IN THE MATTER OF EDWIN O. GILBERT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

EDWIN O. GILBERT.

______________________

June 11, 2015

Submitted June 2, 2015 Decided

Before Judges Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. 180454.

Ellen Heine, appellant/cross-respondent pro se.

Capehart & Scatchard, P.A., attorneys for respondent/cross-appellant Stephen L. Gilbert (Betsy G. Ramos, on the brief).

PER CURIAM

Ellen Heine appeals from a December 9, 2013 order denying her motion to "provide information to parties in interest." Stephen L. Gilbert cross-appeals from that part of the December 2013 order denying without prejudice his request for counsel fees. We affirm on the appeal, and remand on the cross-appeal for further proceedings.

Mr. Gilbert instituted this guardianship action in the Probate Part (the "probate action"), where he was appointed guardian of the estate of his father, Edwin O. Gilbert, (the "father"). The father then relocated to New Mexico. Ms. Heine, who is not a relative of the father, moved in the probate action seeking that the father be returned to New Jersey. She also requested that Mr. Gilbert provide her with notice of any filing in the probate action. Mr. Gilbert cross-moved for counsel fees.

On August 12, 2010, the court denied Ms. Heine's motion in its entirety, concluding that she lacked standing, and denied Mr. Gilbert's request for counsel fees without prejudice stating that Mr. Gilbert's "application [for fees] may be renewed if [Ms.] Heine files future motions as to this matter." At some point, the father died in New Mexico, and there is apparently a probate action pending there. Ms. Heine appealed from the August 2010 order, but we dismissed that appeal as moot because the father died and the probate action was no longer pending.

In November 2012, Mr. Gilbert filed a complaint against Ms. Heine alleging that Ms. Heine engaged in various acts of fraudulent conveyance (the "fraudulent conveyance action").1 As part of the fraudulent conveyance action, a title search was conducted on property located in Garfield (the "Garfield property") revealing a docketed lien related to a judgment for counsel fees by another law firm. The Garfield property was the subject of a separate action to quiet title brought by Mr. Gilbert against Ms. Heine in Bergen County (the "Bergen County action").2

In September 2013, Ms. Heine filed the motion leading to the order under review, using the probate action docket number, seeking notice of information "to parties in interest." Ms. Heine sought information regarding the law firm's lien related to the Garfield property. Mr. Gilbert cross-moved for counsel fees.

On December 9, 2013, the judge denied Ms. Heine's motion. The judge also denied without prejudice Mr. Gilbert's request for counsel fees. The judge explained in his oral opinion that in August 2010, the court had determined that Ms. Heine lacked standing to request information in the probate action. The judge pointed out that Ms. Heine had the opportunity in the Bergen County action and the fraudulent conveyance action to seek discovery, including information regarding a lien on the Garfield property. As a result, the judge maintained that Ms. Heine continued to lack standing in the probate action. As to Mr. Gilbert's request for counsel fees, the judge concluded that he did not have jurisdiction.

On appeal, Ms. Heine argues primarily that the judge erroneously concluded that she lacked standing in the probate action to seek discovery and "information to parties in interest." On the cross-appeal, Mr. Gilbert contends that the judge erred by concluding that the court did not have jurisdiction to award Mr. Gilbert counsel fees.

On the appeal, we conclude that Ms. Heine's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the thoughtful reasons expressed by the judge. We add the following brief remarks.

The court qualified its statement contained in the August 2010 order that Ms. Heine lacked standing in the probate action "as to matters concerning the guardianship of [the father]" by further indicating in that order "except as to the pending appeal of the [Bergen County action] and the pending [fraudulent conveyance action]." In entering the December 2013 order denying Ms. Heine's motion, the judge indicated that Ms. Heine could have otherwise sought the lien information in the Bergen County action or fraudulent conveyance action. As to the probate action, the judge correctly determined that Ms. Heine still lacked standing.

Regarding the cross-appeal, we decline to exercise original jurisdiction to consider Mr. Gilbert's request for counsel fees related to Ms. Heine's second motion for discovery in the probate action. To do so would require us to make findings of fact about the Rule 1:4-8 letter that Mr. Gilbert's counsel purportedly sent to Ms. Heine, as well as Mr. Gilbert's claim raised before us seeking sanctions under N.J.S.A. 2A:15-59.1. We remand to the judge to consider the merits of Mr. Gilbert's cross-motion for counsel fees.

We therefore affirm on the appeal and remand on the cross-appeal for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Mr. Gilbert's counsel indicated that the fraudulent conveyance action is still pending.

2 We affirmed the final judgment in the Bergen County action. Gilbert ex rel. Gilbert v. Heine, No. A-3719-10 (App. Div. Apr. 21, 2015).