IN THE MATTER OF THE ESTATE OF FRANK LEONARD DECEASED

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6403-08T3

IN THE MATTER OF THE ESTATE

OF FRANK LEONARD, DECEASED

______________________________

September 28, 2010

 

Submitted May 25, 2010 - Decided

 

Before Judges Gilroy and Simonelli.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, Docket No. P415-08.

 

Michael C. Leonard and Ariel Leonard, appellants pro se.

 

Hollander, Strelzik, Pasculli, Hinkes, Vandenberg & Hontz, LLC, attorneys for respondent Elizabeth Leonard (Alan Strelzik, on the brief).

 

PER CURIAM

Appellants Michael Leonard and Ariel Leonard, his niece, appeal from the July 24, 2009 order that denied Michael Leonard's motion seeking to compel Elizabeth Leonard to grant him access to a single-family dwelling located on Upper North Shore Culver Lake in Branchville (the Culver Lake property) to remove items of personalty that belonged to his deceased mother Ada Leonard, and to permit access to the Culver Lake property yearly to inspect for waste. The order also granted Elizabeth Leonard's cross-motion seeking to compel Michael Leonard to reimburse her for his share of 30% of the maintenance costs of the Culver Lake property, and to return a specific item of personalty that Michael Leonard had removed from the Culver Lake residence. Lastly, the order directed Michael Leonard to pay Elizabeth Leonard counsel fees in the amount of $1,519.25. We affirm in part; and reverse in part.1

Decedent Frank Leonard died on December 25, 1991. Prior in life, decedent had been married to Ada Leonard who pre-deceased him. Seven children were born of their marriage: Frank Leonard, Jr., Martina M. Leonard, Michael C. Leonard, Kevin H. Leonard, Brian H. Leonard, Ada Thom Duffy, and Hillary M. Oak. After Ada Leonard's death, decedent married Elizabeth. At the time of his death, decedent was survived by Elizabeth and his children, and left a will dated October 28, 1983, naming Elizabeth as executrix of decedent's estate.

Under paragraph three of the will, decedent bequeathed all of the personal possessions formerly belonging to his wife Ada Leonard to his children. Paragraph five of the will created a testamentary trust to manage and dispose of the Culver Lake property. Paragraph five provided in pertinent part:

My residence at Culver Lake, I give, devise and bequeath to my Trustees, hereinafter mentioned for the following uses and purposes:

 

(a) For the use and occupancy by my wife, ELIZABETH, for life. I request my wife, ELIZABETH, to permit my children to continue to visit my Culver Lake property as they did during my lifetime. My wife, ELIZABETH, is to have the final decision as to times and conditions of their visits. I direct her to consult with my children, MARTINA and MICHAEL as to timing and length of visits of my children. The wishes of my wife, ELIZABETH, will receive first consideration in deciding on time of occupancy by my children.

 

(b) . . . .

 

(c) It is my wish that my wife and children share the expenses of maintenance, taxes, etc.[,] of the premises as equally as my trustees deem feasible.

 

(d) If in the opinion of my wife, ELIZABETH, it becomes absolutely necessary that the property be sold, she should consult with my children, MARTINA and MICHAEL, and the decision to sell must be the unanimous decision of ELIZABETH, MARTINA and MICHAEL.

 

(e) In event the sale is accomplished, I direct that from the proceeds, my trustees reimburse my wife for any monies she disbursed on the property in excess of the disbursements of any one of my children. After payment to my wife, and payment of any other obligations against the property, I direct my trustees to distribute the balance in equal shares to my wife, ELIZABETH, and to my children, FRANK M. JR.; MARTINA M.; MICHAEL C.; KEVIN H.; BRIAN H.; ADA T. and HILARY M. In event any of my children predecease me leaving children, I give, devise and bequeath his or her share to his or her child or children. In event any predecease me without leaving children, I give, devise and bequeath his or her share equally to my wife and surviving children.

 

(f) . . . .

 

(g) . . . .

 

Between decedent's death and August 1995, Frank Leonard, Jr., died. Frank Leonard, Jr., was survived by three children, Ariel Leonard, Corwin Leonard, and Tambra Leonard. In August 1995, decedent's six surviving children and the three grandchildren filed a complaint to compel Elizabeth to probate decedent's October 28, 1983 will. On October 31, 1995, the Chancery Division entered an order directing Elizabeth to probate the will.

On August 6, 2007, Elizabeth filed a complaint and order to show cause (OTSC), seeking an order prohibiting decedent's children and their families from occupying the Culver Lake residence, from interfering with her use and occupancy of the residence, and from entering upon the property without her permission. According to appellants, the complaint neither named nor was served upon the three grandchildren.

On September 10, 2007, Michael, on behalf of himself and his "siblings," filed an answer and counterclaim for waste and mismanagement of the Culver Lake property. The counterclaim sought to remove Elizabeth as executrix, order the property be sold, and permit Michael and Martina Leonard to enter Elizabeth's home in Washington, D.C., to identify their mother Ada Leonard's personalty and remove same.

InSeptember 2007, the trial court conducted a hearing on Elizabeth's complaint. On November 27, 2007, the court rendered an oral decision determining that Elizabeth possessed a life estate and permitted the filing of the counterclaim nunc pro tunc. The court entered a confirming order on December 14, 2007. Although the order contained restraints against defendant's six surviving children, "and any other heir other than the plaintiff [Elizabeth]," the order was never served upon the grandchildren.

The trial court conducted a five-day plenary hearing on the counterclaim. On October 1, 2008, the court entered an order, supported by an oral decision of August 21, 2008, that, among other things: 1) denied the counterclaim for waste; 2) denied the counterclaimants' request for an order: a) removing Elizabeth as executrix; b) directing Elizabeth to return any items of personalty formerly belonging to Ada Leonard to decedent's children as barred by laches; and c) compelling the sale of the Culver Lake property. The order also determined the respective parties' rights and obligations concerning the use and maintenance of the Culver Lake property:

Plaintiff, as life tenant, is entitled to quiet enjoyment of the real estate. She shall be permitted to reside, undisturbed, from May 1 through October 30 of every year. This shall not bar her from access to the property and her life estate during the portions of the year, however, the Court shall address by further Order any rights of the remaindermen to enter upon or utilize the property during the period October 31 to April 30 each year and the expenses to be incurred by them relative to said use.* [Footnote:]* [Elizabeth] Leonard to pay for 70% of expenses of property; remaindermen to pay 30% including all expenses of maintenance."

 

In June 2009, Michael filed a motion in his own right seeking access to the Culver Lake residence to remove items of personalty that previously belonged to his mother and to permit him access to the property at least yearly to inspect for waste. In July 2009, Elizabeth filed a cross-motion seeking to compel Michael to reimburse her for his share of the 30% costs of maintaining the Culver Lake property pursuant to the October 1, 2008 order, to return a specific item of personalty he had removed from the residence, and for counsel fees and costs.

On July 13, 2009, the trial court rendered an oral opinion denying Michael's motion, determining that his claim for return of personalty that previously belonged to his mother was barred by laches and the entire controversy doctrine (ECD); and granted Elizabeth's motion. The court entered a confirming order on July 24, 2009, directing Michael to pay his portion of the 30% of the costs of maintaining the Culver Lake property through the second quarter of 2009 ($1,933.08), to return to Elizabeth the one item of personalty he had previously removed from the property; and to pay Elizabeth $1,519.25 in counsel fees and costs.

On appeal, appellants argue that the court erred in denying Michael's request to remove his mother's personalty from the Culver Lake residence under the principles of laches and the ECD; entering restraining orders against the three grandchildren because the grandchildren were never joined in the action; compelling decedent's children to pay 30% of the maintenance costs of the Culver Lake property; denying the children's application for partition of the property; and awarding Elizabeth counsel fees and costs.

Elizabeth counters that the appeal, although taken from the July 24, 2009 order, challenges matters that were tried and resolved by the October 1, 2008 order. Elizabeth contends that appellant's appeal is time barred, appellants not having filed their appeal within forty-five days of the October 1, 2008 order. Elizabeth also asserts that appellant Ariel Leonard lacks standing to participate in the appeal as the trial court's August 24, 2009 order "did not aversely affect her rights or obligations in any way whatsoever."

We first address Ariel Leonard's standing to participate in this appeal. Standing "involves a threshold determination which governs the ability of a party to initiate and maintain an action before the court." Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 2001). It "is an element of justicability that cannot be waived or conferred by consent." Ibid. (quoting In re Adoption of Baby T., 160 N.J. 332, 341 (1999)). Although New Jersey courts broadly construe standing, determining the threshold for "standing to be fairly low," id. at 81 (quoting Reaves v. Egg Harbor Twp., 277 N.J. Super. 360, 366 (Ch. Div. 1994)), for a party to have standing that party "must have 'a sufficient stake and real adverseness with respect to the subject matter of the litigation.'" Ibid. (quoting In re Adoption of Baby T., supra, 160 N.J. at 340). Simply stated, there must be "'[a] substantial likelihood of some harm visited upon the [party] in the event of an unfavorable decision is needed for the purposes of standing.'" Ibid.

The only order appealed from is the July 24, 2009 order. That order resolved Michael's and Elizabeth's 2009 cross-motions. The order does not affect Ariel Leonard's interest. Because we are satisfied that Ariel Leonard lacks standing to prosecute this appeal, we dismiss her as a party to this appeal. Nevertheless, we add the following comment. Ariel Leonard asserts that she was never named as a party to the underlying action nor served with legal process. If that is so and she did not participate in the trial through any of the decedent's surviving children, we find no basis for her to be bound by the orders entered in the matter. With that said, we now turn to the substance of the appeal.

Michael first challenges the order compelling the decedent's children to pay 30% of the maintenance costs of the Culver Lake property and denying the application for partition or sale of the property. Those issues were resolved by the court's October 1, 2008 order. Any appeal challenging the merits of that order should have been filed within forty-five days of its entry. R. 2:4-1(a).

Michael argues next that the trial court erred in denying his motion seeking an order compelling Elizabeth to turn over items of personalty formerly owned by his mother as barred by the doctrines of laches and/or the ECD. We agree.

Laches is invoked to deny a party's enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party. In re Kietur, 332 N.J. Super. 18, 28 (App. Div. 2000). Factors to be considered in deciding whether to apply the doctrine are "[t]he length of delay, reasons for delay, and [the] changing conditions of either or both parties during the delay." Lavin v. Bd. of Educ. of Hackensack, 90 N.J. 145, 152 (1982). The core equitable concern in applying laches is whether a party has been harmed by the delay. Id. at 152-53.

The ECD is an equitable doctrine that rests upon the twin pillars of "fairness to the parties and fairness to the system of judicial administration." Joel v. Morrocco, 147 N.J. 546, 555 (1997). The doctrine is designed to encourage comprehensive and conclusive adjudications, promote judicial economy and efficiency, and achieve party fairness. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:30A (2011). The ECD requires mandatory joinder of claims by incorporating the concept of claim preclusion. R. 4:30A.

Nevertheless, the guiding principle underpinning the ECD is judicial fairness. K-Land Corp. No. 28 v Landis Sewerage Auth., 173 N.J. 59, 74 (2002). Accordingly, "[i]n considering fairness to the party whose claim is sought to be barred, a court must consider whether the claimant has 'had a fair and reasonable opportunity to have fully litigated that claim in the original action.'" Gelber v. Zito Partnership, 147 N.J. 561, 565 (1997) (quoting Cafferata v. Peyser, 251 N.J. Super. 256, 261 (App. Div. 1991)). For example, where claims are "separate and discrete" from those in the initial proceeding, the mandatory joinder of claims does not bar the subsequent action. Hillsborough Twp. Bd. of Educ. v. Faridy Thorne Frayta, P.C., 321 N.J. Super. 275, 285 (App. Div. 1999). Nor does the doctrine "apply to bar component claims either unknown, unarisen or unaccrued at the time of the original action." K-Land Corp., supra, 173 N.J. at 70 (quoting Pressler, Current N.J. Court Rules, comments 1 & 2 on R. 4:30A (2002) (emphasis omitted)). It is against these principles that we consider Michael's argument.

Pursuant to the decedent's will, decedent bequeathed all items of personalty formerly belonging to his wife Ada Leonard to his seven children. Elizabeth never challenged that bequest. At the time Elizabeth filed her complaint in August 2007, seeking to prohibit decedent's children from interfering with her use of the Culver Lake property, Elizabeth did not dispute that any items of personalty in the Culver Lake residence that formerly belonged to Ada Leonard now belong to decedent's children and grandchildren. Michael asserted in his counterclaim that "most of [the contents in the Culver Lake residence] belonged to the decedent's children, including valuable antiques, paintings and sculptures," and Martina Leonard testified at trial to the children's claim to the personalty in the Culver Lake residence, stating, "they are our property and . . . I feel they should be . . . protected." Nonetheless, Elizabeth never denied that the personalty that formerly belonged to Ada Leonard now belongs to decedent's children. Indeed, on cross-examination at trial, Elizabeth admitted the children's ownership:

Michael's attorney: And Ms. Leonard, was there also property that belonged to the heirs located in the [Culver] Lake home?

 

Elizabeth: Oh, most of it, certainly.

 

The only dispute that existed at the time of the 2008 trial concerned whether Elizabeth had relocated items of personalty from the Culver Lake property to her residence in Washington, D.C. Michael and Martina Leonard sought an order allowing them to enter Elizabeth's Washington, D.C. home to identify those items and remove them from Elizabeth's home. There was no reason for Michael to assert a claim against Elizabeth for the personalty in the Culver Lake residence as Elizabeth did not challenge the children's ownership thereof.

We conclude that because no dispute existed as to what items of personalty in the Culver Lake residence belonged to decedent's children at the time the action was tried in 2008, Michael is not barred by laches or the ECD from asserting a claim to the personalty via his June 2009 motion. The issue first arose after the court's October 1, 2008 order, when Michael wrote a letter to Elizabeth on December 31, 2008, advising that he and Martina Leonard intended to remove their mother's personalty from the Culver Lake residence in the spring of 2009. After Elizabeth failed to respond to the letter and Michael did not receive a favorable response from her attorney, Michael filed his June 2009 motion. Certainly, there was no delay in asserting the claim of ownership to the personalty once Elizabeth refused to allow Michael and Martina Leonard to remove the personalty from the Culver Lake residence. Moreover, there was no showing of any prejudice to Elizabeth in defending that claim.

We reverse that part of the July 24, 2009 order that denied Michael's motion seeking an order to compel Elizabeth to turn over the items of personalty that formerly belonged to his mother. We remand for resolution of the issue.

We also reverse the award of counsel fees and costs to Elizabeth. We reject Michael's argument that the award of counsel fees was punitive in nature reflecting the court's hostility toward him as a pro se litigant. The court awarded counsel fees to Elizabeth in prosecuting her motion to enforce litigant's rights pursuant to Rule 1:10-3. Relief may be granted under the rule on finding that the defaulting party has the capacity to comply with the court's order, but fails to do so without justification. Pressler & Verniero, Current N.J. Court Rules, comment 4.3 on R. 1:10-3 (2011).

The court awarded counsel fees to Elizabeth finding that her claims were meritorious, and Michael's claims were not. Because we have reversed that part of the order denying Michael's request to regain possession of items of personalty that formerly belonged to his mother, we reverse and vacate the award of counsel fees, leaving the parties free to apply for counsel fees after resolution of Michael's claim concerning the items of personalty.

We have considered Michael's remaining arguments and determine that none of them are of sufficient merit to warrant discussion in a full written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.

1 We generally refer to the parties and witnesses in the first instance by their full name and then, if referred to more than once in an opinion, by their surname. Because all parties to the appeal and the decedent's heirs have the common surname of "Leonard" and because Michael Leonard and Elizabeth Leonard are the primary parties to this appeal, as stated infra, for purpose of this opinion we shall refer to Michael Leonard and Elizabeth Leonard hereinafter as "Michael" and "Elizabeth," respectively.