BEGELMAN, ORLOW & MELLETZ v. JONATHAN EHRLICH

NOT FOR PUBLICATION WITHOUT THE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-2233-16T4

BEGELMAN, ORLOW & MELLETZ,

        Plaintiff-Respondent,

v.

JONATHAN EHRLICH,

        Defendant-Appellant.


              Submitted February 14, 2018 – Decided May 4, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No. L-
              3237-14.

              Peter A. Ouda, attorney for appellant.

              Begelman & Orlow1, respondent pro se (Jordan
              R. Irwin, on the brief).

PER CURIAM

        Defendant     Jonathan     Ehrlich    (Ehrlich)     appeals     from       the

December 14, 2016 grant of summary judgment to plaintiff Begelman,

Orlow & Melletz.          We affirm.      We consider the points of error



1
    Formerly known as Begelman, Orlow & Melletz.
Ehrlich argues on appeal to be so lacking in merit as to not

warrant much discussion in a written opinion.       R. 2:11-3(e)(1)(E).

     On   appeal,   Ehrlich   raises   the   following   issues   for   our

consideration:

           POINT I
           THE TRIAL COURT ERRED AS A MATTER OF LAW IN
           GRANTING BEGELMAN ORLOW'S MOTION FOR SUMMARY
           JUDGMENT.

     Ehrlich is the principal beneficiary of his late uncle Richard

D. Ehrlich's estate.    In addition to Ehrlich, Richard was survived

by Ehrlich's two siblings, his sister Pamela Venuto and his brother

Todd Ehrlich.    Although Richard, an estate and trust attorney, had

no signed will that could be located after his death in 2009,

Erhlich claimed to have found a copy of a purported will among his

uncle's belongings.    The unsigned document:

           was typed on traditional legal paper with
           Richard Ehrlich's name and law office address
           printed in the margin of each page.        The
           document . . . include[s] in decedent's own
           handwriting, a notation at the right-hand
           corner of the cover page:    "Original mailed
           to H.W. Van Sciver, 5/20/2000[.]"          The
           document names Harry W. Van Sciver as Executor
           of the purported Will and Jonathan as
           contingent executor.     Van Sciver was also
           named trustee, along with Jonathan and Michele
           Tarter as contingent trustees.     Van Sciver
           predeceased the decedent and the original of
           the document was never returned.

           [In re Estate of Ehrlich, 
427 N.J. Super. 64,
           68 (App. Div. 2012).]


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     The will devised the estate to Ehrlich, subject to specified

bequests to Ehrlich's brother and sister, and another person. When

the matter was tried, the General Equity judge admitted the

document   to   probate   as   an   original   will,   based   on     his

interpretation of In re Probate of Will & Codicile of Macool, 
416 N.J. Super. 298, 310 (App. Div. 2010).

     On appeal, we agreed that "there is clear and convincing

evidence that the unexecuted document challenged by appellants was

reviewed and assented to by decedent and accurately reflects his

final testamentary wishes.     As such, it was properly admitted to

probate as his [l]ast [w]ill and [t]estament."     Ehrlich, 
427 N.J.

Super. at 75. We concurred that the document was properly admitted

to probate because it advanced the testator's intent.      Id. at 77.

     In a dissent, Judge Stephen Skillman stated that he believed

the statute, 
N.J.S.A. 3B:3-3, could not be reasonably construed

to authorize the admission of the document to probate.              Ibid.

After his discussion of the relevant section, he stated that:

                In my view, Jonathan is entitled to
           prevail only if he can show, in conformity
           with the common law authority dealing with
           lost wills, that the unexecuted will found in
           the decedent's home is a copy of an original
           executed will sent to Van Sciver, which was
           lost and not revoked by the decedent.
           However, because this case was presented
           solely under 
N.J.S.A. 3B:3-3, the trial court
           did not make any findings of fact regarding
           these issues.     Indeed, the trial court

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           concluded that the copy of the will found in
           the decedent's home could be admitted to
           probate under 
N.J.S.A. 3B:3-3 "[e]ven if the
           original . . . was not signed by [the
           decedent]." Therefore, I would remand to the
           trial court to make such findings. I would
           not preclude the parties from moving to
           supplement the record to present additional
           evidence   on   the  question   whether   the
           unexecuted copy of the will found in the
           decedent's home may be admitted to probate as
           a copy of the alleged executed original sent
           to Van Sciver.

           [Id. at 83-84.]

     Although Ehrlich prevailed on appeal, Ehrlich's siblings had

the right to appeal to the Supreme Court because a dissent was

filed with the majority opinion.        In order to avoid protracted

litigation, Ehrlich entered into a settlement agreement with them.

By that juncture, Ehrlich had discharged Paul R. Melletz, Esquire,

who had prevailed on appeal and in the trial court, and retained

a new attorney who negotiated the settlement.

     After the settlement, Ehrlich filed a legal malpractice suit

against Melletz, who in turn filed this collection action against

Ehrlich.    Ehrlich's   complaint   alleged   that   Melletz's   success

representing him on appeal was based on an improper legal theory.

He further contended that Melletz should have argued that the will

was a lost will——the theory mentioned in the dissent.            He also

claimed that Melletz should have objected to the first interim

accounting filed by the estate's temporary administrator and that

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Melletz did not properly investigate and raise issues concerning

a condominium in the Bahamas that might have been owned by the

decedent.

     On   July   25,   2014,    another   court   approved   the   temporary

administrator's final account, rejecting the exceptions raised by

Ehrlich as well as his application to be appointed executor.                 In

that parallel proceeding, the estate was ordered to pay Melletz

the balance he was owed.        The court did not stay the fee award to

Melletz pending the outcome of Ehrlich's malpractice case.

     In ruling on the summary judgment motion, this judge found

that a jury could not revisit Melletz's entitlement to fees since

other finders of fact——judges——had already ruled on the issue.               He

also concluded that as a matter of law, the "lost will" theory

mentioned in Judge Skillman's dissent, which Ehrlich insisted he

urged his attorney to advance, was no better than the unsigned

will theory.     In his view, both had substantial weaknesses.

     The lost will theory requires the proponent of the will to

overcome a rebuttable presumption that the testator revoked his

will.     The judge opined that there was less than "clear and

convincing     evidence"   to    factually   overcome    that      rebuttable

presumption.     The only support for the theory was that decedent

was a trust and estate attorney who would likely not have forwarded

his will to another for safe keeping without having it properly

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signed and witnessed.      Other than that premise, the judge observed

nothing made one theory better than the other.                    Therefore, he

concluded that as a matter of law a jury could not determine that

one theory was better than the other.                  Nor did he consider it

possible for Erhlich to establish the proximate cause of any

damages.      He opined that to conclude otherwise was "ultimately

. . . nothing but rank speculation."

      Summary   judgment   is    granted       where    the   legally   competent

evidence establishes that "there is no genuine issue as to any

material fact challenged and that the moving party is entitled to

a judgment or order as a matter of law."                R. 4:46-2(c); see also

Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995).

The   trial   court   cannot    decide       disputed   factual   issues,     only

determine whether such factual disputes exist.                  Agurto v. Guhr,


381 N.J. Super. 519, 525 (App. Div. 2005).                    We review a trial

court's decision de novo, employing that same standard.                 Ibid.    We

view the facts in the light most favorable to the non-moving party.

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 
202 N.J. 369,

374 (2010).     Applying that standard, dismissal of the malpractice

complaint is warranted.

      The heart of Ehrlich's claim is his perspective that Melletz

should have listened to him and pursued a lost will theory.                      He

argues that had Melletz done so and prevailed, Ehrlich would not

                                         6                                A-2233-16T4
have been vulnerable to an appeal of right to the Supreme Court,

and had to settle the matter with his siblings.    We do not agree

for a number of reasons.

     Even if Ehrlich had prevailed in the trial court on that

theory, nothing would have prevented an appeal by his siblings.

Ehrlich might have been faced with precisely the same quandary,

had a dissent been filed on any hypothetical appeal.     That rank

speculation is no different than the rank speculation he engages

in by asserting that he could have prevailed on the theory of a

lost will, that his siblings would not have appealed that decision,

and that if they had appealed, appellate review would have resulted

in a unanimous decision.

     The basic facts of this case have been described in two

opinions, one published and one unpublished,2 not to mention

factual summaries from various trial judges.     We see nothing in

those factual summaries, or in the record, that would have overcome

the rebuttable presumption that his uncle deliberately destroyed

the will.   The reality is that Melletz prevailed on the Macool

theory, and in his dissent Judge Skillman only said the matter

would require a remand in order to develop the record necessary

to support that theory, if that were possible.


2
   In re Estate of Ehrlich, 
427 N.J. Super. 64 (App. Div. 2012);
In re Estate of Ehrlich, No. A-4714-11 (App. Div. June 11, 2013).

                                 7                          A-2233-16T4
     Ehrlich's      position   is    somewhat    unique.       When   litigants

prevail in the trial court and on appeal, they are ordinarily

satisfied    with   the   legal     representation     they    have   received.

Ehrlich's claim is based solely on the filing of the dissent, and

the right of appeal to the Supreme Court the filing of the dissent

created.    That is simply not enough.

     The    trial   judge   reasonably     exercised     his    discretion     in

accepting the opinion of Melletz's expert witness that there were

substantial difficulties of proof in prevailing on a lost will

theory.     See Townsend v. Pierre, 
221 N.J. 36, 52-53 (2015).

Furthermore, the expert also opined that the damages stemming from

Melletz's   alleged    malpractice     were     also   unforeseeable——mainly

Ehrlich's decision to retain another attorney, pay that attorney's

fees, and settle the matter so no appeal to the Supreme Court

could be taken.      The judge's reliance on that opinion was not an

abuse of discretion.

     As a matter of law, we are satisfied that Ehrlich could not

have proven his cause of action before a jury.                 Thus, the trial

court properly granted summary judgment.               That Melletz did not

pursue an alternative theory is not legal malpractice.

     The issue of the apartment in the Bahamas was one with which

Ehrlich was fully apprised and familiar.           He deliberately avoided

mentioning it early on to the estate administrator in order to

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prevent his siblings from appreciating the size of the estate

while he was negotiating with them.

    Affirmed.




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