IN THE MATTER OF THE ESTATE OF PAULINE DONNER

NOT FOR PUBLICATION WITHOUT THE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-2279-16T1

IN THE MATTER OF THE ESTATE
OF PAULINE DONNER, deceased.
_____________________________

DEBRA MORRISON, Individually
And as Executor of the Estate
Of Pauline Donner and DEBCRIS
WAREHOUSING, INC.,

        Third-Party Plaintiffs-
        Respondents,

v.

CHRISTOPHER DONNER, NETWORK
RELOCATION SERVICES, INC. AND
CHRIS DONNER, LLC,

     Third-Party Defendants-
     Appellants.
_______________________________

LORI M. MCNEELY, ESQUIRE, as
Guardian ad Litem for Jamie
Morrison, Jessica Morrison,
Katherine Donner, and George
Thomas Donner,

     Third-Party Plaintiff-
     Respondent.
_________________________________

              Argued April 12, 2018 – Decided June 21, 2018
            Before Judges Simonelli, Rothstadt and Gooden
            Brown.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Burlington County, Docket
            No. P-2008-0233.

            Kit Applegate argued the cause for appellant
            Christopher Donner.

            Thomas S. Harty argued the cause for
            respondent Estate of Pauline Donner (The
            Kourlesis Law Firm, attorneys; Suzanne M.
            Kourlesis, on the brief).

            Michael S. Rothmel, attorney for respondent
            Debra Morrison.

PER CURIAM

    Appellant Christopher Donner appeals from the July 29, 2016

Chancery    Division   order   granting    commissions    to   the    court-

appointed    Administrator     C.T.A.,   Suzanne   M.   Kourlesis,     Esq.,

attorney's fees and costs to the Kourlesis Law Firm, LLC (the Law

Firm), fees and costs to the court-appointed guardian ad litem

(GAL),   Lori   McNeely,   Esq.,   and    attorney's    fees   incurred     by

respondent Debra Morrison.      Donner also appeals from the November

15, 2016 order granting the Law Firm additional fees and costs.1

Because the appeal was untimely, we dismiss.


1
   Donner also appealed from the September 2, 2014 order, but did
not address that order in his merits brief.      Accordingly, any
issues relating to that order are deemed waived. N.J. Dep't of
Envtl. Prot. v. Alloway Twp., 
438 N.J. Super. 501, 505 (App. Div.
2015); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on
R. 2:6-2 (2018).

                                    2                                A-2279-16T1
      Donner and Morrison are siblings.                   Their mother, Pauline

Donner (the decedent), died on December 3, 2007.                     The decedent's

Last Will and Testament named Donner and Morrison as co-executors

of the estate.       The decedent bequeathed her property located in

Westhampton to Morrison; her shares of stock in a family business

known as Debcris Commercial Warehousing, Inc. (Debcris) to Donner;

$10,000 to her adult granddaughter; $75,000 to each of her four

minor grandchildren; and her property in Pennsylvania and the

remainder of her estate to Donner and Morrison in equal shares.

The estate was probated and letters testamentary were issued to

Donner and Morrison on January 30, 2008.

      A   dispute    arose     between     Donner       and    Morrison   over    the

administration of the estate and ownership of Debcris, the estate's

major asset.        As a result, in December 2008, Morrison filed a

complaint in the Chancery Division, Probate Part, individually and

as co-executor of the estate, and a counterclaim and third-party

complaint against Donner, Network Relocation Services, Inc. and

Chris Donner, LLC.

      In a March 3, 2009 order, the court discharged Donner and

Morrison as co-executors and appointed Kourlesis as Administrator

C.T.A.    The Law Firm represented Kourlesis in this capacity and

the   estate.       In   an   April   4,       2011   order,   the   court   granted

Kourlesis's motion to appoint a special fiscal agent for Debcris

                                           3                                 A-2279-16T1
and appointed Jeffrey Apell, Esq. The court also appointed McNeely

as GAL for the decedent's minor grandchildren.

     On   January   22,   2013,   the       parties    executed    a   settlement

agreement to effectuate the sale of property in Lumberton comprised

of two lots: Block 6, Lots 4 and 3.17.                Debcris owned Lot 4 and

Donner owned Lot 3.17.        The settlement agreement provided that

Donner would execute a deed of easement in consideration for

certain monetary distributions from the estate.                   The agreement

also provided for other distributions, including $50,000 for fees

Morrison paid to Archer & Greiner, and "[e]stimated attorney fees

and/or [a]dministration fees" of $35,000 to Kourlesis; $15,000 to

McNeely; $32,000 to Morrison's attorneys, Archer & Greiner; and

$20,000 to Apell.    An addendum to the agreement provided: "Donner

shall   receive   $5,000.00   from   []       Kourlesis   fee     in   additional

consideration of his [release] of all claims against her."

     In a January 22, 2013 order, the court dismissed the matter.

However, the estate was not closed, the court did not discharge

Kourlesis as Administrator C.T.A. or Apell as special fiscal agent

for Debcris, and the case did not settle.              Rather, the litigation

continued over three more years, with the parties engaging in

motion practice and with claims raised against Kourlesis for breach

of fiduciary duty.



                                        4                                 A-2279-16T1
      In a September 2, 2014 order, the court granted Apell's motion

for an order authorizing him to sell the Lumberton property and

dissolve Debcris following the sale, and denied as premature his

request for an accounting of Debcris. In a January 16, 2015 order,

the   court   granted     Apell's    motion     for     an   order   granting    him

attorney's fees to be paid from Debcris's account; approving the

accounting of Debcris from February 7, 2013 to October 31, 2014;

and   permitting    him    to    retain       $10,000    for   further     expenses

pertaining to the dissolution of Debcris.                The court also ordered

Apell to turn over the balance held in Debris's account after the

sale to the estate and Kourlesis.

      The Lumberton property was sold on October 10, 2014.                         On

August 11, 2015, Apell sent the sale proceeds of $240,000 to

Kourlesis in a check payable to the estate.

      Kourlesis's attempt to obtain Donner's and Morrison's consent

to an informal final accounting failed.               As a result, on March 30,

2016,   Kourlesis   filed       an   order     to   show     cause   and   verified

complaint, requesting approval of the final account of the estate

from the date of the decedent's death, December 3, 2007, to the

date of the closing of the account on March 15, 2016.                      She also

sought payment of administrator commissions, attorney's fees and

costs to the Law Firm, and McNeely's fees and costs.



                                          5                                 A-2279-16T1
      Kourlesis submitted the final account and an affidavit of

administrator's services and costs, requesting corpus commissions

of $35,676.62, income commissions of $2,014.39, and costs of

$1,899.85, minus the $30,000 she was paid under the settlement

agreement.     On the Law Firm's behalf, Kourlesis submitted an

affidavit of counsel services and costs, requesting $31,150.16 for

attorney's fees and an additional $2500 to conclude the matter,

for a total of $33,650.16.

      Donner and Morrision did not object to Kourlesis's final

account, but objected to her request for administrator commissions

and   attorney's   fees   and   costs.    They   argued   the   settlement

agreement capped Kourlesis's commissions and attorney's fees and

costs at $35,000.     Morrison filed a motion for an order directing

Kourlesis to distribute $62,977.97 for attorney's fees she paid

to    Archer   &   Greiner   and   for   final   distributions    to    the

beneficiaries.

      In a July 29, 2016 order, the trial judge approved the final

account, granted Kourlesis administrator commissions in the amount

of $37,691.01, consisting of $35,676.62 for corpus commissions and

$2,014.39 for income commissions for the period ending March 15,

2016, and deducting the $30,000 already paid to her.             The judge

also granted $33,650.16 to the Law Firm and her request for payment

of McNeeley's fees and costs of $3,468.72.           The judge granted

                                    6                              A-2279-16T1
$62,977.97 to Morrison and granted her request to make final

distributions to the beneficiaries.

     On the Law Firm's behalf, in September 2016, Kourlesis filed

a motion for an order approving payment of additional attorney's

fees of $9950 and costs of $680.92 for the period June 1, 2016 to

August 18, 2016, and submitted an affidavit of counsel services

and costs. In a November 15, 2016 order, the judge granted motion.

     Thereafter, Apell filed a motion for an order approving the

final accounting of Debcris from October 27, 2015 to November 29,

2016, and for attorney's fees of $3,468.50 and costs of $189.57,

to be paid from Debcris's account, not the estate's account.       In

a December 22, 2016 order, the court granted the motion and

discharged Apell as special fiscal agent.   This appeal followed.

     As a threshold matter, we address Kourlesis's and Morrison's

contentions that Donner's appeal, filed on February 3, 2017, was

untimely because the November 15, 2016 order was final.      Donner

did not address this issue.

     Appeals from final judgment or orders must be filed within

forty-five days of their entry.   R. 2:4-1(a).   "[O]n a showing of

good cause and the absence of prejudice, [this court] may extend

the time fixed by [Rule] 2:4-1(a) . . . for a period not exceeding

[thirty] days, but only if the notice of appeal . . . was in fact

served and filed within the time as extended."    R. 2:4-4(a).

                                  7                         A-2279-16T1
     
N.J.S.A. 3B:17-8, provides as follows:

          A judgment allowing an account, including a
          guardian's intermediate account, after due
          notice, shall be res adjudicata as to all
          exceptions which could or might have been
          taken to the account, and shall constitute an
          approval of the correctness and propriety of
          the account, the legality and propriety of the
          investments and other assets, the legality and
          propriety of the changes in investments or
          other assets, and the legality and propriety
          of other matters, and also shall exonerate and
          discharge the fiduciary from all claims of all
          interested parties and of those in privity
          with or represented by interested parties
          except:

          a.   For the investments and other assets in
          the fiduciary's hands at the close of the
          period covered by the account, and assets
          which may come into his hands after the close
          of the account;

          b.   Insofar as exceptions to the       account
          shall be taken and sustained; and

          c.   As relief may be had from a judgment in
          any civil action.

     "A judgment approving an administrator's final account is

conclusive among the parties as to all issues which were raised

or might have been raised."   In re Estate of Skvir, 
170 N.J. Super.
 559, 561-62 (App. Div. 1979).    "Those parties who actually raise

and litigate an issue in an accounting proceeding are bound by the

judgment entered thereon."      In re Estate of Yablick, 
218 N.J.

Super. 91, 100 (App. Div. 1987).      "In the absence of fraud or

mistake a judgment approving an accounting becomes conclusive upon

                                  8                          A-2279-16T1
the expiration of the time for appeal."   Ibid.   "[W]hen the time

for taking an appeal has run the parties to a judgment have a

vested right therein which cannot subsequently be taken from them."

In re Nuese, 
15 N.J. 149, 152 (1954) (quoting In re Pfizer, 
6 N.J.
 233, 239 (1951)).

     Here, the judge approved the final account for the estate in

the July 29, 2016 order.     The December 22, 2016 order, which

related only to Debcris and Apell's discharge as fiscal agent, did

not affect the final account of the estate, as the Lumberton

property had been sold and the sale proceeds had been submitted

to the estate.   Thus, Donner's time to appeal expired on December

30, 2016.   His appeal, filed on February 3, 2017, was untimely.

     Appeal dismissed.




                                 9                          A-2279-16T1