REBECCA DREHER v. KENNETH ROSS, ESQ.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3805-19
REBECCA DREHER,
Plaintiff-Appellant,
v.
KENNETH ROSS, ESQ., and
COMEGNO LAW GROUP, PC,
Defendants-Respondents.
___________________________
Argued February 3, 2022 – Decided April 22, 2022
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey,
Burlington County, Law Division, Docket No. L-
2137-19.
Mark J. Molz argued the cause for appellant.
William T. McGloin argued the cause for respondents
(Connell Foley LLP, attorneys; William T. McGloin, of
counsel and on the brief).
PER CURIAM
Plaintiff Rebecca Dreher appeals the motion court's Rule 4:6-2(e)
dismissal with prejudice of her first amended complaint alleging professional
negligence, legal malpractice, breach of fiduciary duty, fraud, and other causes
of action against defendants Kenneth Ross, Esq. and Comegno Law Group
(CLG). We affirm the dismissal order because the court properly held that
defendants did not owe Rebecca any duty in their preparation of a power of
attorney and a last will and testament for Rebecca's1 mother Dorothy Dreher.
In 2013, Ross prepared a power of attorney for Dorothy, naming her only
surviving son, David Dreher, as her attorney-in-fact. Almost a year later, Ross
prepared Dorothy's last will and testament, which designated David as executor
and devised eighty percent of the tangible personal property from Dorothy's
estate (the estate) to David with the remaining twenty percent going to Rebecca.
In 2015, Rebecca had concerns over David's exercise of the power of
attorney when he expended Dorothy's assets for his and his immediate family's
benefit. Rebecca's counsel wrote to Ross asking if he prepared a will or any
estate documents for her mother and, if so, to provide her with a copy of
Dorothy's will. Ross wrote back, stating he and his firm were "not in a position
1
For convenience and to avoid confusion, we refer to the Dreher family
members by their first names because they share a surname. We mean no
disrespect.
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to acknowledge if Dorothy . . . [was] a client, or if [they] ha[d] prepared any
estate documents for [her]."
After Dorothy died in 2016, Rebecca filed suit in the Chancery Division
contesting her mother's will and seeking return of estate assets that David
allegedly used for his and his immediate family's personal expenses. After the
parties reached a settlement, Rebecca sued defendants in the Law Division
alleging that she suffered damages as a third-party beneficiary from the
negligent advice they gave David resulting in his monetary gifts to himself and
his immediate family from Dorothy's assets. Rebecca also alleged defendants
"willfully, intentionally[,] and/or maliciously facilitated a fraud upon [her] in
concert with" David based on defendants' refusal to disclose aspects of their
representation of Dorothy, including drafting Dorothy's will and their negligent
advice to her brother. She also claimed defendants "failed to complete [their]
duties to the estate" and disburse the estate's assets to her in accordance with her
settlement with David and the estate.
In lieu of filing an answer, defendants moved under Rule 4:6-2(e) to
dismiss Rebecca's complaint. On December 20, 2019, the court entered an order
dismissing the complaint with prejudice except for the fraud claim, which was
dismissed without prejudice, together with a statement of reasons.
A-3805-19
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While the court rejected defendants' argument that the complaint should
be dismissed under the entire controversy doctrine, it reasoned there was no
basis for Rebecca's legal malpractice claim against defendants because they did
not represent her and she did not establish that "[d]efendants believed, or had
reason to believe, [she] relied on [their] performance of their duties or that [she]
was an intended beneficiary of their work for Dorothy . . . and David." Particular
to the power of attorney, the court explained that Rebecca was not mentioned in
the document; the only references to Dorothy's "issue" were "to articula[te] a
class of persons to whom David . . . could make gifts . . . [and] did not . . .
explicitly entitle [Rebecca] to receive any particular gift."
The court determined the negligent advice claim was not a legal cause of
action because defendants merely advised David that he could gift money from
the estate to himself and his family members while his mother was living, "not
that [he] was required to" do so. Because Rebecca did not allege that Ross's
counsel to Dorothy and David was meant to confer a benefit to her, "she [could
not] establish [that] she was an intended beneficiary of []Ross['s] performance
of his [legal representation]." Rebecca also failed to allege that Ross knew or
had reason to know that she relied on his advice. The court stressed that
Rebecca's complaint acknowledged she "was not told anything by [d]efendants"
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when she inquired about where David received the money for an addition to his
home. Consequently, the court found she failed to establish defendants owed a
duty to her.
Addressing Rebecca's fraud claim, the court found that her generalized
allegations did not satisfy the legal standards for fraud because she "fail[ed] to
allege [d]efendant[s] made a material misrepresentation to [her] and that
[d]efendant[s] intended [Rebecca] rely on such a misrepresentation." However,
"given the liberal pleading standards," her fraud claim was dismissed without
prejudice. Rebecca was afforded thirty days to file an amended complaint to set
forth a viable fraud claim.2
After Rebecca filed a first amended complaint, defendants again moved
under Rule 4:6-2(e) to dismiss her complaint with prejudice. The court issued
an order and statement of reasons on May 13, 2020, granting the motion.
2
The court also addressed Rebecca's miscellaneous claims, which are not the
subject of this appeal. Rebecca alleged defendants orchestrated a fraud against
her with David, and that she was not paid pursuant to the Chancery Division
settlement agreement. Defendants responded by challenging the factual and
legal sufficiency of her allegation, and the court found she "failed to
substantively respond to [their] arguments[] other than to note that [she] was
burdened by additional attorney's fees" from the will contest litigation. The
court concluded that defendants' arguments were deemed unopposed by Rebecca
and dismissed them with prejudice because she did not substantively address
their contentions, noting that it would have been "futile for [her] to attempt to
cure the defects on these [allegations] by amendment."
A-3805-19
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The court initially noted that the first amended complaint violated its
December 20, 2019 order that claims alleging "[d]efendants acted 'in concert'
with David . . . be stricken" and not be realleged. The court then determined the
amended fraud claim was dismissed with prejudice. The court reasoned that
even assuming defendants' preparation of estate documents for Dorothy and
their legal advice rose to the level of material misrepresentation, Rebecca did
not specify how she relied on those documents and legal advice. Rather, when
she contested the validity of the will, the distributions made from the estate, and
"incurred attorney's fees and costs" associated with litigating this matter,
Rebecca "demonstrated that she did not actually rely on said documents and
legal advice." Moreover, Rebecca "suspected perhaps that there was a power of
attorney" when she retained counsel and requested a copy of the document.
Referring to the letter by Rebecca's counsel regarding representation of Dorothy,
and seeking a copy of estate documents the court stressed Rebecca
clearly didn't rely upon the will because [Dorothy] was
. . . still alive at that point in time . . . and if she was of
the view that [Dorothy] . . . was not competent at that
point in time, then [the court did not] know how
[Rebecca] relied upon some document that wasn't
published to her or to the court and it wasn't probated
at that point in time, and so clearly [Rebecca] was
engaged by counsel. She had no reliance upon anything
that was done by []Ross. There[] [was] no material
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misrepresentation that he made to her upon which she
relied.
Finally, the court determined that Rebecca's attempt to include an entirely
new cause of action for "breach of fiduciary duty, fraud, and/or for any other
causes of action allowed by law" was improperly pled and, thus, dismissed, since
the court's December 20, 2019 order granted leave to file an amended complaint
for the fraud claim only.
On appeal of the motion court's dismissal of Rebecca's first amended
complaint, Rebecca raises the following points for our review:
POINT I
PLAINTIFF'S COMPLAINT SET FORTH A CAUSE
OF ACTION FOR FRAUD.
POINT II
THIS DISMISSAL IN THIS MATTER SHOULD BE
VACATED AND THE MATTER SHOULD BE
REMANDED TO [THE] LAW DIVISION FOR
DISCOVERY AND DISPOSITION.
We review the grant of a Rule 4:6-2(e) motion to dismiss a complaint for
failure to state a cause of action de novo, applying the same standard under the
rule that governed the motion court. Frederick v. Smith, 416 N.J. Super. 594,
597 (App. Div. 2010). We consider only "'the legal sufficiency of the facts
alleged on the face of the complaint.'" Nostrame v. Santiago, 213 N.J. 109, 127
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(2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
746 (1989)).
The issue is simply "whether a cause of action is suggested by the facts."
Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). We "search[]
the complaint in depth and with liberality to ascertain whether the fundament of
a cause of action may be gleaned even from an obscure statement of claim,
opportunity being given to amend if necessary." Printing Mart-Morristown, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super.
244, 252 (App. Div. 1957)). In examining the relevant factual allegations in a
plaintiff's complaint, we treat them as true and extend to a plaintiff all favorable
inferences. See Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 625 (1995).
Guided by these standards, we affirm substantially for the reasons set forth
by the motion court in its cogent statement of reasons. We add the following
comments.
Rebecca failed to assert a common law or equitable fraud claim against
defendants. For a plaintiff to prevail on common law fraud claim, it "must [be]
show[n] that [a] defendant: (1) made a representation or omission of a material
fact; (2) with knowledge of its falsity; (3) intending that the representation or
omission be relied upon; (4) which resulted in reasonable reliance; and that (5)
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plaintiff suffered damages." DepoLink Ct. Reporting & Litig. Support Servs. v.
Rochman, 430 N.J. Super. 325, 336 (App. Div. 2013). "Equitable fraud is
similar to legal fraud," but "the plaintiff need not establish the defendant's
scienter." Ibid. A "defendant's scienter" is the "defendant's knowledge of the
falsity and intent to obtain an undue advantage." Ibid. "[P]laintiff must prove
each element by 'clear and convincing evidence.'" Ibid. (quoting Stochastic
Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395 (App. Div. 1989)).
Reiterating assertions from her first amended complaint, Rebecca argues
that "Ross made knowing, material misrepresentations of fact" to her and that
she "relied on . . . Ross . . . to comply with his professional duties and maintain
the standard of care." She contends that Ross "[should have] compl[ied] with
the ethical and legal standards of lawyers and not give[n] negligent advice [that]
led to damages."
Rebecca failed to assert how defendants made material misrepresentations
to her and how she relied on those misrepresentations. She makes no assertion
that defendants conveyed a false statement or factual misrepresentation to her.
Rather, Ross merely refused to disclose information concerning his firm's
representation of their client, Dorothy. Ross had no duty to disclose that he
represented Dorothy, and thus, his refusal to do so did not constitute a material
A-3805-19
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misrepresentation. Moreover, assuming Ross made material misrepresentations
to her, Rebecca made only conclusory statements that she relied on his refusal
to acknowledge if her mother was his client and if he had prepared any
documents for her mother. Rebecca failed to specify how the alleged
misrepresentations affected her.
Rebecca contends her complaint set forth a cause of action for legal
malpractice. However, the argument is considered waived because she failed to
brief the issue. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657
(App. Div. 2011). For the sake of completeness, however, we address the
allegation, concluding Rebecca failed to establish a legal malpractice claim.
Legal malpractice claims are "grounded in the tort of negligence." Gilbert
v. Stewart, 247 N.J. 421, 442 (2021) (quoting Nieves v. Off. of the Pub. Def.,
241 N.J. 567, 579 (2020)). "Accordingly, the elements of a legal malpractice
claim are: '(1) the existence of an attorney-client relationship creating a duty of
care by the defendant attorney, (2) the breach of that duty by the defendant, and
(3) proximate causation of the damages claimed by the plaintiff.'" Id. at 442-43
(quoting Nieves, 241 N.J. at 582). As the court held in its statement of reasons
when it granted defendants' initial motion to dismiss, Rebecca failed to establish
A-3805-19
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a legal malpractice claim because she was not a client of defendants and was not
owed a duty.
"The determination of the existence of a duty is a question of law for the
court." Singer v. Beach Trading Co., 379 N.J. Super 63, 74 (App. Div. 2005)
(quoting Petrillo v. Bachenberg, 139 N.J. 472, 479 (1995)). Because of our
Supreme Court's "ordinary reluctance to permit non-clients to sue attorneys
remains unchanged," Green v. Morgan Props., 215 N.J. 431, 460 (2013), finding
an attorney owed a duty to a non-client "has been applied rather sparingly," only
in "carefully circumscribed" holdings, LoBiondo v. Schwartz, 199 N.J. 62, 102,
116 (2009). The Court has held "the grounds on which any plaintiff may pursue
a malpractice claim against an attorney with whom there was no attorney-client
relationship [remain] exceedingly narrow." Green, 215 N.J. at 458.
"Whether an attorney owes a duty to a non-client third party depends on
balancing the attorney's duty to represent clients vigorously, with the duty not
to provide misleading information on which third parties foreseeably will rely."
Petrillo, 139 N.J. at 479 (citations omitted). "In determining whether a duty
exists, the court must identify, weigh and balance the following factors: the
relationship of the parties; the nature of the attendant risk; the opportunity and
ability to exercise care; and the public interest in the proposed solution." Davin,
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L.L.C. v. Daham, 329 N.J. Super. 54, 73 (App. Div. 2000). The ultimate
question is one of fairness. Innes v. Marzano-Lesnevich, 435 N.J. Super. 198,
213 (App. Div. 2014).
Indeed, we have recognized "[p]rivity between an attorney and a
non-client is not necessary for a duty to attach 'where the attorney had reason to
foresee the specific harm which occurred.'" Ibid. (quoting Est. of Albanese v.
Lolio, 393 N.J. Super. 355, 368-69 (App. Div. 2007)). In limited circumstances,
a duty to a non-client has been found when the attorney knew, or should have
known, that the non-client would rely on the attorney's representation and the
non-client is not too remote from the attorney to be entitled to protection. Ibid.;
accord Banco Popular N. Am. v. Gandi, 184 N.J. 161, 181 (2005) ("[T]he
invitation to rely and reliance are the linchpins of attorney liability to third
parties."). For example, we have imposed third-party liability on an attorney for
negligent acts or omissions when third-party reliance on such acts was
foreseeable. See, e.g., Atl. Paradise Assocs., Inc. v. Perskie, Nehmad & Zeltner,
284 N.J. Super. 678, 685-86 (App. Div. 1995) (finding cause of action by
plaintiff-purchasers against defendant law firm where plaintiffs relied on
misrepresentations in public offering statement).
A-3805-19
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Defendants represented Dorothy and David. There is no allegation that
defendants rendered any negligent advice regarding Dorothy's power of attorney
or the devise of her estate. Because Rebecca's claim of legal malpractice did
not establish the required elements of an attorney-client relationship, it was
correctly dismissed with prejudice.
Affirmed.
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