IN THE MATTER ESTATE OF BEVELYN D. COLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5767-05T55767-05T5

IN THE MATTER OF THE ESTATE

OF BEVELYN D. COLE, deceased.

_________________________________________________

 

Submitted February 14, 2007 - Decided May 25, 2007

Before Judges Payne and Lihotz.

On appeal from Superior Court of New Jersey,

Chancery Division, Morris County, P-1820-2005.

Francine Cole, appellant, filed a pro se

brief.

Charles D. Craig, attorney for respondent

Gwendolyn Cole-Hoover.

 

PER CURIAM

Francine Cole appeals from an order of a judge of the Chancery Division, Probate Part, removing her as co-administratrix ad prosequendum of the estate of Bevelyn D. Cole, deceased. Appellant claims that she was improperly denied a further adjournment of the hearing in the matter and the right to a jury trial; that the judge's removal decision was against the weight of the evidence; that respondent Gwendolyn Cole-Hoover "by and through her attorney engaged in collusion to perpetrate fraud on the court"; that respondent's attorney committed professional misconduct; that the attorney should have been disqualified; that the judge erroneously failed to place the parties under oath; and that the judge made statements indicating bias. We affirm.

Bevelyn Cole died intestate on June 24, 2005. The parties to this appeal claim that the death resulted from the malpractice of Morristown Memorial Hospital, which allegedly failed to properly treat Bevelyn, a hospital patient, after a fall. Following transfer to Newark Beth Israel Hospital for a diagnostic cardiac workup, and a few days of treatment there, Bevelyn lapsed into a coma as the result of bilateral swelling in her brain and died.

On October 3, 2005, the Morris County Surrogate granted letters of administration ad prosequendum to two of Bevelyn's sisters, appellant and respondent, pursuant to N.J.S.A. 2A:31-2 and N.J.S.A. 3B:10-11, for the purpose of filing a wrongful death action on behalf of the estate of Bevelyn Cole. Thereafter, respondent, a physician, obtained Bevelyn's medical records from the county medical examiner and forwarded them for evaluation to her brother-in-law, a North Carolina attorney who maintained either a friendship or a professional relationship with Willie Gary, a well-publicized personal injury lawyer located in Florida. Appellant, in turn, consulted with Jeffrey Advokat, a New Jersey attorney. Appellant allegedly learned that respondent had obtained Bevelyn's records and had sought their review when, on Advokat's advice, appellant sought the records. Upon learning of respondent's actions, appellant filed an ethics complaint against the North Carolina attorney. Advokat and Gary both declined to proceed on the parties' behalf.

At this point, a stalemate between the sisters occurred as to representation in the wrongful death action, and as a consequence, no malpractice suit was filed. Eventually, on March 9, 2006, respondent, through counsel, filed a verified complaint in the Chancery Division, Probate Part, seeking entry of an order to show cause why appellant should not be removed as co-administratrix ad prosequendum and, thereafter, entry of an order of removal. A grievance was thereupon filed by appellant against respondent's attorney, but in an April 2006 letter, appellant was advised that it would not be considered because of the existence of pending litigation.

The removal matter was initially scheduled for a hearing on April 24, 2006. At that time, however, appellant stated that the attorneys she had contacted had declined to represent her, and she requested an additional week to retain counsel. The probate judge granted appellant's request, affording her a three-week adjournment. When the matter was actually argued on May 19, 2006, appellant, now claiming a lack of funds, had not retained counsel. The judge denied appellant's request for a further adjournment and required her to proceed pro se.

A hearing ensued, during which appellant, as well as respondent speaking through counsel and personally, were given the opportunity to state their positions with respect to the pending application. That appellant could agree on nothing proposed by respondent or the court, including the substitution of another family member as administrator, became clear as the hearing progressed. In the course of the hearing, appellant accused respondent of unauthorized receipt of medical records, improper treatment of the parties' father, lack of interest in the well-being of Bevelyn after the fall, an interest solely in money, and other misdeeds. Respondent's attempt to answer the allegations were met by appellant's frequent statement that respondent was a "liar" and by further disclosures of instances of interfamilial conflict.

As the hearing was reaching its conclusion, the judge stated to appellant:

You see, I'm trying to resolve a dispute which is keeping the malpractice case from going ahead. Everybody agrees that there should be an action instituted against the parties responsible [for] your sister's death. But all I'm hearing is that you two don't seem to be able to work together so -

* * *

[u]nless it's resolved in some fashion, time will elapse, we'll still be in the same posture, the statute will run, and the claim for relief will be lost. . . . [A]ccusing a sister of lying engenders, in my mind, a feeling that there's a lack of trust, and therefore you can't work together.

However, even at this point, appellant insisted upon introducing additional complaints against her sister, again refused the substitution of other family members as administrators, and confirmed that she called respondent a liar because she was one.

At the hearing's end, the judge reserved decision and requested that counsel for respondent prepare a proposed form of order to serve as a basis for any decision that the judge might reach. The order, executed on May 31, 2006, removed appellant and retained respondent or her attorney as sole administrator. The judge expressed the following reasons for his decision:

Francine Cole will not work effectively or efficiently with her sister Gwendolyn Cole Hoover to prosecute the wrongful death medical malpractice action. Grievances, real or imagined, against Dr. Hoover have created an irresolvable conflict which was clearly and unmistakably demonstrated in the courtroom. The court does not doubt Ms. Cole's desire to see justice done for her deceased sister Bevelyn D. Cole. That goal will not be reached unless she is removed as co-administratrix.

A stay of the order was denied.

Our review of the record satisfies us that the judge's action was clearly justified as the result of the evident inability of the sisters to agree as to how to proceed with the medical malpractice action and as the result of the need for commencement of that action within the applicable two-year statute of limitations. N.J.S.A. 2A:31-3.

N.J.S.A. 3B:14-21(f), the statutory provision governing the removal of a fiduciary for cause in a case such as this, states:

The court may remove a fiduciary from office when:

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f. One of two or more fiduciaries has neglected or refused to perform h[er] duties or to join with the other fiduciary or fiduciaries in the administration of the estate committed to their care whereby the proper administration and settlement of the estate is or may be hindered or prevented.

The role of appellant, as co-administratrix ad prosequendum, was clearly that of a fiduciary. As we have previously recognized: "The administrator ad prosequendum is merely a nominal representative of the [persons entitled to take intestate property of the decedent], since [s]he acts as fiduciary for the general administrator who is charged with distribution of the funds recovered." Kasharian v. Wilentz, 93 N.J. Super. 479, 481 (App. Div. 1967) (citing Loughney v. Thomas, 117 N.J.L. 169 (E. & A. 1936) (describing the role of an administrator ad prosequendum and declaring that person a trustee)). As a trustee or fiduciary, appellant was required, in accordance with her appointed role, to act in concert with her co-administratrix to commence in a timely manner the action she was entrusted to pursue. While we do not impugn appellant's motives, it is nonetheless clear that discord had arisen between appellant and respondent that precluded the concert of action required of them.

We have held that "removal of a trustee should be granted only sparingly." Wolosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 360 (App. Div. 1985). However, in the present case, the record clearly supports the chancery judge's discretionary determination that, in order to effectuate the purpose of the appointment, it was necessary to remove appellant as a co-administratrix. Ibid.; Lathrop v. Smalley's Executors, 23 N.J.Eq. 192, 195 (Ch. 1872).

We reject appellant's claim of entitlement to a jury trial in this probate matter. That right is not accorded by the State's constitution or case law. N.J. Const. (1947), Art. I, par. 9; In re LiVolsi, 85 N.J. 576, 590 n.12 (1981) (observing that in purely equitable matters, there is no right to a jury); Ballard v. Schoenberg, 224 N.J. Super. 661, 667-68 (App. Div.), certif. denied, 113 N.J. 367 (1988). The hearing conducted by the judge was appropriately utilized to resolve the limited issue before him.

Further, we discern no abuse of discretion in the court's determination to deny appellant's second request for an adjournment and to require her to proceed without counsel when, following an initial three-week adjournment to permit counsel to be retained, appellant appeared in court, unrepresented. Whether to grant an adjournment lies within the discretion of the trial court, and the court's exercise of that discretion will be reversed only if the action was clearly unreasonable in light of the accompanying and surrounding circumstances and resulted in irremediable prejudice to the moving party. Stott v. Greengos, 95 N.J. Super. 96, 100 (App. Div. 1967). Here appellant had assured the court at the first hearing that she would be able to retain an attorney within one week. She was afforded three, and upon her second appearance without counsel, she proffered the excuse of a lack of funds - an excuse different from the one initially advanced, and one unlikely to have been susceptible to a quick cure. Given the nature of the allegations that generated the proceedings, the time constraints for initiation of suit imposed by the Wrongful Death Act, and the likelihood that appellant's lack of counsel would not be timely remedied, we find no abuse of discretion on the part of the chancery judge in determining to proceed with the hearing on the order to show cause and in requiring that appellant represent herself in that proceeding.

In that respect, we note that the purpose of the hearing was solely to determine whether appellant had neglected or refused to join with respondent in fulfilling their joint fiduciary duty to institute suit. Appellant was appropriately apprised of the allegations against her, and she responded to them prior to the hearing in a lengthy certification. A further and full opportunity for a response was provided by the chancery judge at the hearing itself. In this fashion, appellant's due process rights were fully protected. First Resolution Inv. Corp. v. Seker, 171 N.J. 502, 513-14 (2002).

We perceive no merit in appellant's argument that the probate judge expressed bias against her. From the record, we discern that comments directed to appellant at the April hearing were designed merely to focus the argument on the issue of adjournment; that, at the second hearing, the judge gave appellant an appropriate opportunity to air her grievances and meet respondent's arguments; that the judge's expressed distress at the level of familial dysfunction was well-founded; and that his determination to request respondent's counsel to submit a proposed form of order for the judge's review and potential modification was dictated solely by the practical concern that the order be drafted by a legally knowledgeable person.

We decline to address appellant's remaining arguments, determining that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The order of removal is affirmed.

 

Appellant claims that the proceeding was instituted as retaliation for appellant's contact, one week earlier, with the deputy surrogate. The nature of that contact was unspecified, but it can be inferred that action adverse to respondent was sought.

Appellant asserted that counsel should be disqualified as the result of his representation of other family members in the past, but did not establish any conflict of interest as a result. Additionally, appellant claimed a conflict of interest on the part of respondent arising from her alleged claim on the estate. At the hearing, the existence of that claim was denied, and the right to assert any such claim in the future was waived.

We note that, despite the judge's direction, appellant also submitted a proposed, intemperate, form of order seeking to obtain relief beyond that encompassed by the hearing and to place a legal imprimatur upon her version of the family's squabbles.

(continued)

(continued)

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A-5767-05T5

 

May 25, 2007