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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

4

A-2660-08T1

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.

5

A-2660-08T1

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

6

A-2660-08T1

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.

7

A-2660-08T1

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

4

A-2660-08T1

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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