Opinion
DOCKET NO. A-0222-13T2
06-19-2014
ALFRED W. RICCO, JR. and ALFRED W. RICCO, JR., AS ADMINISTRATOR OF THE ESTATE OF SOPHIA J. RICCO, Plaintiff-Appellant, v. EILEEN M. VOGEL, a/k/a EILEEN M. LIBENSON, a/k/a EILEEN M. RICCO, Defendant-Respondent.
Alfred W. Ricco, Jr., appellant, argued the cause pro se. Betsy G. Ramos argued the cause for respondent (Capehart & Scatchard, attorneys; Ms. Ramos, of counsel; Charles F. Holmgren, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Ostrer, and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2972-11.
Alfred W. Ricco, Jr., appellant, argued the cause pro se.
Betsy G. Ramos argued the cause for respondent (Capehart & Scatchard, attorneys; Ms. Ramos, of counsel; Charles F. Holmgren, on the brief). PER CURIAM
In this dispute between siblings, plaintiff Alfred Ricco, Jr., appeals the trial court's grant of summary judgment to defendant, Eileen Vogel, and its subsequent order denying reconsideration. We affirm.
The parties' mother, Sophia Ricco (Sophia), passed away in June 2009. Sophia was predeceased by her sister Marie Bittner in March 2003. Defendant was the executrix and sole beneficiary under Bittner's Last Will and Testament (Will), which was admitted to probate by the Burlington County Surrogate in June 2003. Despite knowledge of Bittner's death, neither Sophia nor plaintiff contested her Will.
Since plaintiff and Sophia Ricco share a common surname, we refer to plaintiff's mother as Sophia, and, in doing so, we intend no disrespect.
In June 2011, two years after Sophia's death, plaintiff filed a pro se complaint against defendant in the Law Division seeking damages for Sophia's wrongful death. In his complaint, plaintiff alleged that "defendant did willfully keep and retain the estate of Marie Bittner as that of her own," and thereby contributed to Sophia's death by depriving her of funds "which would have supported and sustained her life, longevity, [and] quality-of-life."
Plaintiff retained counsel, who in February 2012 filed a three-count amended complaint on behalf of plaintiff, individually and as Administrator of Sophia's estate, asserting infliction of emotional distress. Specifically, the amended complaint alleged that Bittner's Will was forged, which prevented Sophia from sharing in Bittner's estate. As a result of defendant's alleged actions in presenting a forged will for probate, and "[f]ailing to honestly and properly administer [Bittner's] estate," Sophia was not able to pay for her medical care, received substandard care, and suffered prior to dying.
Plaintiff also filed a medical malpractice action against several of Sophia's medical providers, which was dismissed by the trial court and affirmed on appeal. Ricco v. Our Lady of Lourdes (Hosp.) Med. Ctr., No. A-0288-12 (App. Div. Oct. 29, 2013).
After the close of discovery, defendant moved for summary judgment. Defendant argued, among other things, that (1) plaintiff's complaint was barred under Rule 4:85-1 for failure to challenge Bittner's Will within four months after probate; (2) defendant had no duty to provide for Sophia's medical care through the funds in the Bittner estate; and (3) plaintiff was unable to show any proximate cause between defendant's actions and Sophia's suffering and eventual death.
In June 2013, Judge John T. Kelley conducted oral argument, rendered a thorough oral opinion, and granted defendant summary judgment dismissing plaintiff's complaint. The judge rejected plaintiff's theories of liability. Judge Kelley first addressed plaintiff's failure to establish proximate cause, finding:
In this case, an unfortunate course of events occurred. Mr. Ricco I'm convinced firmly believes that there was some [sic] inappropriate actions taken at the time of or prior to the death of Ms. Bittner and the offering of a will which in his papers he does not contest the will itself was improperly offered for probate. That however occurred eight years ago, or more than eight years ago.Judge Kelley then concluded:
Mr. Ricco acknowledges in his moving papers and he has stated in argument before the [c]ourt, he is not saying there is anything wrong with the will. But that's the point that he goes to in all his arguments. And makes the argument that somehow the will was the action that caused the unfortunate results. I can't find there's proximate cause . . . .
. . . .
While Mr. Ricco continually returns to the will in saying that that is the causal event, I can't find that [] is a causal event leading to the emotional distress claim that he now attempts to advance on his own behalf, and a survivor's claim that he attempts to advance on behalf of his mother as well as the wrongful death claim.
In this case, the conduct that is complained of continually returns to the actions of a probate of the will which, again, Mr. Ricco has indicated, he is not challenging in this litigation, recognizing probably the statute of limitation difficulties that would arise, and as indicated in oral argument that he's not saying that there was anything wrong with the will. Accordingly, based upon the law, I cannot find that the necessary elements
have been established to create any of these causes of action.
On appeal, plaintiff argues that the judge erred by dismissing his complaint and granting summary judgment to defendant. Plaintiff also asserts that he was prejudiced by his inability to complete discovery after his counsel allegedly abandoned him during the discovery period, and that the trial court erred in refusing to grant a further extension of the discovery period.
On January 25, 2012, the trial court granted plaintiff's motion to remove his attorney and allow him to again proceed pro se.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
We concur with Judge Kelley that, even if the record is construed in a light most favorable to plaintiff, his claims nonetheless fail. Despite plaintiff's argument to the contrary, his contention that Sophia lacked the necessary funds to obtain the proper medical care to relieve her suffering and prolong her life have their genesis in defendant's alleged misconduct in forging and then probating Bittner's Will. Pursuant to Rule 4:85-1, plaintiff and Sophia were required to assert any contest to the Will within four months of its probate in 2003, and their failure to do so bars these claims. Further, plaintiff has not produced any handwriting expert or any other competent evidence to establish that Bittner's signature on the Will was forged. In contrast, defendant produced the affidavit of the scrivener, Dina Gattuso, Esq., specifically averring that "[t]he signature on the Will . . . is that of Marie Bittner. I was present when she signed it, as was my mother and the notary." Thus, even if plaintiff's claims related to Bittner's Will are not time-barred, the evidence regarding the Will's execution "is so one-sided that [defendant] must prevail as a matter of law." Brill, supra, 142 N.J. at 533.
We also agree that the record lacks competent proof that defendant's failure to provide funds from Bittner's estate was the proximate cause of Sophia's alleged subpar medical care for the various ailments from which she allegedly suffered. See Creanga v. Jardal, 185 N.J. 345, 354 (2005) ("Expert medical testimony often is used to demonstrate a causal link between the defendant's allegedly negligent conduct and the plaintiff's injury."). Nor was defendant, as the executrix and sole beneficiary of Bittner's estate, under a duty to apply the estate assets towards Sophia's medical care.
During discovery, plaintiff submitted a report prepared by Dr. Adel Shaker, a pathologist retained in the malpractice action against Sophia's medical providers. The report concluded that Sophia died due to the "failure to early diagnose and properly treat [the bed sores] that resulted in the spread of infection." Dr. Shaker's report did not discuss defendant, and plaintiff produced no other expert report establishing a causal link between defendant's actions and Sophia's death.
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Moreover, although plaintiff asserted a claim of emotional distress against defendant which Judge Kelley found lacking in merit, plaintiff's appellate brief does not address this claim. An issue not briefed on appeal is deemed waived. Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2014); see also Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).
Plaintiff also attempts to argue on appeal that in December 2007, defendant and Sophia entered into an oral settlement agreement whereby defendant agreed to pay Sophia $100,000 in return for Sophia's promise to relinquish any present or future claim against defendant or Bittner's estate. Plaintiff further claims that defendant reneged on the settlement agreement, failing to pay any amount to Sophia. However, this argument is not supported by any affidavit, certification, or other competent evidence in the record. See R. 1:6-6. Nor was such argument advanced by plaintiff at the summary judgment stage. Accordingly, we now decline to address it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Also, because the alleged settlement was purportedly known to plaintiff but not advanced on summary judgment, it was not a proper basis for reconsideration. See Fusco v. Bd. of Educ, 349 N.J. Super. 455, 463 (App. Div.), certif. denied, 174 N.J. 544 (2002).
Finally, plaintiff faults the motion judge for granting summary judgment against him when discovery remained incomplete, and for failing to again extend discovery. Although discovery frequently should be completed before the court entertains summary judgment, see Bilotti v. Accurate Forming Corp., 39 N.J. 184, 206 (1963), that general practice need not be observed in cases where it is readily apparent that continued discovery would not produce any additional facts necessary to a proper disposition of the motion. See R. 4:46-5 (authorizing courts to deny or continue summary judgment motions to accommodate further discovery of facts that would be "essential" to oppose the motion).
Here, discovery had twice been extended, and the discovery period had ended when defendant's summary judgment motion was filed. Importantly, however, plaintiff has not identified any additional discovery essential to support his claims. See Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977). Moreover, we have considered the facts asserted by plaintiff in the light most favorable to him, and find that as a matter of law they fail to establish the claims asserted against defendant in the amended complaint.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION