JOSEPH D. MILLS v. DAYLINDA SNYDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOSEPH D. MILLS,

Plaintiff-Appellant,

v.

DAYLINDA SNYDER, RICHARD J.

MILLS, THE ESTATE OF JOSEPH

R. MILLS, DECEASED, AND PAUL

MARINO, ADMINISTRATOR OF THE

ESTATE OF JOSEPH R. MILLS,

Defendants-Respondents.

__________________________________________________

May 12, 2015

Submitted May 5, 2015 Decided

Before Judges Fisher, Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2465-13.

Richard S. Mazaway, attorney for appellant.

Marino & Montecallo, LLC, attorneys for respondent Estate of Joseph R. Mills (Paul Marino, on the brief).

Respondents Daylinda Snyder and Richard J. Mills have not filed briefs.

PER CURIAM

In this appeal of the dismissal of a third lawsuit concerning these parties and their involvement with the estate of the late Joseph R. Mills, we consider, among other things, the impact of a settlement of the first action on plaintiff's attempt in this third action to demonstrate an attorney submitted a fraudulent fee application in the first action. Finding no merit in plaintiff's arguments, we affirm.

Our disposition of this appeal is guided by the circumstances and procedural events that have brought us to this point. Joseph R. Mills died on May 24, 2009, leaving a Will dated March 17, 2009, and five adult children: Gilbert Bland, Richard J. Mills, Catherine M. Maiorino, plaintiff Joseph D. Mills, and Daylinda Snyder.1 All five were named as beneficiaries; Daylinda was named executrix.

An action to probate the March 17, 2009 Will was filed; plaintiff here sought to probate a June 7, 2007 Will. During trial of that matter in April 2010, the parties reached a global settlement, which called for, among other things: the probating of the March 17, 2009 Will as reformed; Daylinda's renunciation as executrix; Daylinda's waiver of fees and commissions; the appointment of Edmund V. McCann, Esq., and Thomas A. Blumenthal, Esq., as co-administrators C.T.A.; the relieving of another attorney from the position of administrator pendente lite; dismissal of the caveat filed by plaintiff and Catherine; an exchange of releases; the payment of Blumenthal's fee of $50,000; and the payment of McCann's fee, which was not then quantified but scheduled to be ascertained at a later date upon McCann's submission of a certification of services. An order memorializing the terms of the settlement agreement was entered on May 6, 2011; that order set May 25, 2011, as the date for considering McCann's fee application.

McCann submitted a certification of services that sought compensation in the amount of $172,126.83. Plaintiff argues now that, during settlement negotiations, McCann estimated his fee would range between $70,000 and $80,000. At the hearing on May 25, 2011, the judge listened to plaintiff's numerous objections to McCann's request and ultimately determined McCann was entitled to $125,000 in fees and $4,511.83 in disbursements. This ruling was memorialized in an order entered on June 7, 2011.

McCann later commenced a probate action concerning the administration of the estate. In the course of that action, plaintiff filed a motion, which sought specific performance of an alleged contract with the decedent for construction of an addition to plaintiff's house and other damages. The judge relieved McCann as administrator and appointed another in his place. As for plaintiff's motion for damages, the judge entered an order on January 14, 2013, deeming that motion as having been withdrawn, apparently because there was no longer a pending action to which it would pertain.

Plaintiff then filed his complaint in this Law Division action on March 28, 2013, seeking to set aside and vacate the settlement agreement in the first probate action. This complaint was greeted with motions to dismiss; other motions, including plaintiff's own motion to transfer venue, soon followed. For reasons expressed in a thorough written opinion, the judge denied the transfer motion and dismissed the complaint pursuant to Rule 4:6-2(e).

Plaintiff appeals, arguing

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY CONSTRAINING AND NARROWING THE ISSUES BELOW AND IN THE PRIOR PROBATE ACTION THEREIN IMPROPERLY PRECLUDING THE APPELLANT[']S CLAIM ENTITLING THE APPELLANT TO A REMAND AND TRIAL.[2]

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY THE MISAPPLICATION OF THE LEGAL DOCTRINE OF COLLATERAL ESTOPPEL, RES JUDICATA, WHERE THROUGH ITS WRONGFUL AND IMPROPER APPLICATION[,] THE APPELLANT WAS PRECLUDED FROM LITIGATING GENUINE ISSUES OF MATERIAL FACT PROPERLY BEFORE THE TRIAL COURT.

III. THE TRIAL COURT[']S FINDING THAT THERE IS A "SETTLEMENT" BETWEEN THE PARTIES IN BOTH THE PRIOR PROBATE ACTION AND THE LAW DIVISION ACTION BELOW IS ERRONEOUS, AND REVERSIBLE LEGAL ERROR, WHEREIN MATERIAL TERMS OF THE ALLEGED SETTLEMENT WERE NEVER ADDRESSED OR ACCOMPLISHED DESPITE THAT SAID APPELLANT'S FACTS AND CLAIMS WERE BROUGHT, PLEADED, BUT IGNORED BY THE APPELLEES AND THE COURT BELOW, ESPECIALLY WHEN NO RELEASES WERE EVER DRAFTED OR EXECUTED BETWEEN THE PARTY LITIGANTS.

IV. GIVEN THE TRIAL COURT[']S HANDLING AND DECISION MAKING IN THE PRIOR PROBATE MATTER AND THE LAW DIVISION MATTER BELOW, IT WAS REVERSIBLE ERROR TO DENY THE APPELLANT'S MOTION TO CHANGE VENUE, IN ORDER TO ACHIEVE SUBSTANTIAL JUSTICE AND FAIR PLAY TO THE APPELLANT ON GOOD FAITH CLAIMS ALREADY PRECLUDED IN ERROR BY THE COURT BELOW.

V. GIVEN THE TRIAL COURT'S HANDLING AND DECISION MAKING, IN THE PRIOR PROBATE MATTER AND HANDLING OF THE LAW DIVISION MATTER BELOW, IT WAS REVERSIBLE ERROR TO GRANT THE APPELLEES['] DISMISSAL MOTION WITH PREJUDICE [PURSUANT TO RULE 4:6-2(e)].

VI. GIVEN ADMINISTRATIVE FILING IRREGULAR-ITIES FREQUENTLY HAMPERING THE APPELLANT'S FACTUAL AND LEGAL SUBMISSIONS TO THE TRIAL COURT, THE APPELLANT BEING PRO SE FOR THE PRIOR PROBATE TRIAL AND FOR THE MAJORITY OF THE LAW DIVISION ACTION BELOW, UP TO THE MOTION TO DISMISS, THE APPELLANT SHOULD HAVE BEEN ACCORDED DUE DEFERENCE AND THE OPPORTUNITY TO BE HEARD WITH A TRIAL AND JURY OF HIS PEERS [CITING RUBIN v. RUBIN, 188 N.J. Super. 155 (App. Div. 1982) AND RULE 1:6-2(a)] GOVERNING ALL PROCEEDINGS BELOW AND ESPECIALLY A FINAL DISMISSAL HEARING.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

In a nutshell, we conclude, as did the trial judge, that plaintiff's claims were barred by the global settlement announced at the conclusion of the first probate matter a settlement that included the parties' mutual release of all their claims. Having said that, we recognize there was nothing about the global settlement that precluded plaintiff from objecting to and otherwise litigating McCann's fee application. Plaintiff did, in fact, do so, arguing at length in response to McCann's application that the request was excessive and inconsistent with the estimate provided during settlement negotiations. Accordingly, even in assuming the truth of plaintiff's allegations in this third action, as Rule 4:6-2(e) requires, see, Seidenberg v. Summit Bank, 348 N.J. Super. 243, 249-50 (App. Div. 2002), plaintiff's complaint makes clear that the facts material to the present claim of fraud were known to plaintiff as the alleged fraud was occurring and, in fact, he presented arguments to that effect to the judge at the time McCann's fees were quantified. Once the judge ruled granting McCann less than he sought but more than the estimation provided during settlement negotiations plaintiff's only remaining avenue for challenging the award was through the appellate process. Plaintiff, however, did not appeal the June 7, 2011 order that awarded fees to McCann.

Although notions of issue and claim preclusion are not always tightly applied in probate matters, see Higgins v. Thurber, 413 N.J. Super. 1, 12-14 (App. Div. 2010), aff d, 205 N.J. 227 (2011); Perry v. Tuzzio, 288 N.J. Super. 223, 226-31 (App. Div. 1996), we agree with the trial judge that, because the material facts alleged in this action were known and actually presented during the relevant proceedings in the first action, this separate suit, filed two years later on the same essential facts, may not proceed further.

Affirmed.

1At times, the beneficiaries will be referred to by their first names with the exception of Joseph D. Mills, who will be referred to as plaintiff.

2We omit the subparts to Points I and II for brevity's sake.