IN THE MATTER OF THE ESTATE OF RICHARD D. EHRLICH
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2147-15T4
IN THE MATTER OF THE ESTATE OF
RICHARD D. EHRLICH (deceased)
Argued December 20, 2017 – Decided May 3, 2018
Before Judges Alvarez, Nugent, and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Probate Part, Mercer
County, Docket No. 14-01137.
Jonathan Ehrlich, appellant, argued the cause
pro se.
Sandford F. Schmidt argued the cause for
respondent Dennis P. McInerney (McInerney and
Schmidt, LLC, attorneys; Sandford F. Schmidt,
on the brief).
Jordan R. Irwin argued the cause for
respondents Paul R. Melletz and Begelman,
Orlow & Melletz, PC (Begelman, Orlow &
Melletz, attorneys; Paul R. Melletz, on the
brief).
Saul Ewing Arnstein & Lehr, LLP, attorneys for
respondent Ronald P. Colicchio (Ronald P.
Colicchio, on the brief).
PER CURIAM
On January 19, 2016, Jonathan Ehrlich, the principal
beneficiary of the Estate of his uncle, the late Richard Ehrlich,
filed a notice of appeal from a December 1, 2015 post-judgment
order. In his civil case information statement (CIS), Ehrlich
refers to that order as the "final order disposing of the entire
case," and adds that he also "seeks to appeal from order of July
25, 2014." Attached to the CIS is a third order, dated January
20, 2015, which denied him reconsideration of the July 25, 2014
decision. In actuality, the July order was the final judgment
entered regarding the probate of his uncle's estate.
Rule 2:4-1(a) provides that "[a]ppeals from final judgments
of courts . . . shall be taken within [forty-five] days of their
entry." We conclude the only order from which appeal is proper
is the December 1, 2015 order listed on the CIS, although strictly
speaking, even that notice was filed four days out of time. The
order, which allocated funds unexpectedly received by the estate
to attorneys for fees, distributed the remainder to be paid over
to Ehrlich. We affirm.
I.
The Chancery judge authored a cogent and comprehensive fifty-
eight-page opinion setting forth her reasons for the July 25, 2014
final judgment, summarizing the facts and relevant case law. She
reviewed the extensive litigation and appellate history of the
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matter in detail, which included one published and one unpublished
decision. In re Estate of Ehrlich,
427 N.J. Super. 64 (App. Div.
2012); In re Estate of Ehrlich, No. A-4714-11 (App. Div. June 11,
2013). She dismissed Ehrlich's exceptions to the formal account
of the temporary administrator, Dennis P. McInerney, Esquire. The
judge also denied Ehrlich's application to dismiss McInerney as
administrator, and she approved McInerney's formal account. The
court allowed McInerney additional fees and commissions. The
court also allowed fees to Paul R. Melletz, Esquire, for his prior
representation of Ehrlich on a successful appeal.
The judge alluded to Ehrlich's view of the result of that
appeal as a costly failure, although he prevailed. The will he
sought to have admitted to probate gave his siblings relatively
modest bequests but made him the estate's principal beneficiary.
In re Ehrlich,
427 N.J. Super. at 75-76. Since a dissent was
filed in the matter, however, he decided to settle with his
siblings in order to avoid an appeal of right to the Supreme Court.
During the negotiation of the agreement, Ehrlich was represented
by Ronald Colicchio, Esquire.
Ehrlich had taken the position, which he still maintains,
that Melletz should have pursued probate under the lost will theory
mentioned in the dissent, and not under the authority of In re
Probate of Will & Codicil of Macool,
416 N.J. Super. 298 (App.
3 A-2147-15T
4 Div. 2010), under which theory Melletz won the appeal. Macool
addressed the question of when, under
N.J.S.A. 3B:3-3, unexecuted
copies of wills warrant probate. Id. at 310. Ehrlich's uncle's
will was admitted under that statute.
Ehrlich subsequently terminated Colicchio's services and
retained Peter Ouda, Esquire. Ehrlich is self-represented in this
appeal.
The judge rejected Ehrlich's argument that Saffer v.
Willoughby,
143 N.J. 256 (1996), meant Melletz could not be paid
fees until the legal malpractice litigation Ehrlich filed against
him was resolved. She concluded the case was inapposite——a
conclusion with which we agree——because it relates to sensitive
timing issues when a parallel fee arbitration and a malpractice
action is pending.
In the final judgment, the judge also ordered Ehrlich to
execute a refunding bond and release. At that juncture, having
settled with his siblings, he was the sole beneficiary of the
estate.
Appellate review of trial court decisions is limited. Cesare
v. Cesare,
154 N.J. 394, 411 (1998). The factual findings of the
trial court are binding on us, especially when those findings
involve credibility determinations. Id. at 412. We "do not
disturb the factual findings and legal conclusions of the trial
4 A-2147-15T4
judge unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of
justice." In re Tr. Created By Agreement Dated Dec. 20, 1961, ex
rel. Johnson,
194 N.J. 276, 284 (2008) (quoting Rova Farms Resort,
Inc. v. Investors Ins. Co.,
65 N.J. 474, 484 (1974)).
Were we to apply that standard to the July 25, 2014 final
judgment, we would affirm. The court's factual findings and legal
conclusions were consistent with the "competent, relevant and
reasonably credible evidence." Ibid.
Curiously, following entry of that decision, Ehrlich timely
appealed——but then withdrew. Contemporaneously with that filing
or afterwards, he filed a motion under Rule 4:49-2 for
reconsideration. Reconsideration was denied on January 16, 2015;
the order was entered January 20. That is the third order attached
to Ehrlich's CIS.
The judge denied the motion for reconsideration because it
did not meet the well-established Cummings v. Bahr standard.
295 N.J. Super. 374, 383 (App. Div. 1996). Reconsideration is granted
at the discretion of the court, to be exercised in the interests
of justice. Palombi v. Palombi,
414 N.J. Super. 274, 288 (App.
Div. 2010). Such discretion should only be exercised where a
court has decided the matter on a palpably incorrect or irrational
5 A-2147-15T4
basis, or without considering probative competent evidence.
Cummings,
295 N.J. Super. at 384.
As the judge observed, Ehrlich's reconsideration motion was
no more than an expression of his disagreement with the findings
of fact and the outcome set forth in the July 25, 2014 decision.
Thus, there was no basis to set it aside.
In any event, Ehrlich is also out of time to appeal that
order pursuant to the rules. Therefore, we turn to the only order
we can consider.
The December 1, 2015 decision disposed of $29,563.48
unexpectedly refunded to the estate by the New Jersey Division of
Taxation. The judge granted McInerney fees at the rate of $225
per hour for a total of $8617.50, of which $2000 had already been
paid, plus costs of $560.68. She also directed payment of $5828.50
to be paid to Melletz, that sum representing unpaid fees allowed
by our court. The refund balance was paid over to Ehrlich.
We set forth Ehrlich's points on appeal for the sake of
completeness. Ehrlich seeks to reopen all of the accountings by
McInerney, including the interim accounting already addressed on
appeal. Ehrlich, slip op. at 5-6. He demands a plenary hearing
on all of the attorney's fees which have been awarded, and
generally, the opportunity to revisit every issue that has been
litigated since his uncle's death in 2009:
6 A-2147-15T4
POINT I – THE COURT ERRED AS A MATTER OF LAW
IN FINDING THAT SAFFER V. WILLOUGHBY IS
LIMITED TO FEE ARBITRATION AWARDS
POINT II – THE COURT ERRED AS A MATTER OF LAW
IN FAILING TO APPLY THE DOCTRINES OF EQUITABLE
ESTOPPEL AND UNCLEAN HANDS; AND RECOGNIZE THE
CHILLING IMPACT OF CTA DENNIS P. MCINERNEY'S
ACTIONS, INACTIONS, ABUSE OF PROCESS, CONTEMPT
OF COURT, AND FALSE TESTIMONY (not argued
below)
POINT III – THE COURT ERRED AS A MATTER OF LAW
IN EXPOSING APPELLANT TO THE BEGELMAN, ORLOW
AND MELLETZ FIRM'S FAILURE TO PROTECT THEIR
CLIENT WITH REQUIRED MALPRACTICE INSURANCE
POINT IV – THE COURT ERRED IN AWARDING RONALD
COLICCHIO/THE SAUL EWING FIRM AND THE BEGELMAN
FIRM THE ENTIRETY OF THEIR FEES IN LIGHT OF
THEIR NEGLECTFUL REPRESENTATION AND LIMITED
SUCCESS
POINT V – ERROR OCCURRED IN THE COURT ALLOWING
ITS FAILURE TO REVIEW THE RECORD AND
PREDISPOSITIONS TO DICTATE THE OUTCOME OF THE
LITIGATION (not argued below)
The only issue arguably within the scope of the December 1,
2015 order is point one. We first briefly address Ehrlich's claim
that the court was inclined to rule against him. The remaining
alleged errors merely restate facts found in the July decision,
in addition to facts that may or may not be in the record at all.
Ehrlich urges us to consider these so we might reach "a much
different conclusion than that of the lower court."
7 A-2147-15T4
II.
As the judge was rendering her decision from the bench,
Ehrlich, who was represented at the hearing, spoke out because he
disagreed. She told Ehrlich that he would be removed from the
courtroom if he interrupted her again. Although we can understand
that Ehrlich may have been troubled by the judge's strong reaction,
her statement came at the end of years of litigation and exacting
work. Her reaction was ultimately of no consequence. He did not
interrupt again; he was not removed, and the judge continued to
make her findings, seemingly unaffected by the incident.
One of Ehrlich's major complaints about McInerney was that
he did not investigate a particular asset, his uncle's condominium
in the Bahamas. The judge found, to the contrary, that Ehrlich
knew about the potential asset by 2010 based on emails he sent to
Melletz, and wanted to keep the existence of the asset quiet until
after he reached a settlement with his siblings. Some of his
emails, according to the judge, "suggest[ed] that [] Ehrlich
deliberately decided not to press [] McInerney to pursue the
[Bahama property] because it might be advantageous to him in the
litigation with his siblings if they were not aware of this asset."
The judge also stated:
N.J.S.A. 3B:17-8 provides that a judgment
allowing an account after due notice shall be
res adjudicata as to all exceptions which
8 A-2147-15T4
could or might have been taken to the account
and shall constitute, exonerate and discharge
the fiduciary from all claims of all
interested parties. . . . [T]he statute was
relied upon by the Appellate Division in the
earlier estate litigation in refusing to allow
[] Ehrlich to raise issues as to []
McInerney's performance that could have been
raised in the first accounting but were not
and that is In Re Estate of Ehrlich[,] 213
N.J. Super. [Unpublished Lexis] 1415 an
Appellate Division case from 2013.
Because Ehrlich's challenges to McInerney's performance as
temporary administrator had long since been decided with finality,
the judge declined to revisit them and limited her decision to
only the issue of outstanding fees. Thus the unpaid balance due
to McInerney was to be paid from the refund.
The court also directed that Melletz be paid the fees we had
allowed him long before, $5828.50. No appeal had been taken from
that award. A directive that long-standing judgments be paid from
available funds is unobjectionable. The judge further ordered
distribution of the remaining balance to Ehrlich.
Accordingly, we affirm the December 1, 2015 order. Complaints
regarding McInerney's performance were long before rejected with
finality. Payment to Melletz was also an issue that could not be
revisited.
Affirmed.
9 A-2147-15T4
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