IN THE MATTER OF THE ESTATE OF LUCILLE SAND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4524-10T4

IN THE MATTER OF THE

ESTATE OF LUCILLE SAND,

DECEASED.

________________________________________________________________

February 1, 2013

Submitted November 15, 2012 - Decided

Before Judges Grall, Simonelli and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-2150-09.

Sandra Singer, appellant pro se.

Joseph P. Depa, Jr., attorney for respondent the Estate of Lucille Sand, Deceased.

PER CURIAM

Sandra Singer appeals from an April 9, 20101 order granting summary judgment to defendants as well as an April 25, 2011 order denying reconsideration.2 The judge also assessed $10,125 in counsel fees against Sandra for frivolous litigation and invoked the in terrorem clause of her mother's will to revoke Sandra's $25,000 inheritance. After reviewing the issues raised on appeal in light of the applicable law and complex facts, we affirm in all respects except the imposition of counsel fees and disinheritance.

Lucille Sand, mother of plaintiff Sandra and defendants Thea, Paula and Candice Singer,3 executed a last will and testament on December 4, 2002, and a first codicil on February 2, 2005. Lucille died on March 12, 2008.

Sandra filed a caveat to the probate of the will and codicil alleging undue influence, fraud, lack of testamentary capacity and forgery. Thea and Paula filed a complaint to have the will admitted to probate and to be appointed co-executrixes. They then filed a motion for summary judgment. The probate judge granted summary judgment in favor of Thea and Paula, ordered the will and codicil admitted to probate, directed the Surrogate of Union County to issue letters testamentary to Thea and Paula, and dismissed Sandra's counterclaims without prejudice. Plaintiff appealed, and we affirmed. In re Estate of Lucille Sand, Deceased, No. A-1856-08 (App. Div. Nov. 1, 2010).

Prior to our decision, Sandra filed a nine-count complaint in the Family Part4 using fictitious names for all the parties involved. The case was originally docketed as "In the Matter of the Estate of Mo Chi," and Sandra signed all certifications as R Chi.

In count one, Sandra alleges that her mother's will breaches a prenuptial agreement entered into by decedent. Count two seeks past and present child support because, although Sandra is an adult, she is unable to adequately support herself. Count three makes allegations of embezzlement, fraud, fraudulent transfer, breach of fiduciary duty, and equitable estoppel against decedent. Sandra alleges that when she was a minor, her mother stole and misused funds left to Sandra by Sandra's father and grandmother. In count four, Sandra alleges that Candice committed some sort of tortious action against plaintiff because Candice was arrested and convicted of criminal behavior. Count five makes an allegation of intentional infliction of emotional distress against Lucille, claiming that while Lucille was sending cards to Sandra stating Lucille loved her and wanted her to be happy, she was actually conspiring to deprive Sandra of her inheritance. Count six alleges that Lucille wrongfully killed Blackie5 which caused Sandra emotional distress. Count seven again alleges repeated intentional infliction of emotional distress by Lucille, due to "physical, emotional, and financial abuse from the time plaintiff was a child[.]" Count eight6 alleges fraud, deceit, intentional infliction of emotional distress and breach of fiduciary duty by Thea, Paula and Candice. Sandra alleges that they lied to her about Lucille's condition and concealed her death in order to "interfere with and steal plaintiff[']s expected inheritance[.]" The final count simply states that the complaint is unfinished.

On June 8, 2009, Sandra prepared an emergent "ex parte motion for attachment, injunction, restraining order and/or trustee process." She sought to enjoin the sale of decedent's house by defendants or otherwise secure the proceeds of that sale. The presiding family judge treated this ex parte motion as an order to show cause, and on June 12, 2009, she found that it was non-emergent because no irreparable harm was threatened. Approximately two months after this date, defendants retained new counsel. The motion was then scheduled as a non-emergent matter.

Plaintiff sought to have the proceeds from the sale of decedent's house held in escrow or deposited directly with the court pending the outcome of litigation. Although the motion judge denied this request, he ordered the estate to retain $25,000 of the proceeds in order to fulfill the bequest to plaintiff. The motion judge also ordered plaintiff to properly identify herself as Sandra Singer, rather than R Chi, on all future filings or risk dismissal of her complaint. See Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3 on R. 1:2-1 (2013) ("In the absence of statutory or rule authorization or some other compelling reason, a party will not be permitted to prosecute a civil action anonymously or by pseudonym . . . .").

Sandra filed a motion for reconsideration as well as a motion for counsel fees and a motion for waiver of fees due to indigency. Defendants opposed these motions and filed a cross-motion for payment of counsel fees and a motion to dismiss the complaint. Sandra also filed a demand for the production of documents.

The motion judge treated the motion to dismiss as a motion for summary judgment under Rule 4:46 because the parties presented, and the court did not exclude, materials outside the pleadings. He granted summary judgment in favor of defendants. Although not requested by defendants, the judge also determined that the in terrorem clause in the will should be enforced, revoking the $25,000 bequest to plaintiff on the ground that plaintiff had no probable cause for contesting the will. In his decision, the motion judge also addressed the many collateral issues raised by plaintiff. He found that the Family Part had proper jurisdiction over the matter. He denied plaintiff's request that he recuse himself. He also found meritless plaintiff's persistent claims that the presiding Family Part judge acted improperly because of her relationship with defense counsel, because defense counsel was retained after the presiding judge decided plaintiff's ex parte motion. The motion judge also found plaintiff's persistent references to Candice's criminal record improper as not relevant. He held that plaintiff was not entitled to counsel fees, but that defendants were entitled to counsel fees under N.J.S.A. 2A:15-59.1 due the frivolous nature of the litigation brought by plaintiff.

Approximately one year later, the motion judge also denied Sandra's motion for reconsideration, although he noted that:

The[] [probate judge] held and was affirmed by the Appellate Division, that the in terrorem clause "is perhaps in all likelihood not a valid clause, given the statute [N.J.S.A. 3B:3-47], certainly an argument could be made that the clause is not valid, again does not go to the issue as to whether the will should be admitted to probate. The statute doesn't say that the Will is invalid in its entirety, it's just that the clause would be invalid."

[(Alteration in original).]

On appeal, Sandra raises the following twenty-nine issues:

POINT I: THE RULINGS SHOULD BE REVERSED DUE TO THE JUDGE HAVING A SEXUAL AFFAIR WITH DEFENDANTS' LAWYER WHEN SHE ISSUED HER RULING AND WHEN SHE CHOSE A JUDGE TO ISSUE THE OTHER RULINGS.

POINT II: COURTS HAVE FOUND THAT A SEXUAL AFFAIR BETWEEN A JUDGE AND AN ATTORNEY IN THE CASE REQUIRES REVERSAL, CONSTITUTES A CLEAR ETHICAL VIOLATION, AND SERIOUSLY UNDERMINES THE INTEGRITY OF JUDICIAL PROCEEDINGS.

POINT III: THE RULINGS SHOULD BE REVERSED DUE TO THE JUDGE HAVING EX PARTE COMMUNICATIONS WITH DEFENDANTS' LAWYER /DEFENDANTS.

POINT IV: THE RULINGS SHOULD BE REVERSED BECAUSE THE JUDGE REPEATEDLY LIED IN THIS CASE.

POINT V: THE RULINGS SHOULD BE REVERSED BECAUSE THE JUDGE HAD (AND HAS) A CONFLICT OF INTEREST AND REFUSED TO RECUSE HIMSELF.

POINT VI: REVERSAL IS REQUIRED AS DEFENDANTS' LAWYER WAS GIVING GIFTS TO JUDGE(S) (EMPLOYEES OF THE COURT) WHILE APPEARING IN THE CASE.

POINT VII: THE EXTRAORDINARY FACTS PRESENTED HERE CLEARLY OFFEND CONSTITUTIONAL DUE PROCESS REQUIRING REVERSAL OF THE RULINGS.

POINT VIII: THE ABA MODEL RULES AND LAWS REGARDING RECUSAL ALL MAKE CLEAR THAT A JUDGE SHOULD RECUSE HIM/HERSELF "IN ANY PROCEEDING IN WHICH HIS/HER IMPARTIALITY MIGHT REASONABLY BE QUESTIONED[.]"

POINT IX: THE RULINGS SHOULD BE REVERSED BECAUSE THE JUDGE MADE A FALSE CLAIM WHEN SHE RULED THERE WAS NO EMERGENCY.

POINT X: INCONSISTENT SUBJECT MATTER JURISDICTION RULINGS.

POINT XI: THE ESTATE IS LIABLE TO PLAINTIFF FOR DECEDENT[']S EMBEZZLEMENT/BREACH OF FIDUCIARY DUTY.

POINT XII: EQUITY REQUIRES PROCEEDS OF THE HOUSE AND OTHER ASSETS IN THE ESTATE BE AWARDED TO PLAINTIFF AS THEY WERE PURCHASED WITH MONEY FROM PLAINTIFF'S GUARDIANSHIP BANK ACCOUNTS AND DECEDENT AS PLAINTIFF'S GUARDIAN BREACHED HER FIDUCIARY DUTY TO USE PLAINTIFF'S MONEY IN PLAINTIFF'S BEST INTEREST.

POINT XIII: AS A MATTER OF EQUITY THE MONEY FROM THE ESTATE SHOULD BE PAID TO PLAINTIFF SO AS TO PREVENT UNJUST ENRICHMENT TO THE ESTATE, AS MONEY AND PROPERTY IN THE ESTATE CAME FROM/ WERE PURCHASED WITH MONEY TAKEN FROM PLAINTIFF'S BANK ACCOUNTS BY DECEDENT AS PLAINTIFF'S GUARDIAN AND PLACED IN DECEDENT[']S ESTATE. DECEDENT AS PLAINTIFF'S GUARDIAN HAD A FIDUCIARY DUTY TO USE PLAINTIFF'S MONEY IN PLAINTIFF'S BEST INTEREST AND ENRICH PLAINTIFF NOT DECEDENT, WHICH FIDUCIARY DUTY DECEDENT BREACHED.

POINT XIV: THE APPOINTMENT BY A NJ COURT OF JULIA BADER AS PLAINTIFF'S GUARDIAN FRAUDULENTLY PROCURED BY DECEDENT WITH NO NOTICE TO PLAINTIFF WHEN PLAINTIFF WAS OVER 18, NOT A NJ RESIDENT, AND NOT IN THE USA REQUIRES PAYMENT OF THE MONIES OWED PLAINTIFF TAKEN AS A RESULT.

POINT XV: THE PRENUPTIAL AGREEMENT REQUIRES MONEY FROM THE ESTATE TO BE PAID TO PLAINTIFF.

POINT XVI: PLAINTIFF IS ENTITLED TO CHILD SUPPORT FROM THE ESTATE.

POINT XVII: DEFENDANTS['] EXECUTORS OF THE ESTATE HAVE STOLEN PLAINTIFF'S BEQUEST AND SHOULD BE ORDERED TO PAY IT. THE ANTI TERRORIST CLAUSE IN THE ALLEGED WILL IS VOID AS IT VIOLATES N.J. STAT. 3b:3-47 AND SHOULD BE STRICKEN.

POINT XVIII: REVERSAL OF THE SUMMARY JUDGMENT MOTION IS REQUIRED AS THE JUDGE IN RULING ON THE SUMMARY JUDGMENT MOTION WRONGLY 1) MADE FINDINGS OF FACT 2) DID SO SOLELY ON THE BASIS OF FABRICATION AND HEARSAY BY PERSONS WHO DO NOT HAVE AND DO NOT CLAIM TO HAVE ANY PERSONAL KNOWLEDGE OF ANY OF THE FACTS 3) REFUSED TO ACCEPT AS TRUE PLAINTIFF'S TRUE STATEMENTS BASED ON PERSONAL KNOWLEDGE AND 4) PLACED THE BURDEN ON THE WRONG PARTY.

POINT XIX: REVERSAL OF THE SUMMARY JUDGMENT IS REQUIRED AS THE JUDGE WRONGLY REFUSED PLAINTIFF[']S REQUEST FOR DISCOVERY.

POINT XX: THE JUDGE ERRED WHEN IT RULED THE ESTATE IS NOT LIABLE FOR HAVING FAMILY MEMBER BLACKIE KILLED.

POINT XXI: THE ESTATE IS LIABLE TO PLAINTIFF FOR WRONGDOING TO PLAINTIFF BY DECEDENT.

POINT XXII: DEFENDANT PERSONS ARE PERSONALLY LIABLE TO PLAINTIFF FOR WRONGDOING BY DEFENDANTS TO PLAINTIFF.

POINT XXIII. DEFENDANTS ARE LIABLE FOR STEALING OF PLAINTIFF'S PERSONAL PROPERTY.

POINT XXIV: DEFENDANT CANDICE SINGER IS LIABLE FOR DAMAGE TO PLAINTIFF CAUSED BY DEFENDANT CANDICE SINGER'S CRIMINAL ACTS INCLUDING FOR CRIMINAL ACTS BY CANDICE SINGER WHICH TORTUOUSLY INTERFERED WITH PLAINTIFF'S EXPECTED INHERITANCE.

POINT XXV: REVERSAL OF THE RULINGS IN THIS CASE IS REQUIRED AS THE JUDGE WRONGLY REFUSED PLAINTIFF[']S REQUEST FOR ATTORNEY FEES PURSUANT TO RULE 5:3-5(C).

POINT XXVI: REVERSAL OF THIS CASE IS REQUIRED AS THE JUDGE FALSELY ACCUSED PLAINTIFF OF FILING A FRIVOLOUS COMPLAINT.

POINT XXVII: THE JUDGE FALSELY CLAIMED PLAINTIFF IS NOT INDIGENT.

POINT XXVIII: RULINGS IN THIS CASE SHOULD BE REVERSED AS THERE WAS NO DUE PROCESS AND NO HEARING.

POINT XXIX: THE RULINGS SHOULD BE REVERSED AS IT CONSTITUTES THEFT BY DEFENDANTS AND DEFENDANTS['] LAWYER OF A FRAUDULENT ILLEGAL CLAIM FOR [LEGAL] FEES.

The vast majority of the issues raised by Sandra lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We rely on the motion judge's thorough written opinions setting forth his reasons for his decisions. However, the motion judge erred in two aspects. First, the probate judge had not invoked the in terrorem provision of the will and in fact had found it likely to be unenforceable based on the statute. N.J.S.A. 3B:3-47. The will had already been admitted to probate and we see no legal basis for vacating that decision not to invoke the in terrorem provision.

The probate judge dismissed claims by Sandra without prejudice, and Sandra was informed that she could file claims against the estate in the Law Division and claims for child support in the Family Part. She was thus following the judge's instructions to some extent when she filed another complaint in the Family Part raising those issues after the will was admitted to probate.

Second, the motion judge also erred in assessing fees for frivolous litigation against Sandra. Although we cannot disagree that Sandra's claims were fanciful in nature, we see no evidence that the required safe harbor letter was sent to Sandra by defendants. R. 1:4-8(b)(1); N.J.S.A. 2A:15-59.1.

Affirmed in part and reversed as to the invocation of the in terrorem clause of the will and assessment of counsel fees.

1 The order was dated April 9, 2009, but stamped filed April 9, 2010.

2 Sandra also seeks to appeal "[a]ll unfavorable rulings." We consider appeals from orders and not individual rulings. R. 2:2-3.

3 We refer to the members of the Singer family by their first names for ease of reference.

4 Initially, the complaint was declined by the Family Part and refiled in the Probate Part. However, the assignment judge ultimately determined it should be heard in the Family Part.

5 Although not specified in the complaint, Blackie was the family dog.

6 Counts eight and nine are mistakenly numbered seven and eight.