Varelli v. White
| Decision Date | 18 July 2019 |
| Docket Number | DOCKET NO. A-4675-16T3 |
| Parties | BRENDA LEE VARELLI, KYLE A. BRADFORD, LYLE J. BRADFORD, and ESTATE OF JANET E. BRADFORD, as a nominal plaintiff, Plaintiffs-Respondents/Cross-Appellants, v. JENNIFER WHITE, JACQUELYNE MCGLINCHEY, FIDELITY ESTATE PLANNING, LLC, ADAM BAALS, CEO, and ADAM BAALS, individually, and MELODIE WHITE, Defendants, and DONALD L. KINGETT, ESQ., RABIL, ROPKA, KINGETT & STEWART, LLC, and RABIL, KINGETT & STEWART, LLC, Defendants-Appellants/Cross-Respondents |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Simonelli, Whipple and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1405-11.
John L. Slimm argued the cause for appellants/cross-respondents (Marshall Dennehey Warner Coleman & Goggin, attorneys; John L. Slimm, on the briefs).
Jeffrey V. Puff argued the cause for respondents/cross-appellants (Puff & Cockerill, LLC, attorneys; Jeffrey V. Puff, on the briefs).
Defendants Donald L. Kingett, Esquire, Rabil, Ropka, Kingett and Stewart, LLC, and Rabil, Kingett and Stewart, LLC appeal, and plaintiffs, Brenda Lee Varelli, Kyle A. Bradford, and Lyle J. Bradford cross-appeal from a jury verdict rendered on April 2, 2016 finding Kingett deviated from the standard of care required of an attorney which was a proximate cause of losses sustained by plaintiffs in this estate and negligence case. Defendants also appeal from a May 2, 2016 order denying their motion for a judgment notwithstanding the verdict, and all parties appeal the award of counsel fees to plaintiffs. For the reasons that follow, we reverse and remand for a new jury trial.
On June 23, 2008, plaintiffs filed a verified complaint and order to show cause (OTSC) in the Probate Part in connection with the estate of their mother (decedent) who died on February 6, 2008.1 She executed Wills in 1996 and 2007. The complaint alleges that in September 2007, decedent had diminished capacity and was unduly influenced to change her estate plan by her granddaughter, Jennifer White, her primary caretaker. The judge entered plaintiffs' OTSC placing restraints on the estate's real and personal assets.
Decedent was diagnosed with Alzheimer's disease and dementia. She had four children: Brenda, Lyle, Kyle, and Melodie, who is Jennifer's mother. The decedent's original 1996 Will provided for a four-way equal distribution of her assets to her children. Because decedent lacked cognitive ability, a previous attorney advised Brenda, Jennifer, and Kyle to file a guardianship action and he declined to prepare a power-of-attorney (POA) as requested by plaintiffs because of decedent's condition. A guardianship action was never pursued.
In March 2007, decedent fell in her home and was transported to Cooper Hospital where she was again diagnosed with dementia and later transferred to ManorCare. After being released on April 12, 2007, she went home and the White family resided with her in conditions described by Brenda as a "pigsty."
After decedent's prescription medication insurance expired in April 2007, Jennifer sent a letter to decedent's insurance company asking for reinstatement of her prescription medication insurance because her grandmother was "slowly slip[ping] away into Alzheimer's." In May 2007, Dr. John Gartland was treating decedent for dementia and Alzheimer's disease. By July 2007, decedent was deteriorating mentally, thought she was a student, could not hold a thirty-second conversation, and became a "shell" of a person according to Brenda.
On July 16, 2007, Jacquelyne McGlinchey a self-employed estate planner affiliated with Fidelity Estate Planning, LLC (FEP), met with decedent at her home. Plaintiffs argue that McGlinchey was a "salesperson" who signed up elderly clients for "estate planning." Ostensibly, decedent expressed to McGlinchey that she wanted Jennifer to inherit her estate because she cared for her and decedent's own children did nothing for her. McGlinchey believed decedent was competent because she freely answered questions. Based upon her observation of decedent, McGlinchey had her execute an estate planning services contract. McGlinchey created a client workbook and recorded information about decedent. At a later time, McGlinchey changed her story and testified that decedent could not understand one hundred percent of what they discussed.
McGlinchey recommended placing decedent's home into a revocable living trust (RLT), naming decedent and Jennifer as co-trustees, and establishing life estates for Woodrow and William, Jennifer's brothers, and Melodie. The RLT was recommended to avoid probate, and Jennifer would be named executrix, POA, and appointed as decedent's health care representative. After the initial meeting, McGlinchey provided attorney Kingett (defendant) with her client workbook. Thereafter, Kingett prepared a retainer agreement that provided his legal services would include "a personal interview, either in [defendant's] office . . . or via telephone to discuss [the client's] estate plan." The retainer specified certain limitations on the scope of legal representation. For example, defendant would not supervise the execution of legal documents unless decedent appeared in his office. The retainer agreement also included information about FEP's services. Decedent paid FEP a total of $1695, $450 was defendant's fee. The remaining $1245 was shared between McGlinchey and Adam Baals, who served as the chief executive officer (CEO) of FEP.
On July 31, 2007, decedent purportedly signed the retainer agreement, but defendant later conceded he did not know whether she personally signed it or if somebody else signed it on her behalf. Defendant never discussed any limitations of his representation with decedent.
On August 1, 2007, decedent purportedly signed an application to purchase an annuity naming Jennifer and Melodie as beneficiaries. Thereafter, McGlinchey invested decedent's assets into annuities with Old Mutual and shared the commissions with Baals. Plaintiffs allege defendant and Baals formed FEP "to sell to unsuspecting clients unnecessary revocable trusts and annuities to generate legal fees and large commissions."
Defendant ostensibly spoke to decedent on August 18, 2017, over the telephone for eight minutes about revising her estate plan, but he never met with her in person. He conceded that since he never met her or knew her personally, and he could not confirm he actually spoke to her. According to Jennifer, defendant called decedent on a cellular phone while Jennifer listened in on a speaker phone. He drafted a new Will and RLT naming defendant and Jennifer as trustees, a healthcare directive, and a living Will. Upon decedent's death, the four members of the White family would each receive twenty percent of her estate, and Brenda, Kyle, and Lyle would share the remaining twenty percent.
Defendant claims he asked decedent if she wanted to meet him at his office or if she preferred to have the documents sent to her home. During that brief phone call, defendant claimed that he reviewed with decedent all matters relevant to her estate, including her Will, RLT, POA, and health care directive. Defendant described decedent as sounding like an older female who was clear and concise. After the trial, it was revealed that the person speaking on the phone to defendant was not the decedent but was actually her daughter Melodie.
On September 18, 2007, McGlinchey again went to decedent's home and notarized her testamentary documents purportedly in the presence of two witnesses, a neighbor, and McGlinchey's spouse. In the early stages of the litigation, McGlinchey contended that on that day, decedent was incapable of signing because she was incoherent, and Jennifer signed the documents, as well as the earlier executed retainer agreement. In December 2007, Jennifer informed plaintiffs that decedent's estate plan had changed. Decedent passed away on February 6, 2008. Brenda, Kyle, and Lyle each received a $5000 check from Jennifer.
Plaintiffs amended their complaint on October 23, 2008, adding allegations against Jennifer, McGlinchey, Melodie, FEP, and defendant claiming they participated in a "trust mill." In 2008 and 2009, plaintiffs amended their complaint to add allegations against defendant and his law firm, Rabil, Kingett & Stewart, LLC2 (collectively, defendants). In April 2010, plaintiffs again amended their complaint to add claims against Baals, in his capacity as CEO of FEP (collectively, with the financial planner and the financial planning company, financial defendants).
On March 24, 2011, the probate judge sua sponte appointed Brenda Lee Eustler, an attorney, as administrator of decedent's estate, and the judge ordered the probate matter be severed from the professional negligence and other claims against defendants and the financial defendants. These claims were transferred to the Law Division. At the summary judgment hearing on July 29, 2011 in the Probate Part, the judge found decedent lacked testamentary capacity to revise her estate plan and Jennifer unduly influenced her with respect to estate documents decedent executed.
At the September 26, 2011 trial, Jennifer and the financial defendants did not appear; the probate court made a final determination that in September 2007, decedent had diminished capacity and was unduly influenced by Jennifer. The probate court nullified the decedent's 2007 estate planning documents and ordered Jennifer to return the assets she confiscated to the estate.3 The 1996 Will was not probated and the judge distributed the assets in accordance with the intestacy statute, N.J.S.A. 3B:5-4, resulting in a...
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