IN THE MATTER OF THE IRREVOCABLE TRUST OF JOHN L. MARCHISOTTO DECEASED
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-3453-19
IN THE MATTER OF THE
IRREVOCABLE TRUST OF
JOHN L. MARCHISOTTO,
DECEASED.
Submitted January 3, 2022 - Decided April 21, 2022
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket No.
18-000394.
John F. Marchisotto, appellant pro se.
Respondents Debra E. Canova and JP Morgan Chase
Bank, N.A. have not filed a brief.
PER CURIAM
In this one-sided, commonplace probate matter, petitioner John F.
Marchisotto appeals from the April 1, 2020 final order dismissing his
complaint with prejudice for failure to answer interrogatories pursuant to Rule
4:23-5(a)(2) and otherwise provide discovery or comply with court orders; the
May 7, 2020 order denying his motion for reconsideration; and the June 2,
2020 order for sanctions pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8
directing he pay his sister Debra Canova, executor of their father's estate and
administrator of his irrevocable trust, sanctions of $81,848.70 in fees and
$3,976.33 in costs. Marchisotto also appeals from a number of interlocutory
orders and the denial of several post-judgment applications, many of which he
has failed to address in his brief on appeal. Having reviewed the eleven
transcripts filed in this matter as well as Marchisotto's brief and five-volume
appendix, we are satisfied the order dismissing his accounting and fraud action
with prejudice, as well as the award of sanctions, are reasonably supported by
the record Marchisotto has put before us. Accordingly, we affirm.
Although Marchisotto's brief and 977-page appendix are stuffed with
matters extraneous to the issues on appeal, his failure to include certain basic
documents, including his verified complaint and order to show cause, the will
and irrevocable trust he challenges, the prior will and 2003 revocable trust, the
estate's answer or a full set of the interrogatories at issue and his answers —
with proof of filing with the court — make summarizing the facts or
procedural history a challenge. We draw most of what occurred from a series
A-3453-19
2
of careful and comprehensive orders and opinions by Judge Goodzeit when she
managed the case in Somerset.
As best we understand it, Marchisotto is one of three children of the
decedent, John L. Marchisotto. He has two sisters, Debra E. Canova and
Diane Cusack. Their mother apparently died in June 2003.1 The decedent was
treated for cancer in 2015 and hospitalized in 2016. In June 2016, he signed a
retainer agreement with Louis Lepore to prepare new estate planning
documents, including a will, an irrevocable trust instrument and a durable
power of attorney in favor of Canova. Canova was already the decedent's
attorney-in-fact pursuant to a durable power he executed over a dozen years
before.
Although we cannot state this with any certainty as we've not been
provided the pleadings, we gather the case may have started as an action to
compel an accounting and not a will challenge. Judge Goodzeit entered a case
management order in May 2018, two months into the case, noting
Marchisotto's "representation on the record that he is not seeking to invalidate
1
We know that seemingly irrelevant bit of information only because
Marchisotto advised in his answers to interrogatories that he wished to
question one of his sisters about "who signed plaintiff's deceased mom (sic)
signature to a public document in 8/2003, that [was] falsely notarized."
A-3453-19
3
the irrevocable trust, but, rather, he is seeking his and his children's
appropriate share thereunder." Although we've not been provided a copy of
the 2016 irrevocable trust, Marchisotto's three minor children are apparently
beneficiaries, as are Canova's three children and Cusack's daughter.
Marchisotto changed his position at some point, however, and now
alleges, without any competent evidence as far as we can tell, that Canova
misused the power of attorney to swindle their father and improperly
influenced him to change his will — although apparently not in her favor —
four months prior to his death in October 2016, when he was allegedly ill and
infirm and dependent upon her for his care.2 While, again, we've not been
provided the will or the irrevocable trust, Marchisotto did not dispute the
2
The decedent did not live with Canova. She lived in Staten Island and he
lived alone in Franklin Township. Nevertheless, defendant asserts in his
preliminary statement in his appellate brief that
Canova['s] threat of withholding medication, or food,
or threat[] to keep him living at the Roosevelt nursing
home, that she put him in, and he did not want to stay
at, can be enough to force a victim to sign documents,
or take actions, he otherwise would never do. And
these "threats" need not be expressed. Just knowing
that someone who controls your medicine and food,
medical care, hospital care, home health aide care, and
that wants you to do something, is enough of a
"threat" to overcome the victim John L.
Marchisotto['s], deceased['s], free-will.
A-3453-19
4
representations made on the record by the executor's counsel in December
2018 that decedent's prior will divided his assets evenly among his three
children, and that the 2016 "pour over" will and irrevocable trust reduced each
of their shares from a third to a quarter, with the remaining quarter to be
divided among decedent's seven grandchildren. It was because Marchisotto's
minor children stand to benefit from their grandfather's 2016 irrevocable trust
that Judge Goodzeit appointed a guardian ad litem for them when Marchisotto
changed his position. A successful attack on the irrevocable trust would
disinherit Marchisotto's children, making their interest in the litigation adverse
to their father's. See R. 4:26-2(a); Matter of Will of Maxwell, 306 N.J. Super.
563, 580 (App. Div. 1997).
While Marchisotto complains about the manner in which the judges
handled this case, it's clear to us that Judge Goodzeit, who presided over most
of it, was appropriately concerned about the effects of the cost of Marchisotto's
quest on all the beneficiaries, including Marchisotto. Although Marchisotto
was self-represented, meaning he was not looking to the estate to fund his will
challenge, see Rule 4:42-9(a)(3); In re Reisdorf, 80 N.J. 319, 326 (1979), the
judge had ordered Canova to file a formal accounting in response to
Marchisotto's complaint, presumably pursuant to Rule 4:87-1(b), rarely an
A-3453-19
5
inexpensive undertaking, see In re Estate of Wharton, 47 N.J. Super. 42, 47
(App. Div. 1957) (noting trustee's entitlement to charge the trust for legal
services rendered in connection with the preparation and filing of the account,
responding to exceptions and other services necessary for its approval).
While Marchisotto has also not included that accounting in his appendix,
Canova's counsel stated on the record it ran to 875 pages with statements and
backup. Given the size of the estate, noted in some places in the record to be
in the vicinity of $800,000, and the costs of the litigation, which in December
2018 was apparently already approaching $150,000, Judge Goodzeit asked
Marchisotto on the record to consider whether "to go from twenty-five percent
to a third" under the prior will, with a no-contest clause, made economic sense.
She cautioned the parties that if they "continue[d] to litigate, we're going to
use up half of the money and no one's going to benefit."
Marchisotto, however, who had already been the recipient of several
safe-harbor notices from trustee's counsel pursuant to Rule 1:4-8, told the
judge he would never agree to Lepore getting "even one cent," and that he
should be sued for malpractice. When the judge explained that Lepore wasn't
his lawyer, and thus Marchisotto could not sue him for malpractice,
Marchisotto replied that he "should have been able to get Debra — defendant
A-3453-19
6
Canova removed as the executor and trustee and then [he] would have
proceeded with a malpractice lawsuit against" the lawyer. 3
Marchisotto's preoccupation with Lepore appears to be one of several
drivers causing what should have been a simple case to go off the rails. 4 As
best we can tell, Marchisotto never filed formal exceptions to the accounting.
See R. 4:87-8. That implies, although the record on appeal allows no
definitive conclusion, there was nothing about the accounting that appeared
3
Marchisotto had originally included Lepore as a defendant in the case,
allegedly for conspiring with Canova. Judge Goodzeit dismissed the claims
against Lepore as well as fraud and conspiracy claims against Canova in
August 2018.
4
In addition to reporting Lepore to several law enforcement agencies,
Marchisotto appears obsessed with establishing — in this action — that Lepore
is misrepresenting the corporate form of his practice and is without required
malpractice insurance, apparently believing it has some unspecified connection
to the veracity of the accounting at issue in this matter. Although we've not
been provided these documents, Marchisotto has admitted on the record that he
presented Lepore's full accounting and all attachments to the Office of
Attorney Ethics. Lepore claimed on the record that OAE audited the
accounting, producing its own 600-page report and 26-page opinion finding no
wrongdoing. We obviously make no findings in this regard. We note it only
because it appears emblematic of what the judges in the trial court found to be
Marchisotto's misuse of the judiciary's neutral forum to attack the estate's
counsel, the guardian ad litem and at least one witness, the doctor who
happened to examine the decedent to clear him for surgery the day before he
signed a new will and irrevocable trust, putting them all to great trouble and
expense, completely irrelevant and far afield from the simple issues presented
for resolution in the case.
A-3453-19
7
amiss. The only issue raised on the record appears to relate to the trustee's
error in depositing the proceeds of the sale of decedent's home into the estate
account instead of the trust, an error Lepore claimed was caught and accounted
for without loss to the trust. Instead of filing exceptions, Marchisotto
demanded Canova additionally account for several months prior to the creation
of the trust in June 2016, apparently concerned that funds may have been
diverted before reaching the trust's accounts. Judge Goodzeit accommodated
his concern by ordering the executor to provide Marchisotto an informal
accounting going back three months before the trust was created.
Marchisotto, however, was not satisfied, contending the copies attached
to the accounting and those pre-dating it had been "tampered with." He
claimed, "there's a lot of money that's been stolen," and charged, with no
evidence, that the bank and brokerage house statements Lepore had attached to
the accountings were fraudulent. The estate appears to have attempted to
assuage his concerns by producing original statements for his review in open
court. Marchisotto, however, wanted to subpoena decedent's banks and
brokerage houses for the original statements 5 and began his own
5
Judge Goodzeit had quashed Marchisotto's first subpoenas, including those
directed at Canova's personal accounts, because they were improperly drawn.
A-3453-19
8
investigations, contacting the institutions with his allegations of fraud, and
reporting the estate and Lepore, as well as Lepore's wife, an attorney with no
real involvement in this matter, to the Criminal Investigation Division of the
Internal Revenue Service and a host of law enforcement agencies, including
the Somerset Prosecutor's Office, the Attorney General, the United States
Attorney and the Federal Bureau of Investigation. He also reported Lepore to
the attorney disciplinary authorities in New Jersey and New York and reported
a doctor, who had attested to the decedent's competence the day before he
changed his will, to the Board of Medical Examiners.
Although there's nothing in the record to suggest any of those agencies
uncovered any wrongdoing, Marchisotto's actions caused the estate difficulties
with its New York bank, which apparently froze the trust's account in response
to Marchisotto's allegations of fraud, and eventually filed an interpleader
action in New York. It also led to the estate propounding interrogatories to
The judge then spent an inordinate amount of time attempting to assist
Marchisotto in crafting subpoenas that could properly be served in accordance
with the court rules. Her months of effort, however, came to naught as
Marchisotto's failure to answer interrogatories resulted in the dismissal of his
complaint without prejudice before his subpoenas could be approved for
service.
A-3453-19
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discover the basis of Marchisotto's claims and all those persons with
knowledge of any facts underpinning them.
Despite Judge Goodzeit's efforts to encourage Marchisotto to see the
litigation objectively and consider a cost/benefit approach to its prosecution,
Marchisotto continued to file innumerable rambling, nearly incomprehensible
motions and other submissions with the court, seemingly mindless of the cost
to the trust or the court rules governing his conduct. In December 2018, the
judge discussed the appointment of a discovery master to try and rein in
Marchisotto's abuse of the court and the deputy surrogate. The guardian ad
litem spoke in favor of the proposal, noting the amount of material he had
received when he came into the case was "ridiculous," that most of
Marchisotto's filings were "not comprehensible" and that "a discovery master
is essential because this is just — this is out of control." 6
6
The guardian ad litem was eventually relieved, at his request, after
Marchisotto filed a motion to have the lawyer disqualified, making what
Marchisotto later admitted, under oath, were scurrilous allegations the
guardian ad litem was "a fraudulent and frivolous party from an ex-parte list"
supplied by the trustee's counsel, that he failed to protect the minors' legal
rights and helped Lepore and Marchisotto's sisters "get away with their
financial crimes, fraud, theft, and elder abuse," all having absolutely no basis
in fact. This example is only one of dozens of Marchisotto treating his bald
assertions as undisputed facts.
A-3453-19
10
Because Marchisotto claimed he was without the funds for a discovery
master, the judge ordered him to submit certain personal financial information
for her in camera review to allow her to assess his ability to contribute to the
cost. Marchisotto failed to comply, seeking leave to file an interlocutory
appeal of that order as well as several others, including the judge's denial that
she recuse herself following his complaint about her to the Supreme Court's
Advisory Committee on Judicial Conduct. All his applications and motions
were denied, both here and in the Supreme Court.
In March 2019, Judge Goodzeit dismissed Marchisotto's complaint
without prejudice, pursuant to Rule 4:23-5(a)(1), for his failure to answer
interrogatories. In April, she denied his application for a stay of her March
order and denied his motion to reinstate his pleadings, although ordering,
notwithstanding, that should Marchisotto provide the estate "comprehensible
responses" to specific interrogatories that she would reconsider her ruling.
Marchisotto thereafter sued Judge Goodzeit for civil rights violations in
federal court, and the matter was transferred to Middlesex County. 7
7
The Third Circuit has since affirmed the dismissal of Marchisotto's claims
against Judge Goodzeit. See Marchisotto v. Goodzeit, No. 20-1870, 2 021 U.S.
App. LEXIS 23068, at *2-3 (3d Cir. Aug. 4, 2021).
A-3453-19
11
In December 2019, the parties appeared before Judge Rivas on
defendant's motion to dismiss Marchisotto's complaint with prejudice. After
conducting a lengthy hearing to review the questions and answers, Judge Rivas
did not grant the motion, instead allowing Marchisotto yet another opportunity
to provide responsive answers to the trustee's interrogatories. The judge
explained to Marchisotto his answers were not specific or direct as required by
the court rules, and that he could not "cut and paste the same answer over and
over." The judge entered a specific order detailing precisely what
interrogatories remained to be answered and warning Marchisotto he would
not be permitted to "cut and paste" responses. The order also advised the
answers "must be specific and germane to the issues of the case" and as to
persons with knowledge, that Marchisotto identify the "specific issue relevant
to the case" implicated by the anticipated testimony.
Marchisotto filed another application for emergent relief that was
likewise denied by this court and the Supreme Court. In a now familiar
pattern, Marchisotto thereafter sued Judge Rivas in federal court for civil
A-3453-19
12
rights violations and moved to recuse him from hearing defendant's renewed
motion to dismiss the complaint with prejudice. 8
Following receipt of Marchisotto's revised answers, the trustee moved
again to dismiss Marchisotto's complaint with prejudice. This time, Judge
Rivas granted the motion. Despite the judge's painstaking efforts to explain to
Marchisotto the abuse of the litigation process posed by listing individuals
with no connection to the issues in the case and the importance of the
requirement that he link an individual's knowledge or proposed testimony to an
actual contested issue, Marchisotto failed to comply with the court's order.
Although he has not provided us with a copy of the trustee's motion, nor any
file-stamped copy of his own response to it, what we do have is repetitive
material not responsive to the specific questions asked — particularly as it
relates to relevance. Marchisotto continued to persist in groundlessly
maligning his adversary and attacking witnesses about matters unrelated to the
simple issues we understand, based on the truncated record he has provided us,
were before the trial court, that is, the decedent's testamentary capacity;
8
Marchisotto has sued other judges and justices in federal court in connection
with the denial of his many interlocutory appeals and motions, including a
member of the panel deciding this appeal. Those actions do not prevent us
from fairly considering this matter. See R. 1:12-1; Comparato v. Schait, 180 N.J. 90, 101 (2004); Amoresano v. Laufgas, 171 N.J. 532, 555 (2002).
A-3453-19
13
whether the 2016 will and irrevocable trust were the product of undue
influence; and whether Marchisotto could identify any asset of the estate or
trust for which Canova did not faithfully account.
Marchisotto appeals, raising ten points of error, which we reprint
without alteration:
POINT 1
THE TRIAL COURT ERRED IN GRANTING ORDER ON 06/02/2020
DURING THE HEARING, THE JUDGE SAID "HE FILED
NUMEROUS ACTIONS IN NEW YORK AND NEW JERSEY
MAKING BASELESS ALLEGATIONS (INDISCERNIBLE) AFTER
DEFENDANT (INDISCERNIBLE) CAUSING THE FINANCIAL
INSTITUTIONS NOT TO COOPERATE WITH THE DEFENDANT
(INDISCERNIBLE) DISMISS THE CLAIMS AGAINST
(INDISCERNIBLE)."
POINT 2
THE TRIAL COURT ERRED IN GRANTING ORDER ON 06/02/2020,
DURING THE HEARING THE JUDGE SAID "THE COURT FOUND
MARCHISOTTO'S (INDISCERNIBLE) TO BE
INCOMPREHENSIBLE IN AN AUGUST, 2018, (INDISCERNIBLE)
HAVE NOT IMPROVED. THE CONTINUE TO BE REPETITIVE
AND (INDISCERNIBLE) AND ARE NUMEROUS. THE RECORD IS
CRYSTAL CLEAR THAT MR. MARCHISOTTO IS A VEXATIOUS
LITIGANT. HE IGNORES COURT ORDERS. HE ENGAGES IN
(INDISCERNIBLE) – THEREFORE, THE COURT WILL GRANT
(INDISCERNIBLE) APPLICATION AND WILL ORDER
MARCHISOTTO TO PAY $81,841.72 AND THE ADDITIONAL 3,000
- (INDISCERNIBLE) IN EXPENSES AND COSTS. THE COURT
REVIEWED THE PLAINTIFF'S AFFIDAVIT (INDISCERNIBLE)
CONSISTENT WITH THE RATES CUSTOMARILY CHARGED IN
NEW JERSEY. THE HOURS SPENT WERE NOT EXCESSIVE.
CONSIDERING MR. MARCHISOTTO'S (INDISCERNIBLE)
(INDISCERNIBLE) SPECIFICALLY, THE ARGUMENTS HE HAS
A-3453-19
14
MADE ARE NOT WARRANTED BY THE FACTS OR THE LAW.
AND ORDER WILL BE ENTERED UPON (INDISCERNIBLE)."
POINT 3
THE TRIAL COURT ERRED IN GRANTING ORDER ON 06/02/2020,
DURING THE HEARING SAID, "THE RECORD IS CRYSTAL
CLEAR THAT MR. MARCHISOTTO IS A VEXATIOUS LITIGANT.
HE IGNORES COURT ORDERS, HE ENGAGES IN
(INDISCERNIBLE)."
POINT 4
THE TRIAL COURT ERRED IN GRANTING ORDER ON 06/02/2020,
SANCTION IS APPROPRIATE ONLY WHERE THE OFFENDER
HAS WILLFULLY ABUSED JUDICIAL PROCESS OR OTHERWISE
CONDUCTED LITIGATION IN BAID FAITH. IN RE ITEL SEC.
LITIG., 791 F.2d 672, 675 (9TH CIR. 1986); KREAGER V.
SOLOMON & FLANAGAN, P.A., 775 F.2d 1541, 1542-43 (11TH CIR.
1985); LIPSEIG V. NAT'L STUDENT MKTG. CORP., 663 F.2d 178,
180-81 (D.C. CIR. 1980); LINK V. WABASH R.R. CO., 370 U.S. 626,
632 (1962).
POINT 5
THE TRIAL COURT ERRED ON 05/07/2020, DENYING
APPELLANT MOTION FOR RECONSIDERATION, THE JUDGE
SAID "TODAY IS MAY 7TH. THIS IS A MOTION FOR
RECONSIDERATION WHERE THE COURT IS PUTTING ITS
DECISION ON THE RECORD. THIS MATTER COMES BEFORE
THE COURT ON PLAINTIFF'S MOTION FOR RECONSIDER
DISMISSAL OF HIS COMPLAINT WITH PREJUDICE FOR
REPEATED FAILURES TO ADEQUATELY RESPOND TO
DISCOVERY REQUESTS. THIS CAUSE OF ACTION REACHES
THIS COURT ON A TRANSCRIPT FROM SOMERSET VICINAGE;
A RELATED MATTER WAS REPORTED IN UNITED STATES
DISTRICT COURT IN THE DISTRICT OF NEW JERSEY UNDER
CASE NUMBER 3:19CV12540. THE SELF-REPRESENTED
PLAINTIFF, JOHN F. MARCHISOTTO, HAS BEEN DESCRIBED AS
A VEXATIOUS LITIGANT. PLAINTIFF HAS PREVIOUSLY FILED
MOTIONS SEEKING SANCTIONS TO THIS COURT BY COUNSEL
A-3453-19
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IN THOSE MATTERS. ALL OF THOSE MOTIONS WERE DENIED.
IN ADDITION TO NAMING OPPOSING COUNSEL AS A
DEFENDANT IN THIS MATTER, PLAINTIFF HAS NAMED
MULTIPLE SUPERIOR COURT JUDGES WHO HAVE PREVIOUSLY
PRESIDED OVER THIS MATTER AS DEFENDANTS IN A
FEDERAL LAWSUIT."
POINT 6 ON 04/01/2020, JUDGE RIVAS "HARMFUL ERROR," DISMISSING
APPELLANT COMPLAINT WITH PREJUDICE. APPELLANT HAD
FULLY, RESPONSIVELY, AND PROPERLY ANSWERED
DEFENDANT INTERROGATORY QUESTIONS 13, AND 14, AS PER
THE 12/09/2020, ORDERS.
POINT 7
DURING THE HEARING, THE JUDGE SAID "IN ADDITION,
PLAINTIFF HAS CLAIMED THAT IN SITE OF THE JUDGE'S
ATTORNEYS, AND EXPERT WITNESSES, THE DEFENDANTS IN
(INDISCERNIBLE) OR GRIEVANCES IN THE DISTRICT COURT
WITH THE INTERNAL REVENUE SERVICE. PLAINTIFF
READILY ASSERTS UNSUPPORTED CLAIMS OF FRAUD AND
CIVIL CONSPIRACY. PLAINTIFF'S MOVING PAPERS HAVE
BEEN DESCRIBED BY ADVERSARIES AS BASELESS,
NONSENSICAL, RAMBLING, AND HARASSING PLAINTIFF'S
BEHAVIOR AS HARASSING."
POINT 8
DURING THE HEARING, THE JUDGE SAID "FURTHERMORE,
PLAINTIFF HAS CLAIMED WHETHER LEPORE PRACTICED LAW
IN A DEFUNCT PROFESSIONAL CORPORATION AND HAS
FAILED TO CARRY MALPRACTICE INSURANCE AS REQUIRED
BY THE RULES OF COURT AND PROFESSIONAL CONDUCT.
AGAIN, THESE CLAIMS WERE CONSISTENTLY UNSUPPORTED
BY ANY CONCRETE EVIDENCE BEYOND PLAINTIFF'S ORAL
ASSERTIONS."
A-3453-19
16 POINT 9
DURING THE HEARING, THE JUDGE SAID "ALL RIGHT. LET'S
FIRST ADDRESS MR. MARCHISOTTO'S MOTION TO RECUSE
THE COURT. THE COURT HAS CONSIDERED THAT MOTION
AND FINDS THAT THERE IS NO BASIS FOR RECUSAL. IN
PANITCH V. PANITCH, 339 NEW JERSEY SUPERIOR COURT AT
63, PAGES 66 TO 67, APPELLATE DIVISION 2001 – MR.
MARCHISOTTO HAS TAKEN THE POSITION THESE
PROCEEDINGS ARE UNFAIR, ALTHOUGH A BELIEF THAT
THEY'RE UNFAIR IS NOT SUFFICIENT. THERE HAS TO BE
OBJECTIVE REASONABLE EVIDENCE TO CONCLUDE IF THE
PROCEEDINGS HAVE BEEN UNFAIR. IT IS MR.
MARCHISOTTO'S M.O. THAT WHENEVER HE IS UNHAPPY WITH
A DECISION THAT A JUDICIAL OFFICER MAKES, HE FILES
OTHER LAWSUITS IN AN ATTEMPT TO GET THE CASE
REMOVED FROM THAT JUDGE AND HE'S DONE SO HERE,
WHICH IS WHAT I MEANT WHEN I SAID BACK ON DECEMBER
9TH, I KNOW YOU, MR. MARCHISOTTO, THAT HAS BEEN YOUR
M.O. SINCE 2019."
POINT 10
DURING THE HEARING, THE JUDGE SAID "YOU HAVE FILED
FEDERAL CASES AGAINST JUDGE GOODZEIT. YOU HAVE
FILED FEDERAL CASES AGAINST ME, AND THERE IS OTHER
PROCEEDINGS THAT YOU HAVE FILED, AND YOU HAVE DONE
SO IN AN ATTEMPT TO (INDISCERNIBLE) THIS LITIGATION.
UNDER STATE V. BILAL, (PHONETIC), 221 NEW JERSEY 608
(2018), THE COURT STATED, A PLAINTIFF IS SEEKING, CITED
THE UNITED STATES V. GREENSPAN, 26 F. 3D
(INDISCERNIBLE). BILAL CITED THAT CASE AND SAID, WHEN
A PLAINTIFF SEEKS TO OBTAIN ANOTHER JUDGE
(INDISCERNIBLE) SEEKS TO DELAY THE PROCEEDINGS, SEEKS
TO HARASS THE LITIGANTS AND HAS FILED (INDISCERNIBLE),
ALL OF WHICH THE COURT FINDS HAVE TAKEN PLACE IN
THIS CASE. WHEN HE WAS SPECIFICALLY ASKED ON THE
RECORD, WHAT IS THE BASIS FOR THE STATEMENT THAT
WAS CONTAINED IN HIS SO-CALLED ANSWERS? HE GOES, IT
IS A BELIEF THAT HE HAS. HE HAS NO FACTUAL
A-3453-19
17
BACKGROUND, NO FACTUAL EVIDENCE OR ANYTHING TO
SUSTAIN THAT (INDISCERNIBLE). THE COURT IN DECEMBER
GAVE HIM ANOTHER OPPORTUNITY TO ANSWER THE
INTERROGATORIES. HE CAME BACK WITH ESSENTIALLY THE
SAME ANSWERS, CLEARLY CUT AND PASTE, CLEARLY NOT
TAILORED SPECIFICALLY TO WHAT WAS BEING ASKED. MR.
MARCHISOTTO CITES THE FACT THAT HE IS SELF-
REPRESENTED. BUT HE HAS BEEN INVOLVED IN THIS
LITIGATION AND IT'S BEEN EXPLAINED TO HIM SEVERAL
TIMES HOW HE (INDISCERNIBLE) THE PARTICULAR MATTERS
AND HE REFUSES TO DO SO. INSTEAD, HE GOES AND FILES
OTHER ACTIONS IN AN ATTEMPT TO DEFLECT, DELAY, AND
OBSTRUCT."
Our review of the record Marchisotto has provided us convinces us that
none of these arguments is of sufficient merit to warrant any extended
discussion in a written opinion. R. 2:11-3(e)(1)(E).
We review a trial court's discovery orders only for abuse of discretion, "a
standard that cautions appellate courts not to interfere unless an injustice
appears to have been done." Abtrax Pharm. v. Elkins-Sinn, 139 N.J. 499, 517
(1995). "We will not ordinarily reverse a trial court's disposition of a
discovery dispute 'absent an abuse of discretion or a judge's misunderstanding
or misapplication of the law.'" Brugaletta v. Garcia, 234 N.J. 225, 240 (2018)
(quoting Capital Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J.
73, 79-80 (2017)).
A-3453-19
18
Applying that standard here, Marchisotto has provided us no basis to
conclude Judge Rivas abused his discretion in finally dismissing this Probate
matter with prejudice. Marchisotto relies on Zimmerman v. United Services
Automobile Association, in arguing the court erred in dismissing his complaint
with prejudice because his was not a failure to answer but a bona fide dispute
over whether his answers were fully responsive. See 260 N.J. Super. 368, 378
(App. Div. 1992). Marchisotto's reliance on Zimmerman is misplaced.
Our courts generally follow Judge Pressler's admonition in Zimmerman
that if the discovery dispute is one over the responsiveness of the answers, the
trial court should resolve the dispute — not dismiss a plaintiff's complaint with
prejudice. Id. at 376-78. See Adedoyin v. Arc of Morris Cty. Chapter, Inc.,
325 N.J. Super. 173, 181 (App. Div. 1999). But there is an important caveat.
In Zimmerman, Judge Pressler wrote "that when the real discovery dispute is
not a failure to answer but rather an alleged failure to answer in a 'fully
responsive' manner, it is the dismissal with prejudice which is inappropriate
unless the answering party has been ordered to answer more fully and fails to
do so." Zimmerman, 260 N.J. Super. at 378 (emphasis added).
Marchisotto had been ordered to provided more fully responsive answers
to specific interrogatories — not once but several times. While our courts are
A-3453-19
19
understandably loathe to impose the draconian remedy of dismissal for a
party's failure to provide discovery, part of our reluctance is based on our
unwillingness to deprive a party of a potentially meritorious claim based on his
counsel's failure to comply with the court rules. See A&M Farm & Garden
Ctr. v. Am. Sprinkler Mech. L.L.C., 423 N.J. Super. 528, 539 (App. Div.
2012). Here, the flagrant and continuous failures to comply with the rules,
despite the repeated efforts of two trial judges to explain to Marchisotto what
he needed to do to move the case forward, rested with him and no one else.
The animating purpose of our rules is "the fair and efficient
administration of justice." A.T. v. Cohen, 231 N.J. 337, 351 (2017) (quoting
Shulas v. Estabrook, 385 N.J. Super. 91, 102 (App. Div. 2006)). That, of
course, implies fairness to all parties. Given the trustee's costs of defending
against a suit brought by a beneficiary are ordinarily borne by the trust, Mears
v. Addonizio, 336 N.J. Super. 474, 480 (App. Div. 2001), a Probate judge must
be mindful, as Judge Goodzeit obviously was, that the costs of the litigation
will deplete the corpus in which all the beneficiaries share. Thus, allowing a
beneficiary to run up litigation costs in unnecessary and wasteful motions
unfairly burdens beneficiaries not parties to the trust litigation.
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We think that cost calculus had to be weighed in determining whether
dismissal with prejudice was warranted for Marchisotto's persistent failures to
comply with discovery obligations, especially in light of his failure to ever
muster any support for his extravagant assertions of fraud. In the over two
years this matter was pending in the trial court, Marchisotto never filed
exceptions to the formal accounting he forced the trust to file and never
offered the slightest proof of his claim that funds had been misappropriated.
Marchisotto has continually asserted that he was without proof only
because he was not permitted to subpoena decedent's banks and brokerage
houses for the original statements on which the trustee's formal accounting was
based. Leaving aside that there was nothing to suggest the copies presented to
the court were "tampered with" as Marchisotto alleged, Judge Rivas noted
issuing a subpoena wasn't the exclusive mechanism for Marchisotto to bring
forth evidence of missing funds. Marchisotto claimed he had reviewed the
trustee's formal accounting, including all of its attachments, with the
decedent's long-time accountant, who Marchisotto asserted had ten years of the
decedent's tax returns in his possession. Yet Marchisotto never proffered a
certification from this allegedly knowledgeable accountant that there were
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other monies that should have gone into the trust, much less the $800,000
Marchisotto claimed was unaccounted for.
In sum, our review of the transcripts in this matter convinces us the trial
judges presided over this trying case fairly and impartially. We can find no
abuse of discretion in the decision to dismiss this matter with prejudice for
Marchisotto's failure to comply with discovery despite repeated orders. See
Abtrax Pharm., 139 N.J. at 515 (noting a party invites the drastic sanction of
dismissal "by deliberately pursuing a course that thwarts persistent efforts to
obtain the necessary facts").
As to the award of sanctions, we have only brief comment. Although
Marchisotto has provided us the transcript in which the court ruled the trustee
had established her entitlement to frivolous litigation sanctions pursuant to
N.J.S.A. 2A:15-59.1 and Rule 1:4-8 and deemed the requested award of
attorneys' fees and costs reasonable, he has not provided us the trustee's
motion for sanctions, including Lepore's supporting certification on which the
court relied in determining both that sanctions were warranted and the
requested fees and costs were reasonable.
Marchisotto's decision to so truncate the record has deprived us of any
ability to assess his claim of error in the award of sanctions, leaving us no
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basis on which to disturb the court's ruling. See Noren v. Heartland Payment
Sys., 448 N.J. Super. 486, 500 (App. Div. 2017) (finding cross-appellant's
"selective inclusion of exhibits it considers relevant and exclusion of exhibits"
relied on by its adversary prohibited review of decision, requiring dismissal of
cross-appeal).
Our disposition makes it unnecessary to address Marchisotto's remaining
arguments, none of which is of sufficient merit to warrant discussion in a
written opinion in any event. See R. 2:11-3(e)(1)(E).
Affirmed.
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