IN THE MATTER OF THE ESTATE OF CHAIM LICHTSZTRAL, DECEASED MARIA BARCHAT, NEW YORK EXECUTRIX OF THE ESTATE OF CHAIM LICHTSZTRAL DECEASED v. JUDITH PIZEM and RUBIN PIZEM - and WILEY, MALEHORN, & SIROTA and SHEILA MINTS, ESQ IN THE MATTER OF THE EST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3162-10T3

A-4615-10T3

IN THE MATTER OF THE

ESTATE OF CHAIM

LICHTSZTRAL, DECEASED,

MARIA BARCHAT, NEW YORK

EXECUTRIX OF THE ESTATE

OF CHAIM LICHTSZTRAL,

DECEASED,

Plaintiff-Appellant,

v.

JUDITH PIZEM and RUBIN PIZEM,

Defendants-Respondents,

and

WILEY, MALEHORN, & SIROTA,

and SHEILA MINTS, ESQ.,

Defendants.

_______________________________________

IN THE MATTER OF THE

ESTATE OF CHAIM

LICHTSZTRAL, DECEASED,

MARIA BARCHAT, NEW YORK

EXECUTRIX OF THE ESTATE

OF CHAIM LICHTSZTRAL,

DECEASED,

Plaintiff-Respondent,

v.

JUDITH PIZEM and RUBIN PIZEM,

Defendants-Appellants,

and

WILEY, MALEHORN, & SIROTA,

and SHEILA MINTS, ESQ.,

Defendants.

_______________________________________

April 11, 2012

 

Argued February 28, 2012 Decided

 

Before Judges Messano and Yannotti.

 

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. CP-0304-2009.

 

Edward C. Logan argued the cause for appellant.

 

Robert J. Conroy argued the cause for respondents (Kern, Augustine, Conroy & Schoppmann, P.C., attorneys; Mr. Conroy, of counsel; R. Bruce Crelin, on the brief).

PER CURIAM

In A-3162-10, plaintiff Maria Barchat (Barchat), appeals from an order entered by the Chancery Division on January 20, 2011, denying her motion for summary judgment and granting summary judgment in favor of defendants, Judith and Rubin Pizem (the Pizems). In A-4615-10, the Pizems appeal from the denial of their motion for attorneys' fees and costs pursuant to Rule 1:4-8. We consolidate the appeals for purposes of decision and affirm the orders from which these appeals were taken.

I.

On December 11, 1996, Chaim Lichtsztral (Lichtsztral), a resident of the State of New York, executed a last will and testament, which directed that his debts, funeral and administrative expenses be paid. The will further provided that, if his wife, Nadia Lichtsztral (Nadia), survives him, the remainder of the estate would be held in trust for her benefit.

According to the will, the trustees would have the discretion to pay Nadia all or part of the principal of the trust as they deem necessary or desirable for her support, maintenance, health, comfort or general welfare. The will additionally provided that, upon Nadia's death, the trustees shall pay over the remaining principal of the trust and any accumulated income to Barchat, who is Chaim Lichtsztral's daughter.

In January 2003, Lichtsztral was arrested after Nadia called the police and alleged that he had engaged in an act of domestic violence. It appears that Lichtsztral spent the night in jail. He later said that, after his release from jail, he stayed several days in a local hotel. Lichtsztral claimed that his granddaughter had attempted to have him admitted to a psychiatric hospital but the physicians there had refused to admit him.

Lichtsztral additionally claimed that his granddaughter took him back to the hotel and, several days later, Barchat picked him up and brought him to her home in North Babylon, New York. Lichtsztral said that, while he was staying there, Barchat and her husband demanded that he change his will, disinherit Nadia and leave all of his assets to Barchat. Lichtsztral refused and he claimed that Barchat and her husband thereafter began to threaten him physically.

Lichtsztral allegedly called the Pizems, who were his friends, and asked if he could come to live with them because he believed that the situation at Barchat's home was intolerable. Lichtsztral apparently has known Rubin Pizem for about fifty years. One of the Pizems's friends drove to Long Island, picked up Lichtsztral at Barchat's home, and drove him to the Pizems' home in New Jersey.

Robin Karpel (Karpel) lived across the street from the Pizems. She was the office manager of the Wiley, Malehorn & Sirota law firm (the Wiley firm). Karpel stated that Lichtsztral told her he wanted to change his will, and she introduced him to Sheila Mints (Mints), a partner in the Wiley firm. Lichtsztral later met with Mintz. According to Mintz, Lichtsztral stated that his wife and daughter had been heartless and treated him shamefully. Lichtsztral allegedly told Mints that he wanted to leave all of his money to the Pizems and directed her to draft his will accordingly. Mints said that he described his assets in detail and told her to designate Judith Pizem as the executrix.

According to Mints, Lichtsztral "indicated that he was currently residing with the Pizems but planned to return to Brooklyn at least temporarily because, sadly, he hoped against hope that he somehow would be able to get back together with his wife." Mints said that Lichtsztral told her "that if that did not work out, he would probably look for some place to live in New Jersey as Ruben Pizem was his oldest friend."

Mints stated that she had no doubt at the time as to Lichtsztral's testamentary capacity. It appears, however, that Dr. Alan D. Fetterman (Dr. Fetterman) examined Lichtsztral on February 13, 2003. Dr. Fetterman is board certified in internal medicine and mainly practices in the field of geriatric medicine. Dr. Fetterman concluded that Lichtsztral was suffering from dementia due "most probably" from Alzheimer's Disease. Dr. Fetterman stated that Lichtsztral "lacks capacity to handle his own financial affairs." Dr. Fetterman later testified that he never found that Lichtsztral lacked testamentary capacity.

On March 10, 2003, Mints met again with Lichtsztral to review and execute the will. Mints said that Lichtsztral confirmed his wish to leave all of his assets to the Pizems. She stated that Lichtsztral was "completely lucid and able to discuss his assets and his wishes for their disposition."

During that meeting, Lichtsztral also told Mints he found an assisted living facility called the Savoy Assisted Living Center (the Savoy) in Brooklyn, New York, and he would see if things worked out with his wife before he decided whether to stay in Brooklyn. That same day, Mints was told that the Savoy had advised Lichtsztral that it would not accept him.

Mints contacted the Savoy. She was told that Barchat had called and advised against accepting her father as a resident because he was violent. Mints located a geriatric psychiatrist, Dr. Lee Hindin, (Dr. Hindin), who evaluated Lichtsztral and found that he had "mild cognitive slowing appropriate to age." Dr. Hardin stated that Lichtsztral was capable of participating in a shared living environment. Mints forwarded the doctor's evaluation to the Savoy, which then accepted Lichtsztral.

Shortly thereafter, Nadia instituted divorce proceedings. Mints says that Lichtsztral contacted her. He allegedly told her there was no hope of reconciliation with his wife "and that his only home was with" the Pizems. Mints claims that Lichtsztral told her the only time any family member visited him at the Savoy was when his granddaughter served him with the divorce papers. Mints stated that Lichtsztral said "he intended to take up permanent residence near the Pizems as soon as he was able to wind up his affairs."

Mints met with Lichtsztral several months later to discuss the progress of the divorce proceedings. She stated that Lichtsztral told her that he had changed the address on his financial documents to the Pizems's address "in preparation for his return to New Jersey." Mints also said that Lichtsztral was "emotionally distraught" over the divorce but he "was able to discuss the divorce proceedings and proposed property settlement clearly." She stated that Lichtsztral did not at any time "appear confused or unable to understand what was happening."

Several months later, Judith Pizem informed Mints that Lichtsztral was in the hospital. He had a "deep vein thrombosis" and because he was sedated, the hospital was seeking permission from the family to treat him. A social worker at the hospital purportedly said that Nadia and Barchat had refused permission for treatment. Lichtsztral recovered. It is unclear whether he did so with or without treatment.

On November 8, 2004, Lichtsztral died at a hospital in Staten Island, New York. Mints thereafter filed a petition to probate his 2003 will in New Jersey. She stated that this was in "accordance with [Lichtsztral's] expressed intent as to domicile and his actions in changing the addresses on his financial documents to New Jersey[.]"

Mints additionally stated that while the Pizems knew that Barchat lived in Long Island, New York, they did not know her "exact" address or how to contact her. Mints attempted to locate Barchat but allegedly was not successful in doing so, and as a result, the Surrogate's Court approved notification by publication.

On December 27, 2004, Lichtsztral's will was admitted to probate. Letters of administration were issued to Judith Pizem, and she was authorized to act as executrix of the estate. Several weeks later, Judith Pizem called Mints and told her that someone was attempting to close an account that had been awarded to Lichtsztral in the divorce proceedings. Mints contacted the bank and was told that two woman had attempted to close the account, one of which claimed to be Nadia.

In February 2005, Mints sent a letter to Nadia's matrimonial attorney, Yolanda Zawisny (Zawisny), in which she stated that Nadia was not entitled to the funds in Lichtsztral's bank accounts. Mints asked Zawisny for Barchat's contact information, and Zawisny later telephoned Mints and said she would contact Barchat. Zawishy asked Mints when the 2003 will was probated. Mints informed Zawisny that the 2003 will was probated on December 27, 2004. Zawisny asked how Barchat had been notified of the probate proceedings, and Mints told her that notice had been provided by publication because they did not have Barchat's address.

Barchat stated that, about a month after her father's death, the doorman of her mother's apartment building informed her that her father had died. She consulted an attorney and, on May 25, 2005, offered Lichtsztral's December 11, 1996 will for probate by the Kings County Surrogate in New York. The will was admitted to probate on January 24, 2006. Barchat was granted letters of administration and named executrix of Lichtsztral's estate. Barchat claimed that she was not aware that her father had executed a new will until May 2008, when her attorney provided her with a copy of the will and documents related to the New Jersey probate proceedings.

On December 18, 2009, Barchat filed an action in the Chancery Division, Essex County, on behalf of the estate, against the Pizems, the Wiley law firm and Mints. Barchat alleged that Lichtsztral lacked testamentary capacity when he executed the 2003 will. She claimed that he was in "an obvious state of confusion, dementia and Alzheimer's disease[.]" In count one of her complaint, Barchat asserted that the court should set aside the will probated in New Jersey and revoke the letters of administration issued to Judith Pizem.

In count two, Barchat alleged that defendants failed to make reasonable inquiry into Lichtsztral's state of mind and breached their fiduciary duty to the estate and his family by drafting and executing the 2003 will when Lichtsztral "clearly lacked testamentary capacity[.]" She claimed that defendants were jointly and severally liable for legal malpractice, diversion of funds, and breach of fiduciary duty.

At Barchat's request, the trial court issued an order dated December 18, 2009, requiring defendants to show cause why an order should not be entered granting the relief sought in the complaint. The Pizems filed an answer to the complaint and opposed the application. The court's December 18, 2009 order also transferred the claims in count two to the Law Division.

On January 29, 2010, the court heard oral argument on the order to show cause and on February 16, entered an order vacating the transfer of the count two claims to the Law Division and dismissing those claims without prejudice. The court did not grant Barchat any relief at that time.

On September 30, 2010, Barchat moved for summary judgment. She sought a judgment vacating the Surrogate Court's order admitting the 2003 will to probate, acknowledging the judgment of the New York Surrogate admitting the 1996 will to probate, and reinstating the third-party claims that had been transferred to the Law Division. She argued, among other things, that the 2003 will should never have been admitted to probate because Lichtsztral was a resident or domiciliary of New York at the time of his death.

The Pizems filed a cross-motion for summary judgment, seeking dismissal of the complaint. The Pizems asserted, among other things, that Barchat failed to bring her action to contest the will within the time prescribed by Rule 4:85-1. The rule provides that any contest to a will admitted to probate must be commenced within six months after probate. The rule further provides that, if relief is sought based on Rule 4:50-1(d)(e) or (f) or Rule 4:50-3 (fraud on the court), the complaint must be filed "within a reasonable time under the circumstances." Ibid.

The trial court considered the motions on January 19, 2011, and decided that Barchat's motion should be denied and the Pizems's cross-motion granted. The court concluded that Barchat's complaint had not been filed within the time required by Rule 4:58-1. The court stated that

there is ample evidence Ms. Barchat had notice of the New Jersey probate proceedings. Ms. Barchat had possession of the death certificate of Chaim Lichtsztral, which lists "Judith Pizem" as his executor, and his address as the Pizem's West Orange, New Jersey address. Ms. Barchat applied to probate the previous 1996 will in New York, and the will was accepted to probate . . . two weeks before the letter form her former counsel to Pizems. Plaintiff was carbon copied on a letter dated February 7, 2006 from her former New York counsel to Ms. Mints questioning Ms. Mints as to her representation of the Estate of Chaim Lichtsztral.

 

The court thus concluded that plaintiff had constructive notice of the New Jersey probate proceedings when she sought to probate the 1996 will in New York. The court accordingly found that plaintiff failed to file her complaint to challenge the 2003 will "within a reasonable time under the circumstances" as required by Rule 4:85-1. The court entered orders dated January 20, 2011, memorializing its decision on the motions. Barchat filed her notice of appeal on May 7, 2011.

Thereafter, the Pizems filed a motion seeking the award of attorneys' fees and costs pursuant to Rule 1:4-8. They argued that Barchat's complaint was frivolous from the outset. The court stated that the Pizems failed to establish that Barchat brought her complaint "in bad faith or for the purposes of harassment." The court further found Barchat's contention that she challenged the 2003 will within a reasonable time had some factual support, even though the court ultimately found it was unconvincing. The court entered an order dated April 21, 2011, denying the Pizems's motion. The Pizems filed their notice of appeal on May 23, 2011.

II.

We turn first to Barchat's appeal. Barchat argues that the trial court erred by dismissing her complaint. She maintains that the order admitting Lichtsztral's 2003 will to probate in New Jersey was void because New Jersey did not have personal jurisdiction over Lichtsztral's estate. Barchat contends that a void judgment may be challenged at any time and, to the extent New Jersey's court rule requires that she file a complaint contesting the will within a reasonable time, the rule is unconstitutional. We disagree.

Rule 4:85-1 governs the time within which a person may challenge an order of the Surrogate's Court to admit a will to probate. The rule states:

If a will has been probated by the Surrogate's Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting for the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon [Rule] 4:50-1(d)(e) or (f) or [Rule] 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances.

[R. 4:85-1.]

The record indicates that the Surrogate's Court granted probate to Lichtsztral's 2003 will on December 27, 2004. Barchat maintains that she was not properly notified of the New Jersey probate proceedings. She says that Judith Pizem falsely certified that she was not aware of Barchat's address and, therefore, the order allowing notice by publication was invalid. She claims that the order admitting the will to probate was void because the New Jersey court did not have personal jurisdiction over the estate.

Since Barchat was seeking relief under Rule 4:50-1(d) ("the judgment or order is void") and Rule 4:50-3 (fraud upon the court), she was required to file her complaint within "a reasonable time under the circumstances." R. 4:85-1. The trial court found that she failed to do so and the record supports that determination. As the court pointed out, although Barchat was not personally served with a copy of the application for admission of the 2003 will to probate, she had constructive notice of the New Jersey probate proceedings.

The record shows that, at least as of May 24, 2005, Barchat had a copy of Lichtsztral's death certificate, which stated that Judith Pizem was the executrix of his estate. In her certification dated May 10, 2010, Barchat said that, at the time, she did not understand the meaning of the term "executrix." However, Barchat submitted a petition for probate to the New York court dated May 24, 2005, in which she was identified as the nominated executrix. In addition, the petition includes an oath of executor, which Barchat signed.

Moreover, as noted previously, Lichtsztral's 1996 will was admitted to probate in New York on January 24, 2006. Approximately two weeks later, Barchat received a copy of a letter written by James Quinn, Barchat's attorney at the time. In that letter, Quinn stated that he was aware of the fact that Mints represented the Lichtsztral estate. He provided Mints with a copy of the testamentary letters issued to Barchat in New York.

In her certification dated November 1, 2010, Mints states that she contacted the New York court and demanded revocation of the letters issued to Barchat. She also stated that she spoke with Quinn by phone and told him she represented the Lichtsztral estate. She told Quinn that the will Barchat had admitted to probate in New York had been revoked by the 2003 will.

The trial court found that Barchat's complaint had not been filed within a reasonable time. The court noted that Barchat's complaint was filed four years after she had constructive notice of the New Jersey probate proceedings and five years after the will was admitted to probate here. The court stated:

[Barchat] argues her delay was reasonable because she hired counsel in New York to aid her in the New York probate process. Her New York attorney hired counsel in New Jersey to investigate and challenge, if necessary, any New Jersey probate proceedings. That New Jersey attorney allegedly delayed the case, and subsequently was convicted of misappropriation of client funds in another matter, disbarred and incarcerated. No dates or corroborating evidence are provided in the moving papers in support of this argument. Alleged mistakes by prior counsel cannot provide a justification for a substantial delay in pursuing a challenge to the probate of this will, in view of the prejudice to defendants occasioned by such passage of time.

In our judgment, the record fully supports the trial court's determination.

Barchat argues, however, that Lichtsztral was a resident and domiciliary of New York at the time of his death and, therefore the New Jersey court could not constitutionally exercise personal jurisdiction over his estate. Barchat therefore maintains that the order admitting the will to probate is void and, to the extent the New Jersey court rules limit the time in which such a judgment may be challenged, the rules are unconstitutional. We disagree.

In Rogan Equities, Inc. v. Santini, 289 N.J. Super. 95 (App. Div.), certif. denied, 145 N.J. 375 (1996), the defendant sought to attack a final judgment of foreclosure on the ground that she had not been properly served. Id. at 112-13. We noted, however, that the defendant had actual knowledge of the action and had participated in it but delayed more than two years before asserting that the judgment and the ensuing sheriff's sale were void. Ibid. The trial court held that the defendant's motion to set aside the judgment had not been made within a reasonable time, as required by Rule 4:50-2. Id. at 113. The court also held that the defendant was barred by the doctrines of equitable estoppel and laches from attacking the judgment and sale. Ibid.

We affirmed the trial court's judgment. Id. at 114-15. We stated that "in some circumstances a motion to vacate a void judgment can properly be denied as untimely." Id. at 114. We noted that a void judgment should ordinarily be vacated but such relief may not always be warranted. Id. at 113-14 (citing Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 205 (App. Div. 1990)). We also noted that a court may deny a motion to vacate a void judgment when the party seeking such relief delays in challenging the judgment despite having knowledge thereof and the intervening rights of a third party. Id. at 114 (citing Last v. Audubon Park Assocs., 227 N.J. Super. 602 (App. Div. 1988), certif. denied, 114 N.J. 491 (1989)).

Here, the record supports the trial court's determination that Barchat had constructive notice of the New Jersey probate at least by May 24, 2005, when she sought to probate the 1996 will in New York. She took no action to challenge the order admitting Lichtsztral's 2003 will to probate in New Jersey until she filed her complaint on December 28, 2009. The court correctly found that Barchat had not provided an acceptable explanation for her failure to challenge the Surrogate Court's order in a timely manner. Moreover, the Pizems were prejudiced by the delay because they reasonably assumed that the matter was settled and the terms of the probated will could be implemented. We are satisfied that, under these circumstances, the trial court correctly determined that Barchat was precluded from contesting the 2003 will.

We note that Barchat has cited no authority for the proposition that a state may not constitutionally require a person seeking relief from an allegedly void judgment to seek such relief within a reasonable time. She also has cited no authority for the proposition that a state may not consider the equitable doctrines of laches and estoppel in determining whether an allegedly void judgment should be set aside. Our cases indicate, however, that a party may be barred from challenging a void judgment, depending on the circumstances.

Barchat additionally argues that Lichtsztral was never a domiciliary of New Jersey. In view of our determination that Barchat's challenge to the 2003 will was untimely, we need not consider this contention.

III.

We turn to the Pizems's appeal. They argue that this action was frivolous from the outset and, accordingly, they should have been awarded counsel fees and costs pursuant to Rule 1:4-8. We disagree.

Rule 1:4-8(a) provides that

The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, written motion, or other paper. By signing, filing or advocating a pleading, written motion or other paper, an attorney or pro se party certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

 

(1) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

 

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

 

(3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and

 

(4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.

The court may impose sanctions if an attorney or pro se party files a paper that does not conform to the requirements of Rule 1:4-8(a), and fails to withdraw the paper within twenty eight days of service of a demand for its withdrawal. R. 1:4-8(b)(1).

Rule 1:4-8 thus permits the court to sanction an attorney if he asserts a "frivolous" claim on behalf of a client. An assertion is considered to be "frivolous" when "'no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable.'" United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App. Div.) (quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. Div. 2007)), certif. denied, 200 N.J. 367 (2009). A court will not, however, award counsel fees where an attorney has a reasonable and good faith belief in the merits if a cause of action. Id. at 389. Sanctions are appropriate when a pleading is of a frivolous or harassing nature. Id. at 390 (citing Iannone v. McHale, 245 N.J. Super. 17, 31 (App. Div. 1990).

We apply an abuse of discretion standard when reviewing a trial court's decision regarding frivolous litigation sanctions. Ibid. (citing Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). A trial court's decision will be considered a mistaken exercise of discretion if it was "'not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error of judgment.'" Ibid. (citing Masone, supra, 382 N.J. Super. at 193).

We are satisfied that the court did not abuse its discretion by denying the Pizems's motion for sanctions. Here, Barchat initially challenged the order of the Surrogate's Court admitting the 2003 will to probate on the basis that Lichtsztral did not have testamentary capacity when he executed that will. That issue was disputed and the trial court never resolved it. Even so, there was some evidentiary support for Barchat's claim, notably Dr. Fetterman's evaluation. Moreover, as the trial court determined, Barchat had some support for her contention that she filed her complaint within a reasonable time, even though her explanation ultimately was rejected. We conclude that the record supports the trial court's determination that the award of sanctions pursuant to Rule 1:4-8 was not warranted.

Affirmed in A-3162-10 and in A-4615-10.