Monday, December 19, 2011

4:91-1. Proceedings When Estate Is Insolvent

RULE 4:91. Insolvent Estates

4:91-1. Proceedings When Estate Is Insolvent

  • (a) Complaint; Order to Show Cause. At any time after nine months following the date of decedent's death, the executor or administrator may commence an action in the Chancery Division, Probate Part, by a complaint stating that to the best of the executor or administrator's knowledge and belief, the real and personal estate of the decedent is insufficient to pay debts. The action shall proceed by order to show cause, which shall require the executor or administrator to give notice of the proceedings to the persons specified by R. 4:91-2 and shall set the date by which answers to the complaint or exceptions pursuant to R. 4:91-3 must be filed.

  • (b) Report of Claims; Account. The executor or administrator shall file with the complaint a list of creditors who have presented claims within nine months following the date of decedent's death, or which the executor or administrator intends to allow without requiring the submission of a formal claim, stating the amount of each claim, whether it has been allowed or rejected, whether it is entitled to a statutory priority, and whether the claim is based on judgment, bond, note, book account, or otherwise. The executor or administrator shall also file with the complaint an account in the form required by R. 4:87-3.

  • (c) Judgment. The court may, on the presentation of the report of claims and the presentation of the account, adjudge the estate to be insolvent and determine the amount of each claim and its priority for payment.

Note: Source - R.R. 4:110-1, 4:110-2(a)(b). Paragraph (a) amended July 22, 1983 to be effective September 12, 1983; paragraphs (a) and (b) amended June 29, 1990 to be effective September 4, 1990; caption amended, paragraphs (a) and (b) caption and text amended, and paragraph (c) amended July 27, 20

4:91-2. Service on Creditors and Other Interested Persons of Insolvent Estate

Service of the complaint together with the report of claims and account and order to show cause on creditors who have presented claims within nine months of the decedent's death and other interested persons shall be made in accordance with R. 4:87-4.

Note: Source - R.R. 4:110-3 (first, second and third sentences); amended June 29, 1990 to be effective September 4, 1990; caption and text amended July 27, 2006 to be effective September 1, 2006.

4:91-3. Exceptions to Account, Inventory and Claims; Determination

A creditor or other interested person may take exceptions to the account of the executor or administrator in respect of the personal estate and the inventory of the real estate. The executor or administrator, or any other interested person, may take exceptions to any creditor's claim or part thereof. Such exceptions shall be served on or before the hearing in the action or within such time as the court on application allows. Any account and inventory not excepted to shall be allowed as true, and a claim not excepted to shall be deemed justly due. The court shall hear proofs on the exceptions and shall make such determination and final judgment with respect thereto as is just and lawful.

Note: Source-R.R. 4:110-4; amended June 29, 1990 to be effective September 4, 1990.

4:91-4. Excepted Claims; Plenary Action; Recovery

If a creditor to whose claim exception is made elects to proceed in a plenary civil action in preference to a determination by the court on the exception, he or she shall so proceed immediately. If an executor or administrator desires to have a claim determined in a plenary action, he or she shall, before filing the report, so notify the creditor who shall thereupon proceed to sue immediately. Such sum as the creditor recovers in such plenary action shall be the amount upon which a ratable portion shall be paid. The court in which the action is brought shall dispose thereof as quickly as possible.

Note: Source-R.R. 4:110-5; amended June 29, 1990 to be effective September 4, 1990.

4:91-5. Actions Pending May Proceed to Judgment

If an action by a creditor or other interested party is pending against the executor or administrator on the date of the filing of the complaint to adjudge the estate insolvent, the action may proceed to final judgment, but no execution shall issue until final judgment is entered in the insolvency proceeding. If the estate is adjudicated insolvent, the judgment creditor shall be entitled to receive the ratable portion determined by such final judgment.


Saturday, November 5, 2011

2012 update Wills and Estate Planning- Free Seminar

Wednesday January 11, 2012 12:15-1:00 PM

Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

Invited: Clients, Friends, Accountants, Business Owners, HR staff, Financial Planners, Insurance Agents, Nursing Home Staff, Hospital and Nursing Home Social Workers, Office on Aging Personnel, Senior Club Presidents, and Medicaid Workers,

COST: Free if you pre-register. Complimentary Sandwiches and materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

(Author- Answers to Questions About Probate)

The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills

2. 2012 changes in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax $675,000

4. Power of Attorney

5. Living Will

6. Administering the Estate/ Probate/Surrogate

7. Question and Answer

COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

Can’t attend? We can email you materials

Send email to VercammenLaw@Njlaws.com

http://www.njlaws.com/Estate-Planning-2012.htm

Sunday, July 3, 2011

Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Saturday, August 6, 2011

Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice

Saturday, August 6, 2011 at 2:00pm - 3:30pm

Metro Toronto Convention Centre

ABA Annual Meeting Toronto, Canada

Learn from nationally recognized experts on using new techniques to improve service to Elder Law & Estate clients. Forms & briefs will be provided to all attendees.


Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to

Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA

Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ

Parag Patel, Esq. Iselin, NJ

Elder Law program Primary Sponsors: General Practice Section

Co-sponsors: ABA Commission on Law & Aging, Health Law Section,

YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section

Topics:

Getting referrals from other professionals

The aftermath of the Terry Schiavo case and Living Wills.

Forms you can use

Email newsletters

How to manage telephone conversations with your clients

Marketing with written fee agreements

-Ethics and marketing without violating the Rules of Professional Conduct

Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.

[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]

Contact American Bar Association's ITS at 800-421-0459 for ABA meeting registration

http://kennethvercammen.com/toronto.htm

Wednesday, May 18, 2011

Elder Law & Estate Administration Book

Elder Law & Estate Administration Book

435 page book Book elder law & estate administration including:

Everything you need to know about elder law & estate administration including:


• Why Have a Will? - Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client?


• Powers of Attorney - Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms


• Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool - Why it should be used; Ethics - who is the client?; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms


• Basic Tax Considerations - Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters


• Estate Administration - New Probate Law in New Jersey - Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists


• Medicaid Planning in Light of Federal Medicaid Reform - Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules; probate; undue influence; competency
…and more

DOCKET NO. A-5673-09T4 IN THE MATTER OF THE ESTATE OF GERALDINE PARKS, Deceased.

DOCKET NO. A-5673-09T4

IN THE MATTER OF THE ESTATE OF GERALDINE PARKS, Deceased.

_______________________________________________

Submitted May 4, 2011 – Decided May 13, 2011

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, Docket No. P621-10.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONIn this appeal, Heather Fernandes, a beneficiary of her mother's estate, appeals an order that granted respondent Glenn A. Coleman -- a removed co-executor -- compensation for his performance as a co-executor and reimbursement of certain legal fees incurred. Because the trial judge failed to explain his rulings, we remand.

The limited record presented by these pro se litigants reveals that Geraldine Parks died on February 12, 2008. She had six children: Georgia, Heather, Russell, Patricia, Phillip, and

Glenn.1 Decedent's Will named two of them -- Glenn and Russell -- as co-executors. Difficulties with the administration of the estate surfaced, resulting in an application brought by Glenn for: the removal of both he and Russell as executors; the appointment of an attorney to act as administrator; and reimbursement for certain expenses he claimed to have incurred.

Heather, Russell, Georgia, Phillip, and Glenn's attorney appeared in court on December 7, 2009, the return date of the order to show cause. Although the moving and opposing papers were not included in the record on appeal, we assume from the transcript of the proceedings on that date that Glenn had moved to be discharged because of his own illness and the fact that he resides in North Carolina, circumstances that rendered difficult his ability to administer the estate; Russell's removal was sought on the claim that he had misappropriated or mismanaged estate property. The judge did not conduct an evidentiary hearing but instead permitted Heather, Russell, Georgia, and Phillip, all of whom were unrepresented, to express their positions. Russell opposed his own removal; Heather questioned the veracity of Glenn's contentions as to his performance in managing the estate and his alleged inability to continue in that role; Georgia expressed concern about Glenn's removal

1We refer to them by their first names to avoid confusion.

2

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before providing an accounting; and Phillip also argued Glenn should not be removed until he provided an accounting. Citing Glenn's "purported health condition and the fact that he's out of state," the judge concluded that he would "permit [Glenn] to resign as executor," but directed that he provide an informal accounting within sixty days. As for Russell, the judge concluded that he was "satisfied that there is a sufficient issue here warranting his removal as executor based upon the allegations of misappropriation here that have been referred to the prosecutor's office." The judge appointed an attorney to administer the estate.

The informal accounting was timely provided, and the matter back before the judge on February 9, 2010. At that time, the administrator appeared, as well as Heather, Georgia, and Phillip; Glenn appeared by telephone. At that time, Heather provided specifics as to why she believed Glenn's performance as co-executor was inadequate; the record on appeal does not contain any written exceptions that she filed nor does it reveal whether she even filed written exceptions. When the parties completed their arguments, the judge reserved decision.

On March 11, 2010, the judge entered an order that approved the informal accounting with the exception that he found Glenn was not entitled to reimbursement for legal fees expended in

3

A-5673-09T4

seeking to be relieved as co-executor but was permitted reimbursement of $525, which was paid to the attorney "in connection with the appointment of the Administrator following removal of the Executors." The judge attached to the order a

statement

of reasons, the entirety of which is as follows:

The co-executors were removed for cause and any commissions ordinarily payable to them are forfeited under N.J.S.A. § 3B:18-5. Equity dictates that the harm to other beneficiaries based upon time delay warrants a finding that a portion of the counsel fees sought as reimbursement by [Glenn] be forfeited. A portion, however, benefited the entire Estate and should be paid as an expense of administration.

The Administrator is entitled to legal fees under N.J.S.A. § 3B:18-6 and commissions under N.J.S.A. § 3B:18-4 and N.J.S.A. § 3B:18-16.

The order also contained a provision that reduced the proposed distribution to Russell by what he owed the estate; this provision declared that the balance of the distribution to Russell "shall be held until all outstanding matters are resolved."

Glenn later moved for reconsideration of that part of the March 11, 2010 order that limited the reimbursement of attorneys' fees expended in the initial application and that barred his recovery of a commission. He argued, among other things, that he had sought his own discharge as co-executor

4

A-5673-09T4

"[n]ot because he had done anything wrong, but because for medical reasons and personal reasons, he no longer wished to continue in his role" and that the judge must have mistakenly "lumped together" Glenn and Russell when he ruled on the informal accounting. In the colloquy between the judge and Glenn's attorney, the judge seemed to agree that he "may have juxtaposed" Glenn and Russell, and that he would have to "take a look at that" before ruling on the motion.

Heather opposed reconsideration, criticizing Glenn's performance as co-executor to the extent that would justify the terms of the judge's March 11, 2010 order. Heather also argued the motion was filed beyond the time frame set forth in Rule 4:49-2, to which the judge responded that he could "always correct a mistake" and that, after listening to the parties' arguments, he felt "about 99 percent sure I made a mistake when I entered this order the way I did." The judge, however, reserved decision in order "to go back over everything that was presented at that time and make sure that . . . this is what I intended."

On June 24, 2010, the judge entered an order that granted reconsideration and directed that Glenn be reimbursed $2620 in legal fees and $280.41 in costs, which were incurred when he sought to be relieved as co-executor. The order also permitted

5

A-5673-09T4

compensation to Glenn, pursuant to N.J.S.A. 3B:18-13, in the amount of $2500. The record does not reveal that the judge provided any oral or written decision to explain the reasons for entry of this order.

Heather filed a timely appeal from the June 24, 2010 order. We glean from her pro se brief that she argues, among other things: that Glenn was removed as co-executor for cause; that the March 11, 2010 order was correct and appropriate; and that the motion for reconsideration was untimely, thereby depriving the judge of jurisdiction to enter the June 24, 2010 order. We cannot presently reach these issues on their merits because of the judge's failure to express the reasons for the June 24, 2010 order, pursuant to Rule 1:7-4(a).

Litigants and appellate courts are entitled to a trial judge's rationale when reviewing his actions. See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980); Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006). For that reason alone, we remand this matter to the trial court. In addition, it is not clear to us whether the March 11, 2010 order was a final order; that question is critical to determining whether the trial court had jurisdiction to enter the June 24, 2010 order. If the March 11, 2010 order was final -- that is, if it disposed of all issues as to all parties -- then the motion for reconsideration

6

A-5673-09T4

was untimely because it was filed more than twenty days from service of the order in question. See R. 4:49-2. And, if the motion for reconsideration was untimely, the judge did not have jurisdiction to rule on it.2 If, however, the March 11, 2010 order was not a final order, then the judge was authorized to reconsider it at any time prior to the entry of a final judgment. See R. 4:42-2.

We, thus, remand for the judge's analysis of the circumstances relevant to whether the March 11, 2010 order was a final order. As observed earlier, that order directed that the distribution to Russell was to "be held until all outstanding matters are resolved." In this setting, and in light of the limited record on appeal, that direction may or may not suggest there were issues remaining to be resolved in this action. For example, because the record does not include the complaint or any responsive pleadings filed in this action, we cannot determine whether there were claims asserted in this action that relate to the judge's reference to "outstanding matters"; that phrase, however, could also be a reference to the additional work yet to be accomplished by the administrator with regard to

2The twenty-day time limit contained in Rule 4:49-2 may not be enlarged. See R. 1:3-4(c); Eastampton Ctr., LLC v. Planning Bd. of Twp. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002).

7

A-5673-09T4

this estate. If the former, then it would seem the March 11, 2010 order was not a final order; if the latter, it may be. See Higgins v. Thurber, 413 N.J. Super. 1, 12-13 (App. Div. 2010), aff'd o.b., 205 N.J. 227 (2011). The judge should identify for us the circumstances relevant in determining whether the March 11, 2010 order is final.

The judge is also to provide a statement of reasons for granting the June 24, 2010 order as required by Rule 1:7-4(a).

Remanded. We do not retain jurisdiction.

8

A-5673-09T4


DOCKET NO. A-5673-09T4 IN THE MATTER OF THE ESTATE OF GERALDINE PARKS, Deceased.

DOCKET NO. A-5673-09T4

IN THE MATTER OF THE ESTATE OF GERALDINE PARKS, Deceased.

_______________________________________________

Submitted May 4, 2011 – Decided May 13, 2011

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County, Docket No. P621-10.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONIn this appeal, Heather Fernandes, a beneficiary of her mother's estate, appeals an order that granted respondent Glenn A. Coleman -- a removed co-executor -- compensation for his performance as a co-executor and reimbursement of certain legal fees incurred. Because the trial judge failed to explain his rulings, we remand.

The limited record presented by these pro se litigants reveals that Geraldine Parks died on February 12, 2008. She had six children: Georgia, Heather, Russell, Patricia, Phillip, and

Glenn.1 Decedent's Will named two of them -- Glenn and Russell -- as co-executors. Difficulties with the administration of the estate surfaced, resulting in an application brought by Glenn for: the removal of both he and Russell as executors; the appointment of an attorney to act as administrator; and reimbursement for certain expenses he claimed to have incurred.

Heather, Russell, Georgia, Phillip, and Glenn's attorney appeared in court on December 7, 2009, the return date of the order to show cause. Although the moving and opposing papers were not included in the record on appeal, we assume from the transcript of the proceedings on that date that Glenn had moved to be discharged because of his own illness and the fact that he resides in North Carolina, circumstances that rendered difficult his ability to administer the estate; Russell's removal was sought on the claim that he had misappropriated or mismanaged estate property. The judge did not conduct an evidentiary hearing but instead permitted Heather, Russell, Georgia, and Phillip, all of whom were unrepresented, to express their positions. Russell opposed his own removal; Heather questioned the veracity of Glenn's contentions as to his performance in managing the estate and his alleged inability to continue in that role; Georgia expressed concern about Glenn's removal

1We refer to them by their first names to avoid confusion.

2

A-5673-09T4

before providing an accounting; and Phillip also argued Glenn should not be removed until he provided an accounting. Citing Glenn's "purported health condition and the fact that he's out of state," the judge concluded that he would "permit [Glenn] to resign as executor," but directed that he provide an informal accounting within sixty days. As for Russell, the judge concluded that he was "satisfied that there is a sufficient issue here warranting his removal as executor based upon the allegations of misappropriation here that have been referred to the prosecutor's office." The judge appointed an attorney to administer the estate.

The informal accounting was timely provided, and the matter back before the judge on February 9, 2010. At that time, the administrator appeared, as well as Heather, Georgia, and Phillip; Glenn appeared by telephone. At that time, Heather provided specifics as to why she believed Glenn's performance as co-executor was inadequate; the record on appeal does not contain any written exceptions that she filed nor does it reveal whether she even filed written exceptions. When the parties completed their arguments, the judge reserved decision.

On March 11, 2010, the judge entered an order that approved the informal accounting with the exception that he found Glenn was not entitled to reimbursement for legal fees expended in

3

A-5673-09T4

seeking to be relieved as co-executor but was permitted reimbursement of $525, which was paid to the attorney "in connection with the appointment of the Administrator following removal of the Executors." The judge attached to the order a

statement

of reasons, the entirety of which is as follows:

The co-executors were removed for cause and any commissions ordinarily payable to them are forfeited under N.J.S.A. § 3B:18-5. Equity dictates that the harm to other beneficiaries based upon time delay warrants a finding that a portion of the counsel fees sought as reimbursement by [Glenn] be forfeited. A portion, however, benefited the entire Estate and should be paid as an expense of administration.

The Administrator is entitled to legal fees under N.J.S.A. § 3B:18-6 and commissions under N.J.S.A. § 3B:18-4 and N.J.S.A. § 3B:18-16.

The order also contained a provision that reduced the proposed distribution to Russell by what he owed the estate; this provision declared that the balance of the distribution to Russell "shall be held until all outstanding matters are resolved."

Glenn later moved for reconsideration of that part of the March 11, 2010 order that limited the reimbursement of attorneys' fees expended in the initial application and that barred his recovery of a commission. He argued, among other things, that he had sought his own discharge as co-executor

4

A-5673-09T4

"[n]ot because he had done anything wrong, but because for medical reasons and personal reasons, he no longer wished to continue in his role" and that the judge must have mistakenly "lumped together" Glenn and Russell when he ruled on the informal accounting. In the colloquy between the judge and Glenn's attorney, the judge seemed to agree that he "may have juxtaposed" Glenn and Russell, and that he would have to "take a look at that" before ruling on the motion.

Heather opposed reconsideration, criticizing Glenn's performance as co-executor to the extent that would justify the terms of the judge's March 11, 2010 order. Heather also argued the motion was filed beyond the time frame set forth in Rule 4:49-2, to which the judge responded that he could "always correct a mistake" and that, after listening to the parties' arguments, he felt "about 99 percent sure I made a mistake when I entered this order the way I did." The judge, however, reserved decision in order "to go back over everything that was presented at that time and make sure that . . . this is what I intended."

On June 24, 2010, the judge entered an order that granted reconsideration and directed that Glenn be reimbursed $2620 in legal fees and $280.41 in costs, which were incurred when he sought to be relieved as co-executor. The order also permitted

5

A-5673-09T4

compensation to Glenn, pursuant to N.J.S.A. 3B:18-13, in the amount of $2500. The record does not reveal that the judge provided any oral or written decision to explain the reasons for entry of this order.

Heather filed a timely appeal from the June 24, 2010 order. We glean from her pro se brief that she argues, among other things: that Glenn was removed as co-executor for cause; that the March 11, 2010 order was correct and appropriate; and that the motion for reconsideration was untimely, thereby depriving the judge of jurisdiction to enter the June 24, 2010 order. We cannot presently reach these issues on their merits because of the judge's failure to express the reasons for the June 24, 2010 order, pursuant to Rule 1:7-4(a).

Litigants and appellate courts are entitled to a trial judge's rationale when reviewing his actions. See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980); Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006). For that reason alone, we remand this matter to the trial court. In addition, it is not clear to us whether the March 11, 2010 order was a final order; that question is critical to determining whether the trial court had jurisdiction to enter the June 24, 2010 order. If the March 11, 2010 order was final -- that is, if it disposed of all issues as to all parties -- then the motion for reconsideration

6

A-5673-09T4

was untimely because it was filed more than twenty days from service of the order in question. See R. 4:49-2. And, if the motion for reconsideration was untimely, the judge did not have jurisdiction to rule on it.2 If, however, the March 11, 2010 order was not a final order, then the judge was authorized to reconsider it at any time prior to the entry of a final judgment. See R. 4:42-2.

We, thus, remand for the judge's analysis of the circumstances relevant to whether the March 11, 2010 order was a final order. As observed earlier, that order directed that the distribution to Russell was to "be held until all outstanding matters are resolved." In this setting, and in light of the limited record on appeal, that direction may or may not suggest there were issues remaining to be resolved in this action. For example, because the record does not include the complaint or any responsive pleadings filed in this action, we cannot determine whether there were claims asserted in this action that relate to the judge's reference to "outstanding matters"; that phrase, however, could also be a reference to the additional work yet to be accomplished by the administrator with regard to

2The twenty-day time limit contained in Rule 4:49-2 may not be enlarged. See R. 1:3-4(c); Eastampton Ctr., LLC v. Planning Bd. of Twp. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002).

7

A-5673-09T4

this estate. If the former, then it would seem the March 11, 2010 order was not a final order; if the latter, it may be. See Higgins v. Thurber, 413 N.J. Super. 1, 12-13 (App. Div. 2010), aff'd o.b., 205 N.J. 227 (2011). The judge should identify for us the circumstances relevant in determining whether the March 11, 2010 order is final.

The judge is also to provide a statement of reasons for granting the June 24, 2010 order as required by Rule 1:7-4(a).

Remanded. We do not retain jurisdiction.

8

A-5673-09T4


DOCKET NO. A-2660-08T1 IN THE MATTER OF THE ESTATE OF ROCCO S. STEZZI, SR. DECEASED

DOCKET NO. A-2660-08T1

IN THE MATTER OF THE ESTATE OF ROCCO S. STEZZI, SR. DECEASED. ______________________________

Submitted May 2, 2011 – Decided May 17, 2011

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Gloucester County, Docket No. 07-955.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


PER CURIAM In this unopposed appeal, plaintiff Rocco S. Stezzi, Jr.,

pro se, appeals the Chancery Division's sua sponte order dated December 9, 2008 summarily dismissing his complaint in this litigation challenging his late father's will. For the reasons that follow, we vacate the dismissal order and remand this matter to the trial court for further proceedings.

Plaintiff's contentions relate to a will that his father, Rocco S. Stezzi, Sr., executed in July 2006. The will left the father's entire estate to plaintiff's sister, Kathleen Ferrante,

naming her as the executrix.1 Plaintiff alleges in his pleadings, upon information and belief, that the father's 2006 will superseded an earlier will from 1984, which plaintiff contends that the father executed at or around the same time plaintiff's mother executed her will. Plaintiff contends, also upon information and belief, that the 1984 wills of both parents had reciprocal terms. In the mother's will, a copy of which plaintiff supplied in the record, she left all of her assets to the father, with her children (including plaintiff) and her grandchildren designated as contingent beneficiaries. Plaintiff has not furnished a copy of the father's alleged reciprocal will from 1984.

The mother predeceased the father in October 2006, and her will was probated in Pennsylvania. The father died in August 2007, at the age of ninety-one. Shortly thereafter, Ferrante submitted the July 2006 will to be probated in the Chancery Division. In February 2008, plaintiff filed a pro se complaint in the Chancery Division in an effort to invalidate the July 2006 will, which had disinherited him.

After filing the complaint, plaintiff retained counsel to represent him in the litigation. His attorneys then drafted and

1 proceedings, but did not file a responding brief on the appeal.

Ferrante was represented by counsel in the trial court

2

A-2660-08T1

filed a four-count amended complaint. The first count of the complaint alleged that the father had suffered from dementia beginning as early as 2005, and that he lacked the capacity to make the 2006 will. The second count of the amended complaint alleged that Ferrante exercised undue influence over the father, who had lived with her full time since March 2005 and had become dependent upon her after the mother's death. The second count further alleged that Ferrante arranged to have decedent's insurance policies transferred to New Jersey, that she took control of the father's financial decisions, and that she took improper advantage of her confidential relationship with her father. The undue influence count further alleged that, over the last few years of the father's life, Ferrante denied plaintiff access to his father.

Both the first and second counts of the amended complaint sought a declaration that the father's 2006 will was invalid, and a declaration that either the supposed 1984 will be enforced or, alternatively, a declaration that the father died intestate, thereby enabling plaintiff to receive a share of the father's estate under the intestacy statutes. The third count of the amended complaint sought an accounting from Ferrante (as power of attorney) of the disposition of the father's assets during his lifetime, and the fourth count requested an accounting from

3

A-2660-08T1

her (as executrix under the 2006 will) of the disposition of the assets of the father's estate.

Eventually, disagreements arose between plaintiff and his counsel, which culminated with the court granting counsel's request to be relieved in October 2008.

Plaintiff and opposing counsel for Ferrante appeared in court on December 9, 2008 for a case management conference to review the status of the litigation. The conference had been arranged by the court in lieu of trial after plaintiff had advised the court that he was not prepared to proceed on the date listed for trial. As the judge described it at its outset, the purpose of the conference was to ascertain "what needs to be done to prepare for a full, final hearing, and how long that's going to take."

After lengthy colloquy on the record at the case management conference, the trial judge summarily dismissed the complaint, sua sponte. The judge essentially found that plaintiff was not prepared to try the case and that the legal basis of his contentions had not been sufficiently articulated. On December 15, 2008, the judge amplified on the record his rationale for dismissing the complaint. The judge perceived, among other things, that plaintiff's request for relief was unclear and that his pro se arguments were not comprehensible, that plaintiff

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lacked a sufficient understanding as to how the case would proceed and what the issues were; that he "exhibited a clear misunderstanding" of the discovery process; and that he "exhibited a clear intention not to cooperate with the [c]ourt and not to cooperate with opposing counsel in terms of discovery." The judge also noted that plaintiff had sent numerous pieces of correspondence to the assignment judge, the local judicial ombudsman, and others in the courthouse, apparently expressing dissatisfaction with how his case was being handled. The judge also alluded to cases in other tribunals in which plaintiff's claims had been dismissed as unmeritorious. The judge explained that he was referring to those other cases for illustrative purposes, and that he was not citing them as authoritative.

This appeal followed. Plaintiff contends that the dismissal of the complaint was contrary to Rule 4:37-2; that he was denied due process; that the trial court unfairly sanctioned him; that the court's post-hearing amplification of its reasons was improper; that the court should not have referred to other litigation involving him; and that the court improperly communicated with defendant's counsel about outstanding discovery. As we have already noted, plaintiff's appeal is unopposed.

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Having considered the record supplied to us and the procedural posture of the case in the trial court, we vacate the court's sua sponte order of dismissal and remand for further proceedings. In doing so, we appreciate the trial court's frustration in dealing with a pro se litigant who presented difficulties and who was often digressive and at times disrespectful. Even so, the record furnished to us does not reflect that plaintiff was given appropriate notice prior to the case management conference that his complaint could be dismissed that day as a sanction if he was unable to proffer viable evidentiary support for the legal assertions set forth in his amended complaint. See Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83-85 (App. Div. 2001) (setting aside the trial court's sua sponte order summarily dismissing a complaint after a conference on the scheduled trial date, where the plaintiff had failed to satisfy the judge's concerns about the sufficiency of his claims). Plaintiff was not found in specific violation of the terms of any prior court orders. Cf. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 520 (1995) (holding that the trial court did not abuse its discretion in dismissing a complaint, upon defendant's motion, due to plaintiff's "deliberate disregard of discovery orders"). Notably, defense counsel did not move for dismissal, despite

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being invited by the court at the management conference to state his position. There was no motion pending for summary judgment. Under the circumstances, the sua sponte order of dismissal was premature. See Klier, supra, 337 N.J. Super. at 84-85.

We consequently remand the matter for additional proceedings. In doing so, we note that the same outcome on the merits may or may not ensue, after either dispositive motion practice is conducted under Rule 4:46, or after proofs are adduced at a trial. We simply hold that the dismissal was premature and was not preceded by the appropriate notice and procedural safeguards.

Vacated and remanded. Jurisdiction is not retained.

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DOCKET NO. A-2660-08T1 IN THE MATTER OF THE ESTATE OF ROCCO S. STEZZI, SR. DECEASED

DOCKET NO. A-2660-08T1

IN THE MATTER OF THE ESTATE OF ROCCO S. STEZZI, SR. DECEASED. ______________________________

Submitted May 2, 2011 – Decided May 17, 2011

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Gloucester County, Docket No. 07-955.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


PER CURIAM In this unopposed appeal, plaintiff Rocco S. Stezzi, Jr.,

pro se, appeals the Chancery Division's sua sponte order dated December 9, 2008 summarily dismissing his complaint in this litigation challenging his late father's will. For the reasons that follow, we vacate the dismissal order and remand this matter to the trial court for further proceedings.

Plaintiff's contentions relate to a will that his father, Rocco S. Stezzi, Sr., executed in July 2006. The will left the father's entire estate to plaintiff's sister, Kathleen Ferrante,

naming her as the executrix.1 Plaintiff alleges in his pleadings, upon information and belief, that the father's 2006 will superseded an earlier will from 1984, which plaintiff contends that the father executed at or around the same time plaintiff's mother executed her will. Plaintiff contends, also upon information and belief, that the 1984 wills of both parents had reciprocal terms. In the mother's will, a copy of which plaintiff supplied in the record, she left all of her assets to the father, with her children (including plaintiff) and her grandchildren designated as contingent beneficiaries. Plaintiff has not furnished a copy of the father's alleged reciprocal will from 1984.

The mother predeceased the father in October 2006, and her will was probated in Pennsylvania. The father died in August 2007, at the age of ninety-one. Shortly thereafter, Ferrante submitted the July 2006 will to be probated in the Chancery Division. In February 2008, plaintiff filed a pro se complaint in the Chancery Division in an effort to invalidate the July 2006 will, which had disinherited him.

After filing the complaint, plaintiff retained counsel to represent him in the litigation. His attorneys then drafted and

1 proceedings, but did not file a responding brief on the appeal.

Ferrante was represented by counsel in the trial court

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filed a four-count amended complaint. The first count of the complaint alleged that the father had suffered from dementia beginning as early as 2005, and that he lacked the capacity to make the 2006 will. The second count of the amended complaint alleged that Ferrante exercised undue influence over the father, who had lived with her full time since March 2005 and had become dependent upon her after the mother's death. The second count further alleged that Ferrante arranged to have decedent's insurance policies transferred to New Jersey, that she took control of the father's financial decisions, and that she took improper advantage of her confidential relationship with her father. The undue influence count further alleged that, over the last few years of the father's life, Ferrante denied plaintiff access to his father.

Both the first and second counts of the amended complaint sought a declaration that the father's 2006 will was invalid, and a declaration that either the supposed 1984 will be enforced or, alternatively, a declaration that the father died intestate, thereby enabling plaintiff to receive a share of the father's estate under the intestacy statutes. The third count of the amended complaint sought an accounting from Ferrante (as power of attorney) of the disposition of the father's assets during his lifetime, and the fourth count requested an accounting from

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her (as executrix under the 2006 will) of the disposition of the assets of the father's estate.

Eventually, disagreements arose between plaintiff and his counsel, which culminated with the court granting counsel's request to be relieved in October 2008.

Plaintiff and opposing counsel for Ferrante appeared in court on December 9, 2008 for a case management conference to review the status of the litigation. The conference had been arranged by the court in lieu of trial after plaintiff had advised the court that he was not prepared to proceed on the date listed for trial. As the judge described it at its outset, the purpose of the conference was to ascertain "what needs to be done to prepare for a full, final hearing, and how long that's going to take."

After lengthy colloquy on the record at the case management conference, the trial judge summarily dismissed the complaint, sua sponte. The judge essentially found that plaintiff was not prepared to try the case and that the legal basis of his contentions had not been sufficiently articulated. On December 15, 2008, the judge amplified on the record his rationale for dismissing the complaint. The judge perceived, among other things, that plaintiff's request for relief was unclear and that his pro se arguments were not comprehensible, that plaintiff

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lacked a sufficient understanding as to how the case would proceed and what the issues were; that he "exhibited a clear misunderstanding" of the discovery process; and that he "exhibited a clear intention not to cooperate with the [c]ourt and not to cooperate with opposing counsel in terms of discovery." The judge also noted that plaintiff had sent numerous pieces of correspondence to the assignment judge, the local judicial ombudsman, and others in the courthouse, apparently expressing dissatisfaction with how his case was being handled. The judge also alluded to cases in other tribunals in which plaintiff's claims had been dismissed as unmeritorious. The judge explained that he was referring to those other cases for illustrative purposes, and that he was not citing them as authoritative.

This appeal followed. Plaintiff contends that the dismissal of the complaint was contrary to Rule 4:37-2; that he was denied due process; that the trial court unfairly sanctioned him; that the court's post-hearing amplification of its reasons was improper; that the court should not have referred to other litigation involving him; and that the court improperly communicated with defendant's counsel about outstanding discovery. As we have already noted, plaintiff's appeal is unopposed.

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Having considered the record supplied to us and the procedural posture of the case in the trial court, we vacate the court's sua sponte order of dismissal and remand for further proceedings. In doing so, we appreciate the trial court's frustration in dealing with a pro se litigant who presented difficulties and who was often digressive and at times disrespectful. Even so, the record furnished to us does not reflect that plaintiff was given appropriate notice prior to the case management conference that his complaint could be dismissed that day as a sanction if he was unable to proffer viable evidentiary support for the legal assertions set forth in his amended complaint. See Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83-85 (App. Div. 2001) (setting aside the trial court's sua sponte order summarily dismissing a complaint after a conference on the scheduled trial date, where the plaintiff had failed to satisfy the judge's concerns about the sufficiency of his claims). Plaintiff was not found in specific violation of the terms of any prior court orders. Cf. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 520 (1995) (holding that the trial court did not abuse its discretion in dismissing a complaint, upon defendant's motion, due to plaintiff's "deliberate disregard of discovery orders"). Notably, defense counsel did not move for dismissal, despite

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being invited by the court at the management conference to state his position. There was no motion pending for summary judgment. Under the circumstances, the sua sponte order of dismissal was premature. See Klier, supra, 337 N.J. Super. at 84-85.

We consequently remand the matter for additional proceedings. In doing so, we note that the same outcome on the merits may or may not ensue, after either dispositive motion practice is conducted under Rule 4:46, or after proofs are adduced at a trial. We simply hold that the dismissal was premature and was not preceded by the appropriate notice and procedural safeguards.

Vacated and remanded. Jurisdiction is not retained.

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