IN THE MATTER OF THE ESTATE OF JOSEPH WISNIEWSKI, SR

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3074-07T13074-07T1

IN THE MATTER OF THE ESTATE

OF JOSEPH WISNIEWSKI, SR.

________________________________________________________________

 

Submitted May 13, 2009 - Decided

Before Judges Fisher, C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Probate Part, Union County, Docket No. J-1733.

June Wisniewski, appellant pro se.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent Jan Wisniewski, Executor of the Estate of Joseph Wisniewski, Jr. (Francis X. O'Brien, of counsel; Elizabeth A. Kenny and Mr. O'Brien, on the brief).

Carroll, McNulty & Kull, L.L.C., attorneys for respondent Travelers Casualty and Surety Company (Joseph P. McNulty and Daniel Pickett, of counsel and on the brief).

PER CURIAM

June Wisniewski appeals from a February 14, 2008 order that denied her motion to reconsider a January 17, 2008 order that discharged a surety bond issued by Travelers Casualty and Surety Company (Travelers). We affirm.

I.

In January 1989, Travelers issued the bond in question to Joseph Wisniewski, Jr., in his capacity as the administrator of the estate of June and Joseph, Jr.'s father, Joseph Wisniewski, Sr., who died intestate in January 1989. On July 13, 1992, plaintiff moved to increase the bond to $300,000 and vacate the judgment appointing Joseph, Jr. as administrator of their father's estate. On September 9, 1992, after a two-day trial, a probate judge issued an order in which he approved Joseph, Jr.'s final accounting of the estate, overruled plaintiff's exceptions to the accounting, and increased the bond to $300,000.

Plaintiff's appeal of that order was unsuccessful. Specifically, on July 20, 1994, a panel of this court affirmed the September 9, 1992 order that had approved Joseph, Jr.'s final accounting of the estate. The panel found that "[t]he challenged orders and underlying actions [of Joseph, Jr.] as administrator of decedent's estate [were] legally unexceptionable." In re the Estate of Joseph Wisniewski, Sr., Deceased, No. A-755-92 (App. Div. July 20, 1994)(slip op. at 3).

On January 7, 1995, plaintiff signed a final release and refunding bond. Nonetheless, claiming that she had signed the release "under duress" because her brother's attorney had threatened and blackmailed her, and also claiming she was seriously ill with Hodgkin's disease at the time she signed the release, plaintiff sought in April 1995 to reopen the probate litigation. By order of May 12, 1995, the probate judge denied plaintiff's motion.

On October 22, 1996, a panel of this court affirmed the May 12, 1995 order but remanded for a plenary hearing on the voluntariness of plaintiff's January 7, 1995 signing of the final release. The panel placed on plaintiff the "burden of present[ing] relevant, competent evidence, including testimony of plaintiff and her treating physicians, of undue pressure and incapacity." In re Estate of Joseph Wisniewski, Sr., No. A-6009-94 (App. Div. October 22, 1996) (slip op. at 7).

On remand, the probate court, on June 17, 1997, convened a plenary hearing to address the issue of the voluntariness of plaintiff's signing the January 7, 1995 release. Plaintiff failed to attend the hearing. The guardian ad litem who had been appointed to assist plaintiff summarized his efforts to aid her in presenting her case. On July 8, 1997, in light of plaintiff's failure to appear and offer proof, the probate court entered an order dismissing plaintiff's challenge to the final release.

More than a decade later, in May 2007, plaintiff sought to become substitute administrator based on her claim that assets remained in her father's estate, specifically an unclaimed $3,718.39 life insurance policy of which Joseph, Jr. was the beneficiary. By order dated January 17, 2008, the probate court denied plaintiff's motion to be appointed substitute administrator. At the same time, the judge discharged the bond and released Travelers from any potential liability on the bond. On February 14, 2008, the judge denied plaintiff's motion for reconsideration.

On appeal, plaintiff challenges the January 17 and February 14, 2008 orders that discharged the bond and released Travelers. She raises the following claims:

I. PROBATE CASE SHOULD NOT BE DISMISSED BECAUSE THE STATUTE OF LIMITATIONS HAS NOT EXPIRED ON ACTIONS AGAINST SURETY BONDS, AND DIRECT ACTION CAN NOW BE TAKEN AGAINST SURETY BOND DUE TO A RECENT CHANGE IN THE LAW.

II. CAUSE OF ACTION EXISTS AGAINST SURETY BOND BECAUSE THE ADMINISTRATOR FAILED TO PERFORM THE CONDITIONS OF THE BOND, WHICH IS TO FILE A TRUE AND PERFECT INVENTORY, FAITHFULLY DISCHARGE ALL OF THE DUTIES IMPOSED UPON HIM BY LAW, DISTRIBUTE THE SURPLUS ESTATE ASSETS EQUALLY BETWEEN TWO HEIRS, AND FILE AN ACCOUNTING WITH ALL THE ASSETS RECEIVED AND PAYMENTS MADE IN THE ESTATE.

III. PROBATE CASE SHOULD NOT BE DISMISSED BECAUSE ALL THE MONEY AND ASSETS FROM TENDERING REFUNDING AND RELEASE BONDS IN ADVANCE TO ADMINISTRATOR HAS NOT YET BEEN PAID TO HEIR, THE PLAINTIFF.

IV. SURCHARGE AND INTEREST AGAINST ADMINISTRATOR SHOULD BE ALLOWED FOR OVERPAYMENT OF ASSETS BY ADMINISTRATOR TO ONE HEIR, HIMSELF, BECAUSE THERE IS NO STATUTE OF LIMITATIONS REGARDING OVERPAYMENT OF ASSETS, AND ASSETS WERE NOT DISTRIBUTED EQUALLY BETWEEN BOTH HEIRS ACCORDING TO THE INTESTACY LAWS.

V. PROBATE CASE SHOULD NOT BE DISMISSED BECAUSE A FINAL ACCOUNTING AND JUDGMENT FOR DISTRIBUTION WAS NEVER DONE, EVEN WHEN REQUESTED BY AN HEIR, AND ALL ACCOUNTING CLAIMS BY THE ADMINISTRATOR AND HIS ATTORNEY [WERE] DENIED AND OVERRULED BY A DECEMBER, 1992, ORDER.

VI. ACTION AGAINST ADMINISTRATOR[] [JOSEPH, JR.'s] ESTATE AND ASSETS SHOULD BE ALLOWED BECAUSE OF RECENTLY DISCOVERED MEDICAL DISABILITY OF ADMINISTRATOR, CHRONIC ALCOHOLISM, LEGAL/MEDICAL DISABILITY OF PLAINTIFF, AND NEW EVIDENCE SHOWING BIAS OF RETIRED TRIAL JUDGE IN CASE, INCLUDING HIS RECENT TV APPEARANCES ON FOX NEWS AND CONTINUOUS REFUSAL OF JUDGE TO PROVIDE "REASONABLE ACCOMMODATIONS" IN COURT PROCEEDINGS TO A DISABLED LITIGANT, IN VIOLATION OF ADA (AMERICANS WITH DISABILITIES ACT).

Having carefully reviewed the record in light of plaintiff's contentions on appeal, we are satisfied that her arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add only the following comments. Plaintiff's claim that Joseph, Jr.'s accounting of the estate was incomplete and her father's assets not properly distributed are the same claims that we rejected on appeal in 1994. The 1992 accounting was approved more than sixteen years ago, and the order approving it was affirmed on appeal in 1994. Plaintiff has presented no meritorious basis upon which to reopen the probate litigation. Moreover, she was afforded an opportunity in June 1997 to present proof of duress and fraud, but failed to attend the very hearing at which those claims could have been presented and evaluated. We perceive no need to address claims that could have been addressed more than a decade ago had plaintiff attended the 1997 hearing.

We likewise reject plaintiff's contention that the probate court denied her a "reasonable accommodation" under the Americans with Disabilities Act, 42 U.S.C.A. 12101 to 12213 (ADA). She did not raise her ADA claim before the probate court. Consequently, we decline to consider that claim for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

We refer to June Wisniewski as plaintiff throughout this opinion.

Because Joseph, Jr. died on August 9, 2006, his wife was appointed executrix of her late husband's estate, and represents his interests in this appeal.

In her reply brief, plaintiff advances additional claims. An appellant is precluded from presenting claims in a reply brief that were not asserted in the initial brief. Twp. of Warren v. Suffness, 225 N.J. Super. 399, 412 (App. Div.), certif. denied, 113 N.J. 640 (1988). Consequently, we decline to consider the claims plaintiff asserts in her reply brief.

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A-3074-07T1

June 3, 2009