FRANCIS LUCCARELLA v. THE ESTATE OF CATHERINE LUCCARELLA, C. JOSEPH LUCCARELLA et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-A-1040-05T3
1040-05T3

FRANCIS LUCCARELLA,

Plaintiff-Appellant,

v.

THE ESTATE OF CATHERINE LUCCARELLA,

C. JOSEPH LUCCARELLA and JAMES

VISALLI, J/S/A

Defendants-Respondents.

 

 

Submitted April 25, 2006 - Decided October 12, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. 93-485.

Francis Luccarella, appellant pro se.

Thatcher, Passarella & Thatcher, attorneys for respondents (David A. Thatcher, on the brief).

PER CURIAM

Plaintiff, Francis Luccarella, appeals pro se from an order entered on September 15, 2005, denying his motion for reconsideration of a previous order, dated April 4, 2005, which permitted plaintiff's brother, the executor of the Estate of Catherine Luccarella, to proceed with the sale of the family farm to a third-party, James Visalli. We affirm.

On April 14, 1992, Catherine Luccarella, passed away testate, with five surviving children: Francis Luccarella, Pauline Madkiff, Marie Galiazzi, Phyllis Pritchett, and C. Joseph Luccarella, who she named as executor. The assets of the estate included a parcel of real estate, known as "the farm," consisting of approximately eighty-three acres in the Township of Elk in Gloucester County. The decedent's will provided that, in the event any of her children wished to purchase the farm, he or she shall be "given the privilege of doing so for such price and on such terms and conditions as all [her] children agreed upon."

Following their mother's death in 1992, Francis leased the farm from the Estate and he and Joseph, the executor, negotiated for several years in an effort to reach an agreement for the sale of the farm to Francis. They could not agree on the property's fair market value. Consequently, no agreement was ever finalized.

In 2002, the County of Gloucester expressed an interest in purchasing the development rights of the farm from the Estate, and on December 29, 2004, Joseph executed an agreement of sale with James Visalli for the purchase price of $141,000, subject to the sale of the development rights to Gloucester County. It was stipulated, agreed and acknowledged in the agreement of sale that the seller was to receive and retain the monies to be paid by Gloucester County for the development rights. The agreement was contingent upon the Estate receiving court approval of the sale of the property.

On January 14, 2005, the Estate filed a notice of motion for an order authorizing the executor to sell the property in accordance with the December 29, 2004 agreement of sale. After hearing oral argument from counsel for plaintiff and for the Estate on February 17, 2005, the court re-listed the motion for March 18, 2004 to afford plaintiff additional time to obtain a valid appraisal to substantiate his position that the fair market value of the subject property substantially exceeded the offer for which the executor sought approval: $229,000 from the County for the development rights and $141,000 from Visalli for the residual rights to the property. When plaintiff failed to obtain a satisfactory appraisal or to make an acceptable offer, the executor requested authorization to proceed with the agreement of sale with Visalli. On April 4, 2005, the court entered an order granting the executor's application. On that order, the judge wrote the following: "The court has given the plaintiff ample opportunity to submit additional evidence in opposition and the plaintiff has failed to do so."

Thereafter, plaintiff moved for reconsideration and to void the December 29, 2004 contract between the executor and Visalli. An order denying that motion was signed on July 14, 2005, after which plaintiff, who was no longer represented by counsel, moved, pro se, for reconsideration. On September 15, 2005, his motion was again denied.

Plaintiff now appeals from the September 15, 2005 order denying his motion for reconsideration. Plaintiff argues that it is unfair for the trial court judge to have allowed the sale of the farm to go forward. He contends the agreement of sale should be voided, as he claims, based on a proposal from a developer, that the land should be valued at three times the price approved by the court. The motion judge rejected plaintiff's plea for relief, stating:

At this time, based on the record, the prior record and the record that's before me today, it is my determination that the order that I signed allowing the executor to proceed with the decision to sell the development rights to the county, sell the remainder to Mr. Vasalli, should stay in full force and effect, and that any application for reconsideration of that decision will be denied.

The court reasoned, "This is a case that cries out for final disposition. It has been ongoing and ongoing and ongoing."

The decision to deny a motion for reconsideration is addressed to the judge's discretion. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997); Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). This court will not interfere with a trial court's exercise of discretion unless the trial judge has "pursue[d] a manifestly unjust course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996).

Based upon our independent review of the transcripts of the proceedings before the court, it is evident that the Estate has held this property since 1992. We are satisfied the executor and the trial court afforded plaintiff multiple opportunities to obtain appraisals and to make a proposal that would be more beneficial to the Estate than the proposal for which the executor sought approval. After years of negotiating, plaintiff has never been able to consummate the purchase and has never been able to demonstrate that the executor's deal with the County and with Visalli is not fair and reasonable. All four of plaintiff's siblings favored the December 29, 2004 agreement of sale, which the court also found was prudent for the executor to accept, rather than to pursue, as plaintiff desired, a proposal for more money, but which had so many contingencies it might never be consummated. In accordance with the guiding principles of appellate review, we defer to the exercise of judgment and discretion exercised by the trial judge in approving the transaction between the Estate and Visalli.

Finally, plaintiff's argument in his reply brief that challenged the behavior of the attorney for the Estate was not raised below. It was not the subject of the September 15, 2005 order from which plaintiff appeals, and it is not properly before this court. R. 2:10-2.

Affirmed.

 

 

Although the judge noted that plaintiff's application for reconsideration was, "technically . . . out of time," he determined "not to hold a pro se litigant to these technicalities." Ordinarily, R. 4:49-2 requires that a motion for reconsideration seeking to alter or amend a judgment or order be served not later than twenty days after service of the judgment or order by the party obtaining it.

(continued)

(continued)

6

A-1040-05T3

 

October 12, 2006