

December 12, 2016

Argued August 16, 2016 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-127-15.

Harry L. Shoemaker, III, of the Louisiana bar, admitted pro hac vice, argued the cause for appellant (Roger Martindell and Mr. Shoemaker, attorneys; Rose T. James, on the pro se brief).

John B. Mullahy argued the cause for respondent Doreen Corino (Kaufman Borgeest & Ryan, LLP, attorneys; Mr. Mullahy and Bassel Bakhos, on the brief).

Louis M. Barbone argued the cause for respondent Marie Britton (Jacobs & Barbone, PA, attorneys; Mr. Barbone and YooNieh Ahn, on the brief).

Respondent Della Marie DiPasquale has not filed a brief.

PER CURIAM

Over two and a half years after the deaths of her aunt and mother and eighteen months after the admission of the last of their wills to probate, plaintiff Rose T. James filed a pro se complaint in the Law Division against the lawyer who drafted their wills, defendant Doreen Corino, as well as the executrix under both wills, plaintiff's sister, defendant Marie Britton, alleging "fraud and forgery of the wills," resulting in "irreparable family damage" and the denial of her "rightful inheritance."1

Specifically, plaintiff claimed the will drafted for her aunt by Corino was "illegally and improperly prepared" because it contained "a prohibited conflict of interest." She also claimed, on the basis of a report by a forensic document examiner, that while the signature on her mother's will was genuine, the initials on each page were not.2 Plaintiff also claimed defendant Britton delayed offering the wills for probate and "was intentionally deceitful" in failing to notify her that the wills were probated.

The Law Division granted defendants' motion to dismiss with prejudice finding the complaint was untimely under Rule 4:85-13 and barred by the holding in Garruto v. Cannici, 397 N.J. Super. 231, 240 (App. Div. 2007), that "an independent cause of action for tortious interference with an expected inheritance . . . is barred when . . . plaintiffs have failed to pursue their adequate remedy in probate proceedings of which they received timely notice." The judge found plaintiff had consulted counsel about the wills before they were offered for probate and was "aware, to some degree, of the wills dispositions" and was thus on notice of a potential forgery.

More important, plaintiff conceded she acquired copies of the wills from the Cape May County Surrogate fourteen months before she filed her complaint. She had the wills reviewed by forensic document examiners six months after acquiring them and received the reports on which she based her complaint three months after that. Plaintiff then waited another six months before she instituted this action. The judge found under those undisputed facts that plaintiff did not bring her claim "within a reasonable time under the circumstances" even in light of her allegations of fraud.

We agree with the trial court that this case is squarely controlled by Rule 4:85-1 and Garruto. Plaintiff failed to pursue her adequate remedy in probate proceedings within a reasonable time of being notified of those proceedings and acquiring copies of the wills. See Garruto, supra, 397 N.J. Super. at 240. She is thus barred from maintaining a tort action in the Law Division alleging interference with her inheritance, and the court was correct to dismiss the action with prejudice. Plaintiff's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed in Judge Gibson's opinion of June 8, 2015.

Affirmed.

1 Plaintiff's sister-in-law, Della Maria DiPasquale, was also a plaintiff in the action but has not participated in this appeal.

2 Plaintiff's mother made no provision for plaintiff in her will. The will's third paragraph provides

For reasons best known to my daughter ROSE T. JAMES and my son, JOHN L. DI PASQUALE, and in consideration for compensation made to them during my lifetime, I specifically exclude any distribution to either my daughter Rose T. James or my son, John L. DiPasquale.

3 The Rule requires that a will challenge by an out-of-state resident be filed within six months of the probate, unless relief is sought based on "R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court)." In that event, the complaint "shall be filed within a reasonable time under the circumstances."