IN THE MATTER OF THE ESTATE OF RICHARD NEWBERY Deceased

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1332-08T11332-08T1

IN THE MATTER OF THE

ESTATE OF RICHARD NEWBERY,

Deceased

______________________________

 
Argued Telephonically March 8, 2010 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. 21179.

June Wisniewski, appellant, argued the cause pro se.

David J. Bloch argued the cause for respondents Linda A. Hilton, CPA and Selective Insurance Company (L'Abbate, Balkan, Colavita & Contini, L.L.P., attorneys; Marie Ann Hoenings, of counsel; Mr. Bloch, on the brief).

Richard H. Greenberg argued the cause for pro se respondents Greenberg & Schulman.

PER CURIAM

June Wisniewski (Wisniewski or plaintiff) appeals from a September 19, 2008 order of the Probate Part dismissing her verified complaint and order to show cause asserting claims against the following parties: Linda A. Hilton, the former administratrix of the Estate of Richard Newbery, Hilton's surety Selective Insurance Company of America, Richard Greenberg, Esq., who drafted Newbery's will and later represented Hilton in an action to probate the will, and the law firm of Greenberg and Schulman. We affirm.

I

These are the most pertinent facts. In May 2004, Richard Newbery, who was in his late sixties and suffering from Parkinson's disease, retained Linda Hilton, an accountant, to prepare his taxes. Thereafter, they became close friends. In September 2005, when Newbery was ill and hospitalized, he wished to have a will prepared and he asked Hilton to recommend an attorney. She recommended Greenberg, who was not a personal friend but with whom she had previously worked on an uncontested estate. When Greenberg met with Newbery outside Hilton's presence, Newbery advised him that since he had no relatives, other than several cousins he had not seen in decades, and Hilton was his good friend, he wished to leave his entire estate to her. At that point, according to Greenberg's testimony, he questioned Newbery extensively and determined that he was alert and clearly not incapacitated. He also closely questioned Newbery to be sure that he wanted to leave all of his assets to Hilton, as opposed to family members.

Nonetheless, to guard against any possible later claim of undue influence, after Greenberg prepared the will he brought another attorney with him when he met with Newbery to have him review and sign the document. At that meeting, on October 20, 2005, both attorneys observed that Newbery was incapacitated due to his illness and they rescheduled the appointment. However, Newbery died before Greenberg and the other attorney could meet with him again.

Hilton sought and obtained appointment as the administratrix of Newbery's estate. Thereafter, represented by Greenberg, she sought to have the unsigned will admitted to probate. Hilton contended that pursuant to N.J.S.A. 3B:3-3, the unsigned will could be probated if she could prove by clear and convincing evidence that Newbery intended it to constitute his will. After an initial hearing on February 24, 2006, at which none of Newbery's relatives appeared, the court admitted the will to probate, subject to Greenberg providing further proof that all of the cousins had been served with the probate complaint.

Subsequently, plaintiff and several other cousins appeared in the action, represented by counsel, and filed a summary judgment motion opposing admission of the will to probate. By order dated August 25, 2006, the court changed its prior ruling and determined that Newbery's will would not be admitted to probate. The court also appointed one of plaintiff's attorneys, Lawrence Rosa, to serve as estate administrator in place of Hilton.

Parenthetically, while Hilton was still administratrix, Champion Mortgage had filed a foreclosure action, contending that the mortgage on Newbery's house was in default. As was required by foreclosure law, the complaint named, among other defendants, June Wisniewski and Newbery's other living relatives, as well as Hilton in her fiduciary capacity. Consistent with her responsibility as the estate's fiduciary, Hilton, represented by Greenberg, vigorously defended the estate against the foreclosure action.

In August 2006, after Rosa's appointment as administrator, Greenberg and Hilton filed an application seeking fees and commissions from the estate in connection with the probate litigation, for other services rendered to the estate, and for services Hilton rendered to Newbery before his death. On January 18, 2007, the Probate Part judge entered an order awarding fees and commissions. Significantly, that order recited that "counsel for all parties" had "been served" with the application and had "achieved an agreement with respect to amounts to be paid pursuant to the within motion." The judge also noted "consent" on the last page of the order.

At oral argument of this appeal, Wisniewski conceded that at the time the January 18, 2007 order was entered, she was represented by counsel. Although she advised us that she personally did not agree with the award, she did not dispute that her attorney consented to the order. Moreover, she received a copy of the January 18, 2007 order and did not appeal from it.

On August 27, 2007, Rosa filed a verified complaint seeking the court's approval of his final estate accounting. By order dated October 15, 2007, the court approved the accounting, including Rosa's fees and commissions, and ordered Rosa to distribute the remainder of the estate to plaintiff and the other heirs. Wisniewski concedes that she received a copy of the October 15, 2007 order and did not file an appeal. That order terminated the probate proceedings concerning the estate.

However, on May 5, 2008, plaintiff filed a verified complaint and order to show cause in the probate docket, accusing Greenberg and Hilton of assorted wrongdoing in connection with the attempt to probate the unsigned will and accusing Hilton of mismanaging the estate while she was administratrix. She objected to Greenberg's legal fees in connection with the probate litigation. She also alleged that Greenberg and Hilton conspired in some fashion to have her named as a defendant in the foreclosure action. She further contended that an April 12, 2006 stipulation in the foreclosure case was a complete resolution of the foreclosure, although by its terms the document only dismissed a non-existent named party, "Mrs. Richard Newbery." Plaintiff made assorted additional allegations not directly pertinent to this appeal, concerning, among other things, her father's estate which had been probated more than a decade earlier.

In a certification, plaintiff asserted that she was filing the verified complaint because she had discovered "new evidence" in the Surrogate's files, concerning Hilton's application to be appointed administratrix. She contended that Hilton should not have sought to probate Newbery's will because her application to be named administratrix stated that he had died intestate. Plaintiff also attested that she had recently reviewed the foreclosure files in the Office of Foreclosure. She construed Hilton's answer in the foreclosure case, raising defenses to the foreclosure, as evidence that Hilton had "refused to pay the mortgage." Notably, plaintiff's certification did not deny that she consented, through her counsel, to the January 18, 2007 order approving fees and commissions. Nor did she assert that she was denied an opportunity to object to the final accounting.

The order to show cause was heard by Judge Ciuffani, who had not presided over the previous probate litigation. In an oral opinion placed on the record on September 19, 2008, Judge Ciuffani concluded that plaintiff's claims were barred because she was raising issues that "could have and should have been raised" during the earlier probate litigation. The judge noted that plaintiff failed to appeal from the January 18 and October 15, 2007 orders approving fees and commissions and approving the final accounting, and she failed to file a timely motion for reconsideration of those orders. He rejected her claim of "newly discovered evidence," because "the very things that Ms. Wisniewski said she found were right there in the public record all along" where she or her counsel could have found them.

II

On this appeal, plaintiff raises the following points for our consideration:

POINT I: A WILL DRAFT SHOULD NOT BE PROBATED THAT WAS NOT EXECUTED, NOT READ, NOT REQUESTED, NOT DATED, NOT WITNESSED, AND NOT NOTARIZED ACCORDING TO REVISIONS AND PROVISIONS IN N.J.S.A. 3B:3-3 AND N.J.S.A. 3B:3-2.

POINT II: NEW EVIDENCE SHOULD BE ALLOWED THAT SHOWS DECEDENT DID NOT REQUEST A WILL, DECEDENT DIED INTESTATE, AND THAT PROBATE PROCEEDINGS BY DEFENDANTS WERE FRAUD AND A FRAUD UPON THE COURT.

POINT III: THE POWER-OF-ATTORNEY DOES NOT EXTEND TO REQUIRE DECEDENT TO PREPARE A WILL TO MAKE POWER-OF-ATTORNEY THE ESTATE HEIR, HIRING AN ATTORNEY TO ASSIST HER IN CARRYING OUT THIS SCHEME, AND QUICKLY CREMATING THE DECEDENT WITH NO WRITTEN DIRECTIONS BY THE DECEDENT.

POINT IV: ATTORNEY FEES AND ADMINISTRATOR FEES SHOULD NOT BE PAID TO THE PERSONS ATTEMPTING TO PROBATE AN UNEXECUTED WILL DRAFT, STATING THAT N.J.S.A. 3B:3-3 WAS CHANGED TO ALLOW THE PROBATE OF AN UNEXECUTED WILL.

POINT V: COMPENSATORY AND PUNITIVE DAMAGES SHOULD BE PAID TO THE PLAINTIFF BY THE ATTORNEY AND HIS CLIENT WHO ARRANGED FOR TWO FRIVOLOUS LAW SUITS TO BE FILED AGAINST THE PLAINTIFF AND FOR FAILING TO ACCOUNT FOR ALL THE ASSETS IN THE ESTATE.

Having reviewed the entire record, we conclude that all of these contentions are without merit, and except as addressed herein, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Much of plaintiff's argument is devoted to her objections to the will being admitted to probate. However, those contentions are irrelevant, because the will was not admitted to probate. Further, if plaintiff believed that Hilton's initial probate application was improper and wasted estate assets, she had an opportunity to object to Hilton's application for commissions and Greenberg's counsel fee application. Instead, plaintiff, who was represented by counsel, consented to the January 18, 2007 order. As Judge Ciuffani correctly observed, absent circumstances not present here, plaintiff is estopped from re-litigating the awards to Hilton and Greenberg.

Plaintiff also failed to move for reconsideration of either the January 18, 2007 order or the October 15, 2007 order within the twenty days allowed by Rule 4:49-2. Nor did she appeal from either order. Moreover, plaintiff cannot reopen the probate judgment based on "newly discovered evidence," because the probate and foreclosure documents on which she bases her claims were readily available in the public record while the earlier probate case was ongoing. Rule 4:50-1(b) permits a party to move for relief from a final judgment based on newly discovered evidence, but only if that evidence "by due diligence could not have been discovered in time" to file a motion within the twenty day time limit allowed by Rule 4:49. We find no abuse of discretion in Judge Ciuffani's order dismissing plaintiff's verified complaint and order to show cause. See Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994).

 
Affirmed.

Evidently recognizing that Hilton had raised a substantial legal issue concerning the construction of N.J.S.A. 3B:3-3, the judge noted on the order his recommendation that we grant leave to appeal if sought. However, Hilton did not seek leave to appeal.

To accommodate plaintiff, who was then in Nevada, Judge Ciuffani heard the order to show cause by telephone. With great patience, he permitted plaintiff to argue her cause at considerable length, contrary to her appellate contention that she was denied the opportunity to fully argue her case.

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A-1332-08T1

March 26, 2010