                                NOT FOR PUBLICATION WITHOUT THE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-5029-16T3

ROBERT H. SMITH,

          Plaintiff-Appellant,

v.

THE ESTATE OF DARIEN
SMITH, RICHARD SMITH,
individually and as EXECUTOR
OF THE ESTATE OF DARIEN
SMITH, JOHN SMITH, and
SUSAN SMITH,

     Defendants-Respondents.
______________________________

                    Argued October 23, 2018 – Decided November 13, 2018

                    Before Judges Fisher, Hoffman and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Warren County, Docket No. L-0002-16.

                    James L. Pfeiffer argued the cause for appellant
                    (Pfeiffer, Bruno, Minotti & DeEsch, attorneys; James
                    L. Pfeiffer, of counsel; Travis J. Savoia, on the briefs).
             Brad M. Russo argued the cause for respondents (Russo
             Law Offices, LLC, attorneys; Brad M. Russo, on the
             brief).

PER CURIAM

      In this appeal, we consider plaintiff Robert H. Smith's arguments that his

Law Division action against three siblings – defendants Richard Smith, John

Smith, and Susan Smith – was erroneously dismissed by way of summary

judgment. Because we agree with the motion judge that plaintiff's withdrawal

of his caveat in the probate proceedings involving their father's estate 1

eviscerated the pleaded Law Division claims, we affirm.

      The record reveals that Darien Smith died on February 17, 2015. He was

survived by five children: plaintiff, the three named defendants, and Janet

Haddad, who is not a party. Darien Smith's 2011 will bequeathed his primary

residence to Richard and a "cabin" to John. The remainder was bequeathed to

his other three children in unequal parts: fifty percent to Susan, forty percent to

plaintiff, and ten percent to Janet.

      Within days of Darien Smith's death, plaintiff filed a caveat, asserting

"there might be undue influence" and suggesting a concern about payments


1
   Plaintiff also asserted claims against his father's estate. At oral argument
before us, however, he acknowledged he possesses no viable claim against the
estate.
                                                                           A-5029-16T3
                                        2
made to his siblings prior to their father's death. In June 2015, Richard filed a

complaint in the Probate Part seeking removal of the caveat, admission of the

2011 will to probate, and his appointment as the estate's executor. Two weeks

later, plaintiff withdrew the caveat; as he later testified, he understood that by

taking that step he was forfeiting any right to contest the will or "pursue the

estate." The will was admitted to probate on July 22, 2015.

      On December 31, 2015 – after the time to seek relief from the probate

judgment had elapsed, see R. 4:85-1 – plaintiff filed this Law Division action

against his father's estate, Richard, John, and Susan. The complaint consisted of

five counts:

                 a quantum meruit claim against the estate;

                 a civil conspiracy and fraud claim against the
                  estate, Richard, John, and Susan;

                 a claim alleging waste, citing N.J.S.A. 2A:65-5,
                  against Richard;

                 a claim alleging tortious interference with
                  inheritance against Richard, John, and Susan;
                  and

                 a punitive damages         claim   "against   each
                  [d]efendant."

After discovery, which included the depositions of all parties, the motion judge

granted defendants' motion for summary judgment.

                                                                          A-5029-16T3
                                        3
      The crux of plaintiff's grievance with defendants arises from the allegation

that he – like those siblings he sued – provided services to their father toward

the end of his lifetime but, unlike those siblings, he was not compensated;

plaintiff claims he anticipated receiving compensation for his services through

the will's provisions, not by payment during his father's lifetime, and that he also

was unaware that the other siblings were being paid. In considering the issues

on appeal, we assume the truth of this allegation. Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995).

      To start our analysis of the viability of these claims, we initially note that

plaintiff concedes that the one claim we think might have been cognizable here

– plaintiff's quantum meruit claim against the estate – was properly dismissed.

He chiefly argues instead that his other claims were cognizable in the Law

Division despite his failure to pursue them in the probate proceedings when he

had the chance. We find insufficient merit in plaintiff's arguments to warrant

further discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm. We add

only a few brief comments.

      At oral argument before us plaintiff asserted that his claim is one of fraud.

This fraud, he argued, arose from the allegation that his siblings surreptitiously

sought and obtained compensation for looking after their aging father, while


                                                                            A-5029-16T3
                                         4
plaintiff, unaware of what the siblings were doing, did not seek or obtain

payment. But, instead of pursuing a claim in the Probate Part that either the

siblings had improperly compensated themselves from their father's property or

that the estate should compensate him for the similar services he claims to have

rendered, plaintiff allowed the probate proceedings to move forward without his

input or an assertion of this allegation. In other words, the facts of which

plaintiff complains either suggest that the siblings were paid something to which

they were not entitled or plaintiff was not paid that to which he was entitled; the

former would be a claim belonging to the estate and the latter would be a claim

against the estate in quantum meruit. The former was a matter to be pursued by

the estate itself or by plaintiff (on a waste theory) in the Probate Part; not as a

separate Law Division claim by plaintiff as a beneficiary against other

beneficiaries. And while the latter – the claim that decedent owed plaintiff for

services rendered at the time of death – might have been pursued as a quantum

meruit claim against the estate in the Law Division if timely commenced,

plaintiff acknowledges it was properly dismissed by the motion judge and that

claim, therefore, is not now before us.

      And, if we were to assume that the circumstances alleged by plaintiff

might support a claim of tortious interference with inheritance – which plaintiff


                                                                           A-5029-16T3
                                          5
also describes as a fraud claim – we agree with the trial judge that the forum for

that claim was the Probate Part. See Garruto v. Cannici, 397 N.J. Super. 231,

240 (App. Div. 2007). Again, plaintiff filed a caveat and thereby secured an

opportunity to claim his siblings somehow exerted undue influence or otherwise

tortuously interfered with what he might fairly have inherited. Because plaintiff

abandoned those claims when he withdrew his caveat,2 he could not later pursue

that claim in the Law Division.3

      Affirmed.




2
   If the withdrawal of the caveat was not fatal, then plaintiff's failure to seek
relief in the Probate Part within four months of the probate judgment was
certainly fatal. See R. 4:85-1.
3
  As noted, the complaint also alleged waste, citing N.J.S.A. 2A:65-5. Plaintiff
has not discussed this claim in his written and oral submissions here. Moreover,
although the Legislature has provided additional remedies in such an event,
including treble damages, there is nothing in the record to suggest this pleaded
cause of action varied from the tortious-interference-with-inheritance claim.
We find that claim was properly dismissed for the same reasons.
                                                                          A-5029-16T3
                                        6
